2026 PLP 201 (MLD)

Rasal Hasan Syed, J.

Petitioner in this Constitutional petition has challenged orders dated 16.3.2023 and 25.4.2024 of the courts below in terms whereof an application under Order I, Rule 10, C.P.C. filed by respondent No. 3 (Kamran Munir Khan) was accepted, and he was allowed to be inserted as defendant in the suit.

2. Petitioner claiming an agreement of sale in respect of suit property in her favour purportedly executed by respondent No.4 alleges that an application for transfer of the property in her favour along with relevant documents was moved in the office of respondent No.6 (Administrator DHA, Lahore) which could not be processed due to non-cooperative attitude of respondent No.4, in result, the petitioner was directed to approach the competent court for proper relief and meanwhile the plot will not be cleared. In result the petitioner filed a suit was titled Sabina Alim v. Major Muhammad Ashraf and others, for specific performance against respondent No.4 and DHA (who were arrayed as defendants Nos.1 and 2 in the suit). Interim injunctive order was purportedly issued to the extent of alienation of the property vide order dated 27.11.2006. During the pendency of the suit, an application under Order I, Rule 10, C.P.C. was filed by one Jamshaid Iqbal son of Muhammad Shafi claiming purchase of property through an agreement of sale purportedly executed by respondent No.4 in September 2006 which application was dismissed by the learned Civil Judge vide order dated 16.12.2008 observing that the applicant was claiming an agreement of sale which could not create any right, title or interest and that the applicant was neither necessary nor proper party and that his remedy would be to file a separate suit. It is claimed that no appeal or revision was filed against the said order which attained finality. It is asserted that in connivance with Secretary DHA, respondent No.4 transferred the plot firstly in favour of Jamshaid Iqbal on 09.2.2009 and thereafter in favour of Muhammad Amjad Saleemi (respondent No. 5) in violation of the injunctive order issued by the Civil Court. As per allotment order the second sale was made on 11.3.2009. Amjad Saleemi respondent No.5 filed an application dated 08.6.2009 under Order I, Rule 10, C.P.C. for impleading him as a party on the basis of Transfer Letter dated 11.3.2009 which too was dismissed on 11.12.2009. It is asserted that the order was challenged in Civil Revision No. 15 of 2020 in which some ex parte order was obtained on 19.10.2010, for acceptance of application but the same was not traceable. Later an application under Order I, Rule 10, C.P.C. was filed by Kamran Munir Khan (respondent No.3) who claimed to be transferee of property from Amjad Saleemi (respondent No.5) on the basis of transfer letter dated 13.11.2014. The application was opposed on the ground that the transfer was mala fide, it was violative of the rule of lis pendense and also the order of injunction of civil court and that the contempt petition was already pending, therefore, the petitioner could not be impleaded as a party. After hearing parties, the trial court allowed the application vide order dated 16.3.2023 with the observation that for safe administration of justice the application was allowed and the applicant is impleaded as defendant in the suit. Petitioner's revision thereagainst was dismissed by the learned Addl. District Judge, Lahore vide order dated 25.4.2024.

3. Main grievance of the petitioner is that in the presence of injunctive order no sale of plot could further take place and that the alleged transfer of plot in favour of respondent No.5, being violative of the injunctive order, was ab initio void and liable to be annulled and that the rule of lis pendense was attracted and that the alleged transferee pending the decision of suit will be bound by the decree as may be passed in the suit, and was not entitled to be impleaded and that the impugned order is against law as it illegally entertained the plea of bona fide purchase which was not permissible.

4. Perusal of the entire record filed with the revision petition reveals that the petitioner's only grievance against the impleadment of the newly added defendant is that the entire transaction is mala fide, it was made during the pendency of the suit and in violation of the order of injunction and as such the impleadment of newly added defendant was impermissible particularly when the contempt petition was pending in the suit against the respondents' claim to the subsequent transaction in violation of the injunctive order.

5. It is discernible from the facts noted supra as are also evident from the available documents that the petitioner's suit for specific performance was pending wherein injunctive order was statedly issued qua the alienation of the property and that later the property was allegedly claimed to be transferred in favour of Jamshaid Iqbal whose application under Order I, Rule 10, C.P.C. for impleadment as a party was dismissed by the learned Civil Judge vide order dated 16.12.2008. Notwithstanding the said order, the property was transferred in favour of Jamshaid Iqbal by respondent. No.4 who subsequently transferred the property in favour of respondent No.5 vide allotment letter dated 11.3.2009. As per petitioner, the respondent No.5 moved an application for his impleadment which was dismissed by the learned Civil Judge on 11.12.2009 but later through an ex parte order dated 19.10.2010 of the learned Addl. District Judge, Revision was accepted and he was impleaded as a party. Petitioner claimed that the order of the revisional court or the file itself wherein the order was passed, was not traceable. Be that as it may, admittedly respondent No.3 moved an application under Order I, Rule 10, C.P.C. from which it transpired that respondent No.5 had further transferred the property in favour of respondent No.3 on 13.11.2014 which application was allowed vide impugned order dated 16.3.2023 and the Revision petition filed by the petitioner thereagainst was dismissed by the learned Addl. District Judge vide order dated 25.4.2024. The learned courts below allowed the application for the reason that the property had now been transferred in the name of respondent No.3 in the record of DHA and, therefore, to avoid multiplicity of litigation between the parties, it will be just and necessary to implead the said purchaser as a party who is claiming himself to be bona fide purchaser without notice of the suit.

6. No doubt under section 52 of the Transfer of Property Act, 1882 the parties to the suit are not entitled to make alienation of the property pendente lite and if any alienation is made the same will be subject to final decision of the suit and that the transferee pendente lite will acquire no better right and if the suit is ultimately decided against the defendant/vendor of the property the same will be operative against both transferor and transferee pendent lite. It is also a rule that the transferee if impleaded as a party cannot specifically raise any independent ground for relief but could only defend the suit on the grounds available to the transferor and that he will acquire no better title than the transferor and that the suit if decreed will inure for the benefit of the plaintiff and against the Transferee who will be bound by the decree passed in the suit. Reference can be made in this context to the rule in case Muhammad Ashraf Butt v. Muhammad Asif Bhatti and others (PLD 2011 SC 905). It is also settled rule that if any alienation is made in violation of injunctive order, the court will not only be competent to take penal action against the Contemnor but also annul the deed/transfer deed which is made during the pendency of suit in violation of the injunctive order. Reference can also be made to the rule in the case of Muhammad Sabir Khan and 13 others v. Rahim Baksh and 16 others (PLD 2002 SC 303).

7. In the instant case the application under Order I, Rule 10, C.P.C. was allowed with the observations that the effect of principle of lis pendense will be examined by the Court in due course of law and that the impleadment of the transferee was being made for the purpose of effective decision of the case and to save multiplicity of litigation between the parties. It appears that the order for impleadment was passed on the principle that "assignee can continue the suit in place of the assignor as per Order XXII, Rule 10, C.P.C. which was examined and interpreted in the case of Mst. Surraya Begum and others v. Mst. Suban Begun and others (1992 SCMR 652). It is discernible from the rule supra, that the transfer of property pendente lite, if proved, will not affect the ultimate decree in the suit and that the transferee is bound by the decree as may ultimately be passed by the court and that if he is impleaded as a party as an assignee, he can only continue the proceedings with the defense available to the Assignor without any independent right to raise new or personal grounds and that the plea of "bona fide" will not be available to the transferee pendente lite and the ultimate decree which the court to pass will be binding upon the Transferor and the Transferee in the case and therefore, the learned courts below protected the interest of the petitioner while observing that the effect of lis pendense will be considered in the suit by the court. Being so the petitioner as such cannot possibly be prejudiced by the order nor any cogent reason exists for interference in the impugned order as the impleadment of respondent No.3 as a Transferee during the suit would only be for the purpose of saving further multiplicity of litigation which will not adversely affect the decision on the objection of the petitioner that the transfer being hit by lis pendense and also being violative of stay order was in operative as it will be considered on its own merits after recording evidence by the court below.

8. Subject to the observations supra, this court does not feel appropriate to interfere in the order of impleadment at this stage. The revision is disposed of accordingly. SA/S-47/L Petition dismissed.