2020 PLP 461 (YLR)

SHAHID BILAL HASSAN, J.

Precisely, the respondent No.1/plaintiff instituted a suit for specific performance with permanent injunction regarding the inherited share of petitioner No.1 and respondent No.2 from deceased father as legal heirs along with other co-sharers of the property/house measuring 4 marlas 4 sarsahi out of total measuring 10 marlas situated in Mohallah/Mauza Mianapura Tehsil and District Sialkot which has been inherited from deceased father as legal heirs along with other co-sharers alleging that the petitioner No.1 and his real brother namely Muhammad Tufail, respondent No.2, have entered into agreement to sell of their shares vide agreements Nos.216 and 218, respectively. It has further been alleged that vide above mentioned agreements to sell, the petitioner No.1 and respondent No.2 have received an amount of Rs. 11,00,000/- out of total consideration amount of Rs.13,33,000/- and agreed that the remaining consideration amount of Rs.233,000/- will have to be paid at the time of attestation of sale deeds; hence, the suit on refusal of the rival party to cope with the demand of the respondent No.1/plaintiff. The petitioner No.1 and respondent No.2 were proceeded against ex parte on 25.03.2017. After recording ex parte evidence, the learned trial Court vide ex parte judgment and decree dated 03.07.2017 dismissed suit of the respondent No.1/plaintiff, who being aggrieved of the same preferred an appeal. During pendency of the appeal, the petitioner No.2 filed an application under Order I, Rule 10 of the Code of Civil Procedure, 1908 on the ground that he has purchased the disputed property vide document No. 2129 dated 15.06.2017, thus, being bona fide purchaser without notice may be impleaded as party to the appeal and suit. The said application was resisted by the respondent No.1/plaintiff. The learned appellate Court vide impugned judgment dated 13.03.2018 accepted the said application and remanded the case to the learned trial Court for de novo trial; hence, the instant civil revision.

2. Heard.

3. Admittedly, the petitioner No.2 purchased the suit land during pendency of the suit because the suit was instituted on 01.09.2016 and petitioner No.1 purchased the suit property on 15.06.2017; in this regard explanation given under section 52 of the Transfer of Property Act, 1882 is relevant; therefore, principle of lis pendens fully attracts in this case. For ready reference section 52 of the Act ibid with explanation is reproduced infra: "During the pendency of in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not 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 purpose 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 a 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." (Underline for emphasis) The rule of lis pendens is founded upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienation pendente lite are permitted to prevail and the subsequent transferee is allowed to set out his own independent case, even of being the bona fide transferee against the succeeding party of the matter and ask for the commencement of de novo proceedings so as to defeat the claim which has been settled by a final judicial verdict; as has been held in Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 Supreme Court 905).

4. Pursuant to the above, the learned appellate Court has travelled beyond the vested jurisdiction and has wrongly appreciated the ratio of judgment reported as Mehmood Anwer and another v. Additional District Judge and 14 others (2017 YLR Note 51-Lahore), because facts of the present case are distinguished from that case, as in the present case, as stated above, the petitioner No.2 purchased the suit property during pendency of the suit.

5. In view of the above, the petitioner No.2 was not necessary party to the appeal or suit and the appeal could have been decided without impleading him. As such, the civil revision in hand is allowed, impugned judgment is set aside, consequent whereof application under Order I, Rule 10 of C.P.C. is dismissed and case is remanded to the learned appellate Court, where the appeal will be deemed to be pending for decision afresh along with application moved by the respondent No.1 for additional evidence, in accordance with law. The adversaries are directed to appear before the learned appellate Court on 31.10.2019. ZC/P-10/L Case remanded.