1. ' The above applications under Order I, Rule 10, C.P.C. Have been filed by M/s. Tariq Malik Jamal, Shaukat Malik Jamal and Munawwar Malik Jamal respectively, who are sons of late Malik Jamal Ahmed, to be joined as defendants in the suit.
2. ' The suit has been filed by United Commercial Corporation (Pvt.) Ltd for specific performance of agreement of sale in respect of Plot No,D/36 with construction thereon, together with ice factory and cold storage machinery installed therein, building with fixtures and fittings and office block building, situated in the area of SITE, Tunas Lyari Quarters, Karachi. The above property was owned by late Malik Jamal Ahmed. The property was sold under agreement dated 14-7-1991 by Mrs. Yasmin Kamal, defendant No,2, daughter of late Malik Jamal Ahmed, claiming that the above property was bestowed upon her by way of gift by her father late Malik Jamal Ahmed.
3. ' The case of the intervenors is that the property was never gifted by the deceased to defendant No,2 and she had nb right to execute the sale agreement in respect of the said property. It is further asserted that the intervenors have been in uninterrupted physical possession, control and management of the suit property for the last more than ten years and continued to remain in possession till 9-4-1992, when the Official Assignee came with police force after being appointed as Receiver and took over the possession of the suit property.
4. ' The above application has been opposed on the ground that the intervenors, who claim to be the co-owners, cannot be granted any relief in the suit and their alleged right of inheritance can be determined only in a separate suit. It is further stated that the subject-matter of the suit being specific performance of the contract, the intervenors, who are not party to the agreement, cannot be joined as co-defendants as their joinder will enlarge the scope of the suit. The learned counsel for the plaintiff has relied on the case of Altaf Parekh v. Delment Construction Company 1992 CLC 700.
5. ' It is not disputed that the property was owned by late Malik Jamal Ahmed. The relationship of the intervenors with late Malik Jamal Ahmad is also not disputed and so also the fact that the property was originally owned by the deceased. It has been further pointed out that in Suit No,42 of 1981, filed by United Bank Limited against the deceased in respect of the recovery of loan, for which the property in dispute was mortgaged, the intervenors including other heirs were impleaded on his death as defendants.
6. ' The learned counsel for defendant No,2 contended that joinder of the intervenors will enlarge the scope of the suit, which, according to him, is not permitted under the law. The object of sub-rule (2) of Rule 10 in empowering the Court to join or add a party in the suit is aimed at to enable the Court, effectually and completely, to adjudicate upon and settle all the questions involved in the suit. The most pertinent question in this suit is whether the plaintiff is entitled to specific performance of the contract. This will inevitably require the Court to determine whether the defendant is the owner of the property. The words "to adjudicate upon and settle all the questions involved in the suit" have been elaborated in Mir Hashmat Ali v. Birendra Kumar Ghosh and others PLD 1965 SC 56 as under:-- "Order I, Rule 10 of the Code of Civil Procedure specifically empowers a Court to add a party to the suit for the purpose of effectively deciding 'all the points involved in the suit'. The phrase "all the points involved in the suit' does not mean 'all the points that are raised by parties'. The phrase is not amenable to any such restricted meaning. All the points, though not raised as between the parties themselves, as are material to a proper decision of the suit. Are necessarily points `involved' in the suit". (Emphasis supplied).
7. ' It also cannot be over-looked that the object of the above provisions is to avoid multiplicity of litigation. The plaintiff will be entitled to enforce the aforesaid agreement only when the gift allegedly made by the deceased is established. The learned counsel for the plaintiff relying on letter dated 22-9-1988, issued by defendant No,1. Sindh Industrial Trading Estate Ltd submitted that the property was owned by the firm of the deceased, known as Malik Jamal & Sons and after the gift was made by the deceased, they admitted defendant No,2 as sole proprietor of M/s. Malik Jamal & Sons. On the above basis, it was contended that the issue of ownership cannot be reopened in this suit. The record shows that the above letter was issued by defendant No,1 on the basis of the alleged gift. The above submission does not advance the case any further. In so far as the case of Altaf Parekh (ibid) is concerned, the intervenor sought to be joined as a party on the allegation that the plaintiff had sold the property to her. That suit was filed by the plaintiff against the construction company from whom he had agreed to purchase the property. In the above facts of the case, a learned Judge of this Court had dismissed the application of the intervenor. The rule laid down in the above case is not attracted in the facts and circumstances of this case.
8. ' It is further noted that in the suit the contesting parties are the plaintiff and defendant No,2. The proceedings of the present suit show that the suit was filed on 1-4-1992 and defendant No,2 on receipt of the notice of the application for appointment of Receiver, had appeared in the Court through her Advocate on 7-4-1992, conceded to the grant of the said application and it was accordingly granted. On the above facts it was alleged by the learned Advocate for the intervenors that defendant No,2 and the plaintiff are in collusion with each other. The object of the suit is to obtain collusive decree by concealing the existence of dispute and the fact that the intervenors are in actual possession of the suit property. Again the fact that the intervenors are in possession of the suit property since last more than ten years, makes the gift cloudy, which was allegedly made on 5-8-1983, the delivery of possession of the property gifted to the donee being sine qua non for validity of gift.
9. The relief of specific performance of a contract as provided for in the Specific Relief Act (I of 1877) is an equitable and discretionary one, as is obvious from the language of section 22 thereof which begins with description of the jurisdiction of the Court to decree specific performance to be discretionary and further in specifying that the Court is not bound to grant such relief merely because, it is lawful to do so, make the provisions avowedly equitable. As a safegard it lays down that the said discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
10. ' In these circumstances it is all the more necessary to join the intervenors as party in the suit for adjudication of all the disputes arising between the parties and for just decision of the case, as the intervenors have denied the factum of the alleged gift in favour of defendant No,2 and as such it will be for defendant No,2 to prove the acquisition of the property by her as alleged. The intervenors being heirs of the deceased are not only proper but necessary party to the suit.
11. The above applications are, therefore, allowed. The intervenors shall be joined as defendants.
12. Amended plaint to be filed within one month. The cost shall follow the event.