PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI Versus Mst. ISMAT JAHAN

ORDER

SADIQ HUSSAIN BHATTI, J.---

1-3. Adjourned.

4-5. CMA No.2200 of 2015 is an application under Order I, Rule 10, C.P.C. read with Order XXII, Rule 10, C.P.C. with the prayer to substitute the present Respondent No.1 Abdul Muneer Patel with Mst. Ismat Jahan while CMA No.2201 of 2015 is an application filed by Mst. Ismat Jahan praying therein that she may be substituted in place of the abovenamed Respondent No.l. Since the prayer in these two applications is common, therefore, I intend to dispose of them together.

2. The dispute in this appeal pertains to Plot No.104, measuring 2000 Square Yards, situated at 30th Street, Phase-VI, Defence Housing Authority (hereinafter referred to as the "subject plot"). The Respondent No.1 filed a Civil Suit bearing No.1738 of 1991 against the Appellant pleading therein that the subject plot was allotted to one Muhammad Bashir son of H. Jamaluddin, who sold the same to the Respondent No. 1 . However, when documents for transfer were submitted with the Appellant for the transfer of subject plot in favour of the Respondent No.1, the Appellant declined to do so. The Appellant resisted the suit by filing its written statement. The trial Court after framing issues and recording evidence of the parties, decreed the suit in favour of Respondent No.1 vide judgment dated 30.8.2007, which was challenged by the Appellant in Civil Appeal No.147 of 2007, which was dismissed by 1st Additional District Judge, Karachi (South) vide judgment dated 05.8.2009. The Appellant has challenged this judgment by filing present second appeal.

3. Mr. Adnan lqbal Chaudhry, learned counsel for the Applicant/ Intervenor has submitted that since the Respondent No. 1 has sold his rights, privileges, ownership entitled of whatsoever nature and surrendered all rights in the subject plot in favour of the Applicant/Intervenor namely Mst. Ismat Jahan for valuable consideration. However, Appellant is not transferring the subject plot in favour of the Applicant / Intervenor on account of pendency of the instant appeal, therefore, she is entitled to become a party to this appeal to protect her rights. Per learned counsel, it would be just and proper if the listed applications are allowed and the Applicant/Intervenor is allowed to step into the shoes of the present Respondent. No.1 as he has relinquished, surrendered, sold and transferred all rights in the subject property in favour of the Applicant/ Intervenor.

4. Ms. Rizwana Ismail, the learned counsel for Respondent No.1 confirms the statement made by Mr. Adnan Iqbal Chaudhry, counsel for the Applicant/ Intervenor and adopted his arguments. She further stated that Respondent No.1 has no objection if he is substituted by Applicant / Intervenor Mst. Ismat Khan.

5. Mr. Nazar Hussain Dhoon, learned counsel for the Appellant vehemently opposed the listed applications on the ground that the Respondent No.1 has no authority to sale the subject plot to the Applicant/Intervenor as he was not owner of the same. Learned counsel submitted that suit filed by the Respondent No.1 was based on fabricated and manufactured documents and the Courts below were not justified to decide the matter in his favour. He also argued that the listed applications are not maintainable in view of the bar of lis pendens as contained in Section 53 of the Transfer of Property Act. He, therefore, prayed that the listed applications may be dismissed.

6. I have heard the learned counsel for the parties and gone through the record and case law cited.

7. It is an admitted fact that suit filed by Respondent No.1 in respect of the subject plot was decreed in his favour and the appeal filed by the Appellant before first Appellate Court was dismissed. Although an application for suspension of impugned judgment being C.M.A. No.4082 of 2009 has been filed by the Appellant, but the same is still pending and thus, no restraining orders are in the field, which may prevent the Respondent No.1 from transferring the subject plot to anyone. Learned counsel for the Appellant relying upon the case of Riaz Ahmed v. Amtul Hameed Koser [1996 CLC 678], wherein learned Division Bench of this Court held as under:--

"Still the rule does not sanction the joinder of a person who may, in course of time, come to have an interest in the continuation of the suit. It is obvious that no devotion of interest has yet occurred in favour of the appellant even if it be assumed that such could lawfully have come about. The interest is merely contingent and shall come about, if at all, in future. This being the position, in terms of Rule 10 aforesaid the appellant is not entitled to be joined in the proceedings,"

In the present case, the agreement between the Respondent No.1 and the Applicant/ Intervenor is not one which operates in future and the assignment, relinquishment and transferring by Respondent No.1 in favour of the Applicant is not to take place in future, but the same has taken place and right / interest in respect of the subject plot has devolved upon the Applicant, therefore, the law laid down in the cited case is not relevant for the purpose of deciding the present controversy, which is entirely different.

8. Although it has been argued that listed applications have been moved with mala fide intention in order to confuse the issue, but I do not agree that the same as joinder of the Applicant/Intervenor in place of Respondent No.1 will not alter the dispute in appeal in any manner. The appeal was being defended by Respondent No.1 and not it would be defended by the Applicant/Intervenor as a Defendant. Evidence in the matter has already been recorded and even otherwise the evidence in the matter is mostly documentary.

9. So far as bar contained under the law of lis pendens is concerned, in the case of Rashid Ahmed v. Jiwan [1997 SCMR 171] relied upon by the learned counsel for the Appellant following observation was made by the Honourable Supreme Court:--

The doctrine of lis pendens contained in Section 52 of the Transfer of Property Act, 1882 merely provides that a transfer of immoveable 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."

Thus, it would be seen that under the law of lis pendens, transfer of immoveable property during pendency of suit cannot defeat or affect the rights of any party to the proceedings under any decree or order which may be made in such suit.

10. In view of the above, I allow the listed applications as prayed. However, it may be clarified that this substitution of Respondent No.1 will not, in any manner, defeat or affect the rights of any party to the proceedings.

ZC/P-2/Sindh Applications accepted.