ABDUL RAHIM KAZI, J.- This application has been moved by the defendants under Rule 168 of the Sindh Chief Court Rules (O.S.) Facts of the case are that the present plaintiffs have filed the suit for recovery of Rs.1,35,59,000/- with mark up at the State rank rates, with quarterly rests from the date of filing of this till such time payment is made. The plaintiffs case briefly is that on 12.12.1986 the plaintiffs had entered into a contract with M/s. National Construction Company (Pakistan) Ltd.
(hereinafter referred to as NCC'), for the construction of "re-modelling of Distribute System of Lower Swat Canal-Mandran Scrap" with the commenced date being 4.2.1987, and date of completion as 27.2.1990. It is also alleged that the NCC furnished a performance bond from the defendants who executed and delivered to the plaintiffs a bond/guarantee on 26.12.1986 in the abovesaid sum on behalf of the NCC, undertaking to pay the said amount in the event of default in due performance of the contract and/or failure by NCC to make payment under the bond to the plaintiff, further it is alleged that it not being possible for the NCC to complete the project'in time, Consequently the plaintiffs served 14 days Expulsion Notice upon the NCC on June 18, 1988 in accordance with the condition of the Contract Part-1 and on the expiry of the said period entered upon the site. The plaintiffs have, therefore, filed the suit against the defendants claiming the above amount. The defendants have moved this application and alongwith the application they have also filed a copy of the Counter Guarantee in support of the performance of the above said bond for the said amount where by the NCC have undertaken and unconditionally agreed to indemnify and reimburse on demand any lesses, costs, damages and expenses and any and all liabilities arising, resulting, sustained or incurred out of the guarantee bond executed by the defendants and given to the plaintiffs. The plaintiffs have filed their counter-affidavit contesting this application.
2. I have heard the learned counsel for the parties. Mr. A.Rauf, appearing for the defendants/applicants has referred to Rule 168 of the Sindh Chief Court Rules (O.S.) and has submitted that where the court comes to the conclusion that the 3rd party is a necessary party to the suit the court may take proceedings under this rule on an application by the defendants even "ex party". The learned counsel has further submitted that the plaintiffs has no locus standi to raise any objection to such application as the court can proceed even "ex party". He has also submitted that the counter-guarantee makes NCC liable to the defendants for payment of the said amount for which the defendants had stood guarantor before the plaintiffs and such claim of defendants is continual of the same cause. As against this Mr. Fazle Ghani, learned counsel for the plaintiffs, has submitted that this Counter-gurantee was takep separately by the defendants from the NCC for their own safety and there was no privity of contract between the plaintiffs and the NCC. He has further submitted that this application has been moved with a view to protract the proceedings and there is no nexus of the 3rd party in the suit. Both the learned counsel have relied upon case law.
3. First case cited at bar is that of Kh. Muhammad Iqbal vs.. MA. Shirazee and another (PLD 1968 Karachi 1). However, the 3rd party proceedings in this case were taken and issues were framed and evidence was recorded and a decree for Rs.17,400/- was passed against the 3rd party while the decree for remaining amount was against the defendant. The 3rd party had challenged the said decree in appeal his appeal was dismissed. It was observed:- "In our opinion this contention has no force for the simple reason that in order to claim the benefit of rule 168 it is not necessary that the right of indemnity should arise always out of same contract between the parties, though in the present case the learned single Judge has come to the conclusion that the appellant had given an assurance to the Respondent No.1 that they would indemnify him in case he was made liable for the payment of the said amount from his account."
The other case eked at bar is an un-reported Judgment of a Division Bench of this Court in IPA No.67/68- The Premier Insurance Company of Pakistan Ltd, vs United Oriental Steamship Co and others. I have considered the above submissions of the learned counsel for the parties and case law cited at bar. The object of the rule 168 is to shorten the time of litigation and to avoid the multiplicity of the litigation. It is to be seen the defendants are entitled to any contribution or indemnity from the 3rd party in respect of claim in suit and if so then a notice has to issue to that effect to 3rd party and court may give such leave even on an ex party daim. It may also be observed that in such proceedings the necessary and proper party can be impleaded according to the subject matter of the suit. It may further be observed that the defendants in order to claim benefit of Rule 168 have to show that they have a right which is enforceable either at law or equity.
It may not be necessary that such right arises out of the contract. In the present case the cause of action for the plaintiffs to file the suit had accrued on account of contract with the NCC which the NCC has failed to fulfil and for which the defendants have stood a guarantee. In terms of aunter guarantee the NCC had undertaken to indemnify the defendants for any losses etc., sustained by the defendants. Under these circumstance I am inclined to allow this application. Let the 3rd party notice be issued to the National Construction Co. (Pakistan) Ltd. As prayed and the be called-upon to file their written-statement.