Pakistan Case LawMuhammad Saad Hayat Versus Arif Hussain
Ahmad Nadeem Arshad, J .--- Through this Civil Revision filed under section 115 of Code of Civil Procedure, 1908 , the petitioner has called in question the validity and legality of judgment and memo of cost dated 01.09.2018 pursuant whereto his application under Section 12(2) of the Code of Civil Procedure, 1908 (C.P.C), was dismissed.
2.Facts in brevity are that the petitioner filed an application under Section 12(2) C.P.C. and challenged the judgment and decree dated 26.09.2012 whereby suit for declaration filed by respondents Nos.1 to 3 titled as Arif Hussain and others v. Sughran Bibi and others was decreed and judgment and decree dated 26.03.2015 whereby the appeal against said decree was dismissed. Contention of the petitioner was that said judgments and decrees have been procured through fraud and misrepresentation. He maintained that he purchased the suit property through registered sale deed dated 11.09.2011 from Sughran Bibi, Sheedan Bibi, Hameedan Bibi and Razia Bibi (respondents Nos.4, 7, 8 and 9) followed by mutation No.1938 dated 26.07.2011. He averred that the respondents Nos.1 to 3 procured the judgments and decrees without impleading him as a party, hence, committed fraud with the Court. Learned Appellate Court, after getting reply of the application, dismissed the same vide judgment and memo of cost dated 01.09.2018. Hence, this petition.
3.I have heard learned counsel for the parties at length and gone through the record with their able assistance.
4.It evinces from the record that respondents Nos.1 to 3 instituted a suit for declaration titled as Arif Hussain and others v. Sughran Bibi and others on 25.01.2002 by maintaining that they purchased land measuring 55 Kanals and 11 Marlas through different transactions from predecessor of respondents Nos.4 to 9 namely Nazir Ahmad, however, subsequently entitlement of Nazir Ahmad was reduced to 40 Kanals and 08 Marlas. They further narrated that said Nazir Ahmad acquired land measuring 18 Kanals and 03 Marlas, hence, the deficiency of their land to the extent of 15 Kanals and 03 Marlas be made up first. Respondents Nos.4 to 12 also instituted their independent suit for declaration titled Sughran Bibi and others v. Arif Hussain and others on 25.06.2002 and challenged the alienations made by Nazir Ahmad in favour of respondents Nos.1 to 3. Learned Trial Court consolidated both the suits. During the pendency of said suits, Sughran Bibi widow of Nazir Ahmad got recorded her consenting statement on 11.06.2004. After recording evidence of the respondents Nos.1 to 3, case was adjourned for the evidence of respondents Nos.4 to 12 but they failed to adduce any evidence despite availing numerous opportunities, therefore, their right to produce evidence was closed by the learned Trial Court vide order dated 02.11.2011 and thereafter suit of respondents Nos.1 to 3 was decreed vide judgment and decree dated 26.09.2012. Feeling aggrieved, respondents Nos.4 to 12 preferred an appeal which was dismissed vide judgment and decree dated 26.03.2015.
5.The petitioner purchased land measuring 09 Kanals and 12 Marlas during the pendency of the suit through registered sale deed dated 11.05.2011 from respondents Nos.4 and 7 to 9. In the light of said sale deed, mutation No.1938 was attested on 26.07.2011.
6.Admittedly, the petitioner purchased the suit property during the pendency of the suit, therefore, the principle of lis pendens was fully applicable.
7.It is well settled that when a party purchases property during the pendency of litigation, the principle of lis pendens , as embodied under Section 52 of the Transfer of Property Act, 1882, squarely applies. The doctrine is founded on public policy to prevent the defeat of the ends of justice by alienating the disputed property during litigation. For facility of reference Section 52 of the Act ibid is reproduced as under:-
52. Transfer of property pending suit relating thereto. During the pendency in any Court having authority in Pakistan, or established beyond the limits of Pakistan by the 'Federal Government, any suit or proceeding which is not collusive and in which any right to immovable property is directly and Specifically in question, the property cannot be transferred to otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation : For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution continue until the suit or proceeding has been disposed of by a of the proceeding in a Court of competent jurisdiction, and to final decree or order and complete satisfaction or discharge of unobtainable by reason of the expiration of any period of such decree or order has been obtained, or has become limitation prescribed for the execution thereof by any law for the time being in force."
8.In the instant case, the petitioner admittedly purchased land measuring 09 Kanals and 12 Marlas from respondents Nos.4 and 7 to 9 through a registered sale deed dated 11.05.2011 followed by mutation No.1938 on 26.07.2011, while the declaratory suits between respondents Nos.1 to 3 and respondents Nos.4 to 12 were already subjudice since 2002. Thus, the petitioner was a pendente lite purchaser, and the doctrine of lis pendens is fully attracted to his transaction and the rights of the decree-holder shall be protected. Reliance is placed on the case titled Khadim Hussain v. Abid Hussain and other (PLD 2009 SC 419).
9.The legal effect of a purchase made pendente lite is that the purchaser steps into the shoes of his vendor and acquires no better title than that of the seller. The law does not nullify the transfer altogether but subordinates it to the rights of the parties as may be eventually determined in the pending litigation. In other words, a subsequent purchaser takes the risk of the outcome of the litigation and is bound by the decree passed therein. A pendente lite transferee must sink or swim with the transferor. If the seller loses the case, the purchaser cannot claim an independent right in derogation of the decree or allege fraud to set aside the decree obtained against his seller. Therefore, the petitioner, having purchased the suit property from respondents who ultimately failed to establish their claim before the Court, cannot claim a right superior to theirs.
10.Hon ble Supreme Court of Pakistan in a case titled Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905), while explaining the principle of lis pendens observed that the transferee of the suit property, even the purchaser for value, without notice of the pendency of the suit, who in the ordinary judicial parlance is known as a bona fide purchaser, in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects. The apex Court also highlighted that even if an alienation of the suit property has been made by the party to the lis , who succeeds at one stage (such as trial), but the transfer is during the period of limitation available to the other (unsuccessful) party, to challenge the decision and ultimately the decree/order is over turned in its further challenge, such alienation made shall also be hit and shall be subject to the rule of lis pendens . Relevant portion is reproduced as under:-
The aforesaid section manifestly embodies the rule of lis pendens, which is available both in equity and at the common law. The rule and the section is founded upon the maxim "pendente lite nihil innovetur", which means that pending litigation, nothing should be changed or introduced. The virtual and true object of lis pendens is to protect and safeguard the parties to the suit and their rights and interest in the immovable suit property against any alienation made by either of the parties, of that property, during the pendency of the suit in favour of a third person. The rule unambiguously prescribes that the rights of the party to the suit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value, without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchasers in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The Transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest. The rule of lis pendens is founded upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienations pendente lite are permitted to prevail and the subsequent transferee is allowed to set out his own independent case, even of being the bona fide transferee against the succeeding party of the matter and ask for the commencement of de novo proceedings so as to defeat the claim which has been settled by a final judicial verdict. The foundation of the doctrine is not rested upon notice, actual or constructive, it only rest on necessity and expediency, that is, the necessity of final adjudication (Emphasis supplied) that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated.
11.In another case titled Mst. Tabassum Shaheen, v. Mst. Uzma Rahat and others (2012 SCMR 983), Hon ble Supreme Court of Pakistan, while elaborating Section 52 of the Transfer of Property Act, 1882, and the principle of lis pendens , observed as under:
5. The afore-referred provision enshrines the age old and well established principle of equity that ur lite pendente nihil innovetur (pending litigation nothing new should be introduced) and stipulates that pendente lite parties to litigation wherein right to immovable property is in question, no party can alienate or otherwise deal with such property to the detriment of his opponent. Any transfer so made would be hit by this Section. The doctrine by now is recognized both in law and equity and A underpins the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail. The effect of such alienation would be that the plaintiff would be defeated by defendants alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with lurking fear that he could again be defeated by the same trick. The doctrine of lis pendens in pith and substance is not only based on equity but also at good conscience and justice. In Lalji Singh v. Rameshuwar Misra ((1983) 9 All LR 269 (271) (All)), the essential ingredients of section 52 ibid or the conditions precedent to attract this principle were construed as follow:--
12.The petitioner could not acquire any independent right to challenge the decrees passed in favour of respondents Nos.1 to 3 even on the score of being a bona fide purchaser because the provisions of Section 52 ibid are not subservient to Section 41 of the Act or Section 27(b) of the Specific Relief Act, 1877, or the general equitable concept of bonafide purchaser. Rather the Section and the Rule of lis pendens is an exception to the above provision/concept and the petitioner could only sustain in his claim to challenge the decree on the basis of three conditions enshrined in Section 52 (referred supra) but he has failed to make out a case within the preview thereof. In Mst. Tabassum Shaheen s case (referred supra), Hon ble Supreme Court in this regard observed as under:
"8. So far as the plea of the petitioner with reference to section 41 of the Transfer of Property Act is concerned, there is no cavil to the proposition that in terms of the said provision, a bona fide purchaser for value is fully protected. However, the doctrine of lis pendens enshrined in section 52 of the Transfer of Property Act is an exception and the impugned sale has rightly been concurrently held to be hit by the said doctrine."
13.It is equally significant to note that the petitioner was aware of the pending litigation and, in fact, filed an application under Order I Rule 10 of the Code of Civil Procedure, 1908, seeking his impleadment as a party to the suit. However, the learned Trial Court, after examining the matter, rejected his application on 15.04.2010. Despite having knowledge of the suit proceedings and an adverse order declining his impleadment, the petitioner chose not to assail the said rejection before a higher forum. The said order thus attained finality and binds the petitioner. Having allowed the judicial determination to proceed without his participation, the petitioner is now estopped from alleging that the decrees were obtained through fraud or misrepresentation, particularly when his vendors were arrayed as parties, participated in the trial, and chose not to contest the case effectively.
14.In view of the above, the petitioner cannot be permitted to circumvent the finality of judicial proceedings by invoking Section 12(2) C.P.C. to re-agitate matters already adjudicated. Courts have consistently held that fraud must be of an egregious nature that is perpetrated upon the Court and not merely between parties, and must be established by clear and convincing evidence. In the present case, no such fraud upon the Court has been demonstrated. Rather, the litigation proceeded in accordance with law, parties were heard, and judgments were passed on merits. The application under Section 12(2) appears to be a belated attempt by a subsequent purchaser to protect his interest despite having constructive notice of the litigation and a failed attempt at impleadment.
15.During the course of arguments, learned counsel for the petitioner much emphasized that the learned Appellate Court decided petitioner s application under Section 12(2) C.P.C without framing of issues and recording evidence of the parties. Although, determination of allegation of fraud and misrepresentation usually involves investigation into the question of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for the decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. The framing of issues depends on the circumstances of each case, the nature of alleged fraud and a decree so obtained. Framing of issues in every case to examine the merits of the application would certainly frustrate the object of Section 12(2), C.P.C which is to avoid, protracted and the time-consuming litigation and to save the genuine decree-holder from grave hardships and ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts.
16.The august Supreme Court of Pakistan in its recent judgment while elaborating this proposition in a case titled Hafiz Malik Kamran Akbar and others v. Muhammad Shafi (deceased) Through L.Rs. and others (PLD 2024 SC 262) held as under:
It is a well-settled exposition of law that for determining the grounds of alleged fraud, misrepresentation or want of jurisdiction, if any, raised in the application moved under section 12(2), C.P.C., the Court is not obligated in each and every case to frame issues mandatorily in order to record the evidence of parties and exactly stick to the procedure prescribed for decision in the suit but it always rests upon the satisfaction of the Court to structure its proceedings and obviously, after analyzing the nature of allegations of fraud or misrepresentation, the Court may decide whether the case is fit for framing of issues and recording of evidence, without which the allegations leveled in the application filed under Section 12(2), C.P.C. cannot be decided.
It is correct that the determination of allegations of fraud and misrepresentation usually involve investigation into the questions of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties, and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. The matter is left to the satisfaction of the Court which has to regulate its proceedings, and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. Whereas in the case of Mrs. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCMR 296), it was held by this Court that while dealing with the allegations under section 12(2), C.P.C., it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit. In the case of Amiran Bibi and others v. Muhammad Ramazan and others (1999 SCMR 1334), this Court held that there is no cavil that determination of allegations of fraud and misrepresentation ordinarily involve investigation into the questions of fact and in such cases an inquiry should ordinarily be held to adjudicate upon the matter in issue but it is not the requirement of law that the Court, while dealing with the allegation under section 12(2), C.P.C., must in all circumstances frame issues, record evidence and follow the procedure prescribed for decision of the suit which depends upon the facts of each case in consonance with justice.
17.For the foregoing reasons, learned Appellate Court has rightly dismissed petitioner s application under Section 12(2) C.P.C. Learned counsel appearing on behalf of the petitioner remained unable to point out any illegality, irregularity or jurisdictional defect in the impugned judgment/memo of cost, warranting interference by this Court while exercising Revisional jurisdiction under Section 115 of C.P.C.
18.As a corollary of above discussion, this petition is dismissed being devoid of any force/substance. No order as to cost.
UN/M-183/L Revision dismissed.
Judges on this bench
- Ahmad Nadeem Arshad203 judgments