2004 PLP 1395 (MLD)

The brief facts out of which the present writ petition arises are that respondent No.1 filed the suit for permanent injunction against respondent ‑No.2 and two others. Contentions of the plaint reveals that respondent No.1 in consideration of the payment of compensation and the costs of acquisition, acquired land as far back in the year 1955 measuring 100 Kanals bearing Khasras Nos.7200 and 7201, situated in village Ichhra, Tehsil and District Lahore. The proprietary rights were also recognized by respondents Nos.2 and

3. Mutation to this effect was also attested and sanctioned by the revenue officer. Respondent/plaintiff No.1 was duly handed over possession of the land in question after due demarcation by the concerned authorities and in that process carried out a passage connecting Ferozepur Road, Lahore with other lands. Respondent No 2 sent notice to respondent No. 1 alleging the passage to be Nazool land and on these premises, he used to purchase it. The petitioner being aggrieved filed suit for specific performance in the Court of Civil Judge 1st class, Lahore on 16‑4‑1987. The petitioner also secured land from respondents Nos.2 to 4 on 16‑11‑1998 which is situated in Khasras Nos.7202 and 7207. The petitioner came to know that some land of the aforesaid Khasras of the petitioner was illegally occupied by respondent No.1. The petitioner filed an application under' Order I, rule 10, C.P.C. before the Civil Judge 1st class, Lahore who dismissed the same vide order dated 21‑11‑2000. The petitioner being aggrieved filed revision petition before the learned Additional District Judge, Lahore, who dismissed the same vide order dated 23‑12 2000, hence the present writ petition.

2. The learned counsel of the petitioner submits that no doubt the Doctrine of lis pendens would be applicable on the conclusion of the litigation but there was no justification not to allow the petitioner to be impleaded as party in the litigation as the claim of the petitioner was based on official letter dated 16‑11‑1998 over the land in question which was issued by the competent authority in favour of the petitioner. He further submits that petitioner is, proper and necessary party. Both the Tribunals below have erred in law to dismiss the application of the petitioner to be impleaded as defendant in the suit filed by respondent No.1 against respondent No.3. He further submits that both the Tribunals below have dismissed the application of the petitioner in violation of the law laid down by the superior Courts.

3. Learned counsel of the respondents submits that respondent No. 1 has filed a suit in the year 1987 and in case the petitioner be allowed to be impleaded as defendant in the suit then respondent No. 1 would suffer irreparable loss as the parties automatically would start litigation since 1987. He further submits that petitioners has no vested right accrued at the time when respondent No. 1 has filed a suit in the year 1987. Admittedly the right was accrued to the petitioner in the year 1998. He further submits that both the Courts below non suited the petitioner with cogent reasons as the principle of lis pendens would apply and the petitioner has no right over Khasras Nos.7200 and 7201 as well as the petitioner has also right to file an appeal against the order of the trial Court after announcement of judgment as the laid own by the Honourable Supreme Court in H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. Karachi (PLD 1969 SC 65). He further submits that petitioner has filed this Constitutional petition after a considerable delay with mala fide intention for the purpose to frustrate the order of the Courts below arid did not want that the litigation be decided by the trial Court, which is pending adjudication before the trial Court since, 1987. The learned counsel of the petitioner in rebuttal reiterated the aforesaid contention.

4. I have given my anxious consideration to the contention of the learned counsel of the parties and perused the record.

5. It is better and appropriate to reproduce the operative part of the impugned order of the trial Court to resolve the controversy between the parties:‑ "Admittedly the present suit was instituted on 16‑4‑1987 and at that time the disputed land comprising of 7200‑7201 was owned by the provincial Government. The plaintiff has also been claiming the disputed land comprising the Khasra No. but now the applicant has claimed right over the property comprising of Khasras Nos.7202 and 7207. If it is admitted that the L.M.C. got some rights in the above said Khasra Nos. vide letter dated 16‑11‑1998 then he has no right over the disputed property and if for the sake of arguments it is admitted that the L.M.C. has some rights over the disputed land then the rule of its pendens is applied to his case as he has got the said rights during the pendency of the suit. In view of the above‑said circumstances, I am of the view that the present petition is hereby not maintainable and the same is hereby dismissed with no order as to costs." The operative part clearly reveals that petitioner has secured some rights qua the controversy arising in the suit, therefore, petitioner is proper and necessary party. In arriving to this conclusion, I am fortified by the law laid down by the superior Courts in the following judgments:‑‑ Abdul Wali Khan's case (PLD 1975 SC 463). Bashir Ahmad' s case (1991 SCMR 1656). Muhammad Humayun's case (1991 MLD 1957). It is settled principle of law that under Order I, rule 10, C.P.C. Court can substitute or add a party at any stage of the proceeding as the law laid down in the following Judgments: Messrs Ideal Life Insurance Company Ltd. v. Mst Khairunnisa A.G. Mirza (1980 CLC 1375). The Jetpur Memon Association v. Mst. Zubeeda Begum (1981 CLC 1245). Suleman Khan's case (PLD 1992 SC 590). It is settled principle of law that party claiming interest in the subject matter of litigation cannot have been kept away from the litigation as the law laid down by the Division Bench of the Karachi High Court in Capt. Riffat Chowdhry v. The Executive Board Pakistan Defence Officers Housing Authority (1984 CLC 2426). It is also settled principle of law that party be allowed to be impleaded in the suit as defendant so as to avoid multiplicity of litigation. In arriving to this conclusion, am fortified by the law laid down in Messrs Nishibe Kaike Manutacturing Company Ltd. v. Karachi Taxi Meter Co. and another (1986 CLC 1063). Messrs Mona Lisa Fruit Juice Industries Ltd. v. Government of Sindh (1998 MLD 9). It is also settled principle of law that principle of Its' pendens cannot be made a ground for rejecting application peeking impleadment as a party in the pending suit, as the fact of transaction pending litigation and the rule of lis pendens would be examined by the trial Court in due course of law. In arriving to this conclusion, am fortified by the law laid down in Ghulam Abbas and others v. Malik Muhammad Ijaz and others (2002 CLC 47), Mukhtar Haider and others v. Muhammad Feroze and others (1990 ALD 401), Munir Ahmad v. Mst. Rukhsana Khan (1997 MLD 536). The petitioner is a proper party in view of the controversy arising between the parties in the original suit after securing title qua the adjacent land as the law laid down in A.M. Qureshi v. Deputy Commissioner (East) Karachi (1989 MLD 4543). This Court has ample jurisdiction to allow the petitioner to be impleaded as defendant to the suit in case the Courts below having failed to exercise jurisdiction vested in them in accordance with law as the law laid down by this Court by my learned brother Ihsan‑ul‑Haque Chaudhry, J. (as he then was) m University of the Punjab v. Malik Jahangir Khan (1994 MLD 4521. It is pertinent to mention here that suit has not finally concluded by the trial Court In case the petitioner is not allowed to be impleaded as defendant in the suit, which is not in the interest of any party which would create a situation of multiple litigation between the parties in case the suit is decided in favour of defendant No. 1 up to the apex Court. In this view of the matter, the impugned orders of the Courts below are set .aside. The trial Court is directed to implead the petitioner as defendant in the suit. The petitioner is directed to appear before the trial Court on 15‑4‑2004 and the trial Court is directed to provide one opportunity to the petitioner to file written statement. Thereafter the trial Court is directed to proceed in the matter in accordance with law and the trial Court is directed to finalize the matter within six (6) months positively In case any of the party or counsel of any of the party shall not cooperate with the trial Court to conclude the trial within the specified period then the trial Court is directed to invoke the penal provisions against the said party. With these observations, the writ petition is disposed of. M.I./M‑198/L Petition accepted.