GHULAM AHMAD CHAUDHRY vs AKBAR HUSSAIN through Legal Heirs and another

RANA BHAGWANDAS, J.--Short question for consideration in this petition, arising out of Lahore High Court, Rawalpindi Bench, Rawalpindi judgment dated 7-6-2001, is whether learned Members of the Division Bench in the High Court were justified in setting aside the judgment and decree and remanding the case to the trial Court for decision afresh after allowing the plaintiff to implead Tassadaq Hussain (vendor) as one of the defendants and also to provide an opportunity to the parties to adduce evidence.

2. Succinctly stated facts leading to this petition appear to be that Plot No,13, Street No,32, Shalimar (Old No,26, Sector F-6/1), Islamabad measuring 488.8 sq. Yards was transferred to one A.H. Shah on 31-5-1995 by C.D.A. Respondent/plaintiff-Akbar Hussain purchased the plot from the original owner and after obtaining approval of a building plan constructed a house on the plot in the year 1973.

This house was let out on rental of Rs,1,800 per month to the then Republic of Yougoslavia. On vacation by the said Embassy, the property was rented out by nephew of the plaintiff to the Embassy of Iraq on 16-1-1977 on a monthly rental of Rs,2,000. Plaintiff received one year's advance rent and proceeded to London while his nephew Muhammad Banaras left for Libya. On return to Pakistan in September, 1978, Muhammad Banaras noticed that the property in question was in possession of petitioner instead of Embassy of Iraq. He accordingly informed respondent through telegram, who rushed back to Pakistan. On inquiry from the Estate Office of C.D.A. He learnt that the property was transferred by C.D.A. In the name of Tassadaq Hussain, who had transferred the same in favour of the petitioner. It was revealed that Tassadaq Hussain was recorded as son of the plaintiff/respondent with the C.D.A. Although he had no. Son by the name of Tassadaq Hussain.

Respondent accordingly filed a suit for cancellation of documents, possession and recovery of compensation at the rate of Rs,2,000 per month against the petitioner as well as C.D.A.

3. The suit was hotly contested giving rise to the following issues:--"(1) Is the suit incompetent in its present form? OPD

(2) Is the suit time-barred? OPD

(3) Whether the suit is barred under section 49-E of the C.D.A. Ordinance read with Specific Relief Act? OPD

(4) Whether the suit property had been transferred by the plaintiff to his son Tassadaq Hussain?

OPD

(5) If the above issue is not proved, whether the plaintiff is entitled to the decree for cancellation of documents pertaining to the suit property on the grounds detailed in the plaint? OPP

(6) Whether the plaintiff is entitled to the mesne profits, if so, at what rate and since when? OPP '

(6-A) Whether the impugned sale in favour of defendant No,1, is protected as he is bona fide purchaser for consideration and without notice?

(7), Relief."

4. Both the parties adduced evidence. On analysis of evidence, learned Senior Civil Judge, Islamabad dismissed the suit with costs. Judgment and decree was challenged in R.F.A. Before the Lahore High Court resulting in its annulment and remand of the suit to the trial Court for decision afresh with the aforesaid directions.

5. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court represented the petitioner whereas Messrs Mushtaq Ahamd Khan and Abdur Rehman Lodhi, learned Advocates Supreme Court appeared on behalf of respondent No,1.

6. When this petition came up for hearing, learned counsel for the respondent stated at the Bar that pursuant to the impugned judgment, Tassadaq Hussain was impleaded as co-defendant in the suit and summoned by the Court but he did not turn up with the result that the trial Court has passed an order to proceed ex parte against him. Mr. Peracha did not controvert this statement and proceeded to assail the impugned judgment on the premises that there was no factual or legal justification on the part of the High Court to remand the suit for none of the parties had prayed for impleadment of Tassadaq Hussain as co-defendant or for additional evidence by the parties. According to the learned counsel learned High Court ought to have decided the appeal on revaluation of evidence on its own merits as this was neither a case of suit failing on account of non joinder of Tassadaq Hussain nor insufficiency of evidence. He re-enforced his submission by heavily relying upon the latest development of the suit in which Tassadaq Hussain has been ordered to be proceeded ex parte.

7. Conversely, learned counsel for the contesting respondent urged that in terms of Order XLI, rule 27, C.P.C. High Court felt it necessary to have the benefit of the view-point of Tassadaq Hussain, who had purportedly transferred the property in favour of the petitioner, which was duly mutated in the records of the C.D.A. Notwithstanding the fact that Tassadaq Hussain has not opted to appear before the trial Court, learned counsel stated at the Bar that respondent No,1 would endeavour to secure the presence of the said vendor and examine him as a witness in addition to additional evidence as permitted by the High Court. Learned counsel supported the impugned judgment on the premises that the High Court in its wisdom considered the evidence of the parties inadequate for a just and effectual pronouncement on the controversy within the contemplation of Order I, rule 10, C.P.C.

8. A wide judicial discretion is vested in the Court to add parties at any stage of the suit in whose absence no effective decree can be passed. It may be observed that where a necessary party is not impleaded, the decree may not be binding on it. Likewise, a person against whom no relief is asked for, may not be a necessary party but he may be a proper party. For the purpose of addition of parties, the Court is governed by provisions of Order I, Rules 1 and 2 and Order II, rule 3, C.P.C. In law a Court is empowered to bring on record only necessary or proper parties. Once a suit has been instituted, parties can be added only with the leave of the Court and not otherwise. Power of adding parties is not a question of initial jurisdiction but of judicial discretion, which has to be exercised having regard to all the facts and circumstances of the case. In the instant case, learned High Court seized with the appeal, arising out of the suit, was fully competent to add or strikeout name of any person to the suit for a just, fair and effectual adjudication of the controversy. It is true that the High Court has not assigned in-depth reasons for impalement of the vendor, who transferred the property in favour of the petitioner, the fact remains that the High Court was fully conscious of its judicial discretion and necessity of having the stance of the vendor after the controversy raised by the respondent with regard to his authority to dispose of the property in suit.

Likewise, under the provisions of Order XLI, rule 27 High Court was fully competent to direct additional evidence for a just and proper determination of the issues even without the application by the parties. Power to allow additional evidence is always discretionary in nature and the exercise of discretion would depend on the facts of each case. No doubt as a general rule parties to a lis are not entitled to produce additional evidence but if the Appellate Court requires any document to be produced or any witness to be examined to pronounce judgment or for any other substantial cause, it can always do so after recording reasons. No doubt learned High Court has not expressed in so many words that evidence of Tassadaq Hussian or for that matter additional evidence by the parties was required for a just decision of the appeal, the very circumstance that the Court passed such orders, would presuppose that presence of the vendor before the Court was found quite necessary and since the case was being remanded for this purpose, parties to the lis are generally allowed an opportunity of adducing further evidence, if so desired. In fact learned High Court has observed that Tassadaq Hussain alleged son of Akbar Hussain-plaintiff was not impleaded as defendant nor he was summoned by either of the party as a witness. In the opinion of the Bench, he was the most relevant party and a witness, therefore, the impugned judgment was set aside. This observation of the High Court, on the face of the record, is obviously consequential upon the discussion of the evidence and finding on Issues Nos.4 and 6-A by the trial Court in which both the issues and the evidence of the parties have been jumbled-up. In this connection, it may not be out of place to refer the observations of this Court in Fazal Jan v. Roshan Din (PLD 1992 SC 811), which read as, under:-- "After hearing the petitioner, at some length, she tried to show her connection through her father directly with Faza Din. He, it seems was the occupancy tenant. We summoned the record also but it is clear from its examination that the case was badly conducted not only from the petitioner's side but also from the respondent side. All the relevant documents were not brought on record. The trial Court was not denuded of power to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omissions from both sides. It was also the duty of the two higher Appellate Courts. It seems that it was an appropriate case for exercise of power under Order XLI, rule 27, C.P.C. For bringing on record additional evidence. The suo motu exercise of this power would also have been fully justified in the facts and circumstances of the case. This is demonstrated by the fact that petitioner examined two witnesses besides herself to support her claim regarding her possession of the suit land agreement Exh.P.2 was also placed on record showing that she was in possession of the land which was with one Misri son of Zina Pathan on contract cultivation basis and that he had similarly its possession under her father. P.W.3 Khairullah had supported the petitioner but P.W.2 made a short statement saying that he had earlier made a statement in favour of the petitioner and that he had nothing more to say. As against this the evidence led from the respondent side is the statement of Mujahid Khan defendant who deposed that he had pre-empted the sale of this land and had obtained pre-emption decree in that behalf.

And for this reason only, according to him, the petitioner/plaintiff had no connection with the land."

9. After hearing learned counsel for the parties at quite some length and evaluating the chequered history of the suit leading to this petition, we are of the considered view that the judicial discretion exercised by the High Court as Appellate Court was neither unwarranted nor unjustified in the circumstances. In the facts of the case when valuable proprietary rights of the respondent (who was out of country for a long period) were extinguished without his consent and permission, it was a fit case for exercise of suo motu jurisdiction by the High Court. In any event, it cannot be said that by remanding the suit, High Court acted arbitrarily or without jurisdiction. Submission that the High Court should have decided the appeal on the basis of evidence available on the record, in our view is not weighty in order to persuade us to set aside the impugned judgment and remand the case for decision afresh.

10. We may point out that even in a later case i,e, Evacuee Trust Property Board v. Muhammad Siddique (1995 SCM R 1748), it was observed by this Court that the Appellate Court having found that Evacuee Trust Board was an aggrieved party qua the judgment and decree of trial Court should have exercised power under Order I, rule 10, C.P.C. And after setting aside the judgment and decree the case should have been remanded to the trial Court with the direction to implead the necessary party to the suit and then proceed with the case in accordance with law.

11. Earlier in Zar Wali Shah v. Yousaf Ali Shah (1992 SCM R 1778), this Court authoritatively laid down that concept of bar against filling the gaps was no more available in the present Pakistan jurisprudence and the law; including, the precedent law, on Islamic principals; which were being made applicable progressively to the proceedings before the Courts and other forums which are required to record/admit evidence.

12. In the circumstances of the case, we are of the view that it would be in the fitness of things to convert this petition into appeal and dispose of the same with the direction to the trial Court, by consent of the parties' counsel, to dispose of the suit as quickly as possible and preferably within a period of four months from the date of this judgment under intimation to the Registrar of this Court.

We .