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Petitioner: MUHAMMAD ARSHAD And ANOTHER VS Respondent: Mst. FIRDAUSIA BEGUM And 4 OTHER
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: MUHAMMAD ARSHAD And ANOTHER vs Mst. FIRDAUSIA BEGUM And 4 OTHER Case No.: Civil Revision No. 223 of 1993 Date of Judgment:1994-05-17 Reported As: 1994 CLC 1967 Result: Petition dismissed
JUDGMENT
JUDGMENT M/s. Muhammad Arshad and Muhammad Asad Chaudhry, who are sons of Ch. Muhammad Baksh, the petitioners before this Court, are real brothers of Mst. Firdausia Begum and other respondents Nos.l to 5. Mst. Sabiha Begum, respondent No.2, filed a suit, seeking grant of a decree for partition of Property No.M/416, situate in Mohallah Amarpura, Rawalpindi, against the petitioners and respondents Nos.l, 3, 4 and 5. The petitioners and respondents Nos.3 to 5 entered appearance in the suit and contested it by filing of written statement claiming therein that the property in question is not joint as the same has been conveyed to them by their mother vide registered deed of conveyance dated 18-12-1962. Address of Mst. Firdausia Begum, the respondent No.l who was cited as a defendant in the suit was mentioned as (resident of 82-B, Shah Nawaz Colony, Lalazar, Rawalpindi Cantt.). It is on this address that the summons were issued to her whereupon it was reported by Shahzad Ahmad, Process Server on 4-1-1990 that she is not residing at the given address and as such service upon her could not be effected. On the basis of this report of "Addam Rehaish," learned trial Court vide order dated 6-1- . 1990 directed that fresh summons be issued to her for 5-2-1990. It appears that for the said date, summons were sent at some address of some outer District which address is not mentioned in the Fard Talbana, nor is reflected from any other part of the record of the suit. It was reported that summons had not been received from and outside District where after vide order dated 18-3-1990, learned trial Court ordered that fresh summons should be issued to her on furnishing of process fee, registered envelop and through telegram for 16-4-1990. It appears that summons were again issued on the basis of the same process fee and Fard Talbana which was filed in the Court on 20-2-1990 as no other Fard Talbana is available on the record. In this Fard Talbana as well no address of the said defendant is
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mentioned, however, there is note that three registered A.D. envelopes are annexed. Even the said summons were not received back as is clear from the report dated 31-3-1990 which is made on the margin of the order sheet and which is to the following effect: However, learned Civil Judge held that respondent No.5 has been served through registered post and the telegram and as she was absent, she was proceeded against ex parte. It may be mentioned here that postal receipt which is appended to the file shows that a registered A.D. envelope was sent to Firdausia Begum c/o Circle Head, Mehmood-ul-Hassan, U.B.L. Circle Office, Gujranwala, copy of the telegram however, is not on the record. There is also nothing on the record to show nor the learned trial Court seized of that suit adverted to this aspect of the matter as to whether the registered envelope and the telegram were sent at the correct address, particularly in presence of the report that summons have not been received back after effecting service upon defendant-respondent No.l. As respondent No.2, who was plaintiff in the said suit, failed to lead evidence, her evidence was closed and the suit was dismissed vide judgment and decree dated 30-3-1991. This judgment was not further challenged by the respondent No.2 and, hence, became final. 2. On 29-7-1992, respondents Nos.l, 2 filed a fresh suit seeking partition of the property referred to above, claiming therein that the suit property is jointly owned by the parties to the suit, hence a decree for possession through partition may be passed in their favour. The petitioners and the respondents NQs. 3 to 5 appeared in the suit, riled a written statement and contested the suit. Besides other grounds, plea of res judicata has also been raised by the said respondents. Ch. Muhammad Saeed Bhatti, Advocate, learned counsel for the plaintiff/respondent No.2 made a statement and withdrew the suit to her extent without any objection from the learned counsel for the co-- plaintiff/respondent No.l vide order dated 11-3-1993. Thereafter, Mst. Firdausia Begum, respondent No.l filed an application under Order VI, Rule 17, C.P.C. read with the provision of Order 1, Rule 10 and section 151, C.P.C.. Through this petition a prayer has been made to amend the plaint so as to challenge the legality and validity of the conveyance deed dated 18-12-1962, on the ground that the said document is manipulated and cannot be said to be a deed of transfer, as such, is liable to be cancelled and further to implead Mst. Sabiha Begum respondent No.2 as a defendant being a necessary party to the suit. This application has been contested. Learned trial Court vide order dated 13-5-1993 accepted the application allowed amendment as prayed for and the impleadment of respondent No.2 as a defendant in the suit. This order has been challenged through this Civil Revision by defendants Nos.l and 2. 3. Mirza Anwar Baig, Advocate has appeared on behalf of the petitioners and has argued that respondent No.2 having earlier filed a similar suit and having failed and thereafter having withdrawn from present suit and got her name deleted without any objection by respondent No.l, learned lower Court had no lawful authority to direct her impleadment as a defendant in the suit. Learned counsel has further contended that the suit is barred by principle of res judicata and, therefore, the application for impleadment/amendment could not have been granted, particularly when through the proposed amendment, altogether new and inconsistent pleas are intended to be raised which were within the knowledge of the plaintiff at the time of filing of the suit and were not pleaded without a reasonable cause, hence, it was not a fit case where the application for impleadment/amendment of the plaint could have been allowed. In support of the proposition that respondent No.2 could not have been ordered to be impleaded as defendant, learned counsel has placed reliance on the4ollowing cases:- (1)Mahanth Singh v. U Ba Yi (AIR 1939 PC 110). (2)The Evacuee Trust Property Board, Lahore v. Mat. Farkhanda Akhtar and others (1989 SCMR 1589). (3)Idrees Anwar v. National Industrial Cooperation Ltd. (1993 CLC 1207).
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In support of his arguments to the effect that amendment of the plaint could not have been allowed, learned counsel has placed reliance on the following cases:-- (1)Bhubaneswa r Patel v.'Janak Patel and others (AIR 1976 Orissa 216). (2)Bhagavatala Gopalakrishnamurtla and others v. Dhulipalla Sreedhara Roa and another (AIR 1950 Madras 32). (3)Mt. Kanta Devi v. Sm. Kalwati and others (AIR 1946 Lahore 419). (4)The Municipal Corporation of Greater Bombay v. Lala Pancham and others (AIR 1965 SC 1008). (5)Abdul Haq and another v. Mst. Fatima (AIR 1935 Lahore 544). (6)Maung Sein Done v. Ma Pan Nirum and others (AIR 1932 PC 161). (7)Raja Sher Ahmed v. Muhammad Abdullah and others (1991 SCMR 277). 4. Main Muhammad Rafi-ud-Din, Advocate, learned counsel for respondent No.l has argued that in a partition suit every co-sharer is a necessary party and, therefore, it being a partition suit filed on the basis of allegations that the property is still joint between the parties, respondent No. 2 being a co-sharer was a necessary party, and therefore, even if she had lost the earlier suit or had got her name deleted as co-plaintiff, she is to be impleaded as a defendant in the suit, as otherwise, the suit shall not be properly constituted. In support of his arguments, learned counsel has placed reliance on the following cases:-- (1)Fazal Dad and others v. Ahmad Ali and others (PLD 1960 Lah. 106). (2)Chandu Lai Agarwalla, Karta of joint family and of firm named Hanutram Lekram Agarwalia, defendant 14 and others, v. Bibikhatemonnessa w/o Safikhuddin Ahmed and others (AIR 1943 Calcutta 76). (3) Habibur Rahman v. Abdul Rahman and 3 others (1987 CLC 195) 5. Referring to the provisions of Order XXIII, Rule 1, C.P.C. learned counsel contends that withdrawal of the suit by a joint owner or dismissal of a similar suit filed by one of the co-owners, will not bar the subsequent suit by another co-sharer as an order passed under Order 23, rule 1 in such a case is not controlled by the provisions of Order 23, rule 1 (4). Learned counsel further contends that unconditional withdrawal of a suit bars a remedy and not a right, therefore a partition suit till the property is divided by metes and bonds shall always be based upon fresh cause of action and, hence, will be competent. Therefore, neither the subsequent partition suit is barred nor is there any bar to implead/add a withdrawing co-plaintiff as a defendant in the suit. In support of his arguments, learned counsel relies upon the following cases: (1)Nanu Singh v. Muni Nath Singh and others (AIR 1954 Patna 314). (2)Baidyanath Nandi and others v. Shyama Sundar Nandi Managing Shebait of Sri Iswar Lakshmi Janardan Thakur and others (AIR 1943 Calcutta 427). (3)Nilappagouda Goudappagouda and others v. Basangouda Sangangowda and others (AIR 1927 Bombay 244). . 6. Learned counsel has further contended that in the earlier suit filed by respondent No.2 wherein the plea of acquisition of exclusive title in the property in question was pleaded in defence, the respondent No.l, who is a lady, was proceeded against ex parte on the basis of alleged service, through a telegram and registered post, which service is illegal and of no legal effect as there is nothing on the record to show that she has received the telegram or the registered envelope or that the same were sent at her correct address. Report is rather to the effect that summons have not been received back from outer District. Therefore, it cannot be said that she had the knowledge about the contents of the written statement filed by the petitioners in that suit, which written statement had not been served upon her. It is contended that plea of the petitioners came to her notice for the first time when written statement was filed by the petitioners in the suit filed by her, whereafter, an application was moved seeking amendment of the plaint so as to add the plea of illegality of deed of conveyance on the ground of being based upon fraud which plea according to
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the learned counsel is also a part of and is in-continuation of the plea already raised in the suit which is to the effect that the property in dispute is still joint amongst the parties to the suit, and hence is partitionable. Lastly it is contended that issue of ownership of the. property having not been finally decided between the petitioner and respondent No.l, plea of res judicata affecting powers of the lower Court to allow impleadment of respondent No.2 as a party and amendment in the plaint is neither available to the petitioners nor is of any legal efficacy. It is as such contended that the amendment of the plaint has rightly been allowed by the learned lower Court and hence the impugned order is quite in accord with the law declared in the following cases. (1)Central Government of Pakistan and others v. Suleman Khan and others (PLD 1992 SC 590). (2)Semco Salvage Pte Limited v. m.v. "Kaptan Yusuf Kalkavan" and another (1993 SCMR 593). (3)Nur Nazar v. Azim (PLD 1993 SC 332). (4)Sheikh Abdul Rahim v. Noor Muhammad and 8 others (1993 CLC 1059). (5)Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345). 7. In order to appreciate the arguments of the learned counsel for the parties and merits of the case in hand, it will be advantageous to reproduce the relevant statutory provisions on the subject and to have a brief resume of the case-law cited at the Bar, by the learned counsel for both the parties, which provisions and the resume is as follows:-- "STATUTORY PROVISIONS C.P.C SECTION 11: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigatinh under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. ORDER 1. RULE 10: Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the Fight plaintiff, the Court may at any stage of the suit, .if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2)The Court may at any stage of the proceedings, either upon or without the application of either party, and no such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added.. (3)No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4)Whether a defendant is added, the plaint shall unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5)Subject to the provisions of the Indian Limitation Act, 1877, section 22 the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. ORDER 6 RULE 17. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as
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may be necessary for the purpose of derterminating the real questions in controversy between the parties. ORDER 17 RULE 3. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith:' RES UME OF THE CASE-LAW. In case of Mahanth Singh v. U Ba Yi AIR 1939 PC 110 it has been held that Order 1, Rule 10, C.P.C. although authorises the Court to order the name of a party improperly joined to be struck off but in case the order is not subjected to any terms then the effect of withdrawal of the suit would be that the plaintiff shall be debarred from filing of fresh suit on the same subject-matter. However the order of withdrawal of the suit without permission will not release or discharge the debt payable to the plaintiff creditor. In case of The Evacuee Trust Property Board, Lahore v. Mst. Farkhanda Akhtar and others (1989 SCMR 1589) where the petitioner in a pending settlement proceedings before the Settlement Commissioner, had dropped certain respondents and also before the High Court in appeal which was accepted and the case was remanded, and therefore he wanted to implead the dropped parties as respondents in the post remand proceedings, their Lordships have held the petitioner having himself invited Court to adopt course of action whereby respondents' names were dropped, could not make a grievance against that course of action. Fact of this case clearly shows that it was the petitioner who himself had dropped certain parties as respondents in the proceedings and as remand order had become final and had not been challenged and naturally had to be decided amongst the original parties during the post-remand proceedings, the petitioner was not again allowed to add the deleted parties as respondents. In case of Idrees Anwar v. National Industrial Cooperative Finance Corporation Ltd. 1993 CLC 1207 where, in a pending suit an official defendant against whom no relief had been claimed in the suit was struck off as a party from suit, on the ground that he was neither a necessary nor a proper party and the said order having not been challenged became final, fresh application for impleadment of that official defendant was dismissed, this Court held that as the defendant was neither a proper nor a necessary party nor any relief has been claimed against the said official defendant, therefore, he has rightly not allowed to be impleaded as a party to the suit, hence, the Constitutional petition was dismissed. In this case also it is apparent that the main emphasis for non-interference with the order passed by the learned Civil Judge is that the party to be impleaded in the suit has been held to be neither a proper nor a necessary party. In case of Nunu Singh v. Muni Nath Singh and others (AIR 1954 Patna 314) which is nearest to the facts of the case in hand, it has been held that in case of the several plaintiffs desires to withdraw from the suit without the liberty to bring a fresh suit in respect of the subject-matter of such suit or such part of the claim, such a case is outside the provision of 0.23, R.1 and, hence, withdrawing plaintiff may be added as a defendant. Paragraphs 10 and 11 of the judgment at page 316 of the report are reproduced as under:-- "10.As I read these sub-rules of Rule 1, in my judgment, sub-rule (4) does not govern sub-rule (1) which was for the first time brought into the statute book in 1908; the sub-rules (2) to (4) were already there even in the Code of 1882; and that in a case where one of the several plaintiffs desire to withdraw from the suit without the liberty to bring a fresh suit in respect of the subject-matter of such suit or such part of the claim such a case is outside the provision of Order 23, rule 1. I am amply supported in the view which I have taken of these sub-rules of rule 1 by a long line of cases of different Courts and the latest of these cases is the case of `Baidya Nath v. Shyama Sundar', AIR
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1943 Cal. 427 (a). This Calcutta case has reviewed all the previous decisions of the different High Courts, and it is not necessary for me to reconsider those cases. Both parties relied upon this case. 11.Mr. P.R. Das, appearing on behalf of the opposite-party, supported the order moved against, but, upon the authority of this case, he submitted that in suitable cases, as was held in the above- noted case, one of the several plaintiffs, who wants to withdraw from the suit, may be added as a party defendant to the action as was done in several cases in this country which were referred to in the Calcutta case. Mr. Lal Narayan Sinha, appearing on behalf of the petitioner, welcomed the suggestion of Mr. Das and he agreed that the petitioner should be added as a defendant to the suit. In this view of the matter, it is not necessary to seriously consider the argument of Mr. Das that, as there was no question of jurisdiction, this Court should not interfere with the order passed. As I Have already indicated, the learned Munsif has not considered the implications of the sub- rules of rule 1 of Order 23, and, if it was necessary to hold, I should have found that the Court below, in exercise of its jurisdiction, has acted with grave and material irregularity in rejecting the application of the petitioner on the grounds mentioned by it. In the circumstances, aforesaid, I would allow the application and direct that the petitioner Nunu Singh be removed from the category of plaintiff and be added as a defendant to the suit pending before the learned Munsif at Barh. In case of Nandi and others v. Shyama Sundar Nandi and others (AIR 1943 Calcutta 427) it has been held that in case where one of the co-plaintiffs desires to withdraw from the suit without consent of the other co-plaintiff the provision of Order 23, rule 1 (4) are not applicable and in such a case he should be ordered to be joined as a defendant and an order should also be passed indemnifying the remaining plaintiffs. At pages 428, 429 and 430 of the report it has been observed as under:-- "It would clear from the provisions of sub-rules (1) to (3) mentioned above that it is only when the plaintiff wants liberty to bring a fresh suit in respect of the same subject-matter that he is required to ask the permission of the Court as is provided for in sub-rule (2). If he does not want the liberty to institute a fresh suit nor seeks to avoid the consequences which sub-rule (3) imposes upon him he can withdraw the suit suo motu as laid down in sub-rule (1) without any permission from the Court. The question now is what would be the position, if there are several plaintiffs in a suit and one of them wants to withdraw from it. Under sub-rule (4) the Court has no authority to permit one of several plaintiffs to withdraw without the consent of the others. In my opinion, Mr. Bose is right in his contention that the operation of sub-rule (4) is confined to cases where permission of the court is necessary in order to enable the plaintiff to withdraw from a suit on in other words, it is applicable only when the plaintiff wants to have the liberty of instituting afresh suit in respect of the sane subject-matter. In such a case express leave of the Court is necessary and even if there are circumstances present which would justify the Court in granting leave under sub-rule (2), sub-rule (4) imposes a restraint upon its authority and prevents it from granting permission to one of several plaintiffs to withdraw from a suit if the other plaintiffs do not consent to this course. But if the withdrawing plaintiff does not want to reserve any right to renew the suit on his own account in future and is prepared to take the consequences indicated in sub- rule (3), it cannot be said that his right of withdrawal is dependent on the consent of the other plaintiffs. This was exactly the view taken in 9 CLR 332. In this case, a suit was instituted by two plaintiffs and in the course of suit one of the plaintiffs whose name was Ram Kanai sold his interest to one Chandra Mohan. After' transferring his share, Ram Kanai intimated his withdrawal from the suit as plaintiff. The Court accepted the withdrawal but as Chandra Mohan did not join as plaintiff the suit had to be ultimately dismissed on the ground of defect of parties. On appeal, the subordinates Judge held that under clause (3) to S. 373, C.P.C., (which corresponds to sub-rule (4) of Order 23, rule 1 of the present Code) Ram Kanai could not withdraw from the suit without the consent of the remaining plaintiffs. The subordinate Judge, therefore, treated Ram Kanai as still as
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record and remanded the case for retrial. Against this decision, a second appeal was taken to this Court and Morris and Tottenham, JJ. who heard the appeal reversed the decision of the lower Court. "It seems clear to us as runs the judgment of the learned judges that the subordinate Judge has misunderstood the meaning of this clause which is that the Court can only authorise one of several plaintiffs to withdraw from a suit with permission to renew that suit on his own account by consent of the others. That any plaintiff can withdraw from a suit is manifest from the terms of clause (2) of that section. But the result of so withdrawing without the permission of the Court is that he is precluded from bringing a fresh suit for same matter. It was held that Ram Kanai having withdrawn from the suit unconditionally there was no reasons why the Court should not accept his withdrawal upon such terms as to costs or otherwise as it thought fit. But as the remaining plaintiff was not competent to maintain the suit in the absence of Chandra Mohan who refused to join as plaintiff, it was directed that Chandra Mohan should be made a co-defendant in the suit.I may say that I am in entire agreement with the interpretation put by thelearned Judge upon this provision of the Code of Civil Procedure. It is true that sub-rule (1) was not in the old Code and was inserted for the first time in the Code of 1908. But that sub-rule does not create any new right. The right of the plaintiff to withdraw from a suit without the permission of the Court when he did not want any liberty to institute a fresh suit was implied in clause (2) of S. 373 of the old Code which corresponds to sub-rule (3) of the present Code: Vide 32 Bom. 345 sub-rule (1) was added only with a…
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