1997 SCMR 171
1997 SCMR 171
[Supreme Court of Pakistan
Present: Saiduzaman Siddiqui and Irshad Hasan Khan, JJ
RASHID AHMAD‑‑‑Appellant
versus
Mst. JIWAN and 5 others‑‑‑Respondents
Civil Appeal No. 118 of 1992, decided on 20th November, 1996.
(On appeal from the judgment dated 18‑11‑1994 of the Lahore High
Court, Bahawalpur Bench, passed in C.M. 1‑91/BWP in R.S.A. 481/70).
(a) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑S. 52‑‑‑Lis pendens, doctrine of‑‑‑Constitution of Pakistan
(b) Transfer of Property Act (IV of 1882)‑‑‑
‑‑‑‑S. 52‑‑‑Civil Procedure Code (V of 1908), O.XXII, R. 10, 0.1,
R. 10 & S.146‑‑Lis pendens, doctrine of‑‑‑Scope and application‑‑‑Provision
of S. 52, Transfer of Property Act, 1882 does not preclude the transferee
pendente lite from being made a party to the pending proceedings on the basis
of such transfer‑‑‑Principles.
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 Rule 10 of Order XXVII, C.P.C. apply equally to appeals.
Supreme Court allowing the appeal, granted the application of
appellant under Order 1, Rule 10, C.P.C. filed before the High Court and
directed that he may be impleaded as respondent in the pending R.S.A.
Muhammad Munir Paracha, Advocate Supreme Court instructed by Rana
Maqbool A. Qadri, Advocate‑on‑Record (absent) for Appellant.
Nemo for Respondents.
Date of hearing: 20th November, 1996.
JUDGMENT
SAIDUZZAMAN SIDDIQUI, J.‑‑‑Respondent No.1 owned agricultural land
measuring 13 Kanals situated in Chak NO.II/Ford, Tehsil Chishtian, District
Bahawalnagar (hereinafter to be called as the suit land). She sold the suit
land to Muhammad Ismail (deceased predecessor‑in‑title of respondents Nos. 3 to
6), for Rs. 1,000 through Mutation No. 428 dated 15‑10‑1966. The suit land was
subsequently sold by respondent No. l through a registered sale‑deed in favour
of respondent No.2. Muhammad Ismail (deceased) instituted a civil suit against
respondents Nos. l and 2 for declaration of title and cancellation of sale‑deed
executed by respondent No. l in favour of respondent No.2. The trial Court
dismissed the suit holding that the registered sale in favour of respondent
No.2 had precedence over to oral sale made in favour of predecessor‑in‑title of
respondents Nos.3 to 6, by respondent No. 1. The trial Court further held that
sale of suit land in favour of respondent No.2 by respondent No. l was without
notice of the earlier oral sale in favour of Muhammad Ismail (deceased).
Muhammad Ismail (deceased) challenged the judgment and decree of the trial
Court in appeal before Additional District Judge, Bahawalpur
2. Muhammad Ismail (deceased) who felt aggrieved by the judgment
and decree of lst Appellate Court lodged R.S.A. No. 481 of 1974 before
Bahawalpur Bench of Lahore High Court against the judgment and decree of 1st
Appellate Court. The appellant applied to be joined as respondent in R.S.A.
No.48/1970 before the High Court, on the strength of registered sale deed in
his favour. The learned Judge in Chamber, however, declined to implead the
appellant as a party in the pending R.S.A. on the ground that doctrine of lis
pendens applied to the case of the appellant. Leave was granted against the
order of learned Judge in Chamber to consider the following contentions:‑‑
"The question for consideration in this petition is whether
the rule of lis pendens can be set up as a bar to an application by a
transferee pendente lite from being impleaded as a party to the pending
proceedings. Leave to appeal is granted to consider this question. Security for
costs Rs.5,000."
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
I 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,
1 C. P. C. apply equally to appeals.
4. 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.
5. We accordingly, allow the appeal, grant the application of appellant
under Order 1, Rule 10, C.P.C. filed before the High Court, and direct that he
may be impleaded as respondent in the pending R.S.A. As the respondents have
not appeared and defended the appeal there will be no order as to costs.
M.B.A./R‑289/S Appeal
allowed,
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