IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.D-1470 of 2016
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Date Order with signature of Judge
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Present:
Muhammad Ali Mazhar, J.
Abdul Maalik Gaddi, J.
Muhammad Aslam Siddiqui …………. Petitioner
Versus
Bachubai Eduljee Dinshaw
Relief Fund & 03 others …………. Respondents
1. For hearing of CMA No.6588/2016
2. For regular hearing.
Mr. Zahid F. Ebrahim, Advocate for the Petitioner.
Mr. Abdul Rehman, Advocate for Respondents No.1 and 2.
Mr. Sibtain Mehmood, A.A.G.
Date of hearing : 19.01.2017
ORDER
Abdul Maalik Gaddi, J. Through this constitution petition, the petitioner has assailed the legality and propriety of the Judgment dated 02.02.2016 passed by the learned District Judge, Karachi (South) in Civil Revision Application No.94 of 2011 filed by the petitioner against the Order dated 20.08.2011, passed by the learned VIth Senior Civil Judge, Karachi (South) on application under Section 151 CPC, filed by the respondents in Civil Suit No.95 of 2003, whereby the learned District Judge, Karachi (South), after hearing the parties’ counsel, disposed of the revision application by modifying the Order dated 20.08.2011 to the extent that the suit was wrongly ordered to dismiss in non-prosecution with further findings that “the rest of the verdict in respect of recalling of Order dated 05.10.2009 stands intact.” i.e. petitioner had no case to join/substitute him as plaintiff in the case, which portion of the impugned Judgment, infact has been challenged in this petition.
2. Necessary facts for the disposal of the instant petition in nutshell are that originally one Nasirul Hassan filed captioned suit before this court against the respondents No.1 and 2 for specific performance of contract on the foundation that he purchased the suit property by virtue of agreement to sale dated 28.02.1979 from the respondent No.1 through the respondent No.2 and prayed for the following relieves:-
a) That this Hon’ble Court will order the defendants specifically to perform the agreement and to do all acts necessary to transfer and convey the suit property viz. S.No.16, Sheet PR 2 (Old S.No.13 Sheet F.3 measuring about 994 sq. yards without building thereon situated in Preedy Qtrs., Karachi to the plaintiff;
b) In case the specific performance is decreed the plaintiff claims Rs.600,000/- as compensation for wrongly withholding the performance of the agreement;
c) In the alternative decree for Rs.26,75,000/- by way of damages/compensation for non-performance of the contract and the repayment of Rs.1,78,920/- paid as earnest money against the defendants jointly and severally;
d) Interest at 14% from the date of the suit to that of payment;
e) In case of the decree for specific performance be denied against defendant No.1 the decree for damages be passed personally against defendant No.2 for his deliberate misrepresentation to the plaintiff that he was competent to sale the suit property, when he according to his own subsequent tacit admission was not so competent and for his adverse pleading to Advocate General in respect of the grant of permission to sell inspite of his agreement to the contrary;
f) Costs of the suit.
3. It appears from the record that matter was contested by the respondents who filed written statement. On denial of claim, this court had settled the issues. It also appears from the record that after settlement of issues, the evidence of Rajab Ali Panjwani, attorney of the Nasirul Hassan was recorded through Commissioner appointed by this court. Subsequently, on enhancement of pecuniary jurisdiction, the matter was transferred to the District & Sessions Judge, Karachi (South), who after receipt of R&Ps, transfer the same to the court of VIth Senior Civil Judge, Karachi (South) for disposal of case in accordance with law. It also reveals from the impugned judgment that respondent No.1 was served through court motion notice, filed a statement on 27.05.2006 and intimated the trial court regarding the death of the plaintiff (Nasirul Hassan). On this statement, plaintiff (Nasirul Hassan) side was directed to bring the legal heirs of the plaintiff on record, but the legal heirs of plaintiff (Nasirul Hassan) were not brought on record nor joined the proceedings.
4. From perusal of impugned judgment, it also transpired that after the death of plaintiff (Nasirul Hassan), petitioner Mohammad Aslam Siddiqui filed an application under Order I Rule 10 read with Order XXII Rule 10 CPC on 05.01.2009, claiming therein that he acquired all rights and interests of plaintiff (Nasirul Hassan) in respect of the suit property on the basis of agreement of sale/assignment executed in between the petitioner and the attorney of deceased plaintiff, as such, he may be joined as substitute of plaintiff (Nasirul Hassan) in the suit. The said application was entertained by the learned VIth Senior Civil Judge, Karachi (South) and parties were noticed and Mr. Muhammad Ismail Memon, Advocate gave no objection on behalf of Nasirul Hassan to the application of the petitioner, whereas, respondents were remained absent and the learned VIth Senior Civil Judge, Karachi (South) vide his order dated 05.10.2009 allowed the application of the petitioner to join and treated him as plaintiff in the suit. For the sake of convenience, it would be proper to reproduce the said order which reads as under:-
“The intervener Muhammad Aslam Siddiqui filed this application U/O I Rule 10 CPC R/W Order XXII Rule 10 CPC to substitute Nasirul Hassan with Muhammad Aslam Siddiqui as the plaintiff in the above suit, as all rights pertaining the suit property have been assigned in favour of Muhammad Aslam Siddiqui by Agreement dated 15.07.2003 through plaintiff’s attorney.
The notice of this application was given to the parties for 03/02/09. The advocate for the plaintiff given no objection, whereas, the defendants did not file objection no contested this application. The defendants and their advocates called absent. I therefore allow this application uncontested with no order as to costs to substitute Nasirul Hassan with Muhammad Aslam Siddiqui. The intervener is directed to file amended plaint according to law.”
5. It also transpired from the record that on 30.11.2010, respondent No.1 filed an application under Section 151 CPC, for recalling the order dated 05.10.2009. However, the learned VIth Senior Civil Judge, Karachi (South) after hearing the parties allowed the application filed by the respondent No.1 with the following findings:-
“Having heard the arguments of learned advocates for both the parties I have perused the material available on record including under discussion both the orders dated 27.05.2006 and 05.10.2009 respectively, which vetted that the parties have been failed to make compliance of order dated 27.05.2006 despite of repeated adjournments till 2009, when new plaintiff appeared and filed an application U/O I Rule 10 R/W Order XXII Rule 10 CPC on the basis of agreement of sale dated 15.07.2003. The order passed on same hinges upon said no objection by the advocate for the plaintiff, as no merit of the application or sale agreement was discussed. Even it has not been discussed that the sale agreement dated 15.07.2003 duly executed by the attorney of the original plaintiff with the new plaintiff but no such power of attorney is produced. As such, due to said no objection, this illegality was also not discussed in the order, neither it is discussed that what was the reasons due to which the L.Rs. of the original plaintiff were not noticed. Furthermore, it was also not discussed that his improvement was made in the subject matter in the year 2003 which amounts to overlap the title of original plaintiff then why the same was not brought on the record of the Court in order to show that the original plaintiff was alive and the said sale agreement dated 15.07.2003 is genuine and his attorney duly executed the same.
It may be noted from the statement dated 27.05.2006 on behalf of defendant No.2 with regards to the death of the plaintiff that he has been expired about two years back of the statement.
It is appeared from the above discussion that the plaintiff side has miserably been failed to make compliance of order dated 27.05.2006, which shows that no valuable rights or genuine cause of the plaintiff was involved otherwise his L.Rs. would be in touch with the advocate and keep themselves informed with regards to the proceedings and progress of the case. At this stage I am fortified to the golden principle of law that if favours the vigilant litigant and not the delinquent litigant.
It is also appeared from the above discussion that the order dated 05.10.2009 that it was obtained from this Court by playing fraud and misrepresentation as the new plaintiff wanted to step down in the shows of deceased plaintiff with collusion of his advocate. As such, the act of said advocate amounts to misconduct. As per settled law that no limitation is run against such order, which is based on misrepresentation and fraud.
In view of the above facts and circumstances, I am of the humble opinion that the case laws relied by the advocate for the new plaintiff are quite distinguishable from the facts of the present suit. Thus, this is prima facie in the application in hand filed on behalf of defendant No.2, thus, he made out the case for invoking the inherent power of the Court. I therefore, recall the said order dated 05.10.2009 and while looking to the conduct of the L.Rs. of the plaintiff, which are not appeared to be interested due to which none of them has bothered to appear before the Court in order to keep information of proceedings of the same. I therefore, dismiss the suit for non-prosecution.
Before parting from this order I am tempted to take exception with regard to the conduct of Mr. M. Ismail Memon, advocate for the original plaintiff, which is against the Code of Conduct as well as Rules of Sindh Bar Council. The defendant side is at liberty to file complaint against him before the Sindh Bar Council for their information and necessary action.”
6. Learned counsel for the petitioner argued that the respondent No.2 in the capacity as trustee of respondent No.1 agreed to sell the plot of land bearing Survey No.16, Sheet No.PR2 (Old Survey No.13, Sheet F3), measuring 994 square yards or thereabouts in the Preedy Quarter, Karachi to Nasirul Hassan vide agreement to sale dated 28.02.1979. He contends that the petitioner purchased the said plot from attorney of Nasirul Hassan vide agreement of sale/assignment dated 15.07.2003, copy of the agreement is enclosed as Annexure-E with the memo of petition. He also contends that said Nasirul Hassan had filed Suit No.385 of 1981 for specific performance of contract against the respondents No.1 and 2, wherein the present petitioner after the death of the Nasirul Hassan filed application under Order I Rule 10 R/W Order XXII Rule 10 CPC, for substitution of Nasirul Hassan with the petitioner, which was allowed on 05.10.2009 and petitioner filed amended title of the plaint in that suit. He further contends that after passing of thirteen (13) months, the respondents filed application under Section 151 CPC, for recalling the order dated 05.10.2009 which was allowed by the learned VIth Senior Civil Judge, Karachi (South) on 20.08.2011. The petitioner challenged the said order in Revision Application No.94 of 2011 before the District Judge, Karachi (South), who vide impugned Judgment dated 02.02.2016 disposed of the revision application and modified the order dated 20.08.2011 to the extent that dismissal of the suit for non-prosecution was not proper and suit was restored, however, it was held that the petitioner is not entitled to join/substitute in suit as plaintiff. Learned counsel for the petitioner draws our attention to paragraph No.12 of the order passed by the learned District Judge, Karachi (South) dated 02.02.2016 wherein it was held that the applicant/intervener was not a necessary and proper party in the proceedings. Per learned counsel, both the orders are illegal and unlawful as Order XXII Rule 10 CPC provides that a assignee can continue the suit in place of the assignor. Per learned counsel, the impugned judgment is suffering from misapplication of law and judicial mind and also in violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Lastly, he while relying the facts and grounds as mentioned in the memo of petition and documents on record contended that the instant petition may be allowed as prayed. In support of his contention, learned counsel has placed reliance on the following cases:-
i. Mst. Surraya Begum and others v. Mst. Suban Begum and others reported as 1992 SCMR 652;
ii. Rashid Ahmed v. Mst. Jiwan and 05 others reported as 1997 SCMR 171;
iii. Metropolitan Corporation of Lahore through Administrator v. Syed Bhais (Pvt.) Ltd. through Managing Director & 05 others reported as 2004 MLD 1395.
7. Conversely, the learned counsel for respondents No.1 and 2 has opposed the above contentions of the petitioner’s side and argued that the respondents had filed a statement dated 27.05.2006 informing the death of the plaintiff (Nasirul Hassan), upon which the learned trial court had passed orders for moving proper application. He further argued that after the expiry of more than five (05) years, the petitioner/intervener had moved the application under Order I Rule 10 CPC on the basis of unregistered agreement of sale/assignment, which was allowed without notice to the respondents merely on the basis of no objection of advocate of deceased plaintiff, who had no authority, after the death of Nasirul Hassan. Lastly, learned counsel argued that the learned trial court vide its order dated 20.08.2011 has rightly allowed the application of the respondents and the petitioner has no right/title to be joined in the proceedings. In support of his arguments, he has relied upon the case of Muhammad Sharif v. Dr. Khurshid Anwar Mian reported as 1996 SCMR 781.
8. Learned A.A.G. has argued that infact there is no interest of the Government in this case as the dispute relates to the private parties, as such, according to him, the case may be decided on the basis of material available on record.
9. We have heard the arguments of learned counsel for the parties at a considerable length and have perused the record with their able assistance.
10. It reveals from the record that deceased plaintiff (Nasirul Hassan) was claiming his interest in the suit property on the basis of disputed agreement of sale in between him and the respondents dated 28.02.1979 and instituted a suit for specific performance of contract against the owner/respondent No.1. During the pendency of the suit, Nasirul Hassan died and his legal heirs have not been joined as party in the suit so far. However, the case of the petitioner/intervener is that he acquired the rights and interests in the suit property from the deceased plaintiff on the basis of the agreement of sale/assignment dated 15.07.2003 executed in between the petitioner and attorney of Nasirul Hassan. Nothing on record that the property in suit has ever been transferred in the name of Nasirul Hassan, however, he was claiming his right and title in the suit property on the basis of agreement of sale, which in our view no way to confer any legal right and title to Nasirul Hassan in terms of Section 54 of the Transfer of Property Act, 1882, until and unless the sale agreement was specifically got enforced through decree of the court and sale deed was executed. In this regard, we are fortified with the case of Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others reported as 2003 SCMR 1416. In this case law, it has been held that agreement to sale would not confer any right of ownership on any person.
11. The word “legal right” means right or interest recognized and protected by laws of State. Such right alone a legal right and every legal right involves a duty or obligation; but here in this case, no legal right devolved in favour of the petitioner.
12. In view of above, the deceased plaintiff (Nasirul Hassan) was not competent or qualified to transfer the suit property to anyone including the petitioner/intervener. The execution of alleged agreement of sale/assignment on the part of deceased plaintiff in favour of the petitioner in suit property as claimed is not enforceable under the law as no right devolved in his favour. In absence of the legal right and character, the petitioner will not be accepted and recognized as a necessary or proper party in the suit, nor he can be treated as a substitute of the deceased plaintiff in the suit. No interest has been created in favour of the petitioner, therefore, the petitioner could not avail the provisions contained in Order XXII Rule 10 C.P.C. Learned counsel for the petitioner in support of his argument has placed his much reliance in the cases of Mst. Surraya Begum and others v. Mst. Suban Begum and others reported as 1992 SCMR 652 and Rashid Ahmed v. Mst. Jiwan and 05 others reported as 1997 SCMR 171 and submitted that the above cited case laws supported the contention of the petitioner and in view of the cited case laws, the petitioner is entitled for his substitution in place of deceased plaintiff (Nasirul Hassan). Reverting to the contention of learned counsel for the petitioner, it is suffice to say that firstly on 05.01.2009, the petitioner had filed application to substitute him in place of the deceased plaintiff on the basis of sale agreement/assignment dated 15.07.2003 in between the petitioner and the attorney of deceased plaintiff (Nasirul Hassan), after the lapse of more than five years for which no explanation has been furnished and secondly, the said alleged agreement of sale/assignment has been seriously disputed by the respondents and the hon’ble Supreme Court in the case of Muhammad Sharif v. Dr. Khurshid Anwar Mian reported as 1996 SCMR 781 while distinguishing the case of Mst. Surraya Begum and others v. Suban Begum and others reported as 1992 SCMR 652 relied by the learned counsel for the petitioner, has observed as under:-
7. “Under Order I, rule 10 or Order XXII, rule 10 C.P.C., the Court has discretion to allow any party to be joined or substituted as a party. Such discretion is exercised depending on the facts and circumstances of the case and is guided by the rules of propriety and justice. Reference can be made to Begum Mehrunnisa v. National Building Industries Ltd., Karachi and 2 others (1972 SCMR 102). In Allah Jawaya and another v. Lajpat Rai and others (AIR 1925 Lahore 574) the rejection of application under Order I, rule 10, C.P.C., by an assignee was held to be proper exercise of discretion as the factum of assignment was disputed and the application for substitution of assignee was alleged to have been made months after the assignment.”
In view of the above, the case of Mst. Surraya Begum (Supra) is not applicable to the present facts of the case, hence, not helpful for the petitioner.
13. As far as, the case of Rashid Ahmad v. Mst. Jiwan and 5 others reported as 1997 SCMR 171 as also relied by the counsel for the petitioner is concerned, the same also do not favour the case of the petitioner as the facts of the cited case law is distinguishable to the facts of the present case, inasmuch as, in the cited case law, the hon’ble Supreme Court allowed the appellant Rashid Ahmad to join as a respondent in the case having registered sale deed in his favour executed by the respondent No.2 during pendency of the appeal. We have also considered the case of Metropolitan Corporation of Lahore through Administrator v. Syed Bhais (Pvt.) Ltd. through Managing Director and 05 others reported as 2004 MLD 1395 relied by the counsel for the petitioner, but the said case law is also on different facts.
14. In order to decide this petition, we have also taken the assistance from the case of Muhammad Zubair v. Mrs. Arshad Begum and others reported as 1999 CLC 1291, wherein it has been held as under:-
“Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑O. I, R.10‑‑‑Necessary party‑‑‑Petitioner/plaintiff on the basis of sale agreement executed an agreement to sell suit property, in favour of another person‑‑‑Petitioner/plaintiff could not be the owner of the suit property till such time a registered sale‑deed was executed in his favour, to convey title‑‑‑Trial Court had impleaded other person as a necessary party to the suit with whom the petitioner/plaintiff had entered into an agreement to sell‑‑‑Validity‑‑‑Mere execution of agreement of sale in favour of petitioner/plaintiff, filing of suit by him for the enforcement of agreement and even passing of decree in his favour would not make him owner of suit property‑‑‑Impleadment of a person with whom petitioner (plaintiff) had further entered into agreement of sale of the same property was bound to result in multifariousness for which there was no warrant under 0.1, R.10, C.P.C.‑‑‑Order directing impleadment of such other person in the suit for specific performance of the petitioner/plaintiff, was violative of law and without jurisdiction‑‑‑Order of Trial Court was set aside in circumstances.”
15. As observed above, no devolution of interest having yet occurred in favour of the petitioner, therefore, in view of the above legal position, facts and circumstances of the case, the petitioner/intervener is/was not a necessary and proper party in the proceedings. Neither he is legal heir of Nasirul Hassan, nor Mr. Ismail Memon, Advocate was authorized and competent to give no objection on behalf of deceased plaintiff (Nasirul Hassan) on the application of the petitioner/intervener to substitute him as plaintiff in the suit, therefore, the Order dated 05.10.2009 passed by the learned trial court only to this extent was nullity in the eyes of law. We have gone through the order dated 02.02.2016 passed by the Revisional Court, but did not find any illegality or irregularity in it for interference by this court. One more important aspect which is to be seen by the trial court as to whether the trust property could be sold out by the trustee in the manner in which the sale agreement was allegedly executed with deceased Nasirul Hassan.
16. For the reasons what has been discussed above, this constitution petition found having no legal force, is dismissed alongwith listed application. The impugned Order dated 02.02.2016 passed by the learned District Judge, Karachi (South) is upheld as the same has been passed in proper exercise of jurisdiction as no illegality or irregularity has been pointed out by the counsel for the petitioner in the impugned order. However, the trial court is directed to take necessary legal action/steps as per law for the joining of legal heirs of the deceased plaintiff (Nasirul Hassan), who have still not been joined as plaintiff in the suit and decide the case expeditiously as early as possible in accordance with law, as the same pertains to year 1981.
Karachi
Dated: 19.04.2017
JUDGE
JUDGE
Faizan A. Rathore/P.A.