Pakistan Case Law
2006 SCMR 913

Sh. SHAJAR HUSSAIN vs Haji ABDUL MAJEED and otherss

⭐ Prefer in Google
Citation2006 SCMR 913
CourtSupreme Court of Pakistan
Case No.Civil Petition No,848-L of 2000
Date2004-12-21
Judge(s)Iftikhar Muhammad Chaudhry, Actg. C. J., Faqir Muhammad Khokhar and M. Javed Buttar
Authored byIftikhar Muhammad Chaudhry
ResultPetition accepted
AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This petition for leave to appeal challenged a judgment of the Lahore High Court, which had affirmed the dismissal of the petitioner's suit. The core legal question concerned whether a suit for specific performance or related relief is maintainable when the original owner of the property, a corporate entity, was not impleaded as a necessary party. The petitioner argued that the land was originally owned by Panjnad Textile Mills and that the agreement to sell was executed by a Director of said company. The Supreme Court observed that the absence of the original owner as a party rendered any potential decree inexecutable and unjust. Consequently, the Court accepted the petitioner's request to withdraw the suit to rectify this defect. The Supreme Court converted the petition into an appeal, set aside the judgments of the High Court, the First Appellate Court, and the Trial Court, and granted the petitioner permission to withdraw the civil suit with liberty to file a fresh suit on the same cause of action in accordance with law.

Questions settled in this judgment
  • Can a civil suit proceed if the original owner of the property is not impleaded as a necessary party?
  • Is a decree passed in the absence of a necessary party executable?
  • Can a plaintiff be granted permission to withdraw a suit with liberty to file a fresh suit to cure an inherent defect in the proceedings?
necessary partywithdrawal of suitspecific performancecivil procedurecorporate entityfresh suit

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition for leave to appeal is filed against judgment dated 1-3-2000 of the Lahore High Court, Multan Bench.

2. Learned counsel for the petitioner addressed arguments at length in 'support of petition. It was pointed out that the Panjnad Textile Mills was necessary party in the suit because originally land was owned by it and Nisar Mehmood son of Abdul Majeed agreed to sell it to petitioner in capacity of Director of the company and in absence of company how suit was competent. On this, he stated that either permission be accorded to him to amend the plaint or permission be accorded him to withdraw the suit so he may file afresh suit on the same cause of action after removing this inherent defect.

3. Learned counsel appearing for the respondents, however, opposed the request and stated that the suit of the petitioner was barred by time and in this behalf concurrent findings have been recorded by the learned High Court as well as by the First Appellate Court and the Trial Court, therefore, permission may not be granted him to withdraw the suit.

4. After hearing the learned counsel for both sides and taking into consideration the fact that the property was originally owned by the Panjnad Textile Mills, therefore, it was incumbent upon the plaintiff/petitioner to have impleaded it as party and in absence of the original owner decree passed shall cause injustice to it and such order would not be executable against a person who was not a party to the proceedings. Therefore, We accept the request of the learned counsel for the petitioner. As a result whereof petition is converted into appeal the impugned judgment dated 1-3- 2000 as well as judgments dated 2-2-1998 and 45-7-1996 passed by the trial Court and First Appellate Court are set aside and permission is accorded to the petitioner to withdraw the civil suit and file fresh suit on the same cause of action in accordance with law. Parties to bear their own costs.

Cited by 12 cases

For educational and research use only — not legal advice. Verify against the official report before relying on it. See our Disclaimer.