1. MUSHIR ALAM, J.--- This application (C.M.A. No,2407 of 2003) under Order I, rule 10, C.P.C. seeks joinder of intervenors as a party to the suit on the ground, inter alia, that during the pendency of the suit, defendant, Mst. Nilofar Minhaj Hussain, sold the property in favour of the intervenors therefore, they are necessary and proper party to the suit.
2. Mr. Shukat Hayat, learned counsel contends that the intervenors are not at all necessary party. He contends that the intervenors were not aware of the pendency of the suit and litigation between the parties. The property was acquired after due publication of notice in the newspaper and due care was exercised. It is urged that they are purchasers without notice of any lis pendens in this Court. They have incurred expenses in maintaining or uplifting the property and even sought subdivision and mutation in the name of respective intervenors namely Muhammad Muzammil Hussain and Muhammad Akhtar Inam of independent part of subdivided the suit property and even new construction has been raised. He further contends that the separate utility metters have also been installed.
3. Mr. Azizuddin Qureshi, learned counsel for the plaintiff contends that since the property was disposed off during the pendency of the suit; therefore, doctrine lis pendens would be attracted; therefore, they are necessary party.
4. I have heard the arguments and perused the record.
5. From the record, it appears that on 16-3-1999, it was recorded that injunction order was operative upto 11-1-1999 and the order was not extended. The application under the circumstance was dismissed by order, dated 16-3-1999. However, with permission to the plaintiff to repeat the application if required. It seems that in the meantime the intervenors entered into an agreement with the defendants caused the publication dated 31-5-1999 and a conveyance was registered in their favour on 15-7-1999 and mutation was effected on 11-8-1999. The property was acquired by Muhammad Muzamil Hussain and Muhammad Akhtar Inam, they applied for subdivision which was effected and even the construction was raised on subdivided plot by Muhammad Muzammal Hussain on his portion of the plot. In the affidavit-in-rejoinder, there seems to be no denial of such facts. Mr. Azizuddin Qureshi, learned counsel submits that under section 52 of the Transfer of Property Act, the transfer lis pendens cannot be effected.
6. It may be observed that in the Province of Sindh section 52 has no application unless a notice under section 18 of Registration Act is registered (PLD 1992 SC 80), therefore, such contention cannot prevail. Even otherwise in a suit of specific performance where it appears that the agreement is not capable of specific performance, Court can decline the same and award compensation or damages and since for the foregoing fact it appears that the transaction took place during the pendency of the suit of which subsequent purchase had no notice stay was vacated and secondly the proposed defendants have substantially changed the nature, complexion and character of the property the agreement has been rendered incapable of specific performance. However, the claim for award for compensation in terms of section 19 of the Specific Relief Act can always be entertained and suit could be treated accordingly. Under the circumstances, application (C.M.A. No,2407 of 2003) under Order I, rule 10, C.P.C. is dismissed and so also other applications being C.M.A. 2645 of 2002, 1482 of 200, 7832 of 2002 have become infructuous and are accordingly dismissed.