Petitioner, Ch. Zulfqar Ali, through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question order dated 21.6.2012 passed by the learned Additional District Judge, Depalpur, who affirmed order dated 27.10.2011 passed by the learned Civil Judge let Class, Depalpur, whereby the petitioner's application under Order I Rule 10, CPC was dismissed.
2. Briefly stated facts of the case are that the petitioner filed an application under Order I, Rule 10, CPC for his impleadment, as defendant in the suit for declaration ("the suit") instituted by Mst.
Sakina Bibi (Respondent No, 3) whereby she called in question the general power of attorney and the deeds through which her property ("the suit property") was transferred to different persons including Allah Baksh (Defendant No, 5/Respondent No, 8). It is maintained in the application that the petitioner purchased a piece of land out of the suit property through an agreement to sell dated 22.5.2008, from Sher Muhammad (Respondent No, 10) one of the legal heirs of Allah Bakhsh (Respondent No, 8/Defendant No, 5). This application was resisted by Respondent No,
3. Learned Trial Court after affording opportunity of hearing to the parties dismissed the application vide order dated 27.10.2011. Feeling aggrieved, the petitioner filed revision before the learned Additional District Judge, Depalpur, and the same was dismissed vide order dated 21.6.2012. Hence, this petition.
3. Learned counsel for the petitioner submits that the petitioner is a necessary party to the suit, as his rights are directly affected by the proceedings of the suit and, therefore, his application under Order I, Rule 10, CPC for impleadment, as defendant in the suit, should have been allowed; and, that in order to avoid multiplicity of litigation the petitioner should have been allowed to be impleaded as defendant in the suit.
4. I have heard the learned counsel for the petitioner and perused the record.
5. Mst. Sakina Bibi on 13.7.1992 instituted the suit for declaration calling in question general power of attorney dated 24.1.1979 allegedly. executed in favour of her husband; and, also transfer deeds in respect of suit property executed by her husband in favour of different persons including Allah Bakhsh, (Respondent No, 8). Husband of Sakina Bibi and all subsequent transferees including Allah Baksh are defendants in the suit. It is pertinent to mention here that the husband of Mst. Sakina Bibi out of the suit land transferred land measuring 130 kanals 8 marlas vide Exchange Deed No, 1600 dated 27.5.1980 to Allah Bakhsh (Respondent No, 8) and from this land Sher Muhammad, (Respondent No, 10), who is one of the legal heirs of Allah Bakhsh sold property measuring 63 kanals 13 marlas ("the property") to the petitioner vide agreement to sell dated 22.5.2008. It is clear that the present petitioner purchased the property during pendency of the suit and without seeking leave of the Court as required by Section 52 of the Transfer of Property Act. The petitioner being a transferee pendente lite without leave of the Court cannot, as of right, seek impleadment as a party in the suit which is pending since, 1992. It is true that when the application for joinder based on transfer pendente lite is made the transferee should ordinarily be joined as party to enable him to protect his interest. But in the instant case, the trial Court has assigned cogent reasons for rejecting such joinder stating that the suit is long pending since 1992 and is fixed for final arguments and prima facie the action of the alienation does not appear to be bona fide. The trial Court saw an attempt on the part of the petitioner to complicate and delay the suit.
6. There is no absolute rule that transferee pendente lite without leave of the Court should in all cases be allowed to join and contest the pending suit. The father of Respondent No, 10 was Defendant No, 5 in the suit and, therefore, after his death Respondent No, 10, Sher Muhammad during the pendency of the suit was prohibited by the operation of Section 52 of the Transfer of Property Act to transfer the property in any way affecting rights of Respondent No, 3, (Mst. Sakina Bibi) except with order or authority of the Court. Admittedly, the authority or order of the Court was not obtained for alienation of the property in favour of the present petitioner. Therefore, the alienation obviously is hit by the doctrine of lis pendens. Under these circumstances, the petitioner cannot be considered to be either necessary or proper party to the suit. In this regard reference may be made to Savinder Singh v Dalip Sing (1996) 5 SCC 539 and Narbada Devi Gupta v Birendra Kumar Jaiswa l (AIR 2004 S.0 173).
7. In view of above, the learned trial Court has rightly exercised its discretion in rejecting the application for impleadment of the transferee pendente lite as party to the suit and for amendment of the pleadings. Consequently, this petition lucks merit and is accordingly dismissed in limine.