ORDER WITH THE SIGNATURE OF THE JUDGE

1. For further orders on appointment of another Commissioner

for recording evidence.

2. For hearing of C.M.A. No. 14413/2015

3. For hearing of C.M.A. No. 3585/2013

4. For hearing of C.M.A. No. 3585/2013

5. For hearing of C.M.A. No. 12461/2011

23.12.2015

Mr. M. Ilyas Khan Tanoli, advocate for the plaintiffs. Mr. Naseer Ahmed, advocate for the applicant/intervener.

Mr. S. Hassan Ali, advocate for Defendant No. 1.

Mr. Sharaf Din Mangi, State Counsel.

CMA 14413/2015.

By means of this application, the applicant/intervener/New Model Town Cooperative Housing Society has made a request to implead it as a party in the present proceedings on the ground that the subject property was sold by Defendant No. 1 to it vide Sale Deed dated 12.02.2008 registered on 21.02.2008. Its case is that presently in pursuance of the above sale deed, it is in possession of the subject property and the result of the suit going in either way, its interests would be affected. Learned counsel for the applicant has also referred to the documents attached with the above application to establish his point.

Learned counsel for the plaintiff while opposing this application has argued that the sale agreement pursuant to which the sale deed appears to have been executed is a forged document, which is apparent from the terms and conditions stated therein at page 3 thereof. He states that Defendant No. 1 filed her written statement on 22.09.2008 wherein she did not mention that the subject property was sold by her to the intervener. He states that purported sale and possession of the property to the intervener is an after-thought to defeat the proceedings of this suit. He also contends that this application is incompetent for the reason that it is supported by an affidavit filed by the counsel himself. According to him under the law, the counsel for the parties cannot file an affidavit in support of any application which discloses some factual aspects of the case.

I have heard the parties and perused the application as well as the relevant documents, referred to by the parties during the hearing. This suit was filed in the year 2004 for declaration, possession, permanent injunction and recovery of mesne profits. The case of the plaintiffs is that they are owner of the subject property by way of a registered Sale Deed executed on 16.03.2004 by Defendant No. 1 in their favourand possession whereof was also handed over to them, but subsequently in February 2006 the possession thereof was forcibly snatched from them by Defendant No. 1 through her companions. It is worthwhile to mention here that the written statement filed by the Defendant No. 1 on 22.09.2008 does not reveal that she had sold out the property to the intervener, as claimed by him. The documents filed by the intervener show that initially Defendant No. 1 had agreed to sell her property to the intervener in the year 2007 through a sale agreement dated 14.4.2007, and that sale matured in the month of February 2008 when the sale deed was executed between the parties. Non-mentioning of such important fact by Defendant No. 1 in her written statement filed much after that time on 22.09.2008, gives rise to a presumption that at the time when written statement was filed by her no such sale had taken place, Nonetheless the intervener who is subsequent purchaser will be bound by the decision of the Court in the manner as Defendant No. 1 is, because during the pendency of this suit he has stepped in her shoes. The rights of the intervener are as protected as that of Defendant No. 1 and in case the plaintiffs fail to establish their case, the rights of the intervener, which apparently they have derived from Defendant No. 1, would also stand in the same position. Moreover, I am of the view that the learned counsel for the plaintiff has rightly contended that this application is incompetent for the reason that it is supported by an affidavit filed by the counsel for the intervener himself,as it discloses the factual aspects of the case, which admittedly the learned counsel cannot claim to have knowledge of. In these circumstances, the applicant/intervener does not appear to be a necessary party to be joined in the proceedings. With these observations, the application is dismissed.

J U D G E

ZahidBaig