1. ' MUHAMMAD ALI MAZHAR, J.---By this order, I will dispose of C.M.A. No,3469/2010 filed under Order I, Rule 10, C.P.C. By the intervener Saleem Akhtar in the above suit on the ground that he is subsequent purchaser of the suit property without notice vide agreement to sell dated 16-2-2005 and that for all intent and purpose, the intervener is a necessary party as in his absence no effective order could be passed. Along with the application, the intervener has filed copy of agreement to sell dated 16-2-2005 executed between the defendant and the intervener. In the supporting affidavit of the application, the intervener has stated that he has purchased the suit property from the defendant for a total sale consideration of Rs,75 Lacs vide Agreement to Sell dated 16-2-2005. He is the bona fide purchaser of the suit property without notice, therefore he is a necessary party and for the just and proper adjudication of the above suit, presence of the intervener as defendant is necessary to avoid the multiplicity of litigation. During the course of evidence, it already came into the knowledge of the plaintiff that the suit property was sold to the intervener but despite the same, the plaintiff with mala fide intention did not file any application for impleading him as a defendant.
2. ' Plaintiff has filed counter affidavit to the application and submitted that the application has been filed with mala fide intentions, the claim of the intervener is fraudulent and the outcome of collusion with the defendant. The defendant made a sale agreement in respect of the suit property with the plaintiff orally on 11-3-2004 by receiving Rs,5 Lac through cheques out of agreed sale consideration of Rs .59 Lac and thereafter, the defendant executed an agreement to sell dated 26- 4-2004 in writing with plaintiff in respect of the same property and received a further amount of Rs,5 Lac, thereby leaving the balance amount of Rs,49 Lac to be paid at the time of registration of the Conveyance Deed. The plaintiff came to know through advertisement dated 22-7-2004 in daily Dawn that Mr. Ghulam Mujtaba Kalwar, Advocate invited objections on behalf of unnamed client against the proposed transaction of sale of the suit flat by the defendant. The plaintiff in response to said publication sent objections through his Advocate on 23-7-2004 to the defendant but no reply was received, thereafter, the plaintiff had filed the suit on 27-7-2004 apprehending the mala fide the illegal attempts of the defendant to commit breach of the said sale agreement. On the application of the plaintiff filed under Order XXXIX Rules 1 and 2 C.P.C, this Court granted interim injunction on 28-4-2004 which was confirmed on 5-9-2005. The alleged sale agreement dated 16- 2-2005 has been executed by the defendant during the operation of interim injunction, whereby no third party interest could be created in respect of the suit flat thus it amounts to breach of the injunction order. The alleged sale agreement does not create or confer any legal right on the said intervener and he in any case has his legal remedy elsewhere and not in the above suit.
3. Apparently, it is the collusion between the defendant and intervener with mala fide intention to delay plaintiff's remedy as on 23-9-2006 when the suit was fixed for plaintiff's cross-examination before the Commissioner, he was hindered by the defendant to record plaintiff's cross- examination on his affidavit-in-evidence. The defendant has set up the intervener to file the above application to further delay plaintiff's remedy in the suit wherein the plaintiff has deposited Rs,49 Lac as the balance price with the Nazir of this Court. Since the plaintiff has deposited the balance amount of Rs,49 Lac in this Court, the defendant is subjecting the plaintiff to harassment and deprivation of possession of the said flat. The defendant is guilty of committing wilful breach of the interim injunction. The defendant was already restrained from creating any third party interest in the suit flat much before the alleged sale agreement dated 16-2-2005. The application is frivolous and filed with mala fide intention and liable to be dismissed with costs.
4. ' I have heard the learned counsel appearing for the parties. The learned counsel for the Intervener argued that the status quo was ordered on 28-7-2004 and vide order dated 31-1-2005 the plaintiff was directed to deposit Rs,49 lac with the Nazir of this Court. Since the plaintiff had failed to deposit the amount, therefore, on 15-2-2005 the ad-interim injunction granted earlier was recalled. The defendant Abid Esbhani entered into an agreement to sell with the Intervener on 16-2-2005 very next day when there was no restraining order. He further argued that since the agreement to sell was executed with the Intervener on 16-2-2005, he is entitled to be impleaded in the suit, as he is proper and necessary party. In support of his contention he has relied upon a judgment reported in 1997 SCM R 171 Rashid Ahmed v. Mst. Jiwan and others. In this case the Honourable Supreme Court has 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 right 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 case 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 given or devolved. Another provision which is relevant in such situation is section 146, 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 application may be made by or against any person claiming under him.
5. ' In addition to the above, learned counsel for the Intervener has also relied upon another judgment reported in 1998 M LD 9 Munaliza Fruit. Juice Industries Ltd. v. Government of Sindh in which learned Judge of this Court has held that where it appears that party applying to be impleaded, even though was not a necessary party, yet if such party was proper party and in absence of issues and questions involved in the suit could not be effectively and completely adjudicated, such party may be impleaded. Where suit was likely to be decreed and by such decree any party was going to be adversely affected, then such party was necessary party and it was essential that it should be present before Court so as to avoid multiplicity of proceedings and shortened litigation. Finally he has argued that the Intervener has a valid and binding sale agreement in his favour executed by the defendants, therefore, for all intent and purposes, he is the proper and necessary party and if this application is dismissed, he will be seriously prejudiced. In response to the arguments advanced by the learned counsel for the Intervener, the learned counsel for the plaintiff seriously opposed the application on the ground that the application is based on mala fide intention and the same has been filed in collusion with the defendant who wants to frustrate the specific performance of contract with the plaintiff. It has been further argued that the plaintiff has already deposited substantial amount in the Court and filing of this application is nothing but to delay the proceedings with ulterior motives. Learned counsel for the plaintiff further argued that a mere agreement to sell does not create any right or interest in the property, therefore, the Intervener has no right to claim any right and interest on the basis of sale agreement. It cannot be considered or treated as title document. Learned counsel for the plaintiff relied upon a judgment reported in the 1996 CLC 1758 Khayaban-e-Iqbal Pvt. Ltd. v. Mustafa Haji Muhammad. In this judgment, this Court has held that the agreement to sell does not create any right or title or interest in immovable property in question. Learned counsel next relied upon a judgment reported in 1989 SCM R 1949 Sh.
6. Manzoor Ahmed v. Mst. Iqbal Begum. In this judgment it has also been held that contract for sale of immovable property is a contract that sale of such property should take place on terms settled between the parties but it would not by itself create any interest in or charge on such property. The sub-rule (2) of rule 10 of Order I, C.P.C. Provides that the Court may at any stage of proceedings either upon or without the application of either party, and on such terms as may appear to the Court to be just, or that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit be added.
7. Necessary party is one who ought to have been joined and in whose absence no effective adjudication can take place or decree passed while proper party is the party whose presence is necessary before the Court in order to completely and effectually adjudicate upon and settled all questions involved in the suit. Only those persons are necessary or proper parties to the proceedings whose interests are challenged in the suit and without their presence the suit could not be decided on merits. If a dispute in a suit can effectually be adjudicated in absence of a person such person is not a necessary party to be impleaded in the suit. The provision does not mean that any person, who has any distant or indirect relationship or connection with either the plaintiff or defendant ought to be joined as a party to the proceedings. A remote connection with the issue or party would not make a person as necessary party without whose presence the issue cannot be adjudicated and settled. Mere fact that person may, by some chance, become interested, in claiming property adversely to plaintiff is no ground for his being so impleaded because that would necessitate importation of facts not formed in the suit. In the present case the suit was filed on 28-7-2004 for the specific performance of contract dated 26-4-2004, while the Intervener is relying upon an agreement to sell dated 16-2-2005, which is much later than an agreement to sell entered into between the plaintiff and defendant. Learned counsel for the Intervener further agued that when the agreement was signed between defendant and Intervener there was no stay order of this Court in force. The subsequent agreement of the Intervener has of course hit by section 52 of the Transfer of Property Act. The object and scope of doctrine of lis pendens, as contemplated in section 52 of the Transfer of Property Act is that neither party to litigation can alienate the property in suit so as to affect his opponent. The section is an expression of the principle of maxim "pendente lite nihil innoveture" (pending a litigation nothing new should be introduced). This rule is an expression of the principle that pending a litigation nothing new should be introduced in it for avoiding adversely affecting the rights of litigating parties. The true scope of section 52 of the Transfer of Property Act does not prevent the vest of title in transfesee in a sale pendete lite but only makes subject to the rights of other parties as decided in the suit. The doctrine of lis pendens is not simply based upon the principle that filing of suit is notice to the whole world but moreso on public policy that no one should be allowed to affect right of parties pending decision of a cause before a Court of law. If alienation of property pending litigation is accepted then such act would amount to permitting endless multiple litigation thus completely destroying the doctrine of lis pendens. The Intervener in this case has failed to satisfy this Court as to what legal action the Intervener has taken so far for the specific performance of his contract with the defendant. Learned counsel for the Intervener has candidly admitted that though his client had entered into an agreement to sell with the defendant on 16-2-2005 but till to date his client has not filed any suit for specific performance in order to safeguard and protect his alleged D interest in the property. Even if Intervener is impleaded in thfe suit nothing will be earned by him from the judgment and decree in this suit as in this suit the rights of plaintiffs and its denial by the defendant will be decided and adjudicated on the basis of pleadings, issues and evidence adduced by both parties. It is also a matter of record that the plaintiff has claimed specific performance of an agreement to sell executed much earlier to the alleged agreement to sell relied upon by the Intervener, therefore, the plaintiffs right will be first adjudicated in terms of agreement to sell for which he has filed the suit for specific performance and for the decision of this suit, the Intervener is not a necessary party who is claiming right on the basis of alleged agreement, come into existence after filing of the present suit, therefore, in all fairness, the presence of Intervener is not required in the present suit for adjudication of issues involved. The leamed counsel for the Intervener relied upon 1997 SCM R 171. The facts and circumstances of this case are distinguishable as appellant in that case applied to be joined as respondent in R.S.A. No,48/1970 before the High Court on the strength of registered sale-deed in his favour while in this case no transfer was effected in favour of Intervener and the entire claim is based on mere sale agreement and the Intervener cannot be considered as transferee of the property. Another judgment relied upon by the Intervener is 1984 CLC 2426. This case is also not applicable in the present case as again in this case the plot was transferred, therefore, it was held that the respondent claiming interest could not have been kept away from litigation. The last judgment relied upon by the learned counsel for the Intervener is 1998 M LD 9. The facts of this judgment are also distinguishable. In this case a Civil Miscellaneous Application was filed by Intervener on the ground that they were allotted plots from suit land. They had also claimed to be lawful allottees of industrial plots which were allotted to them by KDA, therefore, they were considered to be proper and necessary parties. The Intervener is not claiming any right to be impleaded in this suit on the basis of transfer of property or registered lease deed/conveyance deed but his whole claim is based upon an agreement to sell, which was allegedly executed in his favour after filing of the present suit. Though the agreement to sell does not confer any right in the property but on the basis of agreement, the aggrieved party has a right to enforce specific performance of contract through Court of law for which the Intervener should have availed an independent remedy provided under the law. By joining this suit, nothing will be achieved by the Intervener For the foregoing reasons, the Intervener is not a proper and necessary party. The application is dismissed with no order as to costs.