JUDGMENT ABDUL RAHIM KAZI, J.- This appeal has been filed challenging the orders passed by the learned Single Judge on 14.4.93 in Suit No.869/1980 rejecting the application bearing CMA No.831 of 1982 moved by the Intervenor/Appellant under Order 1 Rule 10 C.P.C, seeking to be joined as a Defendant in the suit.
2. Briefly the facts are that the present respondent No. 1 had filed the suit for Specific Performance against the remaining 27 Respondents on the ground that the land mentioned in the suit situate in Deh Halkani, Tapo Manghopir, Taluka and District Karachi as described in detail in the plaint was sold by the remaining Respondents through an Agreement of Sale executed on 13.2.1980 to the present Respondent No. 1 for valuable consideration through Attorney, the Respondent No. 28 Noor Muhammad. During pendency of the suit the present appellant moved this application to be joined as one of the Defendants in the suit on the ground that the owners of the land in dispute had also entered into an Agreement of Sale with him on 5.7.1980 whereby they agreed to sell the said land to him. However, subsequent to this second Agreement the present suit was filed by the Respondent No. 1 on 2.9.1980. The learned Single Judge while considering this application has dismissed the same mainly on the ground as mentioned in the Order which reads: - "The question, therefore, which arises in the suit is whether there is a valid and subsisting agreement of sale between the parties to this suit, and, incidently, whether or not the power of attorney executed in favour of the defendant No. 27 had been revoked prior to the alleged agreement of sale."
The learned counsel for the appellant has submitted that the question framed by the learned Single Judge for consideration of the present application in fact goes to the root of the suit inasmuch as it pertains to determination of the validity and subsistences of the Sale Agreement.
The learned counsel placed reliance on the provision of Order 1 Rule 10 CPC and has argued that it is sub-rule (2) which will be applicable to the present case which reads as under: "10. Suit in name of wrong plaintiff.--Where a suit has been instituted in the name of the Wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona i.e mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
"Court may strike out or and parties.-(2) The Court may at any stage of the proceedings, either upon or without the application either party, and on such terms as may appear of the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the. Name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon-and settle all the questions involved in the suit, be added.
(3) No, person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
Where defendant added, plaint, to be amended.- (4). Where a m defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies, of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of THE Indian Limitation Act, 1877. Section 22, the proceedings as against any. Person added as defendant shall be deemed to have begun only on the service' of the summons."
The relevant provision is sub-rule (2) and ba rereading of the provisions of Sub- rule (2) shows that a party would be joined to the suit If his joinder is required to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. In fact the settled law is that a party is to be joined to the suit if his presence is required to complete and conclusive adjudication of the issue at dispute. As against this Mr. Samiuddin Sami, learned counsel appearing for the respondent No. 1 has submitted that in the present case the present suit was partially decreed against the Respondents No. 2 to 22 and 25 by an Order passed on an application for compromiser on 13.10.1982 and that now; after a lapse of 12 years it will not be open to the present appellant to have the matter reopened. The learned counsel has also submitted that the reopening of the decree already passed is outside the scope of Order case 1 Rule 10 CPC. He has however, conceded that the matter involves disputed question of fact and it would be unfair to reopen the suit to the extent of the decree which is already passed. He has also submitted the provision of Section 53-A of the Transfer of Property Act cannot be invoked in the present case. He has placed reliance on a number of judgments of higher Courts.
3. We have given anxious consideration to the submissions of the learned counsel for the parties. It may be observed that all the case law referred to by the learned counsel for the respondent No. 1 involve different facts than the present case inasmuch as in the present case the suit was partially decreed whereas against the remaining respondents/defendants the suit is still pending in the Court. While judgments cited by the learned counsel at bar pertain to the cases where the suits as whole had been disposed of either on contest or by way of ex parte judgments. However, in the present case as we have already observed the point which requires consideration is not the validity of Sale Agreement for reasons that if we enter into that question at this stage, it would amount to prejudge the case of either party without affording them an opportunity to bring on record that evidence in this respect. Mr. Shamsul Arfin, learned counsel for the appellant has pointed out that actual physical possession of the disputed property is with the Intervenor whereas the contention of the learned counsel for the respondent No. 1 is otherwise. Mr. Samiuddin Sami, learned counsel has referred to certain affidavits filed by the 23 of the Defendants, who Were party to the said compromise stating therein that the possession was handed over to the respondent No.
1. As against this the compromise application CMA No. 2757/1981 clearly shows that the possession to be handed over through the Court. This application is moved by the Respondent No. 1 and the said 23 other respondents/defendants and it is their on statement in Court which has been Confirmed before, the Court also. There is yet another document on the record to which Mr. Shamsul Arfin, learned counsel for the appellant has referred which is an order passed by the learned VII the Additional Sessions Judge, Karachi in Criminal Revision No. 336/1981 which shows that the present appellant had filed such Cr. Rev. Application against Eedo son of Kadir Bux and Ali Bux son of Abdul Karim, two of the Defendants in the present suit. A perusal of this rejecting order shows that the land involved in the suit was attached by the Magistrate under Section 145 Cr.P.C, which order was set aside by the Appellate Court and the property was descaled. The inference, therefore, is very strong against the present respondents. As regards to question of applicability of Section 53-A of the Transfer of Property Act is concerned it may be observed that it is settled law- that the protection under the said provisions can be claimed by the party in possession in consequence of an Agreement of Sale. Reliance placed on a D.B. Judgment of this Court in the case of PAKISTAN EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., KARACHI J'S. MST. ANWAR SULTANA & OTHERS (PLD 1969 Karachi 474). Mr. Shamsul Arfin, Advocate for the appellant has also placed reliance on a. Case Naib Subedar Taj Muhammad vs. Yar Muhammad Khan and 6 others (1992 SCMR 1265). As regards the reopening of the decree already passed after 12 years, suffice it to say that the application of the present appellant had been pending in the Court since 1982 which has been disposed of now on 14.4.1993. The period spent in pendency of the application before the 'Court cannot be counted against the appellant.
4. In view of the very admissions of the learned counsel for the respondent No. 1 that the matter involves a disputed question fact and that the decree was passed against some of the respondents only with regard to Specific Performance i.e. The execution of sales deed in his favour and payment of the sale price, we are of the view that the same cannot be enforced against the present appellant in case the present appellant is in actual physical possession of the same unless he is joined as a party and given an opportunity to plead his case and bring evidence on record. At this stage of the dictation of judgment, however, learned counsel for the respondent No. 1 states that his arguments are only with regard to undecreed part of the suit. Mr. Muhammad Sharif, Advocate appearing for respondents No. 2 to 10 and 15 to 22 also states that he has no objection if the present appellant is joined as a Defendant in the suit subject his right to contest the suit to the extent of undecreed .Part only. Mr. Nisar Ali, Advocate for the remaining respondents adopts the arguments and supports the arguments of Mr. Shamsui Arfin, learned counsel for the appellant as he is representing the respondents who are still contesting the suit. In view of the above discussion we accept this appeal and direct the present appellant to be joined as one of the Defendants in the suit subject to his right to contest. It will be for the learned Sindle Judge to decide as to what extent the proposed Defendant is to contest the suit.
5. However, there will be no order as to costs. CMA No. 634 of 1991 is disposed of in view of the above order.