' SHAHNAWAZ TARIQ, J.--- Through the captioned application under Order I, Rule 10 r/w section 151, C.P.C, intervenor Muhammad Waris Panhwar has prayed to be impleaded in instant appeal as respondent No.9, being a necessary and proper party.
2. Relevant facts pertaining to instant second appeal are that appellant filed F.C. Suit No.282 of 1995 for declaration, cancellation of documents and permanent injunction against respondents, asserting himself to be the exclusive owner of the suit land and also enjoying its continuous peaceful possession without any interruption vide registered sale deed dated 14.02.1998, comprising survey No.67 (5-35 acres), 95 (3-21 acres) and survey No.548 (7-34 acres), total area of 17-10 acres. It is further averred that respondent No. 1 on the basis of false and bogus general power of attorney sold out Survey Nos.67 and 548, admeasuring 13-29 acres on behalf of appellant to respondent No.2 vide registered sale deed dated 10.03.1992 and khata was also mutated in his favour. Subsequently, respondent No.2 further sold out the suit land to respondents Nos.3 and 4 vide registered sale deed dated 23.08.1994 and khata was also mutated in their favour. Thereafter, respondent No.4 further sold out the suit land to respondents Nos.5 and 6 vide registered sale deed dated 12.11.1995 and khata was mutated.
3. Respondents Nos.3, 5 and 6 filed their written statements and respondent No.3 took stance that he had executed registered sale deed on the basis of general power of attorney executed by the appellant and all the subsequent sale deeds and mutations of khata are legal and genuine.
4. After completing the trial, learned IV Senior Civil Judge, Hyderabad, decreed the suit in favour of appellant. Respondent Nos.3, 5 and 6 challenged said judgment and decree by preferring civil appeal No.297 of 2002, which was allowed and impugned judgment and decree were set aside vide judgment dated 25.02.2010 passed by learned V Additional District Judge, Hyderabad.
Appellant challenged said judgment and decree by preferring instant appeal No.11 of 2010 and on 05.05.2010 status quo order was passed by this Court, which is still in operation.
5. Learned counsel for intervenor contended that intervenor came to know about the pendency of instant appeal after receiving notices issued by the High Court in contempt application vide CMA No.278 of 2014, filed by the appellant. He emphasized that imervenor is an absolute owner and title holder of the suit land but appellant has malafidely filed instant appeal regarding the land in question, while intervenor was never given any intimation for the dispute in relation to the title of the said properties nor the prior history of litigation was known to him despite all due diligence exhibited thereby. He further urged that intervenor being a bonafide purchaser of the subject land against a considerable amount, as such, he is a necessary party to the instant appeal for complete and conclusive determination of the issues in dispute and any decree if obtained, Cannot be enforced against an individual who is not a party to the suit and is in possession of the subject property. He further contended that appellant in counter affidavit has candidly admitted .The registration of sale, deed as well as mutation of khata in favour of the intervenor. He further contended that intervenor has been enjoying the peaceful possession of subject land, whereupon shops have been constructed, as such he has a vested right over the suit land. He further contended that intervenor has already been implicated as contemnor No.6 in contempt application, which is still sub-judice before this Court. He further submitted that the rights and title of the intervenor could not be defeated under the plea of status quo order, issued by this Court and for such alleged violation, appellant has already filed criminal proceeding in shape of contempt of Court, therefore, he may be impleaded as respondent No.9 for the proper adjudication of the controversy.
6. Learned counsel for appellant vehemently' contended that appellant is an exclusive owner of the suit land and also enjoying its peaceful possession since its purchase. He further contended that intervenor has agitated his right on the basis of sale deed and mutation executed in his favour by the respondent No.5, as such he cannot independently come forward and instant application is hit by the principle of lis pendens. He further submitted that intervenor has stepped into the shoes of contemnor, therefore, he is neither a necessary nor proper party within the scope of Order I, Rule 10, C.P.C. And he has filed instant application with ulterior motives only to avoid contempt proceedings already initiated before this Court and application being groundless is liable to be dismissed.
7. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties supported with case law emanate that appellant filed instant suit challenging the execution of power of attorney in favour of respondent No.1 and subsequent registration of sale deeds and mutation of khatas in favour of respondents Nos.2 to 6, which was decreed in his favour, however, said. Judgment and decree have been set aside by learned appellate Court. Admittedly, the appellant had not impleaded intervenor as defendant in main suit nor he himself had approached the trial Court by preferring application for joining him as party.
Though no finding was passed directly in respect of status and title of the intervenor, still intervenor cannot be restrained from filing the application under Order I, Rule 10, C.P.C. Thus, during pendency of the instant appeal if he is a proper and necessary party to decide .The controversy on merits, a mere delay in preferring such application could not deprive him from his rights and claims as an intervenor. In the case of Hazrat Khan v. Amanullah and others (1996 SCM R 1217), the honourable Supreme Court has observed as follows:- "However, in view of the opinion expressed by the learned Single Judge, we feel that having come to the conclusion that the petitioner was a necessary party, the learned Judge ought to have passed orders directing him to be joined as a party. We are unable to appreciate what complications would have been created if the.Petitioner was joined as a party in appeal. It seems the attention of the learned Judge was not invited to the rule laid down by this Court in Karamat Hussain v. Mst. Fatima and others (1969 SCMR 256), to the effect that the introduction of the plaintiff or the defendant for one stage of a suit is an introduction to all stages. It was held in that case that substitution in appeal, even that from an interlocutory order was in the same proceedings, and therefore, once the legal representatives of a deceased party had been brought on the record they were on the record for all purposes. Although this principle was laid down in connection with the substitution of the legal representatives of a deceased party to a suit, it is equally applicable to the joinder of a party at appellate stage under Order 1, rule 10, C.P.C., because the appeal is a continuation of the proceedings of the suit. A learned Judge of the Lahore High Court in Zakira Begum etc. v. Aziz Ahmad, etc. (1986 CLC 2410(2)) applied this principle in Constitutional jurisdiction to correct a revisional order passed by the District Judge. We are, therefore, of the opinion that the petitioner's application under Order I, rule 10, C.P.C. Ought to have been allowed by the learned Single Judge which would have endured for the purpose of the suit in consonance with the principle laid down in the cited decision of this Court."
8. Indeed, appellant has not filed any documentary proof regarding issuance of notice to the intervenor, as such he cannot take benefit of the principle of lis pendens. The intervenor was not impleaded as party by appellant instantly when it came to his knowledge that intervenor was involved in the execution of registered sale deed, mutation of khata and construction of shops over the suit land. Apparently for first time when contempt notice was served upon intervenor, he immediately appeared before this Court and subsequently, filed instant application to implead him as a respondent. In the case of Bashir Ahmed and others v. Ghulam Ali and others (1991 SCM R 1656), the honourable Supreme Court has observed as follows:- "Petitioners seeking to be impleaded in case as party contended that no doubt doctrine of lis pendens would be applicable on the conclusion of the litigation, but there was no justification not to allow petitioners to be impleaded as a party in litigation as their claim was based on official attestation of mutation in their favour, especially when apprehension was expressed that their vendors might not earnestly pursue appeal or collude in which event rights of petitioners would be prejudiced. It was conducive for administration of justice that all parties having interest in property should be before the Court and heard to defend their rights."
' Similarly, in the case of Rashid Ahmed v. Mst. Jiwan and 5 others (1997 SCM R 171), the honourable Supreme Court has observed as follows:- "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 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. Another provision which is relevant in such situation is section 146 of 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 the application may be made by or against any person claiming under him. Provisions of section 146 and Rule 10 of Order XXVII, C.P.C. Apply equally to appeals."
9. Undeniably, appellant in his counter affidavit as well as contempt application has admitted the execution of registered sale deed, mutation of khata in favour of the intervenor and raising construction of shops over the subject land, whereupon appellant filed contempt application and notice has already been issued to different contemnors including the intervenor. Admittedly, in the present scenario any judgment passed in instant appeal will directly affect the rights of the intervenor over the suit land, while undisputedly he has been enjoying the possession of said land.
Therefore, the claim of exclusive possession C of the appellant over land in question as agitated in instant appeal as well as previous lis, is apparently contrary to the ground realities for which recording of evidence of the parties is essential.
10. Admittedly, appellant has already impleaded respondent No:5 (Ali Muhammad) in all the proceedings filed in different Courts, who has been defending his cause, even then, the intervenor has his own independent status and cause of action to defend his vested rights over the suit property. Consequently, the intervenor could not be deprived to defend his legal rights over the suit property nor such registered sale can be treated ab initio void on the mere plea that said sale was executed after issuance of the status quo order by this Court, while for such alleged violation, contempt proceedings are already subjudice before this Court which is a criminal action and parties will face the consequences. Conversely, the appellant has failed to produce any evidence that a written notice as required by section 52 of the Transfer of Property Act, 1882, was registered, hence appellant could not avail the benefit of doctrine of lis pendens to resist instant application moved by intervenor to be impleaded as party to appeal. In the case of Fazal Karim v. Muhammad Afzal (PLD 2003 Supreme Court 818), the honourable Supreme Court has observed as follows:- "Lis pendens transaction was not void on the score that it was done during the pendency of some lis but the fate thereof would remain suspended till final verdict of the Court which was seized of the matter. Court was not to discard a transaction merely because the same had taken place during the pendency of the lis but its fate should be deferred to the final verdict as lis pendens, merely operated as a status quo. Lis pendens transaction was not bad even if it had taken place during the existence of a status quo order by the Court and in such case it could, of course, entail any punitive action contemplated by 0.XXXIX, C.P.C. But would not nullify the transaction between the parties on account of being lis pendens; the validity or otherwise whereof shall remain subject to final verdict by the Court."
' Consequently, I am of the considered view that intervenor has his independent status and he can defend his title and vested interest independently and could not leave his fate on the preferences of respondent No.5, particularly when appellant on one hand is claiming to E be in exclusive possession of suit land while on other hand he has admitted the registered sale deed and mutation of khata of suit land in favour of intervenor as well as construction of shops thereon by him. In the case of Muhammad Shaban and others v. Falak Sher and others (2007 SCM R 882), the honourable Supreme Court has observed as follows:- "9. The impugned judgment is not in consonance with the law laid down by this Court in M. Zafar- uz-Zaman's case PLD 2001 SC 449. The petitioners have purchased the property in question during the pendency of the suit, therefore, petitioners are proper party as law laid down by this Court in various pronouncements. See Haji Abdullah's case 1987 SCMR 1825 and Abdul Wali Khan's case PLD 1975 SC 463. It is a settled law that wide discretion is vested in the Court to add parties at any stage of the suit to avoid multiplicity of proceedings as law laid down by this Court in Ghulam Ahmad Chaudhry's case PLD 2002 SC 615. The learned High Court had decided the case in violation of the dictum laid down by this Court in various pronouncements mentioned hereinabove."
' Likewise, in the case of Mst. Khaista Jan and others v. Hafizur ur Rehman and others (1984 SCM R 709), the honourable Supreme Court has observed as follows:- "Person purchasing suit property from plaintiff during pendency of suit, such person filing application before trial Court for being impleaded as plaintiff to suit. Order of trial Court allowing such person to be impleaded as plaintiff to suit, held, just and fair and in accordance with dictates of principles of impleading necessary party."
Similarly, in the case of Rashid Ahmad v. Mst. Jiwan and 5 others (1997 SCM R 171). The honourable Supreme Court has observed as under:- "4. The appellant having purchased the suit property from respondent No.2 (during pendency of appeal, there was not only an assignment and creation of interest in respect of the property which was subject, matter of suit in his favour but he was also a person claiming through respondent No.2. The appellant having stepped into the shoes of respondent No.2 having purchased the suit property during the pendency of the proceedings was entitled to be impleaded as respondent in the appeal."
11. It is significant to mention that in case an intervenor is declined to be impleaded as a party, he will have no alternate but to file a separate suit to safeguard his interest and title over the suit land, which would result in multiplicity of litigation and shall cause unnecessary delay in concluding the controversy between the parties. In the case of Zahoor Hussain v. Ch. Niaz Ali and another (2006 SCM R 1067), the honourable Supreme Court has observed as follows:- "Admittedly, the disputed property at this juncture stands mutated in the name of the petitioner. In these circumstances it would be in the interest of justice that the petitioner be impleaded so as to avoid multiplicity of litigation which would follow in case of decision of the main writ petition which is pending adjudication before the Lahore High Court. The dispute in this case though of General Power of Attorney but certainly it is in respect of the property stated to be owned by respondent No.2, Khaleequz-Zaman. Resultantly, for what has been stated above, the instant petition is converted into appeal and is allowed. The impugned order, dated 13-1-2000 of the learned Single Judge is set aside."
12. Considering the facts, circumstances and identical case law referred supra, the intervener has prima facie made out a case in his favour to be impleaded in the instant appeal. Resultantly, application under Order I, rule 10, C.P.C. Stands allowed and appellant is directed to file amended title by impleading the intervenor as. Respondent No.9.
CMA No.34 of 2015 stands disposed of.