Wednesday, 3 December 2014

Party can be added at any stage of the Trial

2014 C L C 442
[Sindh]
Before Abdul Rasool Memon and Abdul Maalik Gaddi, JJ
MUHAMMAD SIDDIQUE----Petitioner
Versus
DISTRICT JUDGE, JACOBABAD and 3 others----Respondents
Constitutional Petition No.D-1155 and MA. No.5628 of 2013, decided on 9th October, 2013.
Civil Procedure Code (V of 1908)---
----O. I, R. 10---Constitution of Pakistan, Art.199---Constitutional petition---Necessary party, impleading of---Limitation---Scope and application of O.I, R.10, C.P.C.---Defendant was aggrieved of order passed by Lower Appellate Court, allowing plaintiff to array revenue officials as defendants---Plea raised by defendant was that the application was moved by plaintiff at a belated stage when his evidence was closed---Validity---Allowing any party to be joined or substituted as party was discretionary with Court and such discretion was to be exercised depending upon facts and circumstances of the case guided by rules of propriety and justice---Impleading of a party, under O.I, R.10, C.P.C. at any stage meant and sufficed for its impleading for all subsequent stages of suit---Scope of O.I, R.10, C.P.C. was very wide and it was to be exercised liberally and no technical hurdle was to be considered so strong as to override the considerations of "adjudication" or right to justice and no question of limitation was involved in impleading or transposing any person as party---Evidence of plaintiff was recorded and matter had not been finally decided before Trial Court, therefore, contention of defendant could not be made basis against the order of Lower Appellate Court who failed to raise any question of law---High Court declined to interfere in the order passed by  Lower  Appellate  Court---Petition  was dismissed in circumstances.
Central Government of Pakistan v. Suleman Khan PLD 1992 SC 590  rel.


Muhammad Aslam H. Jatoi for Petitioner.
ORDER
            ABDUL RASOOL MEMON, J.- The petitioner through this petition has questioned the order of learned District Judge, Jacobabad, whereby he has allowed joining of Ghulam Sarwar, Sri Chand, Mukhtiarkar  and  Sub-Registrar  as  defendants  in  Suit  No.14  of  2011 and thereby allowed the revision application and set the order dated 16-3-2013, passed by the learned 2nd Senior Civil Judge, Jacobabad, with following observations :---
"4.        It is well-settled law that application under Order I, rule 10, C.P.C. can be moved at any stage of the suit and in the above case the petitioner/defendant claimed to be the owner of the disputed property and according to respondent/plaintiff he had become the owner on the basis of sale deed executed by one Ghulam Sarwar Tallani, who had purchased the same from Hindu Srichand, whereas the petitioner/defendant has claimed the property in dispute being Katchi Abadi and allegedly granted to him, therefore, in order to determine the status of the property in dispute the proposed defendants are necessary to be joined as party, as such, without joining them, the issue regarding property being owned by Hindu Srichand and sold out to Ghulam Sarwar Tallani or the property belong to Katchi Abadi cannot be determined, therefore, the learned IInd Senior Civil Judge, Jacobabad has failed to consider the proposed defendants being necessary party in the above suit and he has committed material irregularity while deciding the above application in hand. The object to join the proposed defendants would help the Court to arrive at just and proper decision about the suit property, particularly in determining the property being owned by Hindu owner Srichand or belong to Katchi Abadi. Accordingly, learned IInd Senior Civil Judge, Jacobabad is directed to join the proposed defendants by allowing the petitioner/defendant to amend the plaint to that extent and after filing of written statement the learned IInd Senior Civil Judge, Jacobabad should also frame issue regarding suit property belong to Katchi Abadi or otherwise and after recording evidence of both the parties decide the above suit strictly on merits, it is also ordered that IInd Senior Civil Judge, Jacobabad on application moved by either party or suo motu can get inspected the suit property from the concerned revenue official, as well as directorate of Katchi Abadi jointly regarding identification of the property in possession of petitioner/ defendant falls within the area of Katchi Abadi or otherwise. Accordingly, Revision Application is allowed with no order as to costs."
We have heard the learned counsel for the petitioner at length.
            The learned Counsel for the petitioner has questioned the order of learned District Judge, Jacobabad dated 17-6-2013, on the ground that the evidence of the plaintiff side was closed, thereafter the application for joining the parties was moved by the respondents, which was declined by the learned Senior Civil Judge, while without assigning any reason the learned District Judge has exercised his revisional jurisdiction illegally and with material irregularity, which was not vested with him. He has contended that no cause of action for joining the aforesaid persons as defendants was shown, therefore, the order passed by the learned District Judge is illegal and without jurisdiction.
            We have gone through the order of the learned District Judge, Jacobabad, which reveals that the present petitioner allegedly purchased the property from Ghulam Sarwar through sale deed, who purchased the same from Sri Chand and the property is pleaded to be situated within Katchi Abadi, therefore, the presence of Sub-Registrar, Revenue Officer and Municipal Officer including Ghulam Sarwar and Sri Chand before the trial Court is necessary for effectually and completely adjudicating upon the controversy between the parties.
            The only contention of learned Counsel for the petitioner is that the application under Order I, Rule 10, C.P.C. was moved with a delay, but he could not quote any provision of law providing limitation for filing application under Order I, Rule 10, C.P.C. It is well-settled law that allowing any party to be joined or substituted as a party is discretionary with the Court and such discretion. is to be exercised depending upon the facts and circumstances of the case and is guided by the rules of propriety and justice. Under Order I, Rule 10, C.P.C. impleading of a party at any stage means and suffices for its impleading for all subsequent stages of the suit. Moreover, the scope of Order I, Rule 10, C.P.C. is very wide. It is to be exercised liberally and no technical hurdle is to be considered so strong as to override the considerations of "adjudication" or right to justice and no question of limitation is involved in impleading or transposing any person as party. This dictum is laid down in the case of Central Government of Pakistan v. Suleman Khan, PLD 1992 SC 590.
            Considering the above dictum, we are of the opinion that still the evidence of the plaintiff has been recorded and matter has not been finally decided before the trial Court, therefore, the contention of the learned counsel that the application was moved at a very belated stage is devoid of force and cannot be made basis of entertaining a writ petition against the order of the learned District Judge. As no any question of law has been raised in this petition, therefore, we do not find any merit in this petition and dismiss the same in limine.

MH/M-160/K                                                                                      Petition dismissed.

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