KAIKHUSRO MERWAN MONDI Versus ARDESHIR MERWAN MONDI

ORDER

In view of the order passed on application Nos.6504/88 and 7349/88, the question of filing written statement by the defendant No.3 does not arise. So far defendant No.1 is concerned; the time is extended upto three weeks from the date when C.M.A. No.7349/88 is disposed of.

2. This is an application on behalf of the defendant No.3 for striking of his name as he is neither necessary nor a proper party. The dispute relates to the property of one deceased Merwan Kaikhusuro Mondi, who died at Karachi on 31-7-1979 leaving a will in which defendant No.3 and Mr. Iqbal Kazi, Advocate were appointed as executors of the Will. Mr. Iqbal Kazi, declined to act as executor and defendant No.3 was left to act as the sole executor of the said Will. Appropriate proceeding was initiated which on the filing of a caveat was converted into a suit but probate of the Will was not granted against which an appeal has been filed, which is pending. It seems that the dispute between the plaintiff and defendants Nos.1 and 2 arose in respect of shop premises in which business under the name and style of Cafe Victoria was carried on. In view of this dispute regarding possession of the shop and the right of its tenancy, the suit has been filed by the plaintiff seeking the following reliefs.

(a) declaration that upon and since death of M.K. Mondi the plaintiff has been and is a statutory tenant or one of the statutory co-tenants of the premises being Shops Nos.1 and 2 in Lotia Building No.2, Abdullah Haroon Road and Club Road, Karachi.

(b) injunction restraining the defendant No.1 from transferring and defendants Nos.4 and 5 from allowing the defendant No.1 to transfer tenancy rights in the premises in question without the consent or authority of the plaintiff;

(c) Costs;

(d) such other reliefs as the Honourable Court may deem fit in the circumstances of the case.

Mr. Gharib Nawaz, learned counsel for the defendant has contended that no relief has been sought against the defendant No.3 and allegations made in the plaint do not make him a necessary or a proper party. Perusal of the plaint will show that the dispute between the plaintiff and the defendants No.1 and 2 started after the disputed property has been taken over by the plaintiff. Thereafter it is alleged that defendant No.1 interfered with it. In this regard reference can by made to paragraph 17 of the plaint, where it has been stated that the defendant A No.3 had been in possession of the property from 31st July, 1979 up to the beginning of the January, 1988 when joint possession of the premises was obtained from defendant No.3 by the plaintiff and defendant No.1. In February, 1988 the defendant No.1 closed the business, locked the premises, and started negotiations for disposal of .the tenancy, therefore the entire dispute arose between plaintiff and the defendants Nos.1 and 2 after defendant No.3 had handed over the possession of the shop. On the very face of the plaint, defendant No.3 is neither a necessary nor a proper party. 1, therefore, allow the application and strike off the name of defendant No.3 from the plaint.

3. This is an application filed by the defendant No. l under Order 7, rule 11, CPC for the rejection of the plaint. It is well settled law that the plaint cannot be rejected in part. Application is dismissed.

4. Mr. Gharib Nawaz, Advocate states that be has not been supplied a copy of this application. Mr. Hamza, Advocate undertakes to supply him a copy. Hearing is adjourned to 31-5-1989. Counter-affidavit and rejoinder, if any, in the meantime.

M.Y.H./K-154/K

Order accordingly.