TAJUDDIN vs FEROZUDDIN AHMED and 2 others-

ORDER

1. MUNIB AKHTAR, J.-By means of this application, filed under Order I, Rule 10(2), C.P.C., the defendant No,2 seeks to have himself removed from the array of defendants in the instant suit. Mr. Ali Mumtaz, learned counsel for defendant No,2 submits that, the said defendant is neither a necessary nor a proper party to the instant suit. He submits that no allegation as such has been made in the plaint against the defendant No,2 nor has any relief been sought against it. According to him, the nature of the suit relates to the alleged defamation of the plaintiff by the defendants 1 & 3, who are named individuals, and who were at all times material for the purposes of the suit, respectively the Chairman and the Secretary of the defendant No,2. (It may be noted that since then the defendant No,l has ceased to hold, the office of the Chairman whereas it appears that the defendant No, 3 still continues to by the Secretary of the said defendant.) In support of his submission, learned counsel placed reliance on PLD 1994 SC 95 (Uzin Export Import Enterprises V. Union Bank of Middle East Ltd.), 1990 M LD 1137 (Mahboob Siddiqui v. Nafeesullah Rizvi) and 1988 CLC 1339 (Muhammad Abdul Malik Ludhianwi v. Sadruddin Hashwani).

2. ' On the other hand, Mr.Azizuddin Qureshi, learned counsel for plaintiff submits that the defendant No,2 is at the very least a proper party if not a necessary party to the instant suit. He has referred, to the written, statement filed jointly on behalf of the defendant No,2 and the defendant No,3 wherein, according to learned counsel for plaintiff, no specific denials as such have been made of the averments made in the plaint. Learned counsel for plaintiff has also drawn my attention to the fact that issues have been framed in the present suit and that the matter is ripe for evidence. He submits that it is, therefore, at this stage, inappropriate to delete the defendant No,2 from the array of defendants, He placed reliance on 2004 SCM R 1627 (Ali S. Habib v. Sher Afgan Khan Niazi).

3. A person must either be a necessary or a proper party to a suit and if not, then he is stranger to the proceedings and ought not to be made a party thereto. It may firstly be noted that Order I rule 10(2), C.P.C., specifically empowers the court to strike out any party, including a defendant, at any stage of the proceedings either upon or without the application of any party thereto. Therefore, if the defendant No,2 is found to be neither a necessary nor a proper party then it can be struck out even at this stage.

4. ' A perusal of the plaint indicates that the defendant No,2 is not a necessary party to the instant suit, i.e, it is not a party without whose presence no effective decree can be made in favour of the plaintiff. The cause of action claimed by the plaintiff is based on the alleged mental torture, loss and damage suffered by him as a result of acts which are attributable, as per averments of the plaint itself, to either the defendant No 1 and/or the defendant No,3 acting on the instructions or at the behest of the defendant No,l. It is, therefore, possible, if the Plaintiff succeeds in establishing his claim, to pass a. Decree in his favour without the defendant No,2.

5. ' The only question that remains to be addressed, therefore, is whether the defendant No,2 is a proper party to the present proceedings. A proper party is of course a party whose presence may be necessary in order to enable the court effectually and completely to adjudicate upon, and settle all the questions involved in the suit. Since issues have already been framed, the question whether the defendant No,2 is a proper party, can be addressed by an examination of the said issues.

6. Issues were framed by consent on 30-3-2006 and are as follows:-

(i) Whether the suit as framed is not maintainable under the law?

(ii) Whether the Plaintiff is entitled for damages as claimed?

(iii) What should the decree be?

7. ' From a perusal of the issues, it is clear that the presence of the defendant No,2 is not required for an effectual and complete determination and adjudication of the questions involved in the suit.

8. Therefore, in my view, the defendant No,2 is also not a proper party to the present proceedings.

9. ' The reliance placed by the plaintiff on the Hon'ble Supreme Court's decision referred to above is inapt as the factual circumstances involved in that case were completely different. There, a motor vehicle manufactured by Indus Motor Company Limited, and being driven by the son of the respondent (Dr.Sher Afgan Niazi), was involved in a car accident in which the respondent's son unfortunately expired. The respondent sued the car manufacturer (i.e, Indus Motor Company Limited) as also two named, individuals, who were respectively the Chairman and Chief Executive of the car manufacturer. On an application being made by the latter two defendants for their removal from the array of defendants, the Hon'ble Supreme Court held that as they were Directors of the car manufacturer (and therefore, involved, in the management affairs of the company) it could not be said, at the initial stage as to whether or not they owed any duty or were otherwise, liable to the respondent. As will be seen this situation is completely different from the one alleged in the instant suit where all the material factual allegations as such are directed against the defendants 1 and 3.

10. In view of what has been stated above, this application is allowed and the name of the defendant No,2 is struck out from the suit and deleted from the plaint. To avoid any unnecessary confusion, let the remaining defendants continue to be numbered and addressed as before.