' Chartered Bank, respondent No,5 in this civil revision filed a suit for recovery of Rs,5,88,838.56 with interest at the rate of 14% per annum plus penal interest at the rate of 2% per annum against respondents Nos,1 to 4 on account of grant of overdraft facility and hence accumulated loan to respondent No,1 on the asking of respondents Nos, 2 to 4 and, their predecessor-in-interest late Ch. Muhammad Siddiq a senior pertner of the Firm. It is alleged that defendant No,1 executed a 'Letter of Hypothecation' on 20-4-1968, whereby stock in trade present and future consisting of stocks of timber were hypothecated with the plaintiff Bank as a security for the loan. It is further alleged in para. 4 of the plaint that predecessor-in-interest of respondents Nos,2 to 4, who was a senior partner of respondent No,1 executed a memorandum of deposit of Title Deeds dated 25-11-1971 admitting the deposit of title deeds namely an agreement for sale dated 19-6-1991 executed between Lahore Improvement Trust, Lahore and Ch, Muhammad Siddiq deceased pertaining to plot No,97 measuring 4 Kanals, 6 Marlas 114 Sq.Ft situate at Shah Jamal Scheme, Lahore and receipt No,985 dated 3-6-1961 issued by Lahore Improvement Trust, and, a treasury challan receipt dated 17-6-1963 for Rs,30,690.67 and thereby created an equitable mortgage over his rights/interests in the said property as a collateral security for the repayment of the loan advanced to defendant No,1.
In para. 5 of the plaint, it is stated that after the death of Ch. Muhammad Siddiq referred to above, defendants-respondents Nos,2 to 4 executed on 24-6-1976, three additional documents namely a letter of hypothecation, a letter of lien over the book-debts of defendant No,1, and a letter of `hepothecation and pledge' in favour of the plaintiff-Bank to further secure the loan. Another memorandum of deposit of title deeds was executed on 19-6-1976 by defendants Nos,2 to 4 re- affirming the deposit of the documents of title namely an agreement for sale dated 19-6-1991 and two receipts pertaining to plot No,97 Shah Jamal Scheme, Lahore, with the plaintiff-Bank and the creation of an equitable mortgage over the said property as a security for the repayment of the loan amount. It is further stated in the same paragraph of the plaint that defendants-respondents Nos,2 to 4 vide letter dated 9-6-1976 informed the plaintiff about the demise of their father and at the same time they acknowledged and owned the liability of the dissolved partnership i,e, Asain Body Building Works, respondent No,1 and requested the plaintiff-Bank to open a new partnership account, and, in this manner, the Firm-respondent No,1 was apparently reconstituted. This suit is being contested by respondents Nos,1 to 4. Almost two years after the institution of the suit, Mst.
Fazal Bibi, widow of Ch. Muhammad Siddiq filed an application for being impleaded as a party to the suit on the ground that she is a necessary party, as the property which is now a Bungalow, ultimately may be sold in satisfaction of the decree which may be passed in the suit, belongs to her to the extent of 1/8th share therein as heir of Ch. Muhammad Siddiq deceased. It is stated in the application that the bungalow has been built on the plot in question and in case of decee which may be passed in the suit, her rights shall be adversely affected. This application has been contested by respondent No,5. Learned Special Judge Banking, vide order dated 5-1-1984 dismissed the application holding that as the suit has been filed by a stranger against the assets of the deceased which is contested by three sons of the deceased guarantor, non-impleadment of the widow as a party shall not materially affect the rights of the petitioner inasmuch as the interest of the widow is being effectively watched by his three sons. The order passed by the learned Special Judge, Banking was initially challenged by the petitioner by way of a Civil Revision No,351/84, but vide order dated 23-1-1991, civil revision was converted as a writ petition and was numbered as Writ Petition No, 708 of 1991.
2. In support of the writ petition, learned counsel for the petitioner has contended that as the petitioner is admittedly an heir of Ch. Muhammad Siddiq deceased to the extent of 1/8th share in the property left by him which 4 subject-matter of the suit and which property shall be sold in case of passing of a decree in favour of respondent No,5, hence the petitioner is a necessary party.
Learned counsel further contends that as per provision of Order 34, Rule 1, C.P.C. The petitioner must have been added as a party to the suit as she is a necessary party. Consquently, according to the learned counsel findings of the learned trial Court to the effect that the petitioner is not a necessary party and further that she need not be impleaded as a party to the suit inasmuch as her interest is being watched by his three sons are illegal, and as such the order passed by the learned trial Court is without lawful authority. Learned counsel further argued that as per contentions raised in para. 5 of the plaint itself, guarantee to the debt has already been discharged and the Bank has already accepted reconstitution of a new firm and had accepted acknowledgement of liability made by the new partner. Hence the respondent No,5 has no lien against the property in question qua the rights of the petitioner, as such she has a right to be impleaded as party to the suit and to defend the same as a decree passed therein shall affect her adversely.
' Mian Munawar Hussain, learned counsel for respondent No,5 vehemently argued that the application is delayed; the petitioner is not a necessary nor a proper party for the reasons that as per provisions of Mohammedan Law, estate of the deceased shall be inherited by the heirs only after the amount of debt is discharged and therefore it cannot be said that the petitioner is in any way interested in the result of the suit at this stage. Learned counsel in this behalf has relied upon judgment reported as National Commercial Bank Ltd., Karachi v. Nazir Ahmad Qureshi through Legal Heirs 1980 CLC 1794. Learned counsel has further contended that the interest of the petitioner is being fully watched by her three sons who are already party to the suit and her impleadment will prolong litigation and will be a futile exercise, inasmuch as the suit being barred by time as against her in view of the provisions of section 22 of the Limitation Act read with Order I, Rule 10, C.P.C. The same shall ultimately by dismissed against her. Learned counsel has further argued that writ petition is not maintainable against an interim order. Reliance in this behalf has been placed by the learned counsel on the judgments reported as House Building Finance Corporation v.
M/s.Shahenshah Jahangir Cooperative House Building Society and others 1982 CLC 103 (Karachi), M/s. Salman Mehmood Cotton Ginners, Kabirwala v. Special Judge Banking and others PLD 1982 Lah. 353 and Pakistan through Secretary Ministry Foods and Agriculture v. Special Court Banking, Sindh and others 1991 SCMR 2355.
3. I have gone through the record of the case and have considered the arguments addressed by the learned counsel for the patties. It is clear from the contents of para. 5 of the plaint that the respondent Bank acknowledged the constitution of a new firm which had owned the liability of the dissolved firm and a new Bank account was also opened in the name of new firm. It is also an admitted fact that the property which is the subject-matter of the suit belongs to the petitioner to the extent of 1/8th share. The provisions of Order XXXIV, Rule 1, C.P.C. Which will govern the case in hand clearly provide that all the persons who are interested in the mortgaged property which ultimately may be sold in pursuance of a decree which may be passed in the suit are necessary parties. Petitioner being a widow is an heir of Ch. Muhammad Siddiq deceased and is entitled to inherit him to the extent of 1/8th share of his property. It is also not denied that the plot which was mortgaged is now a built up property and is in the shape of a bungalow, which is a joint property of the petitioner and her sons. Consequently, it cannot be said that the petitioner is not interested in the result of the suit and shall not be adversely affected in case the same is. Decreed. Judgment referred by the learned counsel 1980 CLC 1794 is distinguishable on the facts and is not at all attracted to the facts and circumstances of the case.
4. Argument addressed by the learned counsel for the respondents that the application is delayed is also of no substance. In fact, respondent No,5 should have impleaded the petitioner as party at the time of institution of the suit. If the Bank has failed to implead a necessary party, who herself has come forward to be impleaded as party, it cannot be said that delay in filing of the application shall be fatal. Merely because the suit against her shall be barred by time due to a lapse on the part of respondent No,5 is not a ground for dismissal of the application filed by the petitioner.
Argument of the learned counsel to the effect that the interest of the petitioner is being watched by her sons is also without any substance. If the petitioner wants to watch her interest herself, there is nothing illegal, if she is allowed to do so by impleading her as a party to the suit. Even otherwise it is quite fair and is in the interest of justice that the whole gamut of dispute is finally resolved in one suit. On this account as well petitioner is entitled to be impleaded as a party and it is rather in the interest of plaintiff-respondent.
' Argument of the learned counsel to the effect that the order of dismissal of the application being an interim order is not challengeable in exercise of the Constitutional jurisdiction of this Court, is also incorrect. No doubt, it has been held by their Lordships of the Supreme Court in various judgments as well as by this Court that interim orders ordinarily should not be allowed to be brought under challenge in exercise of Constitutional jurisdiction, yet it has not been held that an interim order which is in fact of the nature of a final order qua the person concerned is not challengeable in exercise of the Constitutional jurisdiction of this Court. Under any circumstances in a recent judgment rendered by Honourable Supreme Court of Pakistan Muhammad Zahoor and others v. Lal and 2 others 1988 SCMR 322, it has been held that a writ petition is competent against an order of revisional Court whereby interim order of amendment of written statement was illegally set aside. It has been held further that jurisdiction is to be exercised only in exceptional cases where conditions prescribed under Article 199 of the Constitution are satisfied. Hence, it cannot be said that a writ petition is not competent against an interim order under any circumstances. The judgments referred to by the learned counsel are distinguishable on facts and therefore are not applicable to the facts of the case in hand, wherein an admitted heir of a deceased person has been refused impleadment as a party in a suit where the estate of the deceased is the subject- matter and in which suit if a decree is passed leaving her out, she also shall be adversely affected.
Even otherwise, the impugned order is violative of the provision of Order XXXIV, Rule 1, C.P.C. And hence being illegal is without lawful authority as per law laid down by their Lordships of the Supreme Court in a judgment reported as PLD 1987 SC 447 Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal. Consequently, the writ petition is competent and the impugned order is challengeable in exercise of the writ jurisdiction of this Court.
' In view of the above, I accept the writ petition, set aside the order dated 5-1-1984 passed by the learned Special Judge Banking, Lahore and direct that the petitioner be impleaded as defendant in the suit. As an important legal question was involved in the writ petition; parties are left to bear their own costs.