MUHAMMAD YAHYA KHAN Versus HAJI ABDUL AZIZ

This RYA is directed against the judgment and decree, dated 12‑6‑1990, by which a learned Addl. District Judge at Faisalabad granted decree to the plaintiff‑respondent for the recovery of rupees one lac against the defendant‑appellant.

2. The brief facts of tile case leading up to this appeal are that one Mst. Maryam Bibi, wife of Muhammad Yaqub and Mst. Ghulam Fatima, daughter of Addul Karim had through Hap Abdul Aziz plaintiff‑respondent, who was a property dealer, purchased one plot each, measuring 1 kanal 10 marlas (as fully described in the head note of the plaint) from Muhammad Yahya Khan defendant‑appellant for a sum of Rs.4,50,000 vide an agreement to sell. A sum of Rs. 50,000 was paid to the vendor through the property dealer by each vendee as earnest money. However, the sale‑deed could not be executed and registered because some portion of the plots was included in the Housing Scheme of Officers housing Society, Faisalabad. Eventually the parties agreed to cancel the sale transaction and the vendor agreed to return the earnest money of rupees one lac to the vendees through the plaintiff‑respondent. Persuant to this arrangement the defendant‑appellant on 21‑1‑1989 issued a cheque amounting to rupees one lac to the plaintiff‑respondent for the return of the money to the vendees. He deposited the cheque in his account in the bank but it was dishonoured. Later when the defendant‑appellant refused to return the earnest money to the vendees, the plaintiff‑respondent brought a suit against him for its recovery.

3. It was contested by the defendant‑appellant, who, in his written statement, besides alleging lack of cause of action and locus standi of the plaintiff‑respondent and pleading estoppel, asserted that his opponent had obtained the cheque from him on account of misstatement and misrepresentation and he was not entitled to receive this money. He in turn claimed a sum of Rs. 1&W() from him (plaintiff‑respondent) which he had allegedly received on account of commission for the sale of plots to the vendees.

4. On the pleadings of the parties, the trial Court framed the following .issues:‑

Issues .

(1) Whether the plaintiff has no locus standi or cause of action to rile the present suit?

(2) Whether the disputed cheque is without consideration and has been obtained through misrepresentation and misstatement by the plaintiff from the defendant?

(3) Whether the plaintiff is estopped to file this suit by his conduct and deed?

(4) Whether the plaintiff is entitled to decree for Rs. 1,00,000 as prayed for?

(5) Whether the defendant is entitled to a decree for Rs. 18,000 against plaintiff as counter‑claim?

(6) Relief.

5. Both the parties produced their respective evidence and the learned Additional District Judge as a trial Court, vide his judgment, dated 12‑2‑1.990, decided issues Nos., 2, 3 and 5 against the defendant‑appellant and issue No.4 in favour of the plaintiff‑respondent and decreed his suit. Aggrieved by these findings, the defendant‑appellant came up in appeal to this Court.

6. At the outset the learned counsel for the appellant has pointed out that Mst. Maryam Bibi and Mst. Ghulam Fatima figured materially in this dispute as vendees because the earnest money of Rs.1,00,000 which the plaintiff‑respondent as property dealer or as their agent claims from the defendant‑appellant, was paid by them and if they prove their entitlement for its return, it is to be returned to them and in fact the plaintiff‑respondent, as an intermediary, has no locus to receive this amount. The learned counsel apprehends that the plaintiff‑respondent, might misappropriate the money and the real vendees might turn up any moment to claim the same from his client. In his opinion, both the ladies are, therefore, necessary parties. According to him, if the plaintiff‑respondent had failed to implead them as a party to the suit, the alternate course available to him was to bring them in the witness‑box and to inform the trial Court that he (plaintiff‑respondent) was really acting on their behalf and he could receive the earnest money back from the defendant appellant from them, but he did not choose to do so. He requests that in these circumstances the case may be remanded and the plaintiff‑respondent may be directed to implead the vendees as plaintiffs or defendants.

7. The above request has been seriously opposed by the learned counsel for the plaintiff‑respondent. He submits that his client had all the necessary authority from the ladies to institute the suit on their behalf and to recover and receive the earnest money from the defendant‑appellant. According to the learned counsel, there is no likelihood of their demanding the earnest money from the defendant‑appellant because they had struck the bargain with him through the plaintiff‑respondent and would like to take back the earnest money through him. He submits that there was no such objection in the written statement and the contention now raised by the learned opposing counsel is an afterthought only to delay the matter. He says that he can bring them in this Court to assure that they would not vex the defendant‑appellant twice.

8. The plaintiff‑respondent might be instrumental in striking the bargain of the property between the aforesaid ladies and the defendant‑appellant and while playing his part as a property dealer or agent he might have also paid the earnest money to the vendor on behalf of the ladies, but the fact remains that in these dealings he could not altogether substitute them. Being a party to the sale transaction and then to its cancellation, the ladies were a necessary par and should have been impleaded as such but neither the learned counsel representing the parties before the trial Court nor the trial Judge himself adverted to this aspect of the matter and this important omission crept in the proceedings. In the absence of the ladies, the defendant‑appellant's apprehension of his being fleeced by the middle man may not be altogether unfounded. Even otherwise it may not be possible to determine the real controversy between the parties without their presence. Therefore, irrespective of the fact that there was no objection in the written statement, under Order 1, rule 10, C.P.C. I direct the plaintiff‑respondent to implead Mst. Maryam Bibi wife of Muhammad Yaqub and Mst. Ghulam Fatima daughter of Abdul Karim as added plaintiffs. and if they do not join him, then as added defendants in the suit.

9. In view of the above, the appeal is accepted, the impugned judgment and decree are set aside, and the case is remanded to the trial Court which is directed to obtain from the plaintiff‑respondent the amended plaint with the aforesaid two ladies as the added plaintiffs or defendants, as the case may be and after taking necessary consequential proceedings, decide the case afresh in accordance with law. Parties are directed to appear before the learned District Judge, Faisalabad on 14‑4‑1992. He shall entrust the matter to any of the Additional District fudges if he did not choose to retain it on his own file.

A.A.M‑313/L Case remanded.