' On 21-7-1967 the present appellant No,1 filed a suit against the respondents. In the plaint it was stated that the said appellant No,1 is the owner of the suit property described therein and that it has been tres-passed upon by the respondents. The following reliefs were claimed:---
(i) Possession of the suit property,
(ii) Demolition of structures unauthorisedly raised therein by the respondents; and
(iii) Compensation at the rate of Rs,10 per day for illegal use and occupation of the suit property.
' The previous arrears were calculated at Rs,9,110. The suit was contested by the respondents. Issues were framed. Evidence of the parties was being recorded. On 10-11-1984 the respondents filed an application informing the Court that appellant No,1 has sold away the suit property vide registered sale deed, dated 18-1-1984. The prayer made in the application was for the dismissal of the suit on the said count. The application was allowed by the learned trial Court vide order, dated 4-12-1984 and it proceeded to dismiss the suit. The appellants i.e, the plaintiffs as also their assignees vide the said sale-deed filed a first appeal which was heard by a learned Additional District Judge, Lahore who proceeded to partly allow the same vide order, dated 17-1-1988 inasmuch as the decree of dismissal was maintained in respect of the said reliefs (i) and (ii) while it was set aside qua the said relief (iii). The matter was accordingly remanded to the learned trial Court for trial accordingly. Against the said order of the learned Additional District Judge, Lahore the appellants have filed R.S.A. No,52 of 1988 while the respondents have filed cross-objections.
2. Learned counsel for the appellants contends that the impugned orders are against the law inasmuch as there is no warrant law that progress of suit and further proceedings therein leading to a decision thereof are- arrested by the alienation of the suit property by a party. Learned counsel for the respondents, on the other hand, argues that a party which has transferred its entire interest in the suit property cannot ask for ejectment in respect thereof.
3. For the former proposition a, judgment of the Supreme Court in the case of Kasim Tar Muhammad v. Mst. Sherbano and another (1987 SCM R 380) is relied upon while the learned counsel for the respondents rests his case on a judgment of the Privy Council in the case of Monghibai v. Cooverji Umerscy (AIR 1939 -PC 170), Mst. Maqbool Begum v. Gullan and others (PLD 1982 SC 46), Muhammad Sharif v. Dr. Khurshid Anwar Mian (1996 SCM R 781). Also relies on the case of C. Wright Nevillo v. E.H. Freser (AIR (31) 1944 Nagpur 137).
4. I have gone through the trial Court's records. It is an admitted fact that appellant No,1 did transfer the suit property in favour of appellant No,2 vide registered sale-deed, dated 17-1-1984. A perusal of the order, dated 4-12-1984 of the learned trial Court would show that the learned trial Court has acted under the impression that a suit for possession of property cannot be continued by a plaintiff who has sold away the same. The learned Additional District Judge has also formed the same opinion and has relied upon the said judgment of the Privy Council in the case of "Monghibai".
There is no provision of law and learned counsel for the respondent has not been able to point out one which warrants the passing of the impugned judgments and decrees of the learned Courts below. The matter of assignment pendent lite is governed by Order XXII, Rule 10, C.P.C. It will be advantageous to reproduce the said provision of law hereunder:--
10. Procedure in case of assignment before final order in suit:---
(1) hi other cases of an 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 developed.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
' A bare look on the said provision would show that it is not intended thereby to arrest the hearing of a suit in case a party to the suit alienates the suit property. On the other hand, the suit can be continued by the parties already on record. However, in case the assignee wishes to continue the- suit he may do so by leave of the Court. The said provision of law came up for interpretation before the Supreme Court of Pakistan in the case of Mst. Surraya Begum and others v. Suban Begum and others (1992 SCM R 652). It was thus observed by the apex Court at page 662 of the report: "Order XXII, Rule 10, C.P.C. Is a residuary rule, governs cases not provided for by Rules 1 to 9. Rules 10 and 11 of Order XXII, C.P.C. Read together indicate that in making Rule 10 applicable to appellants the word "suit" in Rule 10 is to be read as including an appeal, that is to say that word suit has to be read as suit or appeal. Thus, indicating that the. Appellate Court also has jurisdiction to implead an assignee as a party to the appeal although that assignment was made in his favour during the pendency of the suit. Order XXII, Rule 10, C.P.C. Is a permissive provision which enables the assignee to continue the suit in place of the assignor. The assignee need not bring himself on record, if he feels that his interest is being protected by his assignor, in which case the decision for and against the assignor would be binding upon him and suit in such a case would be treated as continuing for the benefit of the assignee, who can, after the decree is passed, file execution proceedings. It is only when the assignee feels that his interest is in jeopardy and not likely to be protected by the assignor he can apply to become either a party under Order I, Rule 10, C.P.C. Or be substituted by his assignor under Order XXII, Rule 10, C.P.C. In the former case, the decree for or against the assignor would be -binding on the assignee and, the assignee would be deemed fully represents through the decree-holder and in the latter case the decree would be treated as one for or against the assignee as transferee of the assignor. In both the cases, the decree covers the assignor, the first directly and the second impliedly".
5. I may here now refer to the said judgment of the Privy Council being relied upon by the learned counsel and that has been also relied upon by the learned Additional District Judge. It is true that at page 173 of the said report it has been observed by the Privy Council that "No doubt it is true that parties who have assigned the whole of their interests pendente lite cannot ask for judgment in respect of an interest which is no longer theirs". However, the observation further proceeds "But it does not follow that their assignees are thereby precluded from recovering. If it were so, no assignments of property during the course of a trial would be possible. Such a contention is, on the face to it, improbable". Thereafter, their Lordships referred to Order --XVII, Rule 1 of the Rules of the Supreme Court to the effect that "a case or matter shall not become defective by the assignment of any estate or title pendente lite". Thereafter, their Lordships referred to Order XXII, Rules 10(1) and 11, C.P.C.
6. It will be seen that the Supreme Court of the country has definitely taken a different and broader view of .The matter which is in line with the said provisions of law read in the light of equitable principles underlying section 52 of Transfer of Property Act, 1882. Their Lordships of the Privy Council also did not by any means hold that proceedings in the suit would be arrested and , reference to the said Rule of the Supreme Court Rules in the judgment speaks for the said proposition.
7. I may further add here that provisions of Order I, Rule 10, C.P.C. Vests ample powers in a Court to see to it that proper parties are brought before it. Rule 10(2), C.P.C. Lays down that the Court may at any stage of the proceedings, either upon or without application of either party and on such terms as may appear to the Court to be just, 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 effectively and completely to adjudicate on and settle all the questions involved in the suit be added.
8. In the light of the above discussion, the learned trial Court upon being informed of the assignment made by appellant No,1 had two options and no thir4 option. It could either have continued with the suit as it was or if it felt that the presence of the assignees is necessary for the purposes mentioned in Order I,. Rule 10 (2), C.P.C., it ought to have directed the irpleadment of the assignees as parties to the suit. As held by the apex Court in the aforenoted case of Mst. Surrayya Begum and others the same powers could have been exercised by the learned First Appellate Court before whom the assignees were present as appellants. Both the learned Courts below have, therefore, acted in a manner not warranted by law rather have acted without lawful authority in dismissing the suit wholly or partly on the sole ground that appellant No,1 had assigned his interest in the suit property. Section 108, C.P.C. Read with section 107, C.P.C. Empowers this Court to pass same orders as can be passed by a learned trial Court or a learned First Appellate Court. In the present case, to my mind the presence of the assignees is necessary for an effective adjudication of the entire matter in controversy between the parties. I, therefore, grant leave to the assignees to continue the suit. This R.S.A. Is accordingly allowed. The order, judgments and decrees of both the learned Courts below are set aside. The result would be that the suit shall be deemed to be pending before the. Learned Senior Civil Judge, Lahore where the parties shall appear on 30-5- 2001. After obtaining the amended pleadings, the learned Senior Civil Judge shall commence the proceedings from the stage they were immediately before filing of the application, dated 10-11- 1984 by the respondents. The matter shall then be decided in accordance with law preferably before 31-7-2002. No orders as to costs. The record of the learned trial Court be immediately remitted back to the learned Senior Civil Judge, Lahore.