1998 PLP 1576 (CLC)

The temporary injunction order was extended from time to time.

2. During pendency of the suit and the currency of the temporary injunction order, Muhammad Razzaq, Muhammad Ilyas Inayat, Muhammad Tafshaf, respondents Nos. 9 to 11 herein purchased land measuring 205 Kanals, 16 Marlas from Muhammad Mahboob, respondent No.3 for a consideration of Rs.50 lacs. This was an oral sale and mutation to that effect was entered on 27‑9‑1995. However, the same has not so far been sanctioned. Respondents Nos.9 to 11 made an application under Order 1, Rule 10, C.P.C. for being impleaded as defendants in the suit on the basis of their having purchased the land from Muhammad Mahboob, respondent herein. This application was contested but the learned Trial Court vide order, dated 8‑7‑1996 impleaded them as defendants in the suit observing as follows:‑‑‑ "Keeping in view these facts that the consideration amount has been paid, possession is with the petitioner, therefore, under Transfer of Property Act the petitioner has acquired rights on the property in dispute and if a decree/order is passed that will effect the rights of the petitioner. Hence this application is also accepted. The plaintiff is directed to make the petitioner party as defendant and to file the amended plaint".

3. This order is challenged in this civil revision petition by the petitioner/ complainant. This civil revision petition was admitted to regular hearing on 5‑11'‑1996. On 11‑2‑1998 respondents Nos. l to 7 were proceeded ex parte and respondents Nos.9, 10 and 11, who are actually contestants so far as the present matter is concerned, were served and are being represented by Ch. Muhammad Rafique Bajwa, Advocate.

4. Learned counsel for the petitioner submits that respondents Nos.9, 10 and 11 even if bona fide purchasers from Muhammad Mahboob, respondent/ defendant are not necessary and proper party in the present suit because their interest accrued during pendency of the suit and the currency of the temporary injunction order, dated 6‑2‑1995. He has relied on "Messrs Aman Enterprises Kotli Loharan v. Messrs Rahim Industries Pakistan Ltd. and another" (PLD 1988 Lahore 717), "Abdul Saeed Khan and 2 others v. Basharat Ali and 13 others" (PLD 1995 Lahore 255) and "Muhammad Yousaf and others v. Muhammad Younas and others" (1995 CLC 1780) to contend that the doctrine of lis pendens would equally apply to respondents Nos.9 to 11 as they had admittedly entered into transaction of sale with Muhammad Mahboob, respondent, during pendency of the suit which covered the ,property purchased by them also. He has also referred to "Rustom Ali and 2 others v. Haider Bakhsh and another" (1988 CLC 779) and "Mst. Ghulam Fatima and others v. Rahim Bakhsh and others" (1988 SCMR 250) and submitted that even their application under Order 1, Rule 10, C.P.C. could not be accepted and they could not be allowed to be impleaded as defendants in the suit.

5. On the contrary, learned counsel for respondents Nos. 9 to 11 submitted that his clients had obtained vital interest in the land purchased by them for valuable consideration from Muhammad Mahboob, respondent and, therefore, they are necessary parties in this suit. He further submitted that at least they are proper party in the suit. He relied on "Abdur Rauf and others v. Abdur Rahim Khan, Advocate" (PLD 1982 Peshawar 172) and "Asghar Ali v. The State" (1992 SCMR 151).

6. The admitted position is that respondents Nos.9 to 11 entered into transaction of sale in respect of land measuring 205 Kanals, 16 Marlas with Muhammad Mahboob, respondent, which is also the subject‑matter of the suit filed by the present petitioner against respondents Nos.1 to

8. It is also borne out by the record that transaction of sale between respondents Nos.9 to 11 and Muhammad Mahboob, respondent, took place subsequent to institution of the suit and issuance of temporary injunction order. This is evident from the fact that the mutation of sale was entered on 27‑9‑1995 whereas the suit was instituted and the temporary injunction order was passed on 6‑2‑1995.

7. Section 52 of the Transfer of Property Act provides that:‑‑‑ "During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. "

8. It is not the case of the petitioner that before purchasing the property in dispute the permission from the Court was obtained, therefore, the transaction of sale with respondent Muhammad Mahboob, as averred by the petitioner, is hit by provision of section 52 and no right had accrued to the petitioner. Reference may also be made to the case of Mst. Ghulam Fatima, (supra), wherein the Hon'ble Supreme Court observed that:‑‑‑ "being an assignee pending litigation and the principles of Civil Procedure Code being applicable the appellant tenant claim to be a necessary or a proper party."

9. In similar circumstances, it was observed by this Court in case of Rustam Ali, (supra), as follows:‑‑‑ "Section

52. Transfer of Property Act outright prohibits acquisition of interest at the instance of one of the parties to the suit during its pendency and, therefore, if a subsequent vendee like the petitioners chooses to purchase land despite pendency of the suit, he will do it at his own risk. He cannot be allowed to be brought on the record by traversing what section 52 (ibid.) lays down. In fact, I may be bound by the Full Bench decision reported in Mst. Sant Kaur v. Taja Singh (AIR (33) 1946 Lah. 142) wherein precisely such a subsequent vendee acquiring land during pendency of a suit was held not to be even a proper party. Joinder may not be allowed merely on the ground of multiplicity of pleadings."

10. The discretion of Court to implead any person as a defendant or a plaintiff is exercisable only for the purpose of effectual and complete adjudication of all the questions involved in the suit. For the adjudication of the suit, the presence of respondents Nos.9 to 11 was not essential, as the controversy can be resolved in their absence.

11. For what has been stated above, I am of the view that respondents Nos.9 to 11 are not necessary or proper party to the suit filed by the petitioner. This civil revision petition is, therefore, accepted and the impugned order, dated 8‑7‑1996, passed by the learned Senior Civil Judge, Toba Tak Singh, is set aside to the extent of allowing application under Order 1, Rule 10, C.P.C. and impleading respondents 9 to 11 as respondents. No order as to costs. A.A./M‑678/L Revision accepted.