1. ' WAJIHUDDIN AHMED, C.J.---The first of these High Court appeals is directed against an order of Mukhtar Ahmed Junejo, J. While in this Court and sitting on the original side, whereby, on an interveners application in Suit No,190 of 1991, filed by Gulzar Ahmed, he allowed the Habib Credit & Exchange Bank Ltd. To be impleaded as defendant No,2 in the suit wherein the Bank of Credit and Commerce International (Overseas) Ltd. (B.C.C.I) was the original and the only defendant. As to the facts in the background, Habib Credit and Exchange Bank Ltd. Had intervened in the suit, seeking substitution of the original defendant (B.C.C.I.), "presumably to take over liability incurred by the B.C.C.I." The B.C.C.I. Were stated to have gone into liquidation and, pursuant to an agreement with the liquidators, their three branches at Karachi, Lahore and Rawalpindi were merged with the Habib Bank Ltd., as reflected in an amalgamation scheme prepared by the State Bank of Pakistan and approved by the Federal Government. In passing the foregoing order the learned Single Judge preferred to add the Habib Credit and Exchange Bank Ltd. As a defendant in the suit in preference to allowing it to substitute the B.C.C.I. Altogether. Such order gives rise to High Court Appeal No,182 of 1993.
2. ' A similar controversy arose in Suit No,672 of 1990 where M/s. Shafiq Hanif (Pvt.) Ltd. Were the plaintiffs and Bank of Credit and Commerce International (Overseas) Ltd. Were the original defendants. In like circumstances, a learned Single Judge of this Court, per order, dated 23-5-1996, allowed substitution of the original defendant (B.C.C.I.) by its successor, the Habib Credit and Exchange Bank Ltd. Such order has brought plaintiff-Shafiq Hand (Pvt.) Ltd., in the other appeal before us viz. High Court Appeal No,94 of 1996. Thus, while conventionally these appeals may not be cross-appeals, yet the implications involved are, in effect, those of cross-appeals.
3. ' At the outset, we rejected the argument of Mr. Muhammad Sharif that the order of induction of the Habib Credit and Exchange Bank Ltd. In the suit, because of an allegedly invalid and in-operative assignment, was itself bad. He, therefore, adopted the second line of attack against the order impugned in High Court Appeal No,94 of 1996, urging that at best Habib Credit and Exchange Bank Ltd. Could be added and not substituted as a defendant in the suit. Mr. Iqbal Ahmed, the learned counsel for the Habib Credit and Exchange Bank Ltd., however, insists that it is an order of substitution by the purported successor which alone is the valid order to be sustained at this level.
4. He has cited before us Riasut Rasool Qadri v. Dubai Bank Ltd., PLD 1986 Karachi 297, but there the question, being one of the affect of an amalgamation Scheme under section 48 of the Banking Companies Ordinance, 1962, was altogether different and besides we have already rejected the argument of substitution raised by Mr. Muhammad Sharif as above.
5. The powers of the Court in the matters of creation or devolution of any interest or assignment thereof during the pendency of a suit are covered by rule 10 of Order 22, C.P.C. But the guiding principles in rule 10 of Order 1 of the Code in such matters still remain of some relevance. In either of these cases the powers of the Court are discretionary and such have to exercised ex debito justiae.
6. ' Now, what are the respective arguments of the learned counsel on the issue? Mr. Muhammad Sharif says that the scheme of amalgamation, both as to its validity and impact, has yet to be proved. He further says that it is quite possible and even likely that all liabilities of the B.C.C.I. May not ultimately be established to have been taken over by its purported successors viz. Habib Credit and Exchange Bank Ltd. He places reliance on Allah Jaway a v. Lajpat Rai, 1925 Lah.
574. Ghulam Fatima v. Rahim Baig, 1988 SCM R 250, Altaf Parakh v. Dalmonts Construction Co., 1992 CLC 700 and Suraya Begum v. Subhan Begum, 1992 SCM R 652. In the first of these cases, where the assignment pendente lite was disputed impleadment of the assignee was declined. In Ghulam Fatima's case the Supreme Court declined to join the assignee from the landlord pending a landlord and tenant dispute in a Constitutional Petition. In Altaf Parekh's case a learned Single Judge of this Court observed that a question, whether the applicant, seeking joinder, had derived interest from the plaintiff or the defendant was entirely a separate matter and not a question involved in the suit. Joinder was refused. In Surraya Begum's case the Supreme Court observed that an assignee can continue the suit without bringing himself on the record and that the rights for and against the assignee can be agitated for and against him, irrespective of his being impleaded, the only difference being that of direct or implied rights.
7. ' As against this, and relying on the case of Riasut Rasool Qadri ibid., Mr. Iqbal Ahmed says that once a scheme has been framed in terms of section 48 of the Banking Companies Ordinance, 1962, it has to be acted upon and operates in supersession even of all that is contained in the Companies Ordinance of 1984. As already said we have, at this stage of the proceedings, disallowed a challenge to the vires or the effect of the claim or defence. Such would remain an open question to be examined when the suit proceeds and the evidence unfolds. Besides, even if the assignee assumes full responsibility, a question always can arise as to its ultimate ability or willingness to discharges it. Correspondingly, we asked Mr. Iqbal Ahmed as to what prejudice would be caused to appellant-Habib Credit and Exchange Bank Ltd. If it was allowed to be added rather than substituted as a defendant in the suit, which has given rise to High Court Appeal No,182 of 1993. His argument on the point have been conflicting. In the first instance, he said that there are disputes and even litigations going on in this country between the B.C.C.I.
8. And Habib Credit & Exchange Bank Ltd. And on the other his plea was that the B.C.C.I. Being in liquidation could not even defend itself. As to this, all we can say is that even if B.C.C.I. Does not or cannot defend itself, such would make no difference whatsoever to the Habib Credit and Exchange Bank Ltd., if the scheme upon which it relies and on the basis of which it is arrayed as a defendant in the suit is found to be valid, binding and all pervasive in so as to controversies in the suit are concerned. Besides, if B.C.C.I. Can defend itself in the controversies viz-a-viz a Habib Credit and Exchange Bank Ltd., apparently, through liquidators, it can also to do so in the suit from which High Court Appeal No,182 of 1993 arises. At any event, it is none of the business or worry of the Habib Credit and Exchange Bank Ltd., to concern itself about what the B.C.C.I. Can or may do. Even if it undertakes to meet all the liabilities of such institution in liquidation, in the event there is decree against the B.C.C.I., such would be of no practical or factual consequence because, at any event, the Habib Credit and Exchange Balk Ltd. Should be there to effect compliance of such decree.
9. In the aforesaid circumstances, when no prejudice whatsoever can possibly be caused either to the Habib Credit and Exchange Bank Ltd. Or to the B.C.C.I. On account of the two institutions being sued side by side and when on the other hand the plaintiff in Suit No,190 of 1991 may suffer if and when it is found that its entire claim could not be met by the Habib Credit and Exchange Bank Ltd., on the basis of the scheme referred to above or otherwise, the best course is to add rather than substitute the Habib Credit and Exchange Bank Ltd., as a defendant in the suit. Another, and more pressing, legal aspect of the case is that there is a difference between an assignee or successor of a plaintiff and that of a defendant. If the assignee or the successor of a plaintiff fails, the failure effects only itself but if a claim cannot be realised from an assignee or from a successor of the defendant, it is not the assignee or successor who may suffer but the plaintiff in the suit. In the instant case, it is the defendant under whom the assignment is set up. In such cases, therefore, it is always a more sound exercise of discretion to allow addition of rather than a substitution of the defendant. For these reasons, we allow High Court Appeal 94 of 1996 and set aside the order of learned Single Judge, thereby permitting the Habib Credit and Exchange Bank Ltd., merely to be added as a defendant rather than to be substituted as the sole defendant in the suit.
10. Correspondingly, we uphold the impugned order of the learned Single Judge in High Court Appeal 182 of 1993 and dismiss such High Court Appeal In the circumstances, the disposals shall not carry any costs.
11. ' At this stage, we have discovered the cause of worry of Mr. Iqbal Ahmed. He says that if the foregoing order is allowed to cover the field, the same may result in re-opening of similar questions, already decided in other suits. We are unable to express any firm opinion on this question because hypothetical questions cannot be answered. However, we would tend to think that no further or final order, in the relevant context, should be passed by any Court within this jurisdiction, unless such order is calculated to advance justice and to suppress mischief, which may have or could occur. More than this we are unable to say anything.