Anwaar Hussain J: Through this single judgment, present as well as connected constitutional petition, bearing W.P No.14576/ 2025, filed by M/s Eden Developers (Pvt.) Limited, Lahore, which is also arrayed as respondent No.2, in the present petition ("Eden Developers"), are being simultaneously decided, as common question of law and facts are involved. Moreover, both the petitions are directed against same judgment dated 13.02.2025 passed by the Revisional Court below through which the order of the Trial Court dated 04.12.2024 was upended and the application of the petitioners under Order I Rule 10 of the Code of Civil Procedure, 1908 ("CPC") to become party in the suit instituted by respondent No.1, namely, Shahid Mehmood ("the respondent") against the Eden Developers, was dismissed by the Revisional Court below.
2. The controversy pertains to a plot, which at present is numbered as 504-B, measuring 1-kanal, situated at Phase-1, Eden City, near Allama Iqbal International Airport, Lahore. The respondent in his suit averred that he purchased a plot in the Eden City (Phase-1), Lahore, measuring 1-kanal and originally it was allotted No.331-A, which was later re-numbered as 567-B and then the number was revised as 504 B. The respondent filed suit for possession against the Eden Developers, its employees/respondents No.4 and 5, as also Military Estate Officer, Cantonment Board, Lahore Cantt/respondent No.3. When the suit was at the stage of recording of evidence, the present petitioners filed an application under Order I Rule 10 of the CPC, to become party/ defendant on the ground that they are overseas Pakistanis and have purchased the suit plot and are in possession thereof, which originally was allocated number as 325-A and then revised as 341-B.
3. The Eden Developers, petitioner in connected petition, bearing W.P No.14576/2025, as also the present petitioners have challenged the impugned judgment on the ground that since the respondent is seeking recovery of possession of the suit plot and the present petitioners are occupying the same and raising construction thereon, therefore, without extending an opportunity of hearing to them (the petitioners), any judgment passed will be defeating the ends of justice. It has been further contended by learned counsel for the petitioners that the impugned judgment is unsustainable in law inasmuch as the petitioners submitted their title documents qua ownership of plot No.504-B before the Revisional Court below, which has been examined with a jaundiced view that is not warranted by law as it causes prejudice to the case of the petitioners without arraying them as a party. Learned counsel for the Eden Developers also submits that the observations of the Revisional Court below have adverse implications on case of the Eden Developers, which is the main defendant in the case as entire evidence has been discussed.
4. Conversely, learned counsel for the respondent submits that since substantial evidence has been recorded and the respondent is striving hard to recover the possession of the suit plot duly sold by the Eden Developers to the respondent, therefore, at this fag end of the trial allowing the application of the petitioners is unjust. Adds that the application is motivated and collusive in nature just to linger on the matter.
5. Arguments heard. Record perused.
6. Before analyzing as to which of the two findings are sustainable, it will be appropriate to reproduce the operative part of the judgments of the Courts below. The Trial Court, vide order dated 04.12.2024, held as under: "4. Perusal of record shows that the plaintiff has filed instant suit for possession and permanent injunction wherein it has been prayed for that he be delivered possession of plot No.331-A or 567-B or 504-B in Eden City Lahore since he has purchased the same but the defendants have neither delivered the possession nor issued allotment letter malafidely. The suit has been opposed by the defendants resulting in framing of issues by the court, vide order dated 08.02.2023. There is allotment letter issued in favour of the petitioners by the defendants, of plot bearing No.504-B. They are also in possession and this fact has not been denied by the plaintiff since he has sought possession of the plot. He is not in possession of any plot. In my considered view the petitioners have interest in the suit property and in their absence no effective decree could be passed. If version of the plaintiff is proved at culmination of suit, obviously he would have to obtain possession from the petitioners of application. The court may strike out parties or add at any stage who are proper and necessary to pass affective decree. The petitioners are necessary party to the suit as per facts of the suit. I am guided and fortified by case law reported as 2007 SCM R 882, 2006 SCM R 1067 & 2016 CLC 645 in this regard."
However, when the revision was filed by the respondent, through impugned judgment dated 13.02.2025, the Revisional Court below has discussed the entire evidence recorded so far and non- suited the petitioners on the ground that since the petitioners have acknowledged that they have purchased the property from some third party during pendency of the case, therefore, they have nothing to do with the respondent/plaintiff. The impugned judgment reads as under: "6. If the petitioner Almas Mehmood and Nadeem Aslam have purchased the plot from Khushi Muhammad then this fact has nothing to do with the claim of plaintiff. Astonishingly, Plot No.504-B was renumbered before the sanction of third layout plan and so the connivance of Eden Developers Pvt., Ltd. either with the petitioners or with the previous owner Khushi Muhammad cannot be ruled out. It is also admitted fact that the property was acquired by Almas Mehmood and Nadeem Aslam during the pendency of the suit and so is hit by principle of lis pendens. "
(Emphasis supplied)
7. From the facts of the case and the analysis carried out by the Courts below, it is admitted feature that the dispute relates to a plot, which is in possession of the present petitioners. It is also not disputed that the property was purchased during the pendency of the suit between the respondent and Eden Developers and others and principle of lis pendens is applicable. However, the scope of Section 52 of the Transfer of Property Act, 1882 ("the Act") is required to be kept insight inasmuch as the said provision of law non-suits the transferee pendente lite (who purchases the property during pendency of the case) by making such transfer subject to the decree in the following terms: "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 Federal Government 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.
[Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction of discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
(Emphasis supplied)
Perusal of Section 52 of the Act clearly envisages that any transfer of immovable property made by a party to a pending suit concerning the said property is subject to the outcome of that suit. In this manner, this provision safeguards the litigating parties (the respondent in present case) against transfers designed to frustrate or circumvent the Court's adjudication. However, where the actual possessor or transferee (the petitioners in present case), who acquired possession or title during the pendency of the suit, is excluded from the proceedings, such omission may constitute a fundamental procedural and substantive defect inasmuch as non-joinder of such a necessary party not only violates the principles of natural justice but it also exposes any decree passed in such suit to vulnerability. The decree, in the absence of such a party, cannot conclusively bind the transferee and remains open to challenge on grounds of fraud or collusion, particularly through recourse to Section 12(2), CPC or by way of objections in the execution proceedings. This vulnerability is rooted in Section 52 of the Act itself as enforcement of a decree against the actual possessor--who purchased the property during the suit's pendency--necessarily requires the plaintiff (the respondent in present case) to establish that the decree was not procured collusively or by fraudulent means. Without such proof, the third party in possession (the petitioners in present case) is under no obligation to yield possession, rendering the decree ineffectual against him. Thus, the inclusion of the actual possessor as a party is indispensable for the proper and final adjudication of rights and to prevent multiplicity of litigation. Applying these settled legal principles to the facts of the present case, it is apparent that the petitioners have been wrongfully excluded from the suit instituted by the respondent against Eden Developers. If the petitioners are denied joinder at this stage, they still retain the statutory right to seek remedy under Section 12(2), CPC or by filing an objection in execution proceedings, on the ground that the decree (if eventually passed in favour of the respondent) was obtained through collusion or fraud between the plaintiff (the respondent) and the defendants (Eden Developers and others). In-fact, in such a situation, it will further linger on the matter to the detriment of the respondent, which fact has not been appreciated by the Revisional Court below, while passing judgment dated 13.02.2025. This clearly demonstrates that the impugned judgment passed by the Revisional Court below is legally untenable. In contrast, the Trial Court's order permitting the joinder of the petitioners accords with the settled legal position and the requirements of justice and equity.
8. It is also pertinent to note that the Revisional Court below, while upsetting the findings of the Trial Court, overstepped the permissible limits of its jurisdiction by delving into the merits of the case and undertaking an appraisal of the evidence available on record while the trial is still pending by observing that there exists a possibility of connivance between the petitioners or their vendors and Eden Developers. Such a sweeping remark, made at the revisional stage, not only transgresses the jurisdictional constraints placed upon a Revisional Court under Section 115, CPC but also prejudices the position of the petitioners and Eden Developers, particularly when the latter is contesting the suit and the petitioners are yet to be impleaded. It is settled law that the function of a Revisional Court is supervisory and not appellate in nature. It cannot substitute its own findings of fact in place of those rendered by the Trial Court, unless there is a manifest error of law or jurisdiction more particularly when the trial has not been concluded and the Trial Court has yet to appraise the evidence. Such remarks on part of the Revisional Court below amount to a premature determination of facts, which defeats the rights of the parties to fair trial. The Revisional Court below failed to consider that the proper forum to assess such disputed factual questions, including the alleged role of the petitioners or their vendors, is the Trial Court, being the Court of first instance.
The observations made by the Revisional Court below, casting aspersions of collusion without affording the petitioners any opportunity to defend themselves by leading evidence, is violative of the principle of audi alteram partem, thereby rendering the said findings legally unsustainable.
9. In view of the above discussion, present as well as connected constitutional petition, bearing W.P No.14576/2025 are allowed and the impugned judgment of the Revisional Court below is set side and order of the Trial Court dated 04.12.2024 is restored. The Trial Court shall proceed with the suit of the respondent strictly in accordance with law without being influenced from the remarks of the Revisional Court below in respect of layout plan referred in the impugned judgment. The Trial Court is expected to decide the matter expeditiously, preferably within a period of 06 months commencing from the date of receipt of certified copy of this judgment. In order to achieve this objective, the Court may, if need be, carry out the proceedings on day-to-day basis.