2007 S C M R 882

2007 S C M R 882

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

MUHAMMAD SHAHBAN and others----Petitioners

Versus

FALAK SHER and others----Respondents

C.P.L.A. No.3231-L of 2001, decided on 28th February, 2007.

(On appeal from the judgment/order, dated 15-8-2001 passed by the Lahore High Court, Lahore in Writ Petition No.1231 of 1991).

(a) Transfer of Property Act (IV of 1882)---

----S. 52---Civil Procedure Code (V of 1908), O.I, R.10---Transferee pendente lite---Impleading such transferee as party in suit---Transferee not alleged to have purchased property by fraud or misrepresentation or collusion with defendant---Held, transferee would be a proper party.

Mukhtar Beg's case 2000 SCMR 45 distinguished.

Mst. Sant Kaur's case AIR 1946 Lah. 142; Rustam Ali's case 1988 CLC 779; Malik Muhammad Iqbal's case 1990 CLC 670; PLD 1970 SC 288 and PLD 1993 SC 53 ref.

Khaista Jan's case 1984 SCMR 709; Rashid Ahmad's case 1997 SCMR 171; Fazal Karim's case PLD 2003 SC 818; M. Zafar-uz-Zaman's case PLD 2001 SC 449; Haji Abdullah's case 1987 SCMR 1825 and Abdul Wali Khan's case PLD 1975 SC 463 rel.

(b) Civil Procedure Code (V of 1908)---

----O. I, R.10-Addition of parties in suit---Scope---Court vested with wide discretion to add parties at any stage of suit to avoid multiplicity of proceedings. 

Ghulam Ahmad Chaudhry's case PLD 2002 SC 615 rel.

(c) Constitution of Pakistan (1973)---

----Arts. 189 & 190---Judgment of Supreme Court would be binding on each and every organ of the State. 

(d) Administration of justice---

----Judge must wear all the laws of country on the sleeve of his robe----Failure of counsel to properly advise Judge would not be a complete excuse in the matter. 

Muhammad Sarwar's case PLD 1969 SC 278 rel.

Mian Allah Nawaz, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th February, 2007.

JUDGMENT

CH. IJAZ AHMED, J.--- The detailed facts out of which the present petition arises are that Falak Sher and three others filed suit for declaration in the Court of Civil Judge, Bahawalpur against Mst. Sharifan Bibi present petitioner No.3 on 3-12-1985 wherein the respondents have sought declaration challenging the validity of following mutations:---

(i) Mutation No.925, dated 18-6-1979, (ii) Mutation No.1960, dated 18-11-1980, (iii) Mutation No.974, dated 7-7-1981 and (iv) Mutation No.1043, dated 24-4-1984.

2. Ahmad Hassan had transferred various tracts of land to Mst. Sharifan Bibi petitioner No.3 by way of Tamleek as depicted from the aforesaid mutations. During the pendency of the suit filed by Falak Sher and others, Ahmad Nawaz also filed a suit against Mst. Sharifan Bibi for specific performance of the contract in the Court of Civil Judge, Bahawalpur on 30-12-1986. Consent decree was passed in favour of Ahmad Nawaz on 6-2-1989 who sold the land obtained by him through consent decree to petitioners Nos.1, 2, 14 and 15 predecessor-in-interest of respondents Nos.16-A to 16-N, 17 to 19 through various mutations sanctioned on 30-4-1989, 5-12-1989 as evident from the contents of their application. The trial Court framed 8 issues in the suit for declaration filed by the respondent against Sharifan Bibi on 17-3-1986. Petitioner No.3/defendant in the said suit was granted various opportunities to produce her evidence but she failed to avail the same, consequently, the trial Court closed the evidence on 22-5-1989 under Order XVII, rule 3, C.P.C. Petitioner No.3/defendant filed revision petition before the Additional District Judge who dismissed the same vide order, dated 1-7-1989. Petitioners filed application under Order I, rule 10, C.P.C. in the suit for declaration before the trial Court on 1-3-1990. The respondents filed written reply and controverted the allegations levelled in the application. The trial Court after hearing the arguments of counsel for the parties, accepted the same vide order, dated 29-10-1990. Respondents Nos.1 to 4 being aggrieved filed appeal in the Court of Additional District Judge who dismissed the same vide judgment dated 30-5-1991. Respondents being aggrieved filed writ petition in the Lahore High Court which was accepted and orders of the Courts below were set aside vide impugned judgment, dated 15-8-2001. Hence, the present petition.

3. The learned counsel for the petitioners submits that orders of the trial Court as affirmed by the First Appellate Court thereby impleading petitioners as party to the suit for specific performance was unjustifiably reversed by the High Court in exercise of its constitutional jurisdiction. Petition was fixed before this Court on 21-12-2006 in view of the aforesaid contention, office was directed to issue notice to the respondents for a date in the month of January, 2007. Office sent notice to the respondents Nos. 1 to 4 and according to report of process-server, service of the respondents have been effected who had refused to receive the summons. Despite service, respondents did not enter appearance, therefore, ex parte order is passed against them.

4. We have considered the submissions made by counsel for the petitioner and have perused the record. The learned High Court had reversed the orders of the Courts below on the ground that petitioners had purchased the land in question after filing the suit by the respondents Nos.] to 4 against the petitioner No.3 in the Court of Civil Judge on 3-12-1985 and the petitioners have allegedly purchased the land in question from Ahmad Nawaz vide mutation given in their applications dated 30-4-1989, 5-12-1989 in view of principle of lis pendens in terms of Order I, rule 10, C.P.C. and section 52 of the Transfer of the Property Act as law laid down by various High Courts and this Court. The learned High Court had non-suited the petitioners in view of following precedents:

(i) Mukhtar Beg's case 2000 SCMR 45, (ii) Mst. Sant Kaur's case AIR 1946 Lah. 142, (iii) Rustam Ali's case 1988 CLC 779 and (iv) Malik Muhammad Iqbal's case 1990 CLC 670.

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 (luring 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.

10. In view of what has been discussed above, this petition is converted into appeal and the same is allowed. Consequently, the judgment of the learned High Court is set aside and the orders of the Courts below are restored with no order as to costs.

S.A.K./M-26/SC                                                                                 Appeal accepted.