ORDER CMA No. 5058/2001 MUSHIR ALAM, J.- Instant suit filed by Avari Hotel Ltd., against Investment Corporation of Pakistan and others for Declaration & Injunction, was decreed in terms of compromises dated 19.5.2001 vide order dated 17.7.2001, passed on application under Order 23, Rule 3, CPC (CMA No. 5059/2001).
Whereafter, the office has fixed CMA 5058/2001, under Order I, Rule 10, CPC filed by Beach Luxury Hotel (Pvt.) Ltd., seeking their joinder as co-plaintiff.
2. When this application was fixed, for hearing learned counsel for the parties were required to satisfy the Court as to how the application could be considered after disposal of the suit. Mr. Muhammad Ali Sayeed learned counsel for the plaintiff, proposed co-plaintiff and Mr. Mehmood Mandiwala representing all the defendants pointed out that on a day when the matter was fixed in Court on 13.7.2001, listed application being, CMA No. 5058/2001 under Order 1, Rule 10, CPC was also fixed at serial No. 2 alongwith application under Order 23, Rule 3, CPC (CMA No. 5059/2001). However, counsel for the parties only pressed the CMA No. 5059/2001 which was allowed and suit was disposed of in terms of compromise, it was argued by Mr. Muhammad AN Sayeed, learned counsel for the plaintiff and proposed Co-plaintiff that, in view of Sections 152 and 153, CPC., this Court may at any time amend any defect or error in the proceeding, arising out of accidental slip or omission and since the subject application was already fixed, which was not disposed of on account of lapse or oversight, could be considered even after the disposal of the suit to foster the cause of justice as no decree has been drawn, In support of his contention he has placed reliance on Muhammad Sher v. Muhammad Khan (PLD 1975 Lah. 1016), Fazal Din v. Rehabilitation Commissioner (Land) (1988 MLD 2401) and Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others (1991 SGMR 515).
3. Mr. Mehmood Mandiwala, learned counsel appearing for the defendants concedes to such legal position. I have heard both the learned counsels and perused the record.
4.Record shows 4th M/s. Avari Hotel Ltd., filed a suit against the defendant banks for declaration and injunction in respect of some dispute that had arisen out of agreement of finance and restructuring dated 30.12.1998. It appears that under a deed of settlement dated 19.5.2001 between defendants as one party, the plaintiff and proposed co-plaintiff i.e. Beach Luxury Hotel (Pvt.) Ltd., as other party, compromised the matter, where under, certain right and liabilities of the plaintiff i.e. Avari Hotel Ltd., were to be discharged and satisfied by the proposed co- plaintiff. In the said compromise it was also agreed that by consent an application to implead Beach Luxury Hotel (Pvt.) Ltd., would be filed. Same was filed on 29.6.2001. Only question that has arisen is, whether any party could be impleaded or joined after the disposal of the suit.
5. Section 153, CPC confers general power on Courts to amend any defect or error in the proceeding in a suit, for the purpose of determining the real question or issue raised by or depending on such proceedings. Such powers can be exercised by the Court at any time, un such terms as to cost or otherwise even after the Court has disposed of the suit.
6. In the case of Muhammad Qasim Khan (1991 SCM R 515) (supra) where one of the parties was left out in the case of inheritance, it was held by the apex Court that such party could be granted relief by the Court in terms of order 41, Rule 33, CPC and Order 33, Rule 5 and so also by transposition under Section 151 read with Section 153, CPC. In the case of Fazal Din (1988 MLD 2401) (supra) Court held that the powers under Sections 153 and 153 are to be exercised within reasonable time, In the case of Muhammad Sher (PLD 1975 Lah. 1016) (supra) the application under Order 1, Rule 10 read with Section 153, CPC for impleading legal heirs of the deceased respondents was allowed in consideration of the fact that, legal heirs were already brought on record by the Appellate Court but, such fact was recorded in the decree so prepared. The application was allowed, correction was carried out.
7. Though instant suit was filed by the plaintiff i.e. Avari Hotel Ltd., based on restructuring agreement dated 30.12.1999, between the plaintiff and the defendants, In this agreement Beach Luxury Hotel (Pvt.) Ltd., was not prevy to the contract. However, it appears that a compromise was arrived at between plaintiff and the proposed co-plaintiff i.e. Beach Luxury Hotel (Pvt.) Ltd., on one hand and the defendants on the other. Defendants also conceded in the agreement to join the proposed co- plaintiff as party to the proceeding; co-plaintiff, assumed certain rights obligations under the compromise agreement on the basis of which suit was decreed. Such assumption of rights and liabilities/obligations were made pendelite, by the proposed co-plaintiff vis-a-vis the defendants by virtue of which the co-plaintiff became proper if not necessary party to the proceedings.
8. In the instant case thought the application for compromise was allowed and suit was disposed of-in terms of compromise agreement thereof. But the decree has not been prepared as yet.
9. Order 1, Rule 10, CPC envisage addition,, or substitution of a party at any stage of suit, In the case of Daw Aye Mya v. U Kwe Nyo and another (AIR 1935 Rangoon 23), Preliminary decree in a mortgage suit was passed, whereafter, an application for joinder was made on the ground that plaintiff therein learnt that the defendant had further created charge on the mortgage property necessitating joinder of party. Joinder was allowed, preliminary decree was prepared afresh, In 'appeal against such joinder the Appellate Court at page 23 observed as follows:- However it is clear from the provisions of R. TO, the , Civil Procedure Code, that a Court has a discretion to order the addition of necessary parties at any stage of the proceedings, and plainly this discretion always ought to be exercised when its exercise will tend to finality of the litigation, it has been settled by a long course of decisions that .Parties can be added to a suit after a preliminary decree therein has been passed.
In the case Dinanath Kumar v. Nishi Kanta Kumar (AIR 1952 Calcutta 102) also, plaintiff was added after a preliminary decree in a mortgage suit was passed. Which position was upheld by a Division Bench in the said case, it will not be oUt of place to observe, that joinder or transposition of proper and necessary parties is always carried out by the Court liberally, for the simple reason to avoid multiplicity in proceedings and brining an end to the controversy effectively and finally between all the parties that may be effected by the decision, it is for this obvious, reason such powers are exercised liberally even at Appellate stage. Under Order 41, Rule 33, CPC the High Court and under Order 33, Rule 5 of Supreme Court Rules the Apex Court exercise such powers, whether such parties have filed an appeal or objections to the proceedings or not. Such view also find support from the case reported as Central Government of Pakistan and others v, Suleman Khan and others (PLD 1972 S.C. 590) and Muhammad Sharif v. Dr. Khurshid Anwar Mian (1996 SCM R 781).
10. In this case as stated above the application under Order 23, Rule 3, CPC was allowed on 13.7.2001 when the application under Order 1, Rule 10 was already listed but same could not be disposed of for the reason already mentioned above. The proposed co-plaintiff has assumed certain rights and obligations under the deed of compromise arrived at between the plaintiff/co-plaintiff and all the defendants. Such proposed Co-plaintiff is liable on the same contract on the basis of which the suit was disposed of. Under Order 1, Rule 6 plaintiff at his option may join as party to the same suit or any of the person severally and jointly liable on any one contract. Same is the spirit of Section 43 of the Contract Act, which also provides that joint promisor are equally liable to the promisee and each of promisor in absence of the agreement to the contrary could be compelled by the promisee to perform the whole of the promise, In the instant case, as discussed above the proposed co-plaintiff being co-promisor in the compromise agreement convented to discharge the liability of the plaintiff in terms thereof, In absence of such co-plaintiff/co-promisor, the interest of all the defendants who are all Banking Companies and financial institution would be seriously affected or jeopardize. Under circumstances the application under Order 1, Rule 10 read with Section 151, CPC is allowed.
11. Name of Beach Luxury Hotel (Pvt.) Ltd., to be added as co-plaintiff with red ink. Such joinder is by consent of all the parties, including the proposed Co-plaintiff, I am satisfied, no prejudiced could be caused to any of the party rather, it would protect the rights and interest of all the parties. Since the name of Beach Luxury Hotel (Pvt.) Ltd., has been added after the suit was disposed of in terms of compromise but, before the Decree could be prepared, In order to meet the ends of justice, the error or defect in proceeding that crept in while decreeing the suit without disposing of the instant application that was also listed on same date, is corrected and mended. The suit would be deemed to have been disposed of in presence of and after joinder of Beach Luxury Hotel (Pvt.) Ltd., as plaintiff No. 2. Let the decree be prepared accordingly.
Application stands disposed of in above terms with no order as to costs.
In view of the foregoing orders, CMA 128/2002 having served its purpose also stands disposed of.