2005 PLP 160 (CLC)

Date of hearing: 6th September, 2004. The judgment of the learned Additional District Judge, Lahore, dated 9-12-1997 whereby upholding the judgment of the trial Court dated 5-5-1994 the appeal was dismissed by him, has been assailed by the petitioners in C.R. No.2067-D of 1997 whereas the same judgment has been assailed by the petitioner in C.R. No.2068-D of 1997. The learned counsel for the petitioner in C.R. No.2068-D of 1997 has argued the case first for the reason that pending the suit before the trial Court the land was sold by Muhammad Yaqoob and Muhammad Ayub, (the original defendants in the suit) to him as such the petitioner had the vital defendable interest in the land.

2. The background briefly stated in which both these revision petitions have arisen is that Mehr Din deceased had through a registered sale-deed dated 16-3-1965 alienated land measuring 101 Kanals, 2 Marlas in favour of Mrs. Anwar Kishwar Mirza which transaction was reflected in the Revenue Records and Mutation No.240 was attested on 22-4-1969. By purchasing some more land -from Ali Muhammad and Ahmed Din the said Mrs. Anwar Kishwar Mirza had become owner of 165 Kanals, 2 Marlas of land. She sold the same in favour of Muhammad Yaqoob and Sh. Muhammad Ayub vide separate sale-deeds dated 8-10-196 and 26-5-1970. In the year 1981 successors of Mehr Din deceased instituted a suit for declaration and cancellation of sale-deed dated 16-3-1965 alleging that the same was null and void and "creation of fraud and misrepresentation" which was not binding upon them and the subsequent sales and mutations regarding land measuring 101 Kanals, 2 Marlas were also not binding upon them. It may be mentioned at this juncture that while that suit was pending Muhammad Yaqoob and Muhammad Ayub sold land measuring 109 Kanals, 2 Marlas in favour of Messrs Environment Construction Limited through registered sale-deed, dated 29-12-1985. The suit mentioned above was eventually decreed on 5-5-1994 by the learned trial Court whereagainst appeal was preferred by Muhammad Yaqoob and Muhammad Ayub (petitioners in C.R No.2067-D of 1997). While that appeal was pending an application under Order 1, rule 10 of the Code of Civil Procedure, 1908 was filed by the company on 18-11-1997, before the Appellate Court detailing the circumstances in which it had acquired interest in the suit property and highlighting the background for being impleaded as party to the appeal. The application was contested by the respondents/plaintiffs. The same was, however, dismissed by the learned Additional District Judge, Lahore on 9-12-1997 after dismissing the appeal of Muhammad Yaqoob and Muhammad Ayub. These two revision petitions arise in this context. 2-A. The learned counsel contends that the devolution of interest during the pendency of suit entitled the petitioner to be impleaded as party in order to protect his right or interest therein and the application for becoming party has wrongly and illegally been dismissed by the Appellate Court. Referring to various documents/material on the record he has endeavoured to establish that the petitioner was bona fide purchaser for valuable consideration who had taken all precautionary measures before purchase and could not be non-suited by the Appellate Court. The learned counsel for the respondents/plaintiffs has vehemently opposed the impleadment of the petitioner as party and has attempted to support the order passed by the Appellate Court. According to him such a belated move was not bona fide on the part of the petitioner and the Appellate Court has rightly rejected his application. The learned counsel for revision petitioners in C.R. No.2067-P of 1997 (defendants to the suit) has not opposed the prayer of the petitioner in C.R. No.2068-D of 1997.

3. It may be mentioned that for the present the only aspect of the matter that is to be considered is as to whether the petitioner should or should not have been impleaded as party by the First Appellate Court in the appeal which was already pending before it. Suffice it to note and observe that the petitioner had come forward before the First Appellate Court with the plea based on registered sale-deed dated 29-12-1985 and Mutation No.680 that had been sanctioned on 15-2-1986. It was so pleaded in paragraph 4 of the application. These two documents prima facie showed that he had acquired right and interest in the property. The, learned Additional District Judge, however, while rejecting the application took the view that "if this petition is now entertained, it will be to pull the clock back as once again the parties would be stand at the stage where they were in the year 1981, therefore, the applicant Sajid Saeed etc. cannot be impleaded as party in this case. I see no ground to entertain this application and the same is dismissed". The view so taken by the learned Appellate Court in rejecting the application of petitioner was untenable and erroneous in law inasmuch as that the Court was entitled to add any person at any stage of the proceedings, enabling it to effectually and completely adjudicate upon and settle the questions involved in the suit. Apart from the provisions of Rule 10 of Order 1 of the Code of Civil Procedure, 1908, which are to be construed liberally by the Court, Rules 10 and 11 of Order 22 of the Code also take care of such situations. In Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652 the import and effect of provisions of Rule 10 of Order 1 and Rule 10 of Order 22 of the Code of Civil Procedure, 1908 came to be considered by the Honourable Supreme Court of Pakistan. It was observed and held that:-- "It is admitted that the present respondents/second vendees did apply for being impleaded as respondents to the suit under Order I, rule 10, C.P.C., but the said request was opposed by the defendants, whereupon they subsequently applied under Order 22, rule 10, C.P.C. for being substituted in place of the first transferees, which application was allowed. The decree having been drawn up against them, they appealed to the High Court without bringing on record the first transferees, as they were not shown as parties in the decree. Since the appellants opposed the request of the respondents/second vendees to be impleaded as' co-defendants in the suit and they also did not take up any objection at the appellate stage that the first vendees had not been impleaded as parties in the appeal, they cannot be permitted to raise this objection now. Even otherwise, this objection does not make their appeal incompetent. Under section 52 of the Transfer of Property Act, a transfer of immovable property in suit to which any right is directly or specifically claimed, is not completely prohibited. What is contemplated by this provision is that the property cannot be transferred or otherwise dealt with, without permission of the Court by any party to suit or proceedings so as to affect rights of any other party thereto under any decree or order which might be passed therein. Subject to these reservations, property can be transferred even without permission of the Court, but the transferee or donee or assignee would acquire right thereto or interest therein only subject to the judgment or order of the Court in the suit. See Mst. Zohra Bai v. A.A. Zubairi PLD 1988 Kar.

58. Order 22, rule 10, C.P.C. is a residuary rule, which governs cases not provided for by rules 1-9, rules 10 and 11 of Order 22, C.P.C. read together indicate that in making rule 10 applicable to appeals, the word `suit' in rule 10 has to be read as including an appeal, that is to say the word `suit' has to be read as `suit or appeal', thus, indicating that the Appellate Court also has jurisdiction to implead an assignee as a party to the appeal even when the assignment was made in his favour during the pendency of the suit. See Luxmi Narayan v. Babu AIR 1946 Lah.

33. Order 22, rule 10, C.P.C. is a permissive provision which enables the assignee to continue the suit in place of the assignor. The assignee need not bring himself on record, if he feels that his interest is being protected by his assignor, in which case the decision for or against his assignor would be binding upon him. See Luxmi Narayan's case (supra) and Nawabzada Shamsher Ali Khan v. Maj.-Gen. Nawabzada Sher Ali Khan PLD 1976 Lah.

650. The suit in such a case would be treated as continuing for the benefit of the assignee, who can, after the decree is passed, file execution proceedings. See Uchhab Pratta v. Brundaban Malik AIR 1969 Orissa.142 and Jugalkishara Saraf v. Raw Cotton Co. Ltd. AIR 1955 SC

376. It is only when the assignee feels that his interest is in jeopardy and not likely to be protected by the assignor, that he can apply to become either a party under Order 1, rule 10, C.P.C. (see Ameer Muhammad v. Jiwanlal AIR 1952 M.B. 154, or to be substituted for his assignor under Order 22, rule 10, C.P.C." The principle so laid down was fully attracted to the instant case. Similar was the view taken in Rashid Ahmad v. Mst. Jiwan and 5 others 1997 SCMR

171. The rejection of the application by the Appellate Court for impleadment of the petitioner as party to the appeal was not warranted by the facts and circumstances of the present case, rather the applicant who had come forward for protecting and defending his right and interest of his own should have been allowed to be impleaded and heard in the matter. The order dated 9-12-1997 thus, is not sustainable in law. In such view of the matter appeal C.A. No.182 of 1995 titled Muhammad Yaqoob and others v. Muhammad Sarwar and others will have to be heard and decided by the First Appellate Court after impleading the petitioner Messrs Environment Construction Pvt. Ltd. as party thereto. The judgment of the learned Appellate Court dated 9-12-1997 is set aside. The appeal mentioned above will be deemed pending before the First Appellate Court where the parties will cause their presence on 27-9-2004 for further proceedings in the matter it that Court. The revision petition is accepted accordingly with no order as to costs. M.H./E-10/L Case remanded.