--O.I Rr. 1, 10--Hostility of claim Hostile plaintiff--All the persons who have common cause of action against the defendant, they can sue jointly. However, in event of hostility of claim between plaintiffs during proceeding, hostile plaintiff may be transposed to panel of defendant.

 PLJ 2022 Peshawar 6

Civil Procedure Code, 1908 (V of 1908)--

----O.I R. 1--Rejection of application for transposition from panel
of plaintiffs as defendants--Hostile plaintiff conflict between plaintiffs--Challenge to--Plaintiffs can remain joint only when they are commonly pursuing their relief and once there is conflict/hostility between plaintiffs regarding nature of relief then obviously conflicting/hostile plaintiffs should be transposed in array of defendants--Plaintiffs No. 4 to 6 be transposed from panel of plaintiffs to panel of defendants as proforma defendants--Plaintiffs are not required to amend plaint and necessary entries be made by office of trial Court--Revision petition allowed.     

                                                                             [Pp. 8 & 9] A, C & D

PLD 1962 (W.P.) Lahore 114 ref.

Civil Procedure Code, 1908 (V of 1908)--

----O.I Rr. 1, 10--Hostility of claim Hostile plaintiff--All the persons who have common cause of action against the defendant, they can sue jointly. However, in event of hostility of claim between plaintiffs during proceeding, hostile plaintiff may be transposed to panel of defendant.               [P. 8] B

PLD 1962 (W.P.) Lahore 114.

M/s. Shah Faisal Utmankhel and Fayaz Ahmad, Advocates for Petitioners.

M/s. Muhammad Saddique Haider Qureshi, Iftikhar Ahmad and Hamza Bangash, Advocates for Respondents.

Date of hearing: 30.09.2021.

 PLJ 2022 Peshawar 6
Present: Syed Arshad Ali, J.
JUNAID KHAN BABAR and 2 others--Petitioners
versus
Mst. FARHAD BEGUM and 3 others--Respondents
C.R. No. 789-P with C.M No. 1139-P of 2021, decided on 12.10.2021.

Judgment

The petitioners who are Plaintiffs No. 1 to 3 before the learned trial Court, have collectively challenged the orders of both the Courts below, rejecting their application for transposition of the Plaintiffs No. 4 to 6 in the array of defendants.

2. Arguments heard and record of the case was perused.

3. It is evident from record that the matter relates to legacy of Jehangir Khan Babar, the predecessor of the plaintiffs. It is the precise claim of all the Plaintiffs No. 1 to 6 in their plaint that Defendants No. 1 and 2 should not inherit the legacy of Jehangir Khan Babar as Defendant No. 1 was divorced by him in his life time and Defendant No. 2 was never married to Jehangir Khan Babar.

4. The suit is being contested by the defendants. On 27.07.2021, Kamran Babar the special attorney on behalf of the legal heirs of Plaintiff No. 4 recorded his statement wherein he has confirmed in his examination-in-chief that Defendants No. 1 and 2 are the legal heirs of Jehangir Khan Babar and thus has supported the claim of Defendants No. 1 and 2. When the said Kamran Babar recorded his statement as PW-5 which was also adopted by Plaintiffs No. 5 and 6, the present petitioners moved an application to the trial Court for their transposition to the array of the defendants. The defendants as well as Plaintiffs No. 4 to 6 contested the said application. The learned trial Court as well as the learned Appeal Court dismissed the said application.

5. Granted that a party cannot be transposed from a panel to another panel without his/their counsel, however, keeping in view the scheme of Order 1 of the Civil Procedure Code, 1908, it appears that the plaintiffs can remain joint only when they are commonly pursuing their relief and once there is conflict/hostility between the plaintiffs regarding the nature of the relief then obviously the conflicting/hostile plaintiffs should be transposed in the array of defendants. In this regard I may refer to Order I, Rule 1 and Rule 10 of the Civil Procedure Code, 1908, which reads as under;

“Order-I Rule 1. Who may joined as plaintiff.--All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separate suits, any common question of law or fact would arise”

Rule 10. Suit in name of wrong plaintiff.--Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

Court may strike out or add parties.--(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added.”

6. The bare reading of the above provisions it manifests that scheme of Order I which envisages that all the persons who have common cause of action against the defendant, they can sue jointly. However, in event of hostility of claim between the plaintiffs during

the proceeding, the hostile plaintiff may be transposed to the panel of defendant.

The same is also the view of the learned Lahore High Court in the case of “Mian Abdul Waheed versus Mst. Amtul Hamid etc.” (PLD 1962 (W.P) Lahore 114), wherein it is held that:

“On going through these cases one thing is clear that whenever the ends of justice require, the Court has power to order the transposition and this power can be exercised irrespective of the consent of the party. In fact it would be wrong to permit a plaintiff to continue as such when he takes up a completely hostile attitude to the other plaintiffs and takes upon himself to support the case f the defendant”

7. In view of the above, this petition is allowed and the impugned order dated 09.09.2021 is set aside and accordingly the Plaintiffs No. 4 to 6 be transposed from the panel of the plaintiffs to the panel of defendants as proforma defendants. However, since it is an old case, the plaintiffs are not required to amend the plaint and necessary entries be made by the office of the learned trial Court. The evidence so recorded by PW-5 shall be deemed to be defence witness and the plaintiff would be accordingly provided an opportunity to cross examine him after closing his evidence.

(Y.A.)  Petition allowed