RASAAL HASAN SYED, J.---- This Constitutional petition arises from orders dated 12.7.2017 and 29.6.2018 of the learned courts below whereby the applica tion of the petitioner under Order VI, Rule 17, C.P.C., was dismissed and the revision thereagainst was declined.
2. The facts as are relevant for the disposal of this petition are that the petitioner filed a suit for specific performance on 31.8.2013 against respondent No.3 to enforce agreement dated 30.11.2010 claiming the total price for sale of land as Rs.18,50,000/- and payment of Rs.15,00,000/- as earnest money . On service of process, the respondent No.3 filed written statement. During pendency of suit, respondent No.3 transferred the property in favour of respondents Nos.4 to 13 through sale mutation Nos.1261 and 1262 both dated 18.9.2013. In pursuance of order dated 02.5.2015 of the learned Addl. District Judge, Lodhran, in revision, respondents Nos.4 to 13 were impleaded as party in the suit. Petitioner , therefore, filed an application under Order VI, Rule 17, C.P.C. for amendment to the extent of "addition of cancellation of Mutation Nos.1261 and 1262 dated 18.9.2013 in terms whereof the purchase was claimed by respondents Nos.4 to 13". The learned Civil Judge dismissed the application vide order dated 12.7.2017. Being aggrieved of the order , petitioner filed civil revision which was dismissed by the learned Addl. District Judge, Dunyapur , District Lodhran vide order dated 29.6.2018.
3. Learned counsel for the petitioner submitted that the proposed amendment was necessary as alienation of land was made during the pendency of the suit and that the amendment was required for the complete and effective decision of the suit. It was added that the amendment in the pleadings are invariably allowed at any stage of the proceedings of the suit if the same are necessary for the proper and effective adjudication of the suit and in this case due to sale pendente lite, impleadment of respondents Nos.4 to 13 was allowed, which necessitated corresponding amendment in addition to the assertion of their names as defendants in the suit. It was added that the discretion in this case has been exercised mechanically and that the reasons recorded for dismissal of application are untenable in law .
4. To the contrary it was argued by learned counsel for contesting respondents that the petitioner was estopped by his conduct in seeking amendment as he has withdrawn application under Order I, Rule 10, C.P.C. for impleadment of respondents Nos.4 to 13 and that the proposed amendment will increase the scope of the dispute in the suit as it introduces a separate cause of action which cannot be allowed under Order VI, Rule 17, C.P .C.
5. Perusal of the documents annexed with this petition reveals that suit for specific performance was instituted on 31.8.2013 against respondent No.3; the suit property was transferred through Mutation Nos.1261 and 1262 on 18.9.2013 i.e. during the pendency of the suit. An application under Order I, Rule 10, C.P,C. was filed by the petitioner for impleadment of respondents Nos.4 to 13 as party in the suit and to challenge the validity of the alleged mutation of sale, which was withdrawn on 08.4.2014, apparently for the reason that the respondents Nos.4 to 13 have themselves filed an application under Order I, Rule 10, C.P.C. for their impleadment as defendants in the suit. The application under Order I, Rule 10, C.P.C. for impleadment moved by the respondents was dismissed by the learned Civil Judge vide order dated 10.6.2014 observing that the original owner had challenged the Mutation Nos.1261 and 1262 and admittedly the civil suit was pending during which the transaction was made and that legality and sanctity of mutations were yet to be proved; the doctrine of lis pendens would be eventually available and, in result, the application for impleadment was dismissed as being without substance. The order was challenged in revision by respondents Nos.4 to 13 which was allowed by the learn ed Addl. District Judge, Lodhran vide order dated 02.5.2015 whereby application under Order I, Rule 10, C.P.C. was allowed and respondents Nos.4 to 13 were ordered to be impleaded as party and amended plaint was filed.
6. The petitioner thereafter moved an application for amendment in the plaint to incorporate the plea that the mutations in favour of respondents Nos.4 to 13 were against law, result of fraud and fictitious, product of collusion with respondent No.3 and were inoperati ve qua petitioner's rights and, as such, were liable to be cancelled. The application was dismissed by the learned Civil Judge vide order dated 12.7.2017 with the observation that the same was belatedly filed. Petitioner filed revision petition which was dismissed by the learned Addl. District Judge on 29.6.2018 with the observation that the petitioner was estopped from filing fresh application as the earlier application under Order I, Rule 10, C.P .C., filed by him, was withdrawn.
7. Order VI, Rule 17, C.P.C. contemplates that the court may at any stage of the proceedings allow the parties to alter or amend the pleadings in such manner as may be just and all amendments which may be necessary for the purpose of determining the real question in controversy between them. It is settled rule that the application under Order VI, Rule 17, C.P.C. can be entertain ed and allowed at any stage of the proceedings if the same is necessary for effective decision thereof. In "Mst. Ghulam Bibi and others v. Sarsa Khan and others" (PLD 1985 SC 345), the august Supreme Court was pleased to rule to the effect that delay alleged inpraying for amendment or expiry of period of limitation would not be a ground to refuse amendment in the plaint and that all such amendments could be made which are necessary for the determination of the real question in controversy . The assumption of belated filing of the application was totally unwarranted for the reason that the occasion to make proposed amendment arose due to the impleadment of respondents Nos.4 to 13 under order of revis ional courts and, therefore, the learned court below proceeded on misconceived assumptions. By treating the application as belated which could not otherwise be a ground to decline the amendment. Admittedly , respondents Nos.4 to 13 moved an application for their impleadment which though was declined by the learned trial court but was allowed by the learned Addl.
District Judge in revision. Order I, Rule 10, C.P.C. provides that the court at any stage of the proceedings either upon an application by either party or of its own, could direct impleadment of a E person if their presence is necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Sub-Rule (4) of Order I, Rule 10, C.P.C. provide that where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary . Bare reading of the provisions of law makes it obvious that on the impleadment of a newly added defendant, the plaintif f is entitled to amend the plaint in the manner as will be necessary . Obviously , when the suit was filed the respondents Nos.4 to 13 had not purchased the property; the sale took place during pendency of the suit which was obviously hit by the provisions of section 52 of the Transfer of Properly Act, 1882 . In alienation pendente lite is subject to final decision of the suit.
The transferee, if impleaded, could at best defend the suit on grounds as were available to his transferor . In "Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and other s" (PLD 2011 SC 905), it was observed by the honourable Supreme Court to the effect that if alienation of property is made by a party to the lis during the pendency of the suit, the transferee does not acquire any title free from clog of his unsuccessful transferor , in whose shoes he stepped and for all intents and purposes, he shall have to swim and sink with his predecessor-in-interest and that the transferee of the suit even if for value without notice who in ordinary judicial parlance is known as bona fide purchaser , in view of the rule/doctrine of lis pendens , shall be bound by the result of suit strieto sensu in all respects as the transferor will be bound.
8. As noted supra, respondents Nos.4 to 13 were transferee pendente lite and were impleaded on their application which,necessitated filing of the amended plaint. Since neither the transaction existed at the time of the suit nor the alleged mutations were in existence, therefore, on impleadment of respondents Nos.4 to 13, petitioner was entitled to pray for an appropriate amendment to challenge the validity of mutation on the ground that rule of lis pendens would apply . The occasion to amend the plaint only arose because of their impleadment, request for amendment in this situation could neither be said to be belated nor an afterthought. The learned Addl. District Judge was also unnecessary influenced by the withdrawal of the application under Order I, Rule 10 C.P.C. which was filed by the petitioner; little appreciating that the respondents Nos.4 to 13 having themselves moved application under Order I, Rule 10, C.P.C. for their impleadment which if succeeded, could allow the petitioner to raise legal questions as to validity of the transaction and, being so, the earlier application of the petitioner was neither necessary nor required.
Once the application of the respondents was granted and they were allowed to be arrayed as defendants, the petitioner was legally entitled to seek permission for amendment in plaint to challenge the validity of the transactions during the suit. In this view of the matter , learned courts below failed to exercise their jurisdiction in accordance with law by declining the application under Order VI, Rule 17, C.P.C. The impugned orders of the courts below being violative of the said rule and inconsistent with the rule laid down by the Superior Courts cannot sustain.
9. For reasons supra, the civil revision is allowed ; impugned orders are declared to be illegal and without lawful authority and are accordingly set aside and in consequence thereof, the application under Order VI, Rule 17, C.P.C. for amendment in the plaint moved by the Petitioner is accepted.
10. This suit has been pending for last seven years, which is still at initial stage; the learned trial Court shall, therefore, proceed with the case expeditiously so as to ensure its disposal within six months by giving fair and equal opportunity of hearing to the parties and avoiding unnecessary adjournments.