' AJMAL MIAN, J.--- This is an appeal with the leave of this Court against the judgment dated 12-7- 1990 passed by a Division Bench of the High Court of Sindh in Admiralty Appeal No, 1 of 1990, filed by respondent No,1 against the order of a learned Single Judge dated 21-11-1989 in Admiralty Suit No, 387 of 1988, allowing the appellant's application under Order I, Rule 10, C.P.C. For impleading it as defendant No, 2, allowing the same and setting aside the above order of the learned Single Judge.
Leave to appeal was granted to consider the following questions:--
(i) Could respondent No,1 go back from its admission made ealier regrding petitioners' ownership of the vessel in question?
(ii) Whether the petitioners could be denied the right to defend the suit when it has prima facie established its ownership of the vessel in question?
(iii) Whether the petitioners are interested in the vessel in question when the previous owners have stated that they are not owners of the said vessel as it was sold to the petitioners?
(iv) Whether the learned Judges of the Division Bench in the High Court properly appreciated and applied the provisions of Order I, Rule 10, C.P.C. In the instant case?
2. The brief facts are that respondent No,1 filed above admiralty suit for the recovery of Rs,1,19,63,549.17 against m.v. "KASHMIR", a vessel registered at Panama (respondent No,2), which was at the Port of Karachi, hereinafter referred to as 'the vessel', and Swat Shipping Corporation, the owner of the vessel, defendant No,2 (now respondent No, 3), on the basis of the averment that it had shipped through respondent No,3 5650 metric tons of Turkish Durum Wheat in good order and condition from the port of Iskenderun, which was to be delivered to it at the port of discharge at Mina Shuaikh/Kuwait in the same good order. It was also alleged that the factum that the vessel was unseaworthy, was concealed and that the vessel, instead of calling at the port of discharge, diverted to Sharjah. It was also averred that due to above unseaworthiness and due to negligence of the defendant, the vessel sprung leaks in its hull and the sea-water found its way into the holds of the vessel wherein the plaintiff's cargo was stowed and in consequence thereof, the entire cargo was damaged. Alongwith the plaint of the suit, respondent No,1 also filed an application for the arrest of the vessel, which was granted and writ of arrest was served on the vessel on 14-5-1988.
Thereupon. Mr. Lakhani, Advocate, appeared on behalf of respondent No,3, and took time to file counter-affidavit, but it appears that the vessel violated the above order of arrest and was clandestinely removed from the jurisdiction of the Court on or about 26-5-1988. It further seems that respondent No,1 came to know that the vessel under the assumed name of m.v. NARAN had entered the Port of Karachi. It again applied for its arrest, which prayer was granted on 23-7-1988 and the vessel was again arrested. It may also be stated that the present appellant filed an application as an intervenor under Rule 743 of the Sindh Chief Court Rules (O.S.), hereinafter referred to as 'the Rules', for the release of the vessel on the ground that it was the owner of the vessel, which was sold to it on 26-5-1988 and thus the action is rem did not lie against the vessel. It was also pleaded that the vessel was not lawfully arrested.
3. The above application was opposed by respondent No,
1. A learned Single Judge, after recording evidence of the parties by his detailed order dated 30-11-1988, dismissed the above application for the following reasons (which order is reported in PLD 1989 Karachi 57 and is also part of the present record):-- "The defendant No,2 should not have removed the ship from the above anchoring position and should not have left Karachi until unless it had furnished the security or had obtained permission from the Court to leave Karachi or the place it was anchored. His having left that position and having escaped from the jurisdiction of this Court without any lawful authority after the attachment order was served on him leads the Court to irresistible conclusion that he was present in the territorial waters of Karachi at the time when he was served with the summons and the orders of arrest and that he left his position and thus tried to destroy the evidence of his being present in the jurisdiction of this Court. That is not the end of it. After leaving the jurisdiction of this Court and being fully aware of this suit and the orders of arrest he sold the ship to the Intervenor. This conduct on the part of the defendant No, 2 not only reflects against the defendant No,2 but it also creates suspicion in the mind of the Court about the bona fides of the Intervenors who appeared to be in collusion with the defendant No, 2 when they alleged that they have purchased the ship from him.
It must be remembered that a person who comes to a Court to seek an equitable relief must come with clean hands. The Court will never help a person who comes with unclean hands as has been done by defendant No,2 and the Intervenor in this case.
17. Hence I hold that the ship was lawfully arrested by the Court and its unauthorised escape therefrom was illegal. Consequently I confirm the order of arrest and grant Miscellaneous No, 685 of 1988 and dismiss Miscellaneous No, 970 of 1988 and refuse to release the ship, unless it furnishes security. The observations in this order are of tentative nature and should not be taken as prejudicial."
' Against the above order, the appellant filed an appeal without success.
4. It seems that after the expiry of nearly six months the appellant filed an application dated 27-5- 1989 under Order I, Rule 10, C.P.C., which application was resisted by respondent No,1 but a learned Single Judge of the above High Court allowed the same for the following reasons:-- "I have held that sale of ship by defendant to Intervenor after arrest or attachment would be illegal and void.
11. The contention of Mr. M.H. Kazmi is not correct. No doubt it is held in the case of Monica S as well as in the case of Kuwait Flour Mills v. m.v. Kashmir that the alienation during the attachment or arrest is void but these rulings do not say that such transfer is void an initio and for all times i.e even fter the ship is released from the arrest and the claim for which it was arrested has been satisfied. These rulings have to be read subject to section 64, C.P.C. Hence I am of the clear view that transfer of a ship made during its arrest is not different from the alienation of a property made during its attachment and such alienation is voidable only at the instance of the decree-holder and to the extent of the interest of decree-holder for whose benefit the attachment is made and not beyond that."
5. Against the above order, respondent No,1 filed the above admiralty appeal, which was allowed by the learned Judges of the Division Bench inter alia on the following grounds:-- "Under Order I, Rule 10, C.P.C. The Court is empowered to add or substitute as parties in whose absence no effective decree can be passed and are necessary or proper parties. Furtheremore persons who have interest in the subejct-matter of the suit can also be joined as parties. In an admiralty suit where action in rem has been instituted the vessel is the res against which decree can be passed. Any person having any interest in the res can join the proceedings. In an action in rem if any person claiming to be the owner of the vessel joins as a defendant, and the decree passed cannot be satisfied from the res then such owner would be personally liable to satisfy it.
However, for the present controversy we have only to see whether the respondent has any interest in the res. From the documents prima facie it does not seem to have any interest. Mr. Kazmi has referred to Pakistan Banking Council v. Ali Mohtram 1985 SCMR 714 in which while observing that under Order I, Rule 10 persons who are necessary or proper parties should be joined it was held:- ' No party can be allowed to argue that as the Court has a wide discretion in the matter of the joinder of parties, any person who is neither a necessary nor a proper party may be joined at the convenience of the applicant. It is in this context that the Courts have held that in exercising their powers under this rule, Courts ought to see that the suit and that the trial of the suit is not embarressed by the simultaneous investigation of totally unconnected controversies.'
' Applying the principles laid down the Hon'ble Supreme Court, on the facts as discussed above, we are of the opinion that respondent No,3 having no interest in the res is neither a necessary nor a proper party and cannot be joined as a defendant. We, therefore, set aside the order of the learned Single Judge and allow the appeal with cost."
' Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above questions.
6. In support of the above appeal, Mr. Abdul Rauf, learned ASC appearing for the appellant, has vehemently contended that the learned Judges of the Division Bench have misconstrued the following description given in the bill of sale of the vessel in favour of the appellant:- "KASHMIR-EX ANNA T TBR KALAM".
' To reinforce the above submission, he has produced a photostat copy from the Lloyd's Register of the year 1988, wherein at page 79 "Anna T" has been mentioned as the name of the vessel. He then referred to the meaning of the word `TBR' given in the Marine Encyclopaedic Dictionary by Eric Sullivan, namely, `TBR' or `T.B.R.' as means "to be renamed." According to Mr. Abdul Rauf, the vessel's name was m.v. KASHMIR, its ex-name was ANNA T, which was to be renamed as KALAM, whereas the learned Judges of the Division Bench construed the above portion of the description as 'ANNA T TBR' as the name of the vessel and have wrongly held that it did not indicate the vessel's previous name as "KALAM".
7. In our view, it is not necessary to go into the above controversy. The question which requires consideration is, as to whether the learned Judges of the Division Bench were justified in setting aside the order of the learned Single Judge impleading the appellant as defendant No,2 in the above admiralty suit. We may observe that generally, while considering an application under Order I, Rule 10, C.P.C., the Court is not required to go into the detail as to the title of the subject-matter involved, as was done by the learned Judges of the Division Bench in the present case. However, in view of the peculiar circumstances of the case in hand, the learned Judges had good reason to probe into the question, whether prima fade the appellant was a bona fide purchaser of the vessel.
It is an admitted position that the vessel was arrested on 14-5-1988. It was illegally removed from the jurisdiction of the Sindh High Court on 26-5-1988. It has also come on record that after the vessel was rearrested under assumed name m.v. NARAN on 23-7-1988, an attempt was made to escape again, which proved to be abortive on account of timely action of the Maritime Security Agency which brought back the vessel to the Karachi Poron 23-12-1988. It may further be observed that the learned Single Judge, while dismissing the appellant's above application under Rule 743 of the Rules, through his order dated 13-11-1988, has observed that "After leaving the jurisdiction of this Court and being fully aware of this suit and the orders of arrest he sold the ship to the Intervenor.
This conduct on the part of the defendant No,2 not only reflects against the defendant No,2 but it also creates suspicion in the mind of the Court about the bona tides of the Intervenors who appeared to be in collusion with the defendant No,2 when they alleged that they have purchased the ship from him".
8. The above order was affirmed in an appeal as stated by the learned Single Judge in his order under Order 1, Rule 10, C.P.C. And as averred by the Mr. M. H. Kazmi, the learned counsel for respondent No,
1. The above observation though tentative in nature made while disposing of the appellant's application under Rule 743 of the Rules, could be considered while dilating upon the application under Order I, Rule 10, C.P.C. It may be observed that the above observation cannot be said to be unfounded keeping in view the above facts and respondent No,3/defendant No,2's averment in para. 2 of their written statement to the following effect:--- "2. That para. 3 of the plaint is not admitted as it is, as the vessel was sold duly to M/s. Afrah Shipping Company of Sharjah former agent of defendant No, 2 and the bill of sale was registered with the port authorities on 26th May, 1988 for U.S. Dollars 255,125 duly paid."
9. According to the above-quoted para. 2 of the written statement of respondent No, 3/defendant No, 2, the appellant was its former agent and, therefore, it was not stranger to respondent No,3.
10. Then, it was urged by Mr. Abdul Rauf, learned counsel for the appellant, that in view of the above admission on the part of the previous owner of the vessel that factually it had sold the vessel to the appellant on 26-5-1988 for U.S. $ 255,125, the learned Judges of the Division Bench could not have denied the appellant's application under Order I, Rule 10, C.P.C. In this regard, it may be pertinent to point out that on the day when the cause of action accrued to respondent No,1, admittedly respondent No,3 was the owner of the vessel and so also on the day when the vessel was arrested on 14-5-1988 after the filing of the above admiralty suit and, therefore, any alleged sale in favour of the appellant by respondent No,3 was hit by section 64, C.P.C., which reads as follows:--- "64. Private aliention of property after attachment to be void. ---Where an attachment has been made, and private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
' Explanation.---For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets."
11. We may observe that there was no basis before the learned Single Judge to hold that the value of the vessel was more than the suit claim, as according to respondent No,3's own showing, the vessel was sold for U.S. $ 255,125, whereas the suit claim was for Rs,1,19,63,549.17.
12. We may also observe that if a vessel is arrested by a competent Court and if it is illegally removed from its jurisdiction and a sale transaction is entered into illegally, it does not make the purchaser a necessary or proper party to the admiralty suit, if the bona tides of such sale transaction is doubtful on the face of it. In the present case as pointed out hereinabove, in the appellant's application under Rule 743 of the Rules, the learned Single Judge had made above adverse obervation against the appellant as to the bona tides, which order was maintained in appeal. We are not unmindful of the factum that the considerations for disposing of an application under Rule 743 of the Rules are different from those, which are germane to an application under Order I, Rule 10, C.P.C. But, at the same time, the conduct of a party in the former application may be pertinent for deciding the bona fides of an application under Order I, Rule 10, C.P.C. In the present case, for the above peculiar circumstances, in our view, the learned Judges of the Division Bench were justified in reversing the order of the learned Single Judge impleading the appellant as a party. However, we may observe that since respondent No,3 has admitted in above para. 2 of its written statement that it had sold the vessel to the appellant, the appellant may proceed against respondent No, 3 according to law for whatever relief it can claim under the law. We may further observe that in case the vessel is eventually sold by the High Court and if it fetches more than the decretal amount in case a decree is passed, it will be open to the appellant to approach the High Court for the payment of the balance amount, if there is no other claimant for the above balance amount and respondent No,3 remains bound legally by the above admission.
13. The upshot of the above discussion is that the appeal is dismissed, but there will be no order as to costs.