1. ' This application has been filed by defendant No,1 under Order I, Rule 10(2) of the Code of Civil Procedure to be transposed as plaintiff No,5. It is necessary to refer the pleadings of the respective parties in so far as they are relevant for decision of the said application.
2. ' The present suit has been filed by the plaintiffs who were in possession of the suit property as tenants of defendant No,1 and were dispossessed by defendants Nos.2 and 3. Defendant No,2 is brother of defendant No,1 and father of defendant No,3. Defendant No,1 is the owner of the property in question, who had inducted plaintiff No,1 and/K. Yaqoob, the predecessor of plaintiffs 2, 3 and 4 as joint tenants in the suit property under agreement of lease dated 15-3-1961. After acquiring tenancy right, they established restaurant (wrongly described as hotel business) therein. They also got installed the gas, electric and water connections in the premises.
3. ' In 1966 the tenants were threatened with dispossession by defendants 1 and 2, by getting the premises demolished through KDA. The tenants filed Suit No, 230/66 which was decreed on 6-3- 1975, in terms that the plaintiffs being tenants would not be dispossessed otherwise than in due course of law. The first defendant then filed Rent Case for eviction, but without any success and Appeal No, 572/75 filed by him was also dismissed on 7-2-1977. In 1979 the said defendant instituted another unsuccessful rent case for eviction and the appeal filed in this Court was dismissed in limine on 2-12-1984. The said defendant, in 1985 served the tenants with notice demanding enhanced rent. He was obliged by remittance of rent at the enhanced rate, but he refused to receive it and therefore the rent was deposited with Rent Controller in Miscellaneous Rent Case. K. Yaqoob, who was co-tenant with plaintiff No,1 died in the meanwhile leaving behind a widow, plaintiff No,2 and two minor children who are plaintiffs 3 and 4. On 6-1-1986 when plaintiff No,1 and the said widow were out of Pakistan and the Manger was looking after the business the possession of the suit premises was taken over by defendants 2 and 3 by use of force. The Manager lodged F.I.R. With the police, who initiate proceedings under section 145, Cr.P.C. However, possession remained with the said defendants, who filed suit against the Manager of the restaurant obtained order of status quo, which was vacated on dismissal of the injunction application. Civil Miscellaneous Appeal preferred by the said defendant was allowed granting injunction in favour of the said defendants. The plaintiffs filed the present suit for recovery of possession of the suit property and damages.
4. ' Defendant No,1 filed his written-statement in this suit in which he did not deny the relationship between the parties and the litigation between them. He however denied the alleged forcible dispossession. His case was that on 2-9-1985, plaintiff No,1 on receipt of Rs,30,000 handed over possession of the suit premises to him and defendant No,2, and that the latter is carrying on business therein with the consent of the first defendant. Defendants 2 and 3 have filed their joint written statement, with similar pleas as raised by defendant No,1.
5. ' Defendant No,1 later on filed CMA No, 3963/91 under Order VI, Rule 17, C.P.C. For amendment of W/S which was allowed and the amended written statement has been filed accordingly. In the said written-statement, (a) he has admitted that the plaintiff was dispossessed as disclosed in the plaint, but he is not entitled to claim damages from defendant No,1, (b) defendants 2 and 3 are in illegal possession of the hotel premises, (c) they also trespassed on the adjoining premises belonging to the said defendant. In the written statement he has made counterclaim as under:-- "(a) Mandatory Injunction as against the plaintiff and the defendant No,2, that they should pay the monthly rent jointly and severally at the rate of Rs,15,000 p.m. With enhancement permissible under the law to the defendant No,1 from the date of the dispossession of the plaintiffs from the Hotel Premises.
(b) Declaration to the effect that if the plaintiffs are restored possession of the Hotel and annexed Pan-shop, it should be restored as tenants of the answering defendant No,1.
(c) Decree for possession of the half portion of the quarter adjacent to Hotel premises as against the defendants Nos.2 and 3.
(d) Cost of this Counter-claim.
(e) Any relief or reliefs which in the circumstances of the case this Hon'ble Court deems fit and proper."
6. ' I have heard learned counsel Mr. Abu Sharaf Ziauddin for defendant No,1 and Mr. Manzoorul Haq for the plaintiffs.
7. ' The learned Advocate for defendant No,1 contended that object of transposition of parties is to avoid multiplicity of suits. Defendant No,1 is the owner of the property and the plaintiffs being his tenants were in physical possession. Defendant No,1, through the plaintiff, was in constructive possession of the suit property and by seeking transposition as plaintiffs he would be able to seek remedy in the suit for protection of his constructive possession. In support of the above, reliance is placed on Mst. Shirin Bai and another v. Mst. Kulsum Bai and 5 others (PLD 1980 Kar. 296).
8. The object of Order I, Rule 10, C.P.C. Is to ensure that all the necessary and proper parties are before the Court for proper adjudication of the dispute raised therein and the paramount consideration for impleading the proper and necessary parties is to avoid multiplicity of suits. The said provision is one of convenience. In the case of Imam Din v. Mst. Fazlan (PLD 1949 Lah. 173), Cornelius, J. (as he then was) relying on Arudadoya ChakrabLay v. Muhammad Ali (AIR 1928 Cal. 138) and Mokshud Mandal v. Khedu Mondal (AIR 1929 Cal. 669) formulated the following rule:-- "In exercising the discretion conferred by Order I, Rule 10(2), Civil Procedure Code, it is proper to consider the convenience of both parties as well as the necessity of providing conditions in which a full and final adjudication may be made of the dispute between the parties."
9. ' In Malik Mumtaz Ali v. Pakistan (PLD 1971 Lah. 395), explaining the phrase, "the complete and effectual adjudication of the question involved in the suit", as contained in Order I, Rule 10 (2), after referring to the several authorities Anwarul Haq, J. (as he then was) has deducted that the said provisions refer to the suit as instituted and not to a new cause of action presented by the defendant who seeks to be transposed as a plaintiff. Relying on the rule enunciated in Nirode Chandra Benerjee v. Profulla Chandra Banerjee and others (40 CLJ 535) it has been further deducted that the power of ordering transposition is not to be exercised in a case where the defendant's claim runs completely counter to that set up by the plaintiff and would, therefore, radically alter the character of the suit.
10. On the basis of the above deductions made on the analysis of Order I, Rule 10(2), it does not follow that avoidance of the suits is to be the only consideration which will weigh with Court while dealing with the question of transposition of the parties. The Court therefore while deciding such question would be competent to refuse to exercise jurisdiction in favour of transposition, if any factor is found that may lead to inconvenience to any party or anomaly or that may introduce new cause of action or change or enlarge the scope of the suit or claim raised runs counter to the prayer in the plaint.
11. ' The application under consideration is to be decided keeping in view the above object of the provision under consideration. The object sought to achieved by transposition of defendant No,1, as urged by the learned Advocate is to preserve constructive possession of the said defendant.
12. ' But in the circumstances of this case for achieving the above result transposition of the said defendant as plaintiff is not necessary. The plaintiff claims to have been inducted as tenant by defendant No,1 and unlawfully dispossession by the other two defendants. If the plaintiff succeeds in establishing the above case, object of the said defendant would be achieved as necessary corollary because in case the Court the plaintiff to be tenant of the said defendant, it would follow logically that the said defendant is in constructive possession of the suit property through his tenant. A defendant in the suit is not bound to oppose the plaintiff or join all the issues. No inconvenience is likely to be caused if he is not transposed.
13. ' The other object of defendant No,1 as disclosed in prayer (a) made in the written statement is to hold the plaintiff and defendant No,2 jointly and severally liable for payment of rent to defendant No,1. The above prayer runs counter to the plea of the plaintiff, firstly for the reason that according to the plaint all the defendants are liable to damages and secondly the plaintiffs have projected themselves as tenants, defendant No,2 is not the tenant of the premises in question. By joining defendant No,1 as co-plaintiff, the plaintiffs would be thrust upon the plea that defendant No,2 is joint tenant of the premises in question. The above is bound to lead to inconsistencies in the pleadings of the parties in the amended plaint which has to be filed, once the transposition is allowed and it would again lead to inconvenience rather than convenience. In so far as payer clause (c) is concerned, it pertains to recovery of possession of half quarter, adjacent to the so- called hotel premises. It is also beyond the scope of the suit and would also change the nature of the suit.
14. ' The Shirin Bai's case is distinguishable and the rule laid down therein is not attracted to the facts and circumstances of this case. In that case the suit was filed for accounts. In the written statement the defendant also claimed certain sum being due against the plaintiff on rendition of accounts by the latter. The plaintiff at certain stage of case filed application for withdrawal of the suit. The defendant opposed the application and sought his transposition as plaintiff and that of plaintiff as defendant and such prayer was allowed. The case in hand is no way parallel to the reported case.
15. ' The application is therefore dismissed.