1. ' The sole ground upon which this appeal proceeds is that the appellant was erroneously disallowed from being joined as a party to the suit under Order 1, Rule 10(2), C.P.C. On facts, the appellant, for seeking to be joined as a party to the relevant suit, relied upon an agreement dated 11-3-1991, executed in his favour by plaintiff Mst. Amtul Rashid, acting for herself and as attorney for her two sons viz. Her co-plaintiffs in the suit. Through such agreement, the three plaintiffs "agreed to sell" 30% of their shares in the estate left by their deceased husband and father respectively to the appellant in consideration of the appellant's proposed investment of time and money in the matter of recovery of such estate. The learned Single Judge disallowed the request of the appellant to be joined on the short ground of the appellant being neither a necessary nor a proper party. In that the learned Single Judge appears to have been right because neither the appellant "ought to have been joined" on the ground that in his absence no effective decree could have been passed, as a necessary party, nor the appellant's presence was requisite to effectively and completely adjudicate upon and settle all points involved in the suit, as a proper party. This apart, some other questions have also been raised before us which need to be examined.
2. ' Thus, it has been pointed out by Mr. Darabu, the learned counsel for the respondent No,1, who is a sister of the deceased, that the power of attorney upon which the above-referred lady has acted in executing the agreement on behalf of her two sons (co-plaintiffs) did not authorise her to effect such an agreement. Indeed, the question of the power of attorney and how far it goes in the way of authorising plaintiff-Amtul Rashid has been remanded by us to the learned Single Judge in a separate appeal brought by the respondent No,1 namely, H.C.A. 67/95. We, therefore, are not inclined to delve into the impact or effect of such power of attorney at this stage.
3. Another aspect of the matter is that an agreement directed to finance or otherwise encourage litigation, involving one person extending assistance to another in consideration of sharing in the prospective spoils of litigation, has consistently been frowned upon by Courts and may involve elements of being opposed to public policy, as enacted in section 23 of the Contract Act. However, in response, Mr. A. Rauf, for the appellant, has correctly pointed out, relying on Fateh Jang v. Bute Khan, AIR 1934 Lahore 1017, that such a champertous agreement, even though inviting scrutiny on considerations of public policy, may yet be enforceable, if not actually extortionate or un- conscionable. Even so, in the instant case, it is not free from doubt that the agreement, stipulating to convey 30% of the estate, could be extortionate or unconscionable because the value of the estate of the deceased, as assessed in the suit by he plaintiffs themselves, exceeded the valuation upon which maximum quantum of court-fee was payable. In point of fact, we may add that, such 30% portion would definitely have been more than the share of the attorney-plaintiff No,1 who had executed the agreement and only a little less than the individual shares of her two sons. In such matters proportion of the benefit to the claim to be pursued and its ratio with the plausible prospective expenses of litigation are important considerations for judging the extoritionate or immoral nature of the transaction. On such basis, the conclusion may not he entirely favourable for the appellant and the agreement may well be void and unenforceable in line with the prohibition in section 23 of the Contract Act, 1872.
4. 'Mr. A. Rauf, however, has urged that whatever be the legal implications of the agreement, the parties to it never repudiated it and, therefore, it is not open to scrutiny on that score. The argument, though at first sight attractive, may not carry the appellant's case very far because a similar agreement regarding gambling etc. May be very welcomed as between the parties and yet third parties may be adversely affected, giving occasion for them to raise a challenge. In the instant case, on account of the on-going litigation even the bank account of the respondent No,1 was shown to us to have been made the subject-matter of enquiry though such question has been returned by us to the learned Single Judge for re-examination in the above referred connected appeal. The proceedings in the suit thus had a potential of hitting the respondent No,1 hard and she can well raise a question about the agreement on the basis of which the litigation may be getting financed. Yet we are not inclined to brush aside the agreements as opposed to public policy and, therefore, void because that really is a matter between the parties to it. All that we need to say is that the agreement is obviously champertous and may have ingredients of being extortionate. For such reasons, we are not ,inclined to allow premium to the beneficiary to be joined in the suit as a matter of right. Whether the agreement is actually unconscionable or extortionate, we leave it to be determined in an appropriate forum, if and when that question directly arises.
5. Here, we may add that Order 1, C.P.C. Is not a complete Code for joinder or otherwise of parties to an action. There are other provisions in the Code as well, which tend to reflect on such a question.
6. Thus, in the specific context of pendent lite assignment or devolution of rights ventilated in a suit, rule 10 in Order 22, which is the residuary rule, stands thus:-- "10. Procedure in case of assignment before final order in suit.--(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."
7. The rule quoted introduces an enabling provision for induction of parties in a suit upon whom duiuiig =pendency an interest may have devolved or otherwise been conferred. Such rule, quite arguably, happens to be in place because solely upon the phraseology and operation of Order 1, C.P.C. a successor-in-interest, as aforesaid, may not have been entitled to be joined as a necessary or proper party. Still the rule does not sanction the joinder of a person who may, in course of time, come to have an interest in the continuation of the suit. It is obvious that no devolution of interest has yet occurred in favour of the appellant even if it be assumed that such could lawfully have come about. The interest is merely contingent and shall come about, if at all, in future. This being the position, in terms of Rule 10 aforesaid the appellant is not entitled to be joined in the. Proceedings.
8. ' Here, we may add that, Mr. A. Rauf has pointed out that the agreement in question, for furthering litigation at the instance of the plaintiffs, was concluded before the suit was filed and, therefore, Order XXII, Rule 10, C.P.C., on our own analysis, being incapable of application, appellant's joinder be permitted on general principles. Order XXII, Rule 10, C.P.C., in reality, is a provision which contemplates the concept of devolution of interest and a tangible interest at that. Thus, if such an interest had devolved before the suit was filed or the appellant's assignors had difierent notions upon the frame of the suit and were inclined to give effect to the above agreement, as stipulating an actual and effective. Devolution or conferment of interest, there was nothing to preclude them from inducting the appellant, at the initial stage, as a co-plaintiff in the suit. That they did not do so is a matter for which they themselves may be said to be responsible. Still, even if the appellant was so joined, as claimed, it would always have been open to the other side to question the appellant's induction in the suit and the result, in the ultimate analysis, may not have been different from what it has now come to be, because, as we have said, the agreement operates in future and what is more is contingent upon success, not to mention its being champertous.
9. ' For the aforesaid reasons, we see no merit in this appeal and dismiss it with costs.