1. This order will dispose of two applications bearing C.M.A. 2837 of 1996 and C.M.A. 739 of 1996, the former application filed by the plaintiffs under Order 1, Rule 10, C.P.C., and the latter filed by defendant No.5 under the same provision of law.
2. Through C.M.A. 2837 of 1996 plaintiffs praying that some six (6) persons be impleaded as defendants Nos.7 to 12, on the ground that they are shareholders, as disclosed in the counter- affidavit filed by defendants Nos. l and 3. In response to the notices issued, proposed defendants Nos.9 to 12 were served, who are now being represented by Mr. Kazim Hasan, Advocate. However, a question was raised from the defendants' side on service of notices on proposed defendants Nos.7 and 8, namely, Mrs. Almas M. Haroon and Mrs. Amber Haroon Saigal who are wife and daughter of defendant No. l respectively.
3. Initially on 26-5-1996 notices were ordered to be issued on this application. However, on 15-8-1996, it was pointed out that no notice was issued to the proposed defendants as such it was further ordered that notices be also issued to the proposed defendants. Notices issued for 3-9-1996 returned served on proposed defendants Nos. 9 to 12 but returned unserved on proposed defendants Nos.7 and 8. According to the bailiff report he was informed that both the proposed defendants Nos.7 and 8 namely, Mrs. Almas M. Haroon and Mrs. Ambar Haropn Saigal were out of country. According to the report of air courier service and postal endorsement the notices were returned as the said proposed defendants refused to accept the same. In the interest of justice, notices were ordered to be repeated on defendants Nos.7 and 8, in the ordinary course as well as through registered post and via courier service. Bailiff was further, directed to paste copies of these notices on the outer door of the residence of proposed defendants Nos.7 and 8 as well as on the offices of defendants Nos.2 to 4, as it is claimed that these defendants are shareholders of these Companies. According to bailiff report dated 16-9-1996, he has carried out the order of pasting Mr. Farooq H. Naik has also filed receipts of OCS, air courier services dated 7-9-1996 in order to show that the notices of this application were issued to the proposed defendants Nos.7 and 8 through courier service.
4. Mr. Khalid Anwar, learned counsel for defendants Nos. l and 3 has contended that the service of notices may not be held proper/good, as admittedly the said proposed defendants are out of country. Although Messrs G.H. Abbasi and Farooq H. Naik, raised objection on the address of Mr. Khalid Anwar, on the question of service as he is not representing the said proposed defendants.
5. However, in the interest of justice and to reach just and proper conclusion, I have allowed Mr. Khalid Anwar, Advocate, to assist the Court on this question. Mr. Khalid Anwar, then referred the provision of Order 5, Rule 1, C.P.C., and the Rules 141 and 142 of Sindh Chief Court Rules (O.S.). He has also referred to the following cases:------
(i) National Bank of Pakistan v. Bawany Industries Limited and others 1992 CLC 1553.
(ii) National Bank of Pakistan v. Bawany Industries Limited and 6 others 1989 CLC 363.
(iii) Akhtar and Hafmann Ltd. v. Messrs Ulericht's WWE, GES, M.B.H. Austria and others 1991 SCM R 1284.
6. Mr. Farooq H. Naik, for the defendant No.2 has argued that in view of principles of Order 5, Rule 17, C.P.C., the service of notices may be held good and proper. He has also emphasised on the fact that the parties are related, inter se, and the proposed defendants Nos.7 and 8 being wife and daughter of defendant No. l are in full knowledge of this suit as it was filed on 29-1-1996 and they have left Pakistan only a month ago with the purpose of avoiding service of notices and to delay hearing of this suit. Mr. G.H. Abbasi, has contended that the cases cited by Mr. Khalid Anwar, all are in respect of service of summons on the defendants in main case while presently this Court is considering service of notices on interlocutory application. He also stressed that bailiff report as well as report of postal service and air courier service have all gone unrebutted. He has further argued that the acts of the proposed defendants Nos.7 and 8 are causing delay in disposal of other important applications for stay and appointment of Receiver.
7. Order V, C.P.C., provides different mode for service of summons. Rule 10-A to Order V provides issuance of summons through post simultaneously with the other process to be served through bailiff. Sub-rule (2) to Rule 10-A defines a situation when according to the endorsement by a postal employee the defendant has refused to accept the registered communication then such endorsement shall be deemed by the Court to be prima facie proof of service of summons. Rule 17 envisages a situation where the defendant or his agent or any other person refuses to sign the acknowledgement or a situation where the serving officer is not able to find defendant after using all due and reasonable diligence nor there is any agent, employer to accept service of the summons on behalf of such defendant then in such a situation the serving officer shall affix a copy of the summons on the outer door or on some conspicuous part of the house in which the defendant ordinarily resides or carries on business. The report of serving officer in respect of pasting of such summons, as provided in Rule 17, must be verified by an affidavit on oath. Chapter VI of the Sindh Chief Court Rules (O.S.) also provides service of summons in the same manner as of Order V, C.P.C. The only condition laid down in Rule 141 of Sindh Chief Court Rules (O.S.) is that before affixing a copy of the summons on the outer door the serving officer shall obtain endorsement by signature or thumb---impression of at least one respectable person of the locality. However, Rule 142 of Sindh Chief Court Rules (O.S.) further prescribes that after completion of any duty connected with the process the serving officer, in the presence of fatnesses, if any, will return his report, which shall be sworn or affirmed before the Nazir or Deputy Nazir of this Court. Rules 143 and 144 of Sindh Chief Court Rules (O.S.) define in detail further procedure for affixing notices of summons on the outer door of the defendants. The cases cited by Mr. Khalid Anwar, arise out of different circumstances and are not attracted to the circumstances of this case. After going through all these Rules as well as Order of this Court and the report of the postal authorities and air courier service I am satisfied that in these peculiar circumstances of the case of proposed defendants Nos.7 and 8 cannot be served in any better mode as mentioned hereinabove. For the above reason, I have held service of notices on proposed defendants Nos.7 and 8 through a short order passed on 18-9-1996. Above are the reasons for the said short order.
8. Now I will proceed to decide C.M.A. 739 of 1996 on merits.
9. Mr. Kazim Hasan, Advocate, appearing on behalf of proposed defendants Nos. 9 to 12, has extended his no objection for joining these persons as defendants on the ground that they are proper and necessary parties. The reasons given for joining the proposed defendants Nos.7 and 8 are that presently they are the shareholders of defendants Nos.3, 4 and S, the Companies, which fact has not been denied by any of the defendants. Messrs Khalid Anwar and Munir A. Malik, have opposed this application on the ground that the plaintiffs want to remove lacuna from filing such application and that he should not be rewarded for his negligence. Mr. Makhdoom A.I Khan, Advocate, has argued that the plaintiffs are now seeking to rectify this defect in the pleadings and through such miscellaneous application they are protracting litigations and abusing process of this Hon'ble Court. He has further argued that this suit being misconceived and incompetent is liable to be dismissed.
10. Order I, Rule 9 of C.P.C., provides that no suit shall be defeated by reason of the misjoinder or non- joinder of the parties and the Court may deal with the matters in controversy in every suit with regard to the rights and interests of the parties before it. The prime consideration for joining a party in the proceedings or for striking out name of any parties is whether such party is necessary or proper party. In the present case it is alleged by the plaintiffs that they were not aware of such transfer of shares by the defendant No.1 in the name of proposed defendants and they only came to know through the counter affidavit of defendant No.1. Since it is an admitted position that these proposed defendants are shareholders, in my considered view they appear to be necessary and proper parties and this application, therefore, must succeed. I would like to observe here that the plaintiffs must be extended an opportunity to cure the defects in their case in order to adjudicate all the issues between the necessary and proper parties. For any reference see the case of Abbas Khaleeli and others v. Saifuddin Valika and others PLD 1969 Kar. 692 at 707. The persons mentioned in C.M.A. 2837 of 1996 are added/joined/impleaded as defendants Nos.7 to 12 respectively. The plaintiffs are directed to file amended plaint within two weeks and to supply copies of the same to all the defendants. After filing such amended plaint, office is directed to issue fresh summons to the newly added defendants Nos.7 and 8 in ordinary course as well as through registered post for the next date of hearing.
11. C.M.A. 793 of 1996.---This application has been filed on behalf of Messrs Haroon Oil Mills Limited, praying that their name be deleted from the array of the defendants as they are neither necessary nor proper party. This application has been opposed by the plaintiffs.
12. I have heard, Mr. Muhammad Naimur Rehman, in support of this application and M/s. G.H. Abbasi and Farooq H. Naik, for plaintiffs Nos.1 and 2, who have vehemently opposed grant of this application. It was argued by Mr.M. Naimur Rehman that the plaintiffs were having only one share in the year 1964, which they surrendered in the year 1965 and at present neither the plaintiffs nor their representatives have any share in the company. It was further contended by Mr. M. Naimur Rehman that the suit can be easily adjudicated in absence of defendant No.5 and that effectual decree can also be passed in its absence. Mr. G.H. Abbasi and Mr. Farooq H. Naik, have argued that their case is that the defendant No.1 was holding Benami shares up to the extent of 2,51,000, including shares of defendant No.5, which were illegally and mala fidely transferred in the different names of the defendants. The affidavit filed in support of this application by the defendant No.5 indicates that the person swearing this affidavit is not fully aware of the affairs of the Company. If the plea of Mr. M. Naimur Rehman is accepted at this stage it will amount to dismissal of the suit against this defendant No.5, which is only possible after recording to evidence and not at this interlocutory stage on the basis of affidavit. It would be very difficult at this stage to decide while disposing of this application whether transfer of such shares were illegal or mala fide and were not Benami in nature. In my view, to ascertain whether a party is proper or necessary Courts must confine to the contents of the plaint and its prayers. From the contents of the plaint it appears that the defendant No.5 for all legal intents and purposes is necessary and proper party and in absence no effective decree can be passed. I, therefore, dismiss this application.