GUL HASSAN TAREEN, J. Through this common order, we intend to decide the Constitutional Petitions Nos. 1709 and 1710 of 2022, filed by the petitioner against concurrent orders passed by the Courts below whereby applications made by the petitioner, under Order I, Rule 10 and Order XIII, Rule 2, the Civil Procedure Code, 1908 ('C.P.C') were dismissed.
2. Briefly, facts of the case are that respondent Nos. 1 to 4 instituted a Civil Suit for declaration, possession, cancellation of mutation entry No. 828 against the petitioner and the Respondent Nos.
5 to 7, which came up for hearing before the Court of learned Civil Judge-IX, Quetta ('Trial Court').
During pendency of the suit, petitioner made two applications before the Trial Court, one under Order I, Rule 10, C.P.C for impleading Munir Ahmed Baloch as party in the suit who, during pendency of the suit, allegedly purchased the suit property from the respondent No. 6 vide agreement dated 29 January, 2018 and the second under Order XIII, Rule 2, C.P.C for placement of said, agreement.
The applications were contested and vide separate orders of even date i.e. 17 June, 2022; the Trial Court dismissed both applications. Against such orders, the petitioner preferred Civil Revision Petitions Nos. 12/2022 and 14/2022. The Court of learned Additional District Judge-IX, Quetta vide separate orders dated 06 October, 2022 dismissed the Civil Revision Petitions.
3. We have heard Mr. Saleem Akhtar, the learned counsel for the petitioner, attorney of respondents Nos. 1-A to 4 in person and Mr. Khalil-ur-Rehman, the learned counsel for the respondent Nos. 5 and 6 and gone through the record of the case.
4. The petitioner made two applications before the Trial Court, one for impleading Munir Ahmed Baloch and the second for placement of an agreement dated 29 January, 2018 on record of the suit, whereby the said Mink Ahmed Baloch purchased the suit property during pendency of the suit.
The petitioner's counsel contends that the said vendee is a necessary party and if he is not impleaded than the decree that may be passed would not be executable against such person. The contention of petitioner's counsel is misconceived, because a person who purchases an immovable property (subject matter of suit) from party to the suit, such person is neither a necessary nor a proper party even though, he purchases such property without notice of the pendency of suit, in good faith and for consideration. Where it is allowed that a purchaser, bona fide or otherwise, who purchases suit property during pendency of the suit, is a necessary party, then there would be no end of litigation and it would result in an endless multiplicity of litigation. In order to overcome, such situation and not to deprive a party from the fruits of a decree, law has introduced the doctrine of lis pendens through section 52, the Transfer of Property Act, 1882 ('T.P.A').
The doctrine of lis Pendens, embodies in section 52 rests on an equitable principle of 'ut lite pendente nihil innovetur' (pending litigation, nothing new should be introduced).
5. The provision of section 52, T.P.A, is founded upon great public policy, that whoever purchases a property during pendency of a suit, he is bound by the judgment that may be made against the person from whom he derived title even though he was not a party to the suit and even a bona fide and innocent purchaser/transferee. Though a transferee, who purchased subject matter of a suit before institution of suit is entitle to be impleaded as defendant in the suit under Order I, Rule 3, C.P.C. or during pendency of suit under Order I, Rule 10, B C.P.C to defend his title and to prove that his transfer is protected by the statutory application of the equitable doctrine of estoppel as embodied in section 41, the T.P.A. However, the protection of section 41 T.P.A. is not available to a purchaser pendente lite, as the principle of lis pendens is based on public policy, that there should be an end of litigation. Section 41, the T.P.A is subordinate to section 52 of the T.P.A or in other words the principle of lis pendens embodied in section 52, T.P.A. supersedes the statutory application of law of estoppel.
6. The principle of lis pendens operates very hardly but it is a rule founded upon public policy, for otherwise alienations pendente lite would defeat the very purpose of law. The effect of such principle is not to annul the conveyance of the vendee, but only to render it subservient to the right of parties and to the final outcome of the lis. The Supreme Court of Pakistan in the case of Mst.
Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) authoritatively held as under: "5. The afore-referred provision enshrines the age old and well established principle of equity that lite pendente nihil innovetur (pending litigation nothing new should be introduced) and stipulates that pendente lite parties to litigation wherein right to immovable property is in question, no party can alienate or otherwise deal with such property to the detriment of his opponent. Any transfer so made would be hit by this Section. The doctrine by now is recognized both in law and equity and underpins the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail. The effect of such alienation would be that the plaintiff would be defeated by defendants alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with lurking fear that he could again be defeated by the same trick. The doctrine of lis pendens in pith and substance is not only based on equity. but also at good conscience and justice. In Lalji Singh v. Rameshuwar Misra ((1983) 9 All LR 269 (271) (All)), the essential ingredients of section 52 ibid or the conditions precedent to attract this principle were construed as follow:-
(i) the pendency of any suit or proceeding' in a court law;
(ii) the court must have jurisdiction over the person or property;
(iii) the property must have specifically described and should be affected by the termination of the suit or proceedings;
(iv) the right to the said property be directly and specifically be in question in any suit or proceeding;
(v) an alienation of such immovable property without the permission or order of the court; and
(vi) the alienation should be during the pendency of any such suit or proceeding and a suit or proceeding in question is not collusive.
7. A transferee of subject matter of a lis is not entitled to be impleaded in the suit and to defend his title independently and has to swim and sink with the defendant from whom he purchased the suit property. Reliance is placed on the case reported as Muhammad Ashraf Butt and others v.
Muhammad Asif Bhatti and others (PLD 2011 SC 905).
8. The respondent No. 6 has, though denied that he has not sold out the suit property, even if he has, even then, the said Munir Ahmed Baloch is neither a necessary party nor a proper party and he would be bound -by the final outcome of suit as respondent No. 6 would be, on the principle of lis pendens.
For afore discussion, we are not inclined to interfere with the impugned concurrent orders of the Courts below, as such, the Constitutional Petitions are dismissed.