2004 PLP 1711 (CLC)

Malik Noor Muhammad Awan for Respondent No.

1. Nemo for Respondent No.2. Ghulam Hussain Malik for Respondent No.3. Date of hearing: 28th July, 2004. There is a suit for recovery of Rs.15,00,000 instituted under Order XXXVII of the Code of Civil Procedure. 1908 by Malik Taj Muhammad who is respondent No.1 herein, against respondents Nos.2 and

3. The said suit is based on a promissory note. Alongwith the suit respondent No.1 made an application under Order XXXVIII, rule 5 of the Code of Civil Procedure, 1908 for attachment of certain properties including House No.K-245. While the matter was pending before the trial Court the petitioners herein made an application under Order 1, rule 10 of the Code of Civil Procedure, 1908 for being impleaded as party on the ground that House No.K-245 had been transferred to them through agreement, dated 31-10-2003 and their suit for specific performance qua the same was pending in the Civil Court. It was pleaded by them that any attachment order passed thereabout would affect adversely their interest. The application was contested by the respondent/plaintiff controverting the assertion of the petitioners. The learned Additional District Judge, who was seized of the matter has vide order, dated 26-6-2004 proceeded to accept the application for attachment before judgment of the property and dismissed the application of the petitioners for being impleaded as party to the suit. This order has been assailed through, this revision petition.

2. The learned counsel for the parties have been heard at a considerable length who have cited several precedents in support of their respective contentions, but in view of order proposed to be passed, I need not dwell upon the subject anymore.

3. It is evident from the record that House No.K-245 which is subject-matter of dispute in these proceedings was owned by Muhammad Akram who is defendant No.1 in the suit for recovery. He is said to have transferred the same through an agreement of sale in favour of one Zafar Iqbal from whom the petitioners claim to have purchased the same through agreement dated 31-10-2003. On that basis their suit for specific performance instituted on 27-1-2004 is pending before the Civil Court at Mianwali wherein Muhammad. Akram and Zafar Iqbal are party as defendants. In that suit Malik Taj Muhammad who is plaintiff in the suit for recovery has made an application for being impleaded as party. The said application is statedly pending before the Civil Court. It may be mentioned here that the suit for recovery by Malik Taj Muhammad was filed on 15-6-2004. In such context of the events the petitioners had come forward before the learned Additional District Judge seized of the suit for recovery to object to the attachment of the said house and for being impleaded as party. They have been declined to be impleaded as party for the view taken by the learned Additional District Judge that they were not necessary party to the same.

4. During the course of hearing of this petition it has been stated by the learned counsel for the petitioners that the petitioners do not intend to alienate or deal with the disputed house during the pendency of the suit for recovery or their suit for specific performance and would maintain status quo whereas the learned counsel for respondent No. 1 states that in case any decree is passed in favour of respondent No. 1 in the suit for recovery, the same would not be executed until the decision of the suit for specific performance. Such stance of the parties, which prima facie appear to be just and fair, should have clinched at least this interlocutory controversy by resultant vacation of the attachment order passed by the learned Additional District Judge. However, in view of the complexity of the matter as to whether the petitioners should be allowed to be impleaded as party to the suit for recovery particularly when there is also an application by respondent No. 1 for being impleaded as party to the suit for specific performance, it is observed that in the facts and circumstances when the petitioners claim some interest to have been required by them particularly when there is a suit for specific performance also pending in the Court, if not necessary they should be considered as proper party in the suit for recovery so that they may have the opportunity of representation and defending before the Court that the agreement in their favour and the suit filed by them is not a conclusive affair. Similar approach can also be adopted qua respondent No. 1 whose application for, being impleaded as party to the suit for specific performance, to enable him to plead his case that the agreement to sell and the suit for specific performance is not aimed at to frustrate or defeat his rights. This way both sides will have the opportunity of pleading their respective causes. Their presence before the respective Courts would result in avoiding the multiplicity of proceedings. I would, therefore, in the peculiar facts and circumstances mentioned above allow this petition to the extent that the petitioners may, be permitted to be impleaded as parties to the suit for recovery and order of attachment to the extent of House No.K-245 will stand vacated to view of undertaking of the parties noted in the preceding paragraph No. order as to costs. M.B.A./M-616/L Order accordingly.