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Kausar Sultana Hussain, J. - : Mrs. Anita Nalini Dass Versus Muhammad Jumman

The case involves Mrs. Anita Nalini Dass suing for the cancellation of an illegal property transfer, with the court dismissing Zahid Rasheed's application to be added as a defendant, as it would introduce a new cause of action. The court held that the proposed intervener had no grievance against the plaintiff and allowing his addition would prejudice her. The ruling emphasized the plaintiff's right to control her suit and the necessity of parties being relevant to the original dispute.
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0% found this document useful (0 votes)
18 views7 pages

Kausar Sultana Hussain, J. - : Mrs. Anita Nalini Dass Versus Muhammad Jumman

The case involves Mrs. Anita Nalini Dass suing for the cancellation of an illegal property transfer, with the court dismissing Zahid Rasheed's application to be added as a defendant, as it would introduce a new cause of action. The court held that the proposed intervener had no grievance against the plaintiff and allowing his addition would prejudice her. The ruling emphasized the plaintiff's right to control her suit and the necessity of parties being relevant to the original dispute.
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You are on page 1/ 7

2024 PLD 43 KARACHI-HIGH-COURT-SINDH

Mrs. ANITA NALINI DASS Versus MUHAMMAD JUMMAN (Read Full Judgement)
Specific Relief Act, 1877 39, 42, 54 | Civil Procedure Code, 1908 Order I(Rule 10)
The case involves Mrs. Anita Nalini Dass, the plaintiff, who filed a suit for cancellation, declaration, and injunction against the
defendants for allegedly transferring her property illegally. An application by Zahid Rasheed (the proposed intervener) to be
added as a defendant, claiming he was a bona fide purchaser of the disputed property, was dismissed by the court since his
presence would amount to introducing a new cause of action and unnecessary prejudice to the plaintiff.
**Application dismissal**: Zahid Rasheed’s application to be impleaded as defendant was dismissed.
necessary and proper party, Order I, Rule 10 C.P.C., Dominus Litis, fraudulent property transfer, mentally incapacitated
plaintiff, bona fide purchaser, grievance against defendants, new cause of action, right to sue,
Key Legal Issues
 Whether a proposed intervener is a necessary and proper party
 The determination of adding a new cause of action in the suit
 Legal standing of the plaintiff, being mentally incapacitated, in protecting her property
Holding
The court dismissed the application of Zahid Rasheed for being added as a defendant, holding that his presence in the suit was
unnecessary as it would introduce a new cause of action, not directly relevant to the original dispute between the plaintiff and
defendants Nos. 1 and 2.
Reasoning
 The intervener did not claim any grievance against the plaintiff.
 The plaintiff had no concern with the intervener.
 Allowing the intervener to join would introduce a new cause of action.
 The plaintiff is 'Dominus Litis' and should not be forced to add parties against her wishes.
 Adding intervener at this stage would unnecessarily prejudice and embarrass the plaintiff

 KAUSAR SULTANA HUSSAIN, J.---Through this order, I shall


dispose of an application filed by the learned counsel for the
proposed Intervener under Order I, Rule 10, C.P.C. (C.M.A. No. 2326
of 2020), along with an affidavit of the proposed intervener namely
Zahid Rasheed son of Abdul Rasheed, praying therein to allow
instant application and array/implead the applicant/proposed
intervener as Defendant No. 07 in the instant case as the
applicant/proposed Intervener is a necessary and proper party being
bona fide purchaser of the subject property, so that the matter be
heard and decided, considering the stake of all the parties concerned
to arrive at just and proper decision in the matter.
 2.Notice of instant application was issued against the plaintiff and
defendants. The authorized attorney of the plaintiff had filed his
Counter Affidavit and in order to rebut the contents of plaintiff's
Counter Affidavit the applicant/proposed intervener has filed his
Affidavit-in-Rejoinder wherein, he has reiterated the contents of his
application and affidavit enclosed therewith.
 3.The brief facts of the case are that the Plaintiff is a mentally
incapacitated lady over 74 years of age, hence the instant Suit has
been filed through her true next friend being her husband M, Helmut
Schwaighofer ("Helmut") who appointed Raja Rameez Ali as attorney
to act on their behalf in the instant matter in order to protect the
Plaintiffs' interests in the suit property. The Plaintiff is a lawful owner
of House No. 11-B/1, D.H.A. Phase 1, Karachi, Pakistan, measuring
approx. 550 square yards ("the Property"), who primarily used to
reside abroad, therefore the Defendant No.1 was hired by the
Plaintiff to look after her Property as well as her mother, who resided
there. The Defendant No. 1 took advantage of the Plaintiff's mental
incapacity and through concocting unlawful documents, has illegally
transferred the Property in his name. Defendant No. 1 has been
abetted by his wife Defendant No.2. Defendants Nos. 3, 4 and 5 are
the relevant authorities who have facilitated the Defendant No.1 in
illegal transfer of the property from Plaintiff to defendant No. 1.
Defendant No. 6, the Dubai Islamic Bank Pak. Limited apparently
provided a home finance facility to the Defendant No. 1 on furnishing
the plaintiff's property as collateral. On 24th September, 2017, the
Defendant No.1 claimed that he is the owner of the Property, and the
same was transferred to him by the Plaintiff. Upon extreme probing
of Defendant No.1, the following documents were obtained which
show the illegal transfer of the Property:
 i.D.H.A. Mutation Letter dated 13.01.2017
 ii.Cantonment Board Clifton 'Change of Name' dated 29.07.2016
 iii.M.E.O. Permission to Mortgage dated October, 2016
 ivDubai Islamic House Finance Letter 07.11.2016
 4.The Defendant No. 1 has used the Plaintiffs' illnesses and
committed a fraud of stealing the Plaintiffs' Property. The Mutation
Letter dated 13th January, 2017, shows the house was transferred to
Defendant No. 1 by Defendant No. 2, being the alleged attorney of
the Plaintiff. Defendant No. 1 has intentionally deceived the trust of
the Plaintiff, whilst using information which he knew to be sensitive,
hence this Suit.
 5.I have heard the learned counsel for the applicant/proposed
intervener, plaintiff and defendants Nos.1 and 2 at length and also
have perused the record with due care and caution.
 6.Mr. Rasheed Ashraf, Advocate appearing on behalf of the
applicant/intervener submits that the applicant/intervener has
purchased the suit property from its owner and all the formal and
codal formalities were complied with and the title of the property has
been transferred in the name of the proposed intervener and the
proposed intervener is enjoying its peaceful and vacant possession
without any let or hindrance. Moreover, original title documents of the
property are also in the custody of the proposed intervener. He
further submits that it is imperative that the proposed intervener may
be impleaded in the pleadings as Defendant No.07 as the proposed
intervener is necessary and proper party being bona fide purchaser
of the subject prdperty to safe guard and protect his interest in order
to arrive just decision in the matter. He also submits that until and
unless the accompanying application is granted, the proposed
intervener shall be seriously prejudiced and suffer irreparable loss
and injury.
 7.The applicant/intervener has enclosed copies of agreement to sell
dated 01.11.2017, publication in daily 'Down' dated 28.11.2017 and
Conveyance Deed along with instant application in support of his
claim. He further contended that under Order I, Rule 10, C.P.C., the
applicant/ intervener is a proper and necessary party because his
presence in the suit is necessary to enable the Court to effectively
and completely determine and adjudicate upon the question involved
in the suit. Mr. Rasheed Advocate has further argued that the
controversy involved in the instant suit is not only confirmed to the
questions between the parties of the suit but also include the
questions between the parties and the applicant/intervener. He
prayed for allowing the instant application and impleading the
applicant/intervener as defendant No.7.
 8.The learned counsel for the plaintiff Mr. Sarosh Jamil, Advocate
has argued his case verbally and also submitted his submissions in
writing and enclosed along with his written submission the copies of
case laws relied upon by him in support of his contentions. Per Mr.
Sarosh, prior to filing of the instant application, the proposed
intervener was aware with the proceedings of instant suit as notices
had been served upon him at the suit property, where he alleges to
reside, as evident from the Bailiff's report dated 06.01.2018,
08.01.2018 and 10.01.2018 and he has wilfully approached this
Court belatedly and without any plausible explanation. It is further
submitted that the proposed intervener has wilfully delayed in
approaching this Court due to mala fide intentions, hence is not liable
to obtain any relief; that the matter is at an advanced stage of
recording evidence of the witness who resides in Paris (France) and
had appeared twice, although maliciously not examined by the
learned counsel for defendants Nos. 1 and 2, if this persists, the
witness will be called again all the way from Paris (France), which will
cause grave financial burden on the plaintiff, to further appeasement
of the defendants Nos. 1 and 2; it is astonishing and bizarre as the
defendants Nos. 1 and 2 have themselves admitted in their written
statement they had allegedly sold the property to the proposed
intervener as such, how can the proposed intervener not be in
knowledge of the instant Suit until 2020 when he filed the instant
C.M.A., which clearly exemplifies his ulterior motives being in
cahoots with the Defendants Nos. 1 and 2 to delay the matter and
cause further aggravation on the plaintiff; that the proposed
intervener is neither a proper or a necessary party to the instant Suit.
The instant suit relates to the defendants Nos. 1 and 2 for illegally
taking over the plaintiffs property through fraudulent means, and this
usurpation of the property by the defendants Nos. 1 and 2 has been
challenged. It is submitted if the proposed intervener wishes to claim
against the defendants Nos. 1 and 2 (for fraud, damages etc.), then
they may do so in a separate suit which would not have any concern
with the Plaintiff as the entire contents of the proposed intervener's
assertions have no direct relevance to the plaintiff's claim. It is
apparent the proposed intervener has filed the instant C.M.A. No.
2326 of 2020 with mob fide in an attempt to delay and further unduly
complicate the plaintiff's suit in an attempt to thwart justice, and have
approached this Court with unclean hands; hence, he is not entitled
to any relief whatsoever. It is settled principle of law that equity aids
the vigilant and not the indolent and equity will not favour someone
who sleeps on his own rights such as the proposed intervener in the
instant matter. It is also a settled principle of law that the plaintiff is
the 'Dominus Litis' of the suit which also meant master of the suit, to
whom a suit belongs and was a person who had real interest in the
decision of the case. He can choose who he wishes to sue. A person
cannot be added in a suit, if it does not concern the plaintiff and in
the instant matter, the proposed intervener has no concern or cause
of action with/against the plaintiff. The Courts have repeatedly held in
such circumstances an intervener is neither considered proper nor
necessary, and should not be joined to the proceedings, therefore
the instant C.M.A No. 2326 of 2020 is liable to be dismissed. The
learned counsel for the plaintiff has relied upon the following case
laws of his contention.
 i.2019 MLD 212 (relevant page 213 [a])
 ii2013 SCMR 602 (relevant page 603 [c] & [d])
 iiiPLD 2017 Lahore 588 (relevant page 588 [b])
 iv.2017 YLR 1579 (relevant page 1579 [a])
 v1992 CLC 700 (relevant page 701 [b] )
 vi2016 CLD 1790 (relevant page 1792 [c])
 9.The learned counsel for the defendants Nos.1 and 2 has not
submitted Counter Affidavit of both the defendants Nos. 1 and 2 to
the instant application, however, it is the case of the defendants
Nos.1 and 2 that they had purchased the suit property from the
plaintiff and now they have sold it out to the applicant/proposed
intervener.
 10.After hearing arguments of both the side and perusal of record it
reveals that the applicant/proposed intervener claims himself as
necessary and proper party on the basis of the facts alleged by him
in his instant application. In order to determine the legal status of the
applicant/intervener to a suit it ought to see by this Court that in what
previews he can be considered either necessary or proper party or
having no concerned to a suit. The definitions of necessary party and
proper party in terms of Order I, Rule 10, C.P.C. are provided as
under:--
 (i)a 'necessary party' is one who ought to have been joined and in
whose absence no effective decree can be passed;
 (ii)the non-joinder of a necessary party can be fatal to the suit;
 (iii)a 'proper party' is one whose presence before the Court is
necessary in order to enable the Court effectually and completely to
adjudicate upon and settle all questions involved in the suit;
 (iv)a person can be joined as a proper party even though no relief is
claimed against him but the primary object of impleading a proper
party is to avoid multiplicity of legal proceedings and to determine
effectually and finally all questions arising in the proceedings. Such
person must, therefore, be a person whose interest is likely to be
affected even though no relief is claimed against him;
 (v)persons cannot be added as parties so as to set up a new cause
of action which does not concern the original parties;
 (vi)the power of the Court under Order I, Rule 10(2), C.P.C. to add
parties is generally not a question of initial jurisdiction of the Court
but of a judicial discretion which has to be exercised in view of all the
facts and circumstances of a particular case;
 (vii) while adding a party, the Court may put the party to terms;
 (viii) if a person does not qualify as a necessary or a proper party,
then the Court has no jurisdiction to add him as a party under Order
I, Rule 10(2), C.P.C.;
 (ix)in exercising power under Order I, Rule 10(2), C.P.C. the Court
ought to see that it does not load the record with the parties wholly
shown to have no interest in the suit, and that the trial of the suit is
not embarrassed by the simultaneous investigation of unconnected
controversies.
 11.The claim of the applicant/intervener in instant application is that
he has purchased the suit property from defendant No. 1, who being
owner executed a sale agreement with him and after publication a
notice, inviting objection from general public at large and
subsequently after verification/confirmation and fulfilling all the legal
formalities he has paid entire sale consideration to the defendant No.
1, who then handed over peaceful physical vacant possession of the
suit property to him on 28.12 2017. Per applicant/intervener he came
to know regarding instant suit recently when he has visited DHA
office for mutation purpose. The plaintiff claims that she is the owner
of the suit house and never sold it out to any one, hence a fake
document i.e. the Conveyance Deed dated 29.01.2016 in favour of
defendant No.1 may be declared as void and has no legal effect;
power of attorney allegedly executed by the plaintiff in favour of
defendant No.2 may also be declared as void and of no legal effect
and cancel any/all documents which caused transfer the property of
the plaintiff to defendants Nos. 1 and 2.
 12.The defendants Nos. 1 and 2 have submitted their written
statements, wherein they have taken plea that the plaintiff had sold
out her house to the defendant No. 1 through her attorney i.e.
defendant No. 2 (wife of defendant No.1), who executed Conveyance
Deed in favour of defendant No.1 on behalf of the plaintiff. He further
contended that after purchasing the house in question from the
plaintiff he had soldit out to applicant/intervener through Conveyance
Deed dated 28.12.2017 and also handed over its possession to the
applicant/intervener.
 13.It appears from the pleadings of the parties that the real
controversy between the parties is that whether the plaintiff is still the
owner of the property in the suit? and whether she ever executed
Power of Attorney in favour of the defendant No. 2 to sell her
property on her behalf to defendant No.1. The learned counsel for
the applicant/ intervener emphasized on the point that question
involved in the suit are not only confirmed to the question between
the parties to the suit but also include the question between the
parties and intervener. On the other hand the learned counsel for the
plaintiff is of the view on the point that the applicant/intervener cannot
be joined as a party to the suit because the question involved in this
suit are questions between the parties to the suit and his presence is
not necessary for adjudicating upon those questions as he has
separate cause of action against defendants Nos. 1 and 2, in case of
joining him as party in this suit would amount to insertion of a new
cause a action which is not permissible under the relevant law as
provided under Order I, Rule 10(V), C.P.C.. In the case of Islamic
Republic of Pakistan v. Abdul Wali Khan (PLD 1975 SC 463), it was
observed at page No. 467, as follows .
 "A proper party is a party whose presence before the Court is
necessary to enable the Court to effectually and completely
adjudicate upon and settle all questions involved in the proceedings.
The terms "questions involved" include all matters, material to a
proper decision of the case but the abject of making such persons
parties is to prevent multiplicity of proceedings. The person must,
therefore, be a person whose interest is likely to be affected even
though no relief is claimed against him. This does not, therefore,
extend to persons who have no interest which is likely to be affected
by the proceedings nor does it embrace persons only generally
interested in common with others nor can persons be added as
parties so as to set up a new cause of action which does not concern
the original parties."
 14.In instant matter the applicant/proposed intervener is claiming his
transaction of purchasing the suit property from defendant No. 1
through defendant No. 2. The applicant/intervener has not claimed
any grievance against the plaintiff, likewise plaintiff has not
concerned with the applicant/proposed intervener. If the
applicant/intervener has anycause of action against the defendants
Nos.1 and 2, he may file a separatesuit against them, rather he be
impleaded as a party in this suit. It is well settled law that no person
can be permitted to become a party to a suit who has his own cause
of action against the party/parties of the suit, wherein he wants to
implead as a party and in case. if he be allowed to become a party it
would amount to add a new cause of action in the suit. It is also well
established principle of law that a plaintiff is 'Dominus Litis' and
ordinarily, no person should be added as party against his / her
wishes. At present the instant case is at its advance stage and if the
applicant/proposed intervener join the proceedings of the suit it would
amount to unnecessary prejudice and embarrass the plaintiff. I,
therefore, dismissed the applicant/intervener's application (C.M.A.
No. 2326 of 2020) on merits with no order as to cost.
 MH/A-24/SindhApplication dismisse

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