2015 PLP 2202 (YLR)

ALI BAQAR NAJAFI, J.

Through this Civil Revision, the petitioner has challenged the judgment and decree dated 12-10-1995 passed by the learned Civil Judge, Pakpattan Sharif and the judgment and decree dated 10-4-2000 passed by the learned Additional District Judge, Pakpattan Sharif, whereby the suit for specific performance of an oral agreement to sell was concurrently dismissed.

2. Brief facts giving rise to the filing of this civil revision are that land in dispute belonged to the Provincial Government which was sold through public auction in favour of Fazal, Rustam and Hanif in equal share. Since the land was barren, comprised of "tibajat" and the owners namely, Hanif and Rustam lived in different chaks, i.e. Chah Chakki Muzaffar Wala, Tehsil Sahiwal, therefore, Hanif and Rustam made oral agreement with Fazal to sell their shares for a consideration of Rs.25,000 which was paid to Fazal. Since the mutation was not sanctioned therefore, the sale could not be given effect to. However, it was agreed between the parties that after paying the whole consideration amount the land would be transferred and for this purpose one Basharat Ali was appointed as general attorney (Exh.P.1) on 24-1-1972. On 17-7-1982, the proprietary rights were granted whereafter on 27-11-1982 the sale deed was executed accordingly. However, on 18-12-1982 the successors of Rustam filed a suit for declaration contending that before execution of the said sale Rustam had already expired on 12-9-1982 and the general power of attorney (Exh.P.1) had automatically been revoked. Meanwhile, during the pendency of the suit one Shafi purchased the suit land. The suit was decreed on 25-1-1988 and the appeal was dismissed on 3-2-1990 as a result of which sale deed was cancelled. Cancellation of general power of attorney was made which was not known to Fazal.

3. On 14-2-1990 a suit for specific performance of oral agreement was filed by the legal representatives of Fazal against Hanif and Rustam in which Basharat, the attorney, gave his consenting statement. Importantly, during the pendency of the said suit the said land was purchased by the petitioner from the said Shafi on 21-2-1994. Meanwhile, on 12-10-1999 the suit was decided in favour of respondents Nos.24 to 28, heirs of Fazal and the appeal filed was also dismissed on 10-4-2000. The petitioner has filed this civil revision on the basis of assignment of claim.

4. Malik Noor Muhammad Awan, Advocate, learned counsel for the petitioner contends that the petitioner has been assigned the claim under Order II Rule 10 of C.P.C. and with permission of the Court he can always step in and contest the suit. Places reliance on H.M. Saya and Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 Supreme Court 65) to define himself as aggrieved party and on Government of Sindh v. Abdul Sattar Sheikh and others (2003 SCMR 819) to claim the benefit of lis pendens. On merit, he contested that the agreement was oral in nature without time, date, place or any consideration, therefore, on the strength of Rehmatullah and others v. Saleh Khan and others [2007 SCMR 729] and Bashir Ahmad and 21 others v. Shah Muhammad and another [2010 CLC 734] the oral agreement is not to be relied upon. Places reliance on Muhammad Nawaz through L.Rs. v. Haji Muahmamd Baran Khan through L.Rs. and others (2013 SCMR 1300) to submit that it was time barred suit as laid down in Muhammad Hussain and others v. Dr. Zahoor Alam (2010 SCMR 286) and Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 Supreme Court 247). Adds that discretionary relief for specific performance of the agreement was not to be granted. Places reliance on Bashir Ahmad through L.Rs. and another v. Muhammad Ali through L.Rs and another (2007 SCMR 1047) and Atlas Khan and others v. Muhammad Nawaz Khan through L.Rs. and others (2010 SCMR 1217), Shakeel Ahmed v. Mst. Shaheen Kousar (2010 SCMR 1507), Hashim Khan v. National Bank of Pakistan, Head Office At I.I.Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta (PLD 2001 Supreme Court 325) and Mrs. Irene Wahab v. Lahore Diocesan Trust Association (2002 SCMR 300).

5. Conversely, Messrs Ch. Muhammad Ashraf, Syed Mubashar Raza and Mehboob Ahmad, Advocates, learned counsel for the respondents submit that the petitioner has no locus standi as heirs of Hanif and Rustam i.e. respondents Nos.1-A to 1-E, heirs of Shafi i.e., respondents Nos.7 to 19 and 20 to 22, 23 have been proceeded ex parte who have not come forward either to admit or contest claim of the petitioner. Submits that the petitioner never got possession of the land, therefore, he cannot be impleaded in appeal. Places reliance on Iqbal Sultan v. Miss Chand Sultan and 2 others (1990 CLC 366), Ch. Shujat Hussain and another v. Mian Aslam Riaz Hussain and others (1994 MLD 2079), Abdul Aziz and another v. Mst. Sikandar Jan and others (PLD 1969 Peshawar 220) and Fatima Girls High School v. Government of The Punjab through Member, Board of Revenue (Settlement), Lahore and 2 others (2002 SCMR 1361). Further adds that right of appeal is a substantive right and that the petitioner cannot be substituted for heirs of Rustam and Hanif. Places reliance on Sardar Muhammad and another v. Akram and others (2002 SCMR 807).

6. Arguments heard. Record perused.

7. Admittedly, the petitioner came into picture on 21-2-1994 when he statedly purchased the land from Muhammad Shafi but the fact remains that on 25-1-1988 the sale deed dated 27-11-1982 was cancelled meaning thereby that the property reverted back to Hanif and Rustam. It was during the pendency of the suit for specific performance of oral agreement that the said land was allegedly purchased by the petitioner from Shafi but he never become party either during the pendency of the suit or appeal. He came forward for the first time by filing the present civil revision on 24-6-2000. The question raised is as to whether the person not being party in the litigation before the courts below can file civil revision on his own on the strength of assignment of claim by the aggrieved person.

8. To answer this question it is important to reproduce Order XXII Rule 10 of C.P.C, which is as follows:-- "Procedure in case of assignment before final order in suit.

(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

9. It has been argued by the petitioner's side that in H.M. Saya and Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 Supreme Court 65), a stranger to suit or proceedings is competent to file appeal if adversely affected by an order, but admittedly, the present petition is a Revision Petition under section 115 of C.P.C. In Allah Dad and 3 others v. Dhuman Khan and 10 others (2005 SCMR 564) the petitioner therein was already made a party in the proceedings but in the present case the petitioner has filed the revision petition without being a party to the proceedings. In Sahib Dad v. Province of Punjab and others (2009 SCMR 385), the facts are very much identical, therefore, the relevant extract is as under:-- "According to the petitioner, Abdul Ghafoor during the pendency of the suit assigned his rights in the disputed land in his favour. In the said scenario the case of the petitioner was adequately covered under the provisions of Order XXII, Rule 10(1), C.P.C., but he did not choose to file any such application and felt satisfied on defending the proceedings by Abdul Ghafoor. Learned counsel has although relied upon the judgment of Surraya Begum (ibid), yet the in-depth perusal amply shows that it does not help the petitioner. It has been held in the said case that assignee may file an application to either become a party under Order I, Rule 10, C.P.C., or for his substitution in place of the assigner and if the assignee chooses not to file any application for his impleadment in the proceedings then the decision against the assignor would be binding upon him." It will be equally expedient to reproduce Rashid Ahmad v. Mst. Jiwan and 5 others (1997 SCMR 171), in which it was held that:-- "The doctrine of lis pendens contained in section 52 of the Transfer of Property Act, 1882 merely provides that a transfer of immovable property during pendency of a suit, which is not collusive in nature, in which the right to such immovable property is directly and specifically in question, cannot defeat or affect the rights of any party to the proceedings under any decree or order which may be made in such suit. This provision does not preclude the transferee pendente lite from being made a party to the pending proceedings on the basis of such transfer. Order XXII Rule 10, C.P.C., which regulates the proceedings of a suit provides that in cases of assignment, creation or devolution of any interest during pendency of suit, the suit may be continued by or against the person to or upon whom such interest has come or devolved. Another provision which is relevant in such situation is section 146 of C.P.C. which provides that where any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him. Provisions of section 146 and Order XXII, C.P.C. apply equally to appeals". In Mst. Surraya Begum and others v Mst. Suban Begum and others 1992 SCMR 652 assignee can be impleaded as party only in the appeal. In Farzand Ali and another v. Khuda Bakhsh and others [PLD 2015 Supreme Court 187], the principle of lis pendence is discussed. Relevant portion is reproduced as under:-- "Considering the plea of lis pendens raised by the appellants' learned counsel, it may be mentioned that the scope, the principle and the application of rule of lis pendens has been elaborately dilated in the judgment reported as Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905). The ratio of the above law is that a subsequent transferee cannot sustain his transfer (e.g. the sale) if he has purchased the property during the pendency of the suit. He is bound by the outcome of the suit, obviously that shall be so if the case is decided against the transferor from whom he is purchasing the property or against the transferee if he is a party to the case, but if the lis is decided in his favour, there shall be no question about the application of the rule of lis pendens."

10. Since the petitioner has neither become party in the suit nor at the appellate stage, therefore, he is bound by the decree as he has stepped, at the most, into the shoes of appellant who after losing the appeal did not file the revision petition.

11. In this view of the matter, this civil revision having no merits is dismissed. SL/A-79/L Petition dismissed.