MIRZA VIQAS RAUF, J. This single judgment shall govern the application in hand (Civil Revision No.1133 of 2014) as well as Civil Revision No.1056 of 2014 on account of similarity of questions of law and facts involved in both these applications.
2. Facts germane for adjudication of both these applications application are that respondents No.1 & 2 instituted a suit for declaration, which was resisted by the applicant, who too instituted a similar suit. Both the suits were consolidated and from the divergent pleadings of the parties multiple issues were framed. The proceedings finally ended with the judgment dated 4th January, 2012, whereby suit instituted by respondents No.1 & 2 was decreed whereas suit filed by the applicant was dismissed. Feeling dissatisfied from the findings of the trial court qua issues No.10-C to 10-H an appeal was preferred by respondents No.1 & 2. During the pendency of appeal, respondent No.3 (hereinafter referred to as "respondent") moved an application under Order I Rule 10 of the C.P.C. for his impleading in the array of appellants, being subsequent purchaser of suit property from respondents No.1 & 2, during the pendency of appeal. The application was though resisted by the applicant but it was allowed through order dated 25th October, 2014 handed down by learned Additional District Judge, Attock, which is impugned herein.
3. Learned counsel for the applicant submitted that the respondent purchased the property during the pendency of appeal and he was though neither necessary nor proper party but his application is accepted in an illegal and unlawful manner. It is contended with vehemence that the respondent would be dealt with under principle of lis pendens as ordained in Section 52 of the Transfer of Property Act, 1882. Learned counsel emphasized that impugned order is not tenable. Learned counsel placed reliance on MUKHTAR BAIG and others versus SARDAR BAIG and others (2000 SCMR 45) and MUHAMMAD SHARIF and others versus Mst. FATEH BANO and others (2004 SCMR 813).
4. Conversely, learned counsel for the respondent seriously controverted the contentions of learned counsel for the applicant. He added that the respondent after purchase of the property became necessary and proper party and application was rightly allowed. Placed reliance on FAZAL KARIM through Legal Heirs and others versus MUHAMMAD AFZAL through Legal Heirs and others (PLD 2003 Supreme Court 818).
5. Heard. Record perused.
6. The prime question which emanates for the determination of this Court is related to the impleading of a person (subsequent vendee) who purchases the property, subject matter of the suit/proceedings. The proposition involved in this case mainly revolves around the scope and effect of Section 52 of the Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") and Order I Rule 10 of the C.P.C. To appreciate the proposition involved herein in better terms, it would be advantageous to first understand the object and import of both the above noted provisions of law.
7. Section 52 of the Act, 1882 ordains that during the pendency in any court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. For ready reference and convenience Section 52 of the Act, 1882 is reproduced below :- "52. Transfer of property pending suit relating thereto.--During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
From the bare perusal of Section 52 of the Act, 1882 it clearly manifests that the very purpose and object of this provision is to protect the parties to the litigation against alienation of the property by their opposing party during the pendency of the litigation, so as to avoid deprivation of any right or interest of such party which he ultimately be held entitled by the court on the one hand and on the other to stop the adversary from alienating the property to a person alien to proceedings as it would result into an endless litigation. Prime principle embodied in Section 52 of the Act, 1882 is that if somebody purchases the property during the pendency of the litigation, he is bound to follow the decision of the court as his purchaser and he has to swim and sink together with his transferor and would be precluded to claim any independent right or protection in the garb of such transfer of property. Section 52 of the Act, 1882 thus safeguards the rights and interests of the parties to litigation and discourages the alienation of the property subject matter of litigation to be alienated during the pendency. In the case of Mst. TABASSUM SHAHEEN versus Mst. UZMA RAHAT and others (2012 SCMR 983) the Supreme Court of Pakistan outlined the scope of Section 52 of the Act, 1882 in the following words :- "5. The afore-referred provision enshrines the age old and well established principle of equity that ut 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."
8. Guidance to the above effect can also be sought from FARZAND ALI and another versus KHUDA BAKHSH and others (PLD 2015 Supreme Court 187). The relevant extract from the same is reproduced below :- "11. Considering the plea of lis pendens raised by the appellants' learned counsel, it may be mentioned that the scope, the principle and the application of rule of lis pendens has been elaborately dilated in the judgment reported as Muhammad Ashraf Butt and others v.
Muhammad Asif Bhatti and others (PLD 2011 SC 905). The ratio of the above law is that a subsequent transferee cannot sustain his transfer (e.g. the sale) if he has purchased the property during the pendency of the suit. He is bound by the outcome of the suit, obviously that shall be so if the case is decided against the transferor from whom he is purchasing the property or against the transferee if he is a party to the case, but if the lis is decided in his favour, there shall be no question about the application of the rule of lis pendens. Conceiving this case in light of the ratio of the above judgment, now when the suit of the appellants for the specific performance has been dismissed by the trial Court and the learned revisional court and such verdicts are being upheld for the reasoning given in this opinion especially the exercise of discretion by the court(s) in this case, the conduct of the appellants, the invalidity of their agreement to sell etc. how could the rule of lis pendens be resorted to. As lis pendens shall only be applicable in case of success of the appellants, but not in the case of their defeat and failure. Resultantly, the plea raised by the learned counsel based upon this principle is liable to be discarded."
Reference can also be made to RASHID AHMAD versus Mst. JIWAN and 5 others (1997 SCMR 171).
9. Now adverting to the moot point as to any legal impediment in the way of subsequent purchaser to claim his impleading in the pending proceeding; suffice to observe that by virtue of Section 146 of the C.P.C. where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. In furtherance Order I of the C.P.C. deals with the parties to suits and sub-rule (2) of Rule 10 of Order I of the C.P.C. postulates that the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that 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. To this effect reference can also be made to Order XXII Rule 10 of the C.P.C. which regulates the procedure of the suit and provides that in case of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. Section 107 of the C.P.C. bestows powers upon the appellate court as conferred and imposed by the C.P.C. on court of original jurisdictions in respect of suits instituted therein subject to conditions and limitations prescribed therein. After having a brief survey of the above noted provisions of law, there remains no cavil to hold that transfer or alienation of the property pending proceedings and seeking impleading in the array of parties by the subsequent vendee are two distinct and different phenomena and are to be dealt with independently in the light thereof.
10. Needless to reiterate that a subsequent purchaser cannot claim any independent right or interest as compared to his transferor (vendor) but at the same time he is not precluded to claim his impleading as party in the pending proceedings because if his transferor opts to keep himself aloof from the proceedings after parting with his rights and interests in the property latter if not allowed to be impleaded would be deprived of his right to defend his cause and it would naturally offend the principle of natural justice. Reliance to this effect can be placed on RASHID AHMAD versus Mst. JIWAN and 5 others (1997 SCMR 171). The relevant extract from the same is reproduced below :- "3. We have heard the learned counsel for the appellant. The respondents did not appear and contest the appeal. The learned Judge in Chambers declined to implead the appellant as respondent in the pending R.S.A. solely on the ground that the property was transferred in his favour by one of the parties to the pending litigation during the pendency of 1st appeal. The view taken by the learned Judge in Chambers does not appear to be correct. 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 Order 22, C. P. C. apply equally to appeals."
11. So far judgments in the cases of Muhammad Sharif and Mukhtar Baig supra relied upon by learned counsel for the applicant are concerned, in the former scope of Section 52 of the Act, 1887 was defined whereas in the latter it is though held that a subsequent vendee is not entitled to contest the suit independently in his own right but in the light of judgment in the case of MUHAMMAD SHAHBAN and others versus FALAK SHER and others (2007 SCMR 882) it was held by the Supreme Court of Pakistan as under :- "5. It is pertinent to mention here that learned High Court had placed reliance on the judgment of the Mukhtar Beg's case (supra) of this Court and the other judgments as mentioned above are not of this Court. Mukhtar Beg's case (supra) is distinguished on facts and law. In Mukhtar Beg's case, the suit was decreed against the person from whom subsequent purchaser claimed rights and original claimant of the property in question was died. Therefore, Mukhtar Beg's case (supra) is distinguished on facts and law. The issue involved in the present case has already been decided by this Court in Khaista Jan's case 1984 SCMR 709. The relevant facts and observation are as follows:- - "The brief facts strictly relevant to the present petition stated at the bar are that Fakhar-uz-Zaman and others filed a suit against Malik Amin and others. Subsequently, the respondents filed application that they having purchased the suit property during the pendency of the suit from the plaintiffs should be impleaded as plaintiffs. This application was allowed."
6. The order of the trial Court was upheld by this Court in the following terms:-- "In the facts and circumstances of the case, the order of the trial Court is not only just and fair but is also in accordance with the dictates and the principles regarding the necessary parties."
7. The aforesaid proposition of law was considered by this Court in Rashid Ahmad's case 1997 SCMR 171 and laid down the following principle:-- "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."
8. The aforesaid proposition of law was again re-affirmed by this Court in Fazal Karim's case PLD 2003 SC 818. The relevant observation is as follows:-- "No doubt, the registered agreement to sell dated 1-10-1979 and the subsequent sale-deed dated 30-12-1979 had taken place during the pendency of appeal yet the future complications and confusions could have been avoided through the impleadment of Fazal Karim and Mazhar Shah in the appeal. There is no harm at all if a vendee of a sale hit, if at all by the principle of lis pendens, is impleaded as party to the suit or appeal, as the case may be."
9. It is pertinent to mention here that respondents had not alleged that petitioners had purchased the property in question by fraud or by misrepresentation or collusion with the petitioner No.3 or Ahmad Nawaz, therefore, learned High Court was not justified to set aside the orders of the Courts below while exercising power under section 115, C.P.C. 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. It is a settled principle of law that judgment of this Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. The learned High Court had committed material irregularity while setting aside orders of the Courts below which were passed by the Courts below in exercise of their discretionary powers. See PLD 1970 SC 288 and PLD 1993 SC 53 and 1997 SCMR 1139. It is settled law that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter. See Muhammad Sarwar's case PLD 1969 SC 278."
Law to this effect is well settled that when there are conflicting views with regard to question of law of Bench comprising of equal members of judges, the view of latter will prevail. Reliance to this effect can be placed on Engineer JAMEEL AHMAD MALIK versus SHAUKAT AZIZ and 6 others (2007 CLC 1192), Mst. HIRA REHMAN versus CHANCELLOR, GOVERNMENT COLLEGE UNIVERSITY, LAHORE and 2 others (2011 CLC 377) and MUHAMMAD HANIF and 2 others versus MUHAMMAD SADIQ and 14 others (2019 MLD 846).
12. The nutshell of above discussion is that the approach of learned Additional District Judge, Attock, while allowing the application under Order I Rule 10 of the C.P.C. moved by the respondent is completely in consonance with law and the applicant has failed to point out any illegality or material irregularity, justifying interference by this Court in exercise of revisional jurisdiction.
Resultantly these applications fail and are dismissed with no order as to costs.