1. ' This is an application under Order 1, Rule 10, C.P.C. Read with section 151, C.P.C. Filed by the Intervenor/Applicant with the prayer that the applicant/intervenor may be joined as a party in the suit.
2. ' I have heard the learned counsel appearing for the parties. Mr. Saeed Baig contended that the Intervenor has already filed a suit bearing No,684 of 1993 in respect of the property in question. He further states that there were several cases filed against each other in different Courts and all the cases were settled by way of compromise. The plaintiff violated terms of the compromise and the Intervcnor/Applicant had to file Suit No,684 of 1993 against the plaintiff and the present defendant being defendant No,6 in that suit. The injunction application filed by the applicant in that suit was dismissed against which the Intervenor filed High Court Appeal No,113 of 1997 which was disposed of by a consent order on 17-6-1997. The learned Advocate further contended that the subject- matter of the present suit and the earlier suit filed by the Intervenor against the plaintiff and defendant No,6 is the same. He further contended that the Intervenor is a necessary and proper party for the purpose of adjudicating all the controversial points involved in the present suit and that in his absence no effective decree can be passed in the matter.
3. ' On the other hand Mr.Muhammad Sharif, Advocate appearing for the plaintiff contended that in the High Court Appeal No,113 of 1997, a consent order was passed on 17-6-1997 wherein the learned counsel had made a statement that the respondent shall not raise any further construction at the disputed site, not putting up even a brick more than as has already been done. However, the respondent (present plaintiff) was allowed to complete structure as it stood at that time. Mr. Muhammad Sharif further contended that Mr. Mirza Saeed Baig learned counsel appearing for the Intervenor had given his consent to the aforesaid directions and in the following terms and High Court Appeal was disposed of: "Besides, Mr. Muhammad Sharif has attempted to put an end to the controversy involved in the impugned order by saying that the respondents shall not raise any further construction at the disputed site, not putting up even a brick more than as has already been done. However, the learned counsel says that the respondents may be allowed to complete the structure, as it presently stands, subject to the undertaking of the respondents not to create any third party interests, as from this date. While all this is done, further suggestion of Mr. Muhammad Sharif is that the dispute can be tackled at the level of the learned Single Judge in some of the proceedings, which are already pending and may also be appropriately but lawfully dealt with at the level of the K.B.C.A. All these appear to be reasonable suggestion and Mr. Mirza Saeed Baig is not opposed to the same."
4. ' Mr. Muhammad Sharif further stated that he had made a request before the Hon'ble Division Bench that the K.B.C.A. May also be directed to maintain status quo. The Hon'ble Bench observed that "it appears to be beyond the scope of this appeal. If such a plea is to be raised seriously, surely, it can be raised in appropriate forum".
5. ' The learned counsel argued that the dispute in the suit is with the K.B.C.A. And not with the Intervenor/Applicant. The learned counsel placed reliance upon 1997 CLC page 700 (Altaf Parekh v.
6. Delments Construction Company). It will be proper to first reproduce here the relevant provision of law i,e, Order 1, Rule 10(2), C.P.C.:-- "The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order... ... ...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."
7. In view of the wording of the aforesaid provision of law, a party can be added if it may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit.
8. ' The present suit has been filed by the plaintiff against the Karachi Building Control Authority for the following relief:- "(a) That the defendant's act of damaging the rear portion of roof of first, second and third floors and the threats of further demolishing or sealing the property on Plot Nos.G/2 and G/3, MR-1/92, Market Quarters, Jodia Bazar, Karachi, are mala fide and illegal.
(b) That the defendant be prohibited and restrained from interfering with the work of completion of construction as ordered by the Division Bench in High Court Appeal No,113 of 1997 on G/2 and G/3, MR1 of 1992, Market Quarters, Jodia Bazar, Karachi and from taking any action against the plaintiff and/or otherwise sealing or damaging the building themselves or through any other agency by any process and in any manner whatsoever."
9. ' In the plaint it is stated that the functionaries of the defendant (KBCA) came on the site and damaged the rear portion of the roof of first, second and third floor. Further, it is stated in the plaint that the defendants under the law are bound to issue notice to the plaintiff if there was any violation of the building plan which has not been done by the defendant.
10. ' A bare reading of the plaint would show that the controversy between the plaintiff and K.B.C.A. Is with regard to the construction which, according to the plaintiff, she has raised in accordance with the approved plan and that the defendant without any notice, pointing out any violation of the building plan, are threatening to demolish or seal the construction. The intervenor's counsel in the High Court Appeal No,113 of 1997 had given his consent to the plaintiff to complete the structure. The controversy, if there was any between the plaintiff and the intervener, with regard to completion of the existing structure raised by the plaintiff, came to an end after passing of the consent order by the Hon'ble Bench in High Court Appeal No,113 of 1997. The question involved in the present suit between the plaintiff and the defendant, appears to be whether the plaintiff has violated the approved building plan and that whether alleged action on the part of K.B.C.A. Is in accordance with the law or is based on mala fides, as alleged by the plaintiff. In order to adjudicate upon and settle the aforesaid questions involved in the present suit, the presence of the intervener/applicant will not be necessary at all. In the case cited by Mr. Muhammad Sharif, the learned author of the judgment has discussed several cases on the question involved in the suit. Discussion is made with regard to the case of B. Somaiah and another v. Smt. Amina Begum AIR 1976 Andhra Pradesh 1982, as under: ' The respondent had filed a suit against Government of Andhjra Pradesh to recover possession of certain land or in the alternative, for compensation on the ground that her late mother Mahbubunnisa was the absolute owner of that land and, after her death, the respondent, being the sole heir, became entitled to it. The plaintiffs had applied to be added as parties to the suit alleging that they had, during the lifetime of Mahbubunnisa, entered into an agreement for sale of the land.
11. The respondent opposed the application on the ground that there was no subsisting agreement and that the agreement entered into by her mother had been cancelled. It was held:-- 'Questions involved in the suit refer only to questions between the parties to the suit. They refer only to questions as between the plaintiffs and defendants and not to questions which may arise between parties to the suit and a third party' ."
12. In view of the arguments of the learned counsel and the case-law referred to above, I am of the opinion that considering the questions involved in a suit, between the plaintiff and the defendant, if the Court comes to the conclusion that the presence of the intervener will be necessary to adjudicate upon effectually and completely the aforesaid questions, the intervener can be made a party to the suit. The question which may arise between the parties to the suit and a third party cannot be considered for allowing an application under Order 1, Rule 10(2), C.P.C.
13. ' In the present suit, the limited controversy between the plaintiff and the defendant, with regard to completion of the existing structure can be adjudicated upon effectually and completely, for which the presence of the Intervener/Applicant will not be necessary. The Applicant/Intervener is therefore, neither a necessary nor proper party to the present suit.
14. ' In view of the aforesaid discussion the application merits dismissal, which is accordingly dismissed with no order as to costs.