' SALEEM AKHTAR, J.---Hasan Amin petitioner has filed application under Article 187(1) of the Constitution of the Islamic Republic of Pakistan read with Order XXXIII, rule 6 of the Supreme Court Rules, 1980 praying that he should be impleaded as a party to the present appeal and/or be substituted in place of Muhammad Sharif appellant.
2. Background of this application is that Dr. Khurshid Anwar Mian is the owner of Property No,23, Street 17, Sector F-7/2, Islamabad, who entered into an agreement to sell dated 17-12-1985 with Muhammad Sharif appellant for a total consideration of Rs,20,00,000. The appellant paid Rs,50000 through bank draft dated 17-12-1985. It was agreed that the sum of Rs,2,50,000 would be paid on 2- 1-1986 and the balance of Rs,17,00,000 was to be paid by the appellant to the respondent on 15-3- 1986. The agreement further provided that if the appellant fails to make the payments as specified in the agreement, the earnest money paid would be forfeited and in case the respondent fails to transfer the house in the name of the appellant or his nominee, he would be bound to pay double the amount he received from the appellant. It seems that on 2-1-1986 the appellant paid Rs,2,50,000 and another agreement of the same date was executed between the parties acknowledging receipt of Rs,2,50,000. It again provided that Rs,17,00,000 will be paid by the appellant on 15-3-1986 and all other terms and conditions of agreement dated 17-12-1985 were to remain the same. As a dispute arose between the appellant and the respondent, the appellant find a suit for specific performance of the agreement, which was dismissed by the Trial Court on 14-3- 1989. The regular first appeal filed by the appellant was also dismissed on 13-1-1993 against which petition for leave to appeal was filed by him which was granted on 10-11-1993 and the appellant was directed to deposit Rs,17,00,000 with the Registrar before 10-12-1993. During the pendency of the appeal the appellant entered into an agreement with the petitioner. It is alleged that after receiving huge amount, in order to defraud the petitioner, the appellant surreptitiously entered into an arrangement with the respondent whereby he accepted Rs,5,00,000 from him and applied for withdrawal of the appeal. When this development came to the notice of the petitioner, he approached the appellant upon which the appellant stated that the agreement was obtained under coercion and duress. In his declaration dated 27-4-1995 which is at page 22 of the paper book, Muhammad Sharif appellant stated that he has settled the dispute with the respondent and has received Rs,5,00,000, has relinquished all his rights to claim specific performance, cancelled both the agreements dated 17-12-1985 and 2-1-1986 and that he has no claim against the respondent. He also undertook to withdraw the appeal and in case he failed, the respondent was authorised to produce this agreement/declaration of the appellant and get the . He also executed a receipt separately dated 27-4-1995 acknowledging receipt of Rs,5,00,000 from the respondent which bears his signature and thumb-mark as well. It was in pursuance of these documents that the AOR for the respondent filed an application for withdrawal of the appeal in terms of the agreement. This application is alleged to have been endorsed subsequently by the appellant by putting his signature on it. The matter did not end there. When the petitioner protested, it is alleged that the appellant demanded Rs,10,00,000 to retrace his steps; Rs,5,00,000 being the amount which he had received from the respondent and Rs,5,00,000 for his personal use. It is alleged that the petitioner paid this amount to the appellant and consequently another application was filed wherein the appellant prayed that application for withdrawal of the appeal be dismissed and the appeal may be heard on merits, but no order has so far been passed on this application nor the appeal has been withdrawn. Thereafter the appellant executed an agreement on 25-6-1995 in favor of the petitioner, relevant clauses of which are reproduced below:-- "5. That vide this document the First Party authorizes the Second Party to be his nominee for the transfer of the said house in his favour in case the First Party gets a decree from Supreme Court in his favor for the specific performance of the Agreement of the Sale entered into between the First Party and Dr. Khurshid Anwar. The said agreement is continuation of acknowledgment made on 26-11-1992.
9. That the First Party has already deposited/made payment of Rs,20,00,000 (Twenty lac only) consideration lying in the Court. The Second Party has paid this amount to the First Party and now the First Party has no claim of the amount lying in the Court. Detail of Rs,20,00,000 is that a sum of Rs,17,00,000 lying with the Court and Rs,3,00,000 is lying with Dr. Khurshid Anwar Mian.
10. That whatever the fate of the said case pending in the Supreme Court, all rights and liabilities of the parties have been finally settled and no party shall have any claim or liability against one another.
11. That the Second Party shall contest the case pending in the Supreme Court of Pakistan and is authorized and entitled to get the property transferred in his own name and the name of any one he wishes after a favourable decision of the case. The First Party is bound to appear in any office/Court/Supreme Court as and when required."
' It is alleged that on the same date the appellant also executed registered irrevocable power of attorney in favor of the petitioner and acknowledged receipt of Rs,20,00,000 from the petitioner comprising of Rs,3,00,000 paid to the respondent under the sale agreement with him and Rs,17,00,000 deposited in Court under Order dated 10-11-1993. Relevant clauses of the power of attorney are reproduced below:-- "(b) That in case of decision by the Honorable Supreme Court of Pakistan in favor of the Principal, the Attorney shall be authorised to take all steps for the specific performance of the Agreement of Sale in the light of the judgment of Honorable Supreme Court of Pakistan. The. Attorney shall be authorized and has liberty to get the house in question transfer in his own name or in the name of any of his heirs, nominees/representatives.
(g) That as Principal has received total consideration, which he had deposited/made in the Court in the name of Dr. Khurshid Anwar and also executed an Agreement with his .Said Attorney, thus the said Attorney's interest stands established, therefore, this General Power of Attorney is irrevocable.
' That the Principal hereby transfers all rights and liabilities in respect of the Property No,23, Street No,17, F-7/2, Islamabad to the said Attorney."
' The petitioner then filed the present application to be joined as a party.
3. The appellant has submitted his reply in which it has been pleaded that the appellant had entered into a compromise with the respondent in good faith and on receipt of Rs,5,00,000 as expenses of litigation, executed compromise deed on 27-4-1995 relinquishing his right for specific performance of the contract and rescinded the said contract and subsequently he had signed the petition for 'withdrawal of the appeal. He has leveled charge against his AOR who, according to him, was also AOR for Hasan Amin whom he informed about the step taken by the appellant. It was admitted that the appellant had borrowed Rs,17,00,000 from Hasan Amin and deposited the same in Court. He further pleaded that when the appellant did not agree to retract from the compromise with the respondent, the petitioner demanded immediate payment of Rs,17,00,000. The appellant also suggested that he was prepared to give in writing that he owed Hasan Amin Rs,17,00,000 and also execute a power of attorney authorizing him to withdraw the suit amount from the Court. The petitioner prepared an agreement and power of attorney in English and without reading its contents or explaining them to him he obtained his signature in Urdu representing that the documents only contain acknowledgement of loan and authority to withdraw the amount from the Court. The, plea was that the agreement dated 25-6-1995 and power of attorney were obtained by misrepresentation and fraud. In this background we have to consider the contentions of the learned counsel of the 'parties, whether the petitioner should be allowed to be substituted or joined as a party in appeal.
4. Mr. Abdul Hafeez Pirzada, Senior ASC for the petitioner contended that by these documents, execution of which is not denied, an interest has been created in favor of the petitioner and therefore his presence in the prosecution of the appeal is necessary as the appellant in collusion with the respondent, intends to withdraw it and if he succeeds in it, petitioner's interest will be adversely affected and he will suffer irreparable loss.
5. Mr. S.M. Zafar, Senior ASC for the respondent contended that from the documents relied upon by the petitioner, he has no present right in the property and cannot be joined in the proceedings in any capacity. Mr. Gul Zarin Kiyani, ASC for the appellant, opposing the application, submitted that the petitioner has no present right in the property and alternatively contended that the petitioner may be added as a party, but should not be substituted in place of the appellant. He referred to S.V.S. Nelliappa Pillai v. Sethuramalingam Pillai and others (AIR 1940 Madras 918) and Mrs. Saradambal Ammal v. E.R. Kandasamy Goundar and others (AIR (36) 1949 Madras 23). He has also filed a statement in Court that Rs,17,00,000 deposited in this Court and Rs,3,00,000 deposited in the High Court can be withdrawn and paid to the petitioner in case suit is dismissed and to that extent he would be entitled to act under the general power of attorney dated 25-6-1995.
6. The most interesting feature of this dispute is that the appellant, who entered into agreement with the respondent and the petitioner as well, has tried to wriggle out. The petitioner's claim entirely rests on the agreement and power of attorney dated 25-6-1995. In order to be joined as a party or to be substituted in place of a party in the proceedings, the applicant must show devolution of any right or present interest in the property in dispute. An interest which is contingent on happening of any incident culminates in a present right only on happening of such event. Under the agreement and power of attorney the petitioner's right in the property is dependent on the decision in appeal by this Court. The necessary condition for making the petitioner as a party is lacking as he has no present interest in the disputed property. Mr. S.M. Zafar has referred, to C.
Narayanaswa mi Naidu v. N. Subbaramulu Naidu and another (AIR 1935 Madras 394) in which an application under Order I, rule 10, C.P.C. Was filed by respondent No,1 for adding him as a plaintiff pleading that his maternal uncle had undertaken to finance the plaintiff's suit, that there was an agreement that in the event of winning, the plaintiff will convey to the maternal uncle half share of the suit property and pay half the money that they might recover from the defendant for costs and manse profits. On the death of his maternal uncle while the litigation was proceeding, respondent No,1 took his uncle's place and the plaintiff confirmed the agreement. Respondent, No, 1 apprehending that the plaintiff was about to withdraw from the suit, applied for adding him as party. The Trial Court granted the application. In the revision application the High Court while setting aside the order observed that "the mere fact that respondent No,1 may be affected by the result of this suit, whether it is dismissed after real contest or by a collusive withdrawal, is no reason for allowing him to be added as a plaintiff". For this observation reliance was placed on Moser v.
Marsden (1892) 1 Ch. D 487). The petitioner having no present right in the property in dispute is not directly interested in the dispute between the appellant and the respondent. Merely because he is financially interested in the result of the litigation can hardly afford a ground to be added as a party. The learned counsel for the petitioner referred to lst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCM R 652), but it is distinguishable as respondents Nos.2 to 5 had applied to be substituted in place of parties frQm whom they had purchased the property pendente lite.
They were the assignees and their interest was not dependent upon the result of the litigation. It was also observed that under section 52 of the Transfer of Property Act, property cannot be transferred. Or otherwise dealt without permission of the Court by any party to the suit or proceedings so as to affect rights of any third party thereof under any decree or order which might be passed therein. "Subject to these reservations, property can be transferred even without permission of the Court, but the transferee, done or assignee could acquire right therein only subject to the judgment or order of the Court". This for the moment does not help the petitioner.
Reference has been made to M/s. Bengal Corporation v. M/s. D.D.G. Hansa and 3 others (PLD 1992 Karachi 75) in which the plaintiff filed a suit against defendant No,1 for recovery of damages for loss of cargo. During the pendency of the suit defendant No,4 took over the entire business and the name and business vested in him. The plaintiff filed application for joining respondent No,4 as a defendant which was granted. Here again defendant No,4 was an assignee with a present right in the property.
7. Under Order I, rule 10 or Order XXII, rule 10, C.P.'C. The Court has discretion to allow any party to be joined or substituted as a party. Such discretion is exercised depending on the facts and circumstances of the case and is guided by the rules of propriety and justice. Reference can be made to Begum Mehrunnisa v. National Building Industries Ltd., Karachi and 2 others (1972 SCM R 102). In Allah Jawaya and another v. Lajpat Rai and others (AIR 1925 Lahore 574) the rejection of application under Order I, rule 10, C.P.C. By an assignee was held to be proper exercise of discretion as the factum of assignment was disputed and the application for substitution of assignee was alleged to have been made months after the assignment.
8. In support of his contention that the agreement relied upon by the petitioner is champertous, the learned counsel 'for the respondent referred to Alopi Parshad and another v. Court of Wards and others (AIR 1938 Lahore 23) and Babu Ram v. Ram Charan Lal and another (AIR 1934 Allahabad 1023), but we will refrain from expressing any opinion on it.
9. . Mr. Pirzada has referred to Order XV, rule 6 of the Supreme Court Rules, 1980, which regulates the procedure of this Court for the purposes of adding, joining, or cancelling any party to the proceedings. It reads as follows:-- "6. Where at any time after the grant of leave to appeal the record is found to be or becomes defective by reason of the death or change of status of a person who was a party to the decree or other decision by the lower. Court, it shall be the duty of the appellant to make an application in that behalf, and the Court, may on such application, or on application by any other person interested, grant a certificate showing who in the opinion of the Court, is the proper person to be substituted or entered on the records, in place of, or in addition to, the party on the record, and the name of such person shall thereupon be deemed to be so substituted or entered on the record as aforesaid."
A bare perusal will show that an application for substitution or addition of a party can be filed at any time after the grant of leave to appeal where the record is found to be or becomes defective due to the death or change of status of a party to the proceedings. In such circumstances, the appellant, respondent or any other person interested may apply to be substituted or entered on the record additionally besides the existing parties and it is then for the Court to decide. This rule may perhaps be not helpful to the petitioner as a pre-condition for its applicability is that record is found to be or becomes defective. Such defect may be by reason of death or change of status of a person or decision of the lower Court. None of the conditions laid down in the Rule apply to the present case. The learned counsel invoked the inherent power under Order XXXIII of the Supreme Court Rules and further power under Article 187 of the Constitution to do complete justice between the parties. This Court can in proper cases where rules of justice permit order for addition or deletion or substitution of any person in the proceeding which is not covered by Order XV, rule 6 of the Rules, But where from the facts and circumstances of the case it appears that the person seeking to be added has no present right in the property in dispute or does not possess any direct interest in the dispute between the parties to the litigation and his presence is likely to complicate the issues or is intended to delay and drag the proceedings, the Court will not hesitate to reject such prayer. In view of the statement made by Mr. Kiyani, the petitioner's interest is fully secured as in the event of dismissal of appeal, the petitioner would be entitled to withdraw the amount deposited in Court. The petition is dismissed.