2010 PLP 1622 (CLC)

MUHAMMAD ALI MAZHAR, J.

This is a suit for damages for infringement/violation of agreement and loss of value of shop and future profits with the following prayer clauses: (a) Hold the defendants responsible for the loss caused to the plaintiff due to their unlawful infringement/violation of agreement dated 7-1-1996 and violation of the terms offered by them in their printed brochure and for the subsequent unilateral changes carried out by the defendants to the detriment of plaintiff's interest. (b) Hold the plaintiff's refusal to pay further amount to the defendants as rightly and lawfully done, and the defendants to have snatched the vested rights acquired by the plaintiff in terms of the agreement dated 7-1-1996 and as per written offer made by the defendants in their printed brochure in an illegal manner. (c) Grant and allow the full claim of damages at Rs.90,00,000 in terms of the suit and pass decree for the said claim amount of Rs.90,00,000. (d) Costs. (e) Grant any other relief or reliefs as this Hon'able Court may deem fit in the facts and circumstances of the case. The plaintiff filed this suit in the year 1996 and initially Messrs International Builders was arrayed as defendant. However on 21-3-2005, the plaintiff moved an application (C.M.C. No. 345 of 2005) under Order I, rule 10 read with section 151, C.P.C. for joinder of Messrs A.R. Developers, which acquired the right, title and interest in the Plot No.268/2, R.A. Lines, Abdullah Haroon Road, Karachi in execution proceedings filed by M.C.B. the application was allowed, plaintiff had filed amended title on 28-3-2005 and Messrs A.R. Developers was arrayed as defendant No.2 in the suit. The present application has been moved by defendant No.2 under Order I, rule 10(2), C.P.C. for striking out its name from the plaint. In the application, it is inter alia contended that the suit was originally instituted against Messrs International Builders in the year 1996 and after more than 10 years the project "International Business & Shopping Centre", was sold out by the defendant No.1 to the defendant No.2 i.e. Messrs A.R. Developers, thereafter, the defendant No.2 had further sold the entire project to Messrs Park Lane Estates (Pvt.) Ltd. on 28-8-2008 under a registered Sale-Deed. In order to substantiate the plea raised in the application, the defendant No.2 has also attached a copy of registered Sale-deed which was executed on 28-8-2008. In the nutshell, the purpose of this application to lay emphasis that after selling the entire project by the defendant No.2 to another buyer, it is no more a proper and necessary party in the suit, hence its name may be deleted/struck off from the array of the defendants. In response to this application, the plaintiff filed his counter affidavit in which it is submitted that during the pendency of this suit, the defendant No.2 has sold out the property to another buyers, therefore, the alleged sale transaction is hit by the principle of lis pendens. The learned counsel for the defendant No.2 focused his entire arguments on the proposition that after selling or transferring the entire project to the new buyer, the defendant No.2 is no more a proper and necessary party in the suit. In support of his arguments, the learned counsel relied upon a judgment reported in Muhammad Sarwar and another v. Muhammad Ashraf 1971 SCMR 204, in which, the Hon'able Supreme Court has held that person having no interest in the property in suit is not a necessary party. The judgment relates to a mortgage and subsequent sale of a shop. The mortgagee Fazal Karim had refused to receive mortgage money. Muhammad Ashraf filed a suit for redemption of mortgage. The trial court found Muhammad Ashraf to be the purchaser of the shop for valuable consideration and decreed the suit for redemption. The decree was maintained up to second appeal. The legal heirs of Fazal Karim sought leave to appeal and relied upon an Amanatnama for the purchase of shop by the deceased Fazal Karim from Jan Muhammad. The honorable Supreme Court observed that alleged Amanatnama was not executed by Jan Muhammad but by his son not in favour of Fazal Karim but in favour of his sister Iqbal Begum. The petitioners contended that suit was bad for not impleading Iqbal Begum. The honorable Supreme Court held that Iqbal Begum not having any interest in the shop was not necessary party. The facts and circumstances of this case are highly distinguishable, as there was no controversy involved between the parties in connection with the implication and applicability of the principle of lis pendens which is fully attracted in the present case. It is a matter of record that on 21-3-2005, the defendant No.2 was impleaded in the suit, whereafter an amended title was filed on 28-3-2005 in which Messrs A.R. Developers was arrayed as defendant No.2. The issues have already been settled in this matter. Learned counsel for the plaintiff further pointed out that Commissioner was appointed for recording the evidence of the parties. The conveyance deed attached with the aforesaid application shows without any shadow of doubt that it was executed on 28-8-2008 during the pendency of the suit and therefore, at this stage it is not proper to hold that the defendant No.2 is neither a necessary party nor a proper party. In may view, the principle of lis pendens is fully attracted in this case. For the convenience and ready reference, section 52 of the Transfer of Property Act is reproduced as under:--? "

52. Transfer of property pending suit relating thereto. During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Federal Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and 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. Explanation. For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force". The concept of lis pendens as enumerated and envisaged under section 52 of the Transfer of Property Act is to protect the multiplicity of proceedings and if the parties are allowed to dispose of the property in question during the pendency of proceedings, then no suit will reach to its ultimate conclusion and in each and every case the plaintiff has to make many parties one by one and the litigation between the parties will not attain finality. The object and scope of doctrine of lis pendens, as contemplated in section 52 of the Transfer of Property Act is that neither party to litigation can alienate the property in suit so as to affect his opponent. The section is an expression of the principle of maxim "pendente lite nihil innovetur" (pending a litigation nothing new should be introduced). This rule is an expression of the principle that pending a litigation nothing new should be introduced in it for avoiding adversely affecting the rights of litigating parties. The true scope of section 52 of the Transfer of Property Act does not prevent the vest of title in transferee in a sale pendente lite but only makes subject to the rights of other parties as decided in the suit. The doctrine of lis pendens is not simply based upon the principle that filing of suit is notice to the whole world but more so on public policy that no one should be allowed to affect right of parties pending decision of a cause before a Court of law. If alienation of property pending litigation is accepted then such act would amount to permitting endless multiple litigation thus completely destroying the doctrine of lis pendens. In a judgment reported in Fazal Karim v. Muhammad Afzal PLD 2003 SC 818, the honourable Supreme Court has held lis pendens transaction was not void on the score that it was done during the pendency of some lis but the fate thereof would remain suspended till final verdict of the Court which was seized of the matter. Court was not to discard a transaction merely because the same had taken place during the pendency of the lis but its fate should be deferred to the final verdict as lis pendens merely operated as a status quo. Lis pendens transaction was not bad even if it had taken place during the existence of a status quo order by the Court and in such case it could, of course, entail any punitive action contemplated by O.XXXIX, C.P.C. but would not nullify the transaction between the parties on account of being lis pendens, the validity or otherwise whereof shall remain subject to final verdict by the Court. On the one hand, section 52, Transfer of Property Act, 1882, deals with a transaction having taken place during proceedings which are not collusive and, on the other, it lays down that such transaction is not void due to being lis pendens and is always subject to any decree or order which may be made therein. Its validity remains subjects to the authority of the Court which may be made on such terms as it may impose. A close perusal of the section would clearly indicate that a lis pendens transaction is not void on this score alone that it was done during the pendency of some lis but the fate thereof would remain suspended till final verdict of the Court which is seized of the matter. In another judgment reported in Muhammad Nawaz Khan v. Muhammad Khan and two others 2002 SCMR 2003, the honorable Supreme Court has held that transfer made pendente lite would not ipso facto become void, rather such transfer could not affect right of other parties in suit. Since the matter is at evidence stage, therefore, the liability of each defendant if any towards the plaintiff will be decided on the strength of evidence as may, be adduced by the parties. I am not convinced to subscribe the view of the learned counsel for the defendant No.2 that after selling the project during pendency of the suit, the defendant No.2 is not a proper and necessary party. For the reasons stated above, this application fails and is hereby dismissed. S.A.K./S-68/K??????????????????????????????????????????????????????????????????????????????????? Application dismissed.