1. Applicant/Intervenor, Khalid Rizvi son of Muhammad Rahat A.I Rizvi, through this application wants that he may be impleaded as a party in the above suit in order to effectually and completely determine all the questions between the parties. In support of this application he has filed his own affidavit. The relevant paragraphs of the said affidavit are reproduced as under:-- "(2) That the application under Order I, Rule 10, C.P.C. Has been drafted under my instructions. It is submitted that the Intervenor entered into negotiations with the defendant for the sale of the suit property. That through an agreement to sell dated 16-11-1994 the Intervenor agreed to the purchase of the suit property alongwith the construction thereon from the defendant at a total sale consideration of Rs.34,00,000. The defendant agreed to sell/transfer and convey the suit property free from all encumbrances, claims, liens, demands and in vacant possession to the Intervenor. The Intervenor paid a sum of Rs.10,25,000 vide cheque No.266281 dated 17-11-1994 drawn on ANZ Grindlays Bank, Clifton Branch, Karachi and paid also a sum of Rs.19,75,000 in cash/cheque to the defendant as part payment in respect of the suit property. (Copy of the Sale Agreement, sale receipt alongwith the copy of cheque is annexed as Annexure ). It was further agreed that the balance sale consideration shall be paid to the defendant at the time of registration of the sale- deed. It is submitted that the Intervenor is a bona fide purchaser without notice. After part payment the Intervenor was handed over the peaceful physical possession of the suit premises on 16-11-1994 and shifted therein. The Intervenor is in possession of the suit property and at present residing therein.
(3) That on or about 2-12-1994 the Intervenor came to know that a status quo order, dated 24-11- 1994 in respect of the suit property has been granted to the plaintiff by the Honourable High Court.
2. It is submitted that the Intervenor had purchased the suit property on 16-11-1994 and had paid the advance amount of Rs.30,00,000 (rupees thirty lacs) to the defendant. The Intervenor is in possession of the suit property and was in possession when the status quo order was granted. It is submitted that the Intervenor is the bona fide purchaser without notice as he was unaware of the earlier agreement between the plaintiff and defendant. The Intervenor is advised which advice he verily believes to be true and correct that the status quo granted has no retrospective effect. It is submitted that the sale of suit property had been completed prior to the status quo order and third party rights had been created and possession handed over to the Intervenor. It is submitted that if the Intervenor is not joined as a party in the instant suit and ad interim order is not vacated the Intervenor shall suffer irreparable loss and injury. The Intervenor cannot be made suffer on account of any acts or omissions of the plaintiff and the defendant. The Intervenor published a legal notice about the sale/purchase of the suit property in daily "Dawn" on 22-11---1994. However, the plaintiff failed to join the Intervenor as a party in the suit, which was subsequently instituted."
3. The applicant has also filed a copy of agreement to sale as Annexure "A", signed by Vendor Mrs. Rukhsana Khan showing Rs.30,00,000 being payment towards the sale consideration in respect of the suit property. Paragraphs Nos.1, 2 and 3 of the sale agreement executed on 16-11-1974 are as under: "(1) That the Vendor has this day received from the Vendee a sum of Rs.30,00,000 (Rupees thirty lacs only) cash Rs.19,75,000 and by cheque No.266821, A.N.Z. Grindlays Bank, Clifton Branch, of Rs.10,25,000 (Rupees ten lacs twenty-five thousand only) being the part payment towards the sale consideration of the said property, receipt of which the Vendor both hereby fully admit and acknowledge.
(2) That the balance payment of Rs.4,00,000 (Rupees four lacs only) shall be paid by the Vendee to the Vendor at the time of registration of sale-deed in favour of the Vendee before the Sub-- Registrar, T-Division-II-A, Karachi, on or before 15-12-1994.
(3) That the Vendor has handed over the vacant and peaceful possession of the said property to the Vendee at the date of these presents. "
4. Alongwith this sale agreement, a receipt dated 16-11-1974 executed by Mrs. Rukhsana Khan for Rs.30,00,000 is also attached, Annexure "B" with thisapplication is a cheque for Rs.10,25,000 drawn in favour of Mrs. Rukhsana Khan and Annexure "C" is a statement of account of the plaintiff. For this transaction a notice in daily Dawn had appeared on 22-11-1994.
5. The present suit was instituted on 24-11-1994 for declaration, injunction and specific performance.
6. The relevant prayer clause of the suit is reproduced as under:-- "(b) To direct the defendant for specific performance of contract dated 15-10-1994 and convey the said property to plaintiff through the registered sale-deed. In case of failure of the defendant, the Nazir of this Honourable Court may be directed to complete the formalities and get the sale deed registered to favour of the plaintiff according to law;"
7. The plaintiff has also filed a copy of receipt dated 15-10-1994 showing payment of Rs.50,000 to have been received by Tariq Mehmood Khan on behalf of Mrs. Rukhsana Khan, the defendant. He has also filed a photostat copy of a cheque for Rs.4,50,000 drawn in favour of Mrs. Rukhsana Khan.
8. He has also filed a photostat copy of a draft, Annexure "D" for Rs.5,00,000 payable to payee's account only i.e. In the name of Muneer Ahmed Khan, the plaintiff.
9. Mr. Abid S. Zuberi has contended (i) that Intervenor/applicant is a very necessary party to be impleaded for just decision of the matter; (ii) that the possession of the suit property is with the applicant/Intervenor, which is not denied even by the plaintiff and the same is admitted by the defendant in the counter-affidavit filed by her. The relevant paragraph of the counter-affidavit is reproduced as under:-- "(5) I say pursuant to Agreement to Sell' between the intervenor and the defendant, the vacant possession of the suit property was handed over to the intervenor on 16-11-1994 in part performance of the agreement to sell."
10. The defendant has further stated in para. 6 of her counter-affidavit that "my husband had no authority to enter into any transaction regarding my property, even otherwise the plaintiff admittedly after having received the entire advance paid to my husband with malicious intention has filed this suit". .
11. Mr. Zuberi, learned counsel for the intervenor, has cited the following authorities:--
(1) Uzin Export Import Enterprises for Foreign Trade, Karachi v. UnionBank of Middle East Ltd., Karachi PLD 1994 SC 95.
12. The Honourable Supreme Court in the above case has held as under:-- "Now a proper party is' a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the proceedings.
13. The term questions involved' includes all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest which is likely to be affected by the proceedings nor does it embrace persons only generally interested in common with others nor can persons be added as parties so as to set up a new cause of action which does not concern the original parties."
14. I would like to refer section 27 of the Specific Relief Act, which is as under:-- "27. Relief against parties and persons claiming under them by subsequent title.--- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;"
15. I have also been referred to section 52 of the Transfer of Property Act 1882, Sindh Amendment, which reads as under:-- "52. Transfer of Property pending suit relating thereto.--- (1) During the pendency in any Court having authority in Pakistan or established a beyond the limits of Pakistan by the Central Government, any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question (if a notice of the pendency of such suit or proceeding is registered under section 18 of the Registration Act, 1908), the property, (after the notice is no registered) 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 hereto under decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
(2) Every notice of a suit or proceeding referred to in subsection (1) shall contain the following particulars, namely--
(a) the name and address of the owner of immovable property or other person whose right to the immovable property is in question;
(b) the description of the immovable property to right to which is in question;
(c) the Court in which the suit or proceeding is pending;
(d) the notice and title of the suit or proceeding, and
(e) the date on which the suit or proceeding was instituted Mr. A. Saeed Khan Ghori, learned counsel for the plaintiff, has contended: (i) that the application is mala fidely made and the agreement to sale dated 16-11-1974 is an agreement which has been arranged in order to frustrate the agreement, dated 15-10-1984 executed by Tariq Mehmood Khan, husband of defendant No. l; (ii) that the suit property is on lease, which cannot be sold/transferred or alienated. He has also referred the following authority:--
(1) Muhammad Usman v. Rehmatullah 1985 CLC 420 "... Ss. 41 & 52---Doctrine of lis pendente---Purchase without notice for consideration---Sale made during pendency of suit proceedings----Case, held, was fully covered by S.52 and was hit by doctrine of lis pendente and did not affect rights of decree-holders in respect of suit property--- Plea that appellant had purchased without any notice and for consideration and sale was thus protected by S.41 not tenable in circumstances. "
16. The facts of this case are quite different and distinguishable from the facts of the case in hand. The case cited by Mr. Ghori pertains to pre-emption as provided under the Muhammadan Law, whereas the case in hand is quite different and the applicant/intervenor has not based his application on the pre-emption right of Shafei Jar, of Shafei Khalit, Shafei Sharik right of precedence---Competition between different types of Shafeis---Shafei Sharik (co-sharer) held, would have preference over other two Shafeis and Shafei Jar (having contiguous land) would defeat claim of Shafei Khalit (having common easements).
17. Furthermore, the Sindh Amendment of the Transfer of Property Act cited above is also not helpful to the case of the plaintiff. In my humble opinion this authority is not favourable, in any case, to the case of the plaintiff.
18. Mr. Mushir Alam, learned counsel for defendant, has contended: (i) that the amount was not paid within the stipulated period. He has also referred to para. 3 of the plaint, which is reproduced as under:-- "3. That beneath the aforesaid agreement it was also added by handwriting that the plaintiff/vendee shall pay to the vendor a sum of Rs.4,50,000. Although this interpolation was not signed by any party, the plaintiff/vendee honoured this additional provision by making the payment of Rs.4,50,000 through Cheque No. 00372205, dated 26-10-1994 to the defendant for which the defendant through her husband issued a proper receipt on 27-10-1994 and subsequently encashed the said cheque in part completion of the sale agreed by her."
(ii) that no consideration was paid; (iii) that the transaction between the intervenor and the defendant, as per agreement, is complete one; and (iv) that the intervenor/applicant is in peaceful possession of property since 16-11-1994.
19. I have gone through the material placed on record. It is an admitted fact that the applicant/intervenor had entered into an agreement with the Vendor and the Vendor had received consideration. The intervenor/applicant is in peaceful possession of the property since its purchase. Possession of the suit property with applicant/intervenor is not denied by the plaintiff, even rather possession of the applicant is supported by the defendant in her counter-affidavit. The property belongs to Mrs. Rukhsana Khan who in her affidavit has supported the case of the applicant/intervenor and rather had denied that her husband had no any authority to sell or alienate her property.
20. I would like to refer Order Rule 10, C.P.C. Which is reproduced as under: "10Suit in name of wrong plaintiff.---Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, .Order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.---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. "
21. The authority cited by Mr. A. Saeed Khan, learned counsel for the plaintiff, is not relevant to the fact and circumstances of the present case because the facts of the case cited by Mr. A. Saeed Khan are quite distinguishable and different from the facts and circumstances of the present case.
22. Therefore, this authority is not favourable to the case of the plaintiff.
23. The contention of Mr. Saeed Khan that as the property is on lease, therefore, it cannot be sold away, is of no significant at all, the question of lease is not to be decided by this Court in this application.
24. This application is only for joining the applicant as a party and the Court has to see whether it may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
25. The authority cited by Mr. Abid Zuberi, learned counsel for the applicant/intervenor, and the Sindh Amendment, Transfer of Property Act, clearly show that the applicant/intervenor has made out a case that he may be impleaded as a party. In view of this, the application is allowed and the applicant/intervenor is to be joined as a party.
26. Orders accordingly.