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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