Revisional jurisdiction of this Court has been invoked by Zargham Hussain Shah, defendant No.7 against the order of learned Additional District Judge, Muzaffargarh dated 10-6-1989 whereby he rejected the application filed by the petitioner for being transposed as appellant instead of defendant No.7.
2. A few facts necessary for the disposal of this revision petition are; that Ghulam Abbas Shah was owner of 407 Kanals in revenue estate Bait Autara, Tehsil Kot Addoo. By means of agreement of sale dated 3-7-1976, he alienated the aforesaid property in favour of Muhammad Manzoor in consideration of Rs.60,000 and received Rs.40,000 as earnest money. Before the completion of this sale by means of gift, Ghulam Abbas .transferred the land measuring 323 Kanals, 1 Maria out of aforesaid land to his wife Mst. Anwar Bibi and remaining land in favour of his son Kausar Hussain.
This happened vide registered gift deed dated 3-11-1976. One gentleman Khurshid HuSSaln obtained power of attorney from Ghulam Abbas Shah and acting under the said deed of attorney, he made sale of 2/3 of this land in favour of one Muhammad Arshad by means of registered sale deed. Though same deed he alienated the remaining property in favour of his own son Muhammad Zargham (herein petitioner). This happened vide registered sale-deed dated 10-11- 1976. Kausar Hussain Shah donee under the gift deed dated 3-11-1976, made the sale of his share in favour of Mst. Salma Begum and 1/3 share in favour of Muhammad Afzal by virtue of registered sale deed dated 21-1-1977.
3. Compelled by these events, Muhammad Manzoor (the first vendee) instituted a suit for specific performance of agreement of sale dated 3-7-1976 in Court of learned Civil Judge, Kot Addoo on 26-9-1987. This suit was contested. Zargham Hussain did not enter appearance, was so proceeded ex parte. This suit was decreed by first Court on 18-11-1987.
4. Feeling dissatisfied with this decree, Muhammad Arshad, Mst. Salma Begum, Muhammad Afzal, Murid Hussain, Nazar Hussain, Muhammad Arif, Ghulam Sarwar and Muhammad Akram instituted appeal. Memo. of appeal showed the name of Zargham Hussain .but it - was scored out. It was on 12-4-1989 when Zargham Hussain submitted application under Order I, Rule 10 of the Code of Civil Procedure to first appellate Court for order of his transposition as appellant. This application was contested. After hearing both the parties the learned first appellate Court rejected this application by impugned order.
5. On behalf of the petitioner the impugned order was assailed on two grounds. Firstly; that the petitioner had filed an appeal along with appellants. He had executed power of attorney in favour of counsel and signed the necessary papers but the appellants dishonestly scored out his name and arrayed him as respondent. It was stated that the petitioner was necessary party and the decision of this appeal will affect him. It was argued that in the interest of justice his name be transposed as appellant. Secondly, it was contended that the petitioner. was purchaser of unregistered sale-deed dated 16-11-1976. The appellants were also purchasers under the same sale-deed. The interest of the appellants and petitioner was identical and so the petitioner was entitled to transposition. Reliance was placed on Muhammad Sadiq and others v. Shakila Jamil (1983 CLC 1705) and Said Alam and another v. Raja Sohrab Khan and 8 others (1970 SCM R 639).
6. On the contrary, learned counsel for the respondent supported the impugned decision by saying that petitioner had not participated in proceedings before the first Court; that he had not filed appeal. From these facts it was suggested that the petitioner was a person uninterested in this litigation and had no right to be transposed as appellant. It was next argued that the petitioner had not filed appeal within the prescribed period of limitation and so had forfeited his right of appeal.
Reliance was placed on Noor Muhammad Khan and others v. Habib Ullah Khan and others (PLD 1986 Peshawar 97) and Malik Mumtaz Ali v. Pakistan through Secretary. Refugees and Works, Government of Pakistan, Rawalpindi and 3 others (PLD 1971 Lahore 395). ,
7. 1 have heard the learned counsel for the parties at considerable length and perused the authority cited by them. The Court had wide powers under Order 1, Rule 10, C.P.C. to transpose the party from one side to another. This power is discretionary and is exercised to further the cause of justice. This provision is one of the conveniences and is aimed to avoid multiplicity of the litigation.
In Arunadoya Chakrabarty and others v. Muhammad Ali and others (AIR 1928 Calcutta 138), it was held "while exercising the discretion conferred by Order 1, Rule 10 of Civil Procedure Code, it is proper to consider the convenience of both parties as well interest of providing condition in which the full and final adjudiciation may be made of dispute between the parties. This rule was followed in Satyabhama De v. Jatindar Mohan Deb and others (AIR 1982 Calcutta 269). In Said Alam and another v. Raja Sohrab Khan and 8 others (19'10 SCMR 639) the plaintiff/respondent had instituted' a suit wherein it was averred that respondents Nos.2 to 5, his brothers, and respondents Nos.6 to 8 his minor nephews had relinquished their right in his favour who were therefore, impleaded as pro forma defendants. The respondent prayed for transposition as co-plaintiff to which the plaintiff agreed. The trial Court refused the prayer. The learned Single Judge in High Court accepted the prayer and allowed the prayer for transposition. The petition for special leave was dismissed by the Hon'ble Supreme Court in following words "The correct legal course to adopt in such a situation was laid down by their Lordships of the Privy Council in the case of Bhupendra Naraan Sinha Bahadur v. Rajeswa r Prasad Bhagat, etc., wherein it was observed that "course of adding pro forma defendants as co-plaintiffs should always be adopted where it is necessary for a complete adjudication upon the question involved in the suit and to avoid multiplicity of proceedings". This dictum with which we respectfully agree, is fully attracted to the facts of this case.
8. In Muhammad Sadiq and others v. Shakila Jamil and others 1983 CLC 1705, in this case Muhammad Sadiq and his sister Kausar Sultana and his nephews Sohail Sadiq, Wasim Sadiq and Naeem Sadiq filed a suit for possession by way of pre-emption. This suit was resisted. The learned trial Court decreed the suit of plaintiffs Nos.l, 4 and 5. Against this order R.FA. No. 15/83 was filed.
Respondent Nos.2 in the appeal prayed to be transposed as appellant. This prayer was opposed The Division Bench of the Court accepted this application. His lordship Mr. Justice A.S. Salam (as then he was) held "In the circumstances of the case no real prejudice is likely to be caused to the respondent and there are already other appellants equally qualified arrayed against the respondent to oust her. We deem it in the fitness of thing and in interest of justice that the applicant is transposed. We order accordingly."
9. The ratio deducible from the aforesaid authorities is that power of the Court to order transposition of party is unfettered, discretionary and is exercised with an aim to-avoid multiplicity of lititgation and to facilitate the administration of justice. The provisions of limitations are not attracted in respect of order of transposition.
10. Applying these principles to the facts and circumstances of the case it is quite clear to me that Zargham Hussain Shah is a vendee alongwith appellant under the same registered sale deed executed by his father Muhammad Arshad. The interest of the appellant and present petitioner are same and identical. Memo. of appeal shows that his name was arrayed as appellant but it was scored out in circumstances unknown to both sides. It is not in the interest of justice that this petitioner should be kept foisted on respondents/defendants whose interests are not identical with him. The learned first appellate Court had erred in law by not applying these principles enunciated by the superior judiciary. The authorities cited by the learned counsel for the respondent hardly need any commend. They proceed on distinguishable facts and are inapplicable to the facts of this case.
11. In the light of foregoing discussion, I accept this revision petition, set aside the order of first appellate Court, allow the application for transposition. There shall be no orders as to cost. The first appellate Court is directed to decide the appeal within six months of receipt of this order.