' KHALID ALI Z. QAZI, J.---This case has a chequered history, therefore, before adverting to the listed- applications it shall be imperative to first succinctly state the background facts:--
2. This is a suit for Specific Performance, Injunction and Possession in respect of an alleged agreement of sale regarding a building situated on Plot No,131, Block-3, Kokan Muslim Cooperative Housing Society, Alamgir Road, Karachi. The suit was accompanied by C.M.A. No,4132 of 1995, which was an application for injunction under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C.
Seeking an order of restraint against the defendants, inter alia; from selling, transferring, mutating, alienating, creating third party interest, parting with possession, disposing of in any manner the suit property. On 27-8-1995 the Court was pleased to grant an ad interim injunction as prayed till next date of hearing. Such interim order was confirmed on 19-1-1998 subject to the plaintiff depositing the balance sale consideration. The endorsement in the file confirms that such balance sale consideration was deposited by the plaintiff with the Nazir of the Court. Vide order, dated 24-8-1998 issues were framed, where after evidence was recorded in the matter.
3. Ultimately final arguments were addressed by the respective counsel where after vide judgment, dated 10-3-2008 the instant suit was dismissed. A decree confirming the dismissal of suit was prepared on 10-3-2008 and the same was signed on 12-4-2008. Aggrieved against the judgment and decree, the plaintiff preferred H.C.A No,75 of 2008 before a Divisional Bench of this Hon'ble Court. It seems that on 4-4-2008, the learned Division Bench was pleased to pass orders restraining the parties not to create any third party interest in the suit property, while the defendant No,4 in his counter-affidavit to the application under Order XLI, Rule 5 of the C.P.C. (in H.C.A.
No,75/2008) alleged that third party interests in the suit property had already been created on 3- 4-2008 by way of a registered sale-deed in favour of one Shah Nawaz Kokatey. On 29-5-2008, the appellate Court directed the defendants to provide the address of the alleged subsequent purchaser. It appears that on 12-8-2008 on C.M.A. No, 926 of 0208 filed by the plaintiff in H.C.A. No, 75 of 2008 under Order I, rule 10 read with section 151, C.P.C., the alleged subsequent purchaser i,e, Shah Nawaz Kokatey and Sub-Registrar-I, Gulshan-e-Iqbal Town, Karachi were ordered to be impleaded and the plaintiff was directed to file an amended title, which was filed by the latter on 13-8-2008. Finally, H.C.A. No,75 of 2008 was allowed vide order, dated 4-9-2008 (it seems that in the order sheet the year is wrongly mentioned as 2007), in view thereof the judgment of learned Single Judge in this suit, dated 10-3-2008 was set aside and the matter was remanded back for decision.
The main reason why the learned Appellate Court was swayed in setting aside the judgment/Decree was that in the impugned judgment the learned Single Judge has failed to discuss the issues separately.
4. Upon remand, the plaintiff has filed the listed-application and the office has fixed the matter not only for final arguments and so also on the listed application C.M.A. No, 10359 of 0208 is an application under Order I, Rule 10 read with section 151, C.P.C., moved by the plaintiff, for impleading the alleged subsequent purchaser i,e, Shah Nawaz Kokatey and the Sub-Registrar-I, Gulshan-e- Iqbal, Town, Karachi. According to the plaintiff the subsequent purchaser i,e, Shah Nawaz Kokatey and the Sub-Registrar-I, Gulshan-e-Iqbal Town, Karachi are proper and necessary parties since the registered documents allegedly in the name of subsequent purchaser can not be annulled unless and until the subsequent purchaser and the relevant Registrar effecting the registration are first made party to the suit. Also it is alleged by Mr. Khalid Javed, the learned counsel for the plaintiff that the intention behind moving the intervenor's application is to avoid multiplicity of proceedings and effectively bringing an end to the controversy. It is further submitted by the learned counsel that such an application can be moved at any stage of the suit. In support of his contention Mr. Khalid Jawed, the learned counsel for the plaintiff, has placed reliance upon Central Government of Pakistan and others v. Sideman Khan and others,PLD 1992, SC 590, Avari Hotel v. ICP 2002 CLC 1889, Ghulam Ahmed Chaudhry v. Akbar Hussain PLD 2002, SC 615, Zahoor Hussain v. Ch. Niaz Ali and another 2006 SCMR 1067 and Hazrat Khan v. Amanullah Khan and another 1996 SCMR 1217.
5. On the other hand, Mr, Agha Faqir Muhammad, the learned counsel for the defendant No,4 and Mr. Muhammad Ilyas Tanoli, learned counsel for the defendant No,2, have opposed the application for impleading of the intervenors mainly on the score that only subsequent purchaser can only acquire the title, subject to the principle of lis pendens embedded in section 52 of the Transfer of Property Act, 1882. Such rule of lis pendens would take effect from the very inception when the suit was instituted and would remain operative up to the time, the suit would come to the final end in all respect. Therefore, upon the strength of the principle of lis pendens, the learned counsel for the defendants have argued that the proposed intervenors are neither necessary nor proper parties and hence the application is required to be dismissed. In this regard the learned counsel for the defendants have placed reliance upon Mian Tahir Shah v. D.J. Sawabi, (1998 SCMR 858), M. Naeem Butt v. Shoukat Ali (2008 SCMR 1024), Malik Muhammad Iqbal v. Ghulam Muhammad (1990 CLC 670), Muhammad Mubeen v. Messrs Long Life Builders, (PLD 2006 Karachi 278), Iqbal Sultan v. Miss.
Chand Sultana (1990 CLC 366), Surraya Begum v. Suban Begum (1992 SCMR 652), Haji Abdul Ghafoor v. Haji Rauf (1991 CLC 734), Mukhtar Begum v. Sardar Baig 2007 SCMR 45 and Messrs Aman Enterprises v. Messrs Rahim Industries, Pakistan Ltd. (PLD 1993 SC 292). '
6. I have heard the rival arguments, perused the record and law not the subject. There is no cavil with the proposition that under section 52 of the Transfer of Property Act, the subsequent purchaser does not acquire any independent right and his acquisition of the property is subject to the right of the seller, which is in turn subject to any pending suit vis-a-vis the first purchaser. This is what is called doctrine of lis pendens. In other words, a subsequent vendee cannot defeat the title of the first vendee, provided such title of first vendee is sustained by the Court in a cause/his preferred by the first vendee against the vendor. The judgment of Hon'ble Supreme Court of Pakistan reported as Messrs Aman Enterprises v. Messrs Rahim Industries Pakistan Limited (PLD 1993 SC 292), Mukhtar Begum v. Sardar Begum (2000 SCMR 45) and Mian Tahir Shah v. D.J. Sawabi (1998 SCMR 853) fully confirm the latter legal position. There is also ample authority for the proposition that even if the subsequent vendee is not a party to the pending suit between the first vendee and the vendor, the decree, if any, in favour of first vendee is executable against the second vendee if it is shown that the disputed property was acquired by the second vendee during the pendency of the lis.
Reference is invited to Muhammad Mubeen v. Messrs Long Life Builders (PLD 2006 Karachi 278).
7. The above may be the legal position in relation to the rights of a first vendee vis-a-vis the second/subsequent vendee, what is required to be thrashed out here is whether the subsequent vendee is required to be impleaded under Order I, rule 10, C.P.C. In a suit for Specific Performance filed by the first Vendee against Vendor. Of course, generally the courts are liberal in granting impleadment applications with a view to avoid multiplicity of proceedings so as to end the controversy (see Awari Hotel Limited v. Investment Corporation of Pakistan (2002, CLC 1889). The matter at hand with regards to implement of subsequent Vendee in a suit for specific performance filed by the first Vendee against the seller is distinct. Hence the case-law on this point is required to be explored. I have been able to lay my bands on Munir Ahmed v. Mst. Rukhsana Khan (1997 MLD 536) wherein an application for implement by a subsequent vendee was granted on grounds that his interest was likely to be affected. I may further cite here the case of Metropolitan Corporation of Lahore v. Syed Bhais (Pvt.) Ltd. (2004 MLD 1395) wherein an application by a subsequent Vendee to be impleaded was allowed by the Court. It was held that the party claiming interest cannot be kept away. The Court further went on to hold that the Principle of As pendens could not be made a ground for rejecting the application seeking implement. In Azam Khan v. Mst. Naushaba Begum (1999 CLC 1004 it was held that in order to avoid any complications the next transferee could be impleaded as a party despite the operation of the doctrine of lis pendens. In Ghulam Abbas v. Malik Muhammad Ijaz (2002 CLC 47), it was clearly held that despite the doctrine of lis pendens contained, in section 52 of the Transfer of Property Act, the trial Court was misled in failing to implead the subsequent vendee. It was held that the effect of the transaction pending litigation and the rule of lis pendens were to be examined by the trial Court in due course of time.
8. In Rashid Ahmed v. Mst. Jiwan (1997 SCMR 171), it was held that section 52 of the Transfer of Property Act, did not preclude the transferee/subsequent vendee from being impleaded as a party to the pending proceedings on the basis of a transfer. It was further observed that Order XXII, Rule 10, C.P.C., regulated the proceedings of the suit wherein a provision was made in cases of assignment, creation or devolution of any interest during the pendency of the suit, which can be continued by or against the person to or upon whom such interest stood devolved. As against the above decision of the Courts, there is a collateral and ample authority for the proposition that a subsequent vendee may not be a proper and necessary party to justify impleadment in a lis between the first purchaser and the vendor. In this regard reference is invited to Muhammad Yaqoob Khan v. Mst. Sahib Khatoon (1998 CLC 1576), Khalid Mehmood v. Najib Khan (2001 MLD 1323)
(as confirmed in appeal and review in 2002 CLC 1160 and 2004 YLR 466), Messrs Muhammad Saleem, Muhammad Siddique and Co. v. Abdul Hakeem (2000 YLR 2888), Noor Muhammad v.
Muhammad Ishtiaq (2006 YLR 1223), Bashir Ahmed v. Messrs Muhammad Saleem, Muhammad Siddique and Co. (2008 SCMR 1272), Muhammad Naeem Butt v. Shoukat Ali (2008 SCMR 1024), Malik Muhammad Iqbal v. Ghulam Muhammad (1990 CLC 670) and Haji Abdul Ghaffar v. Haji Rauf (1991 CLC 734).
9. It seems that there might be an apparent conflict between the set of authorities under scored above, however, on closer scrutiny of not only the above case-law but so also upon a rational view of the matter, the authorities and the law can be reconciled.
10. It is a settled proposition of law that the subsequent vendee is hit by the doctrine of lis pendens contained in section 52 of the Transfer of Property Act. This means that the first vendee, in a suit against the vendor is under no obligation to implead the subsequent vendee(s). Since any decree obtained by the first vendee will automatically be executable against the subsequent vendee(s).
Therefore, an application for intervenor at the behest of the first vendee, seeking impleadment of subsequent vendee(s), in the suit against the vendor may not be maintainable. However, the subsequent vendee(s) may have a defence against the doctrine of lis pendens in view whereof an application for impleadment at the behest of subsequent vendee(s) may be maintainable. The reason for this is rather simple. In case the subsequent vendee(s) may have any defence, cognizable under the law, against doctrine of lis pendens, it would be a matter of propriety and right that such defence should be entertained in the principal suit so as to avoid multiplicity of proceedings setting the entire controversy finally and effectually.
11. In the present case, the subsequent vendee had not come forward to move an application for impleadment. The present application at the behest of first vendee i,e, the plaintiff, would thus not be maintainable.
12.The argument of the plaintiff that during the time this suit was dismissed on 10-3-2008 and 12-8- 2008, when the interim order was extended to the new vendee in High Court Appeal No, 72/208, the plea of lis pendens was not available and hence the creation of third party interest may not be protected by section 52 of the Transfer of Property Act, hence, justifying impleading of the subsequent vendee, is also not correct. It is a settled proposition of law that an appeal is a continuation of the original proceedings and the doctrine of lis pendens would take effect from the very moment the suit is maintainable till the final decision of the appeal, if any, arising from the suit or title the expiry of the limitation period for the purposes of the appeal. Reference can be made on Muhammad Iqbal v. Ghulam Muhammad (1990 CLC 670), Ghulam Muhammad v. Muhammad Hussain (PLD 2006 Lahore 223) and Abdul Majeed v. Liaquat Hayat (2007 CLC 177).
13. In the application for impleadment, the plaintiff, has not only sought impleadment of the subsequent vendee but so also the concerned Sub-Registrar entrusted with the jurisdiction of mutation in respect of the suit property. The Principles and Case-law held and discussed above are applicable to the subsequent vendee but the same are not applicable to the area Registrar. It is a matter of prudence, propriety and law that the K area Registrar may qualify to be impleaded so that he is in the notice of the pending litigation so that an innocent third party may not be sold out the property under dispute without knowledge of pending litigation, which will have a ,propensity to expose the first vendee to find with the subsequent -vendee. Therefore, in my opinion, the intervener No.2 i,e, Sub-Registrar-I, Gulshan-e-Iqbal Town, Karachi, may although not be a necessary party but he would amply qualify to be a proper party justifying impleadment.
14. In light of above, C.M.A. No,10359 of 2008 is partly allowed in the manner that the application to the extent of seeking impleadment of Shah Nawaz Kokatey, the subsequent Vendee, is dismissed, however, the application to the extent of impleading the area Registrar i,e, Sub Registrar-I, Gulshan-e-Iqbal Town, Karachi is allowed. The plaintiff is directed to amend the title of the plaint by adding the Sub-Registrar-I, Gulshan-e-Iqbal Town, Karachi as a defendant within 3 days hereof, where after, the office is directed to issue him notice.
15. C.M.A. No,10360 of 2008 is an application for injunction seeking an interim order of restraint against the two intervenors proposed in C.M.A. No, 10359 of 2008. In the light of the discussions as above this application is dismissed as infructuous for the simple reason that in view of the impleadment of the second intervenor in C.M.A. No, 10359 of 2008 i,e, Sub-Registrar-I, Gulshan-e- Iqbal Town, Karachi the interim order of status quo, dated 19-1-2008 shall be extendable to the newly added defendant i,e, Sub-Registrar-I, Gulshan-e-Iqbal, Town, Karachi. As regards the subsequent Vendee i,e, Shah Nawaz Kokatey, the rights of the plaintiff are amply protected in view of the doctrine of lis pendens contained in section 52 of the Transfer of Property Act. Even otherwise since the application for joining the new Vendee as a party has been dismissed, an application for interim injunction in relation thereto can not be sustained.
16. C.M.A. No, 10361 of 2008 is an application under section 151, C.P.C. Read with Order XI, Rule 14, C.P.C. Seeking a direction against the defendants to produce and place on record the documents mentioned in the said application. No counter-affidavit having been filed thereto, the same is hereby allowed.
17. In the light of the above there shall be nor order as to costs.
18. As the matter is old, the amended title, as directed above, to be filed by the plaintiff within three days, where after notice be issued to the newly-added defendant and the matter be listed for final arguments immediately thereafter.