P L D 2023 Balochistan 93
Before Zaheer ud Din Kakar and Gul Hassan Tareen, JJ
Syeda NAYYAR SULTANA---Petitioner
Versus
Syeda SHUMAILA ZAIDI and others ---Respondents
Constitution Petitions Nos. 1709 and 1710 of 2022, decided on 8th May, 2023.
Transfer of Property Act (IV of 1882) ---
----Ss. 41 & 52--- Civil Procedure Code (V of 1908), O. I, Rr.3 & 10, & O.XIII, R. 2---
Doctrine of pendente lite ---Doctrine of lis pendens ---Equitable doctrine of estoppels ---
Necessary or proper party ---Public policy --- Scope --- Petitioner moved the Civil Court with
two applications, one for impleading a person as a party to the suit whom he (petitioner)
asserted as vendee of suit -property having purchased suit -property during the pendency of
suit; and the second (application) was for placement of an agreeme nt regarding said purchase
on record---Civil Court dismissed both applications, which order was maintained by the Appellate Court ---Contention of the petitioner was that the said vendee was a necessary party
and if he was not impleaded then the decree passed, would not be executable against such person--- Held, that the contention of the petitioner was misconceived because a person who
had purchased an immoveable property (subject -matter of suit) from a party to the suit, such
person was neither a necessary nor a proper party, even though such purchase was without
notice of the pendency of suit in good faith and for consideration---If a purchaser, bona fide or otherwise, having been purchased suit -property during pendency of suit was allowed to be
a necessary party, then there would be an endless multiplicity of litigation ---In order to
overcome such situation and not to deprive a party from fruits of decree, the doctrine of lis pendens through S. 52 of the Transfer of Property Act, 1882 ('the Act 1882') had been introduced---Said doctrine rested on an equitable principle of 'ut lite pendente nihil innovetur' which meant 'pending litigation, nothing new should be introduced'---Section 52 of the Act 1882 was founded upon the public policy that any person purchasing suit -property
during pendency of suit was bound by the judgment that could be made against the person from whom he had derived title, even though he (vendee) was not a party to the suit; and even he was a bona fide and innocent purchaser/ transferee ---Although a transferee, who had
purchased subject -matter of the suit before institution of suit, was entitled to be impleaded as
defendant under O. I, R. 3 of the Civil Procedure Code, 1908, or during pendency of suit under O. I, R. 10 of the Civil Procedure Code, 1908, to defend his title as well as to prove that his transfer was protected by the statutory application of the equitable doctrine of estoppel as embodied in S. 41 of the Act, 1882, however, the said protection under S. 41 of the Act, 1882 was not available to a purchaser pendente lite, as the principle of lis pendens was based on public policy i.e. there should be an end of litigation--- Section 41 of the Act
1882 was subordinate to S. 52 of the Act, 1882 or, in other words, the principle of lis pendens embodied in S. 52 of the Act 1882 superseded the statutory application of law of
estoppel ---Principle of lis pendence operated very hard but it was a rule founded upon public
policy, for otherwise alienations pendente lite would defeat the very purpose of law ---Effect
of such principle was not to annul the conveyance of the vendee but only to render the same
subservient to the right of parties as well as the final outcome of the lis ---Transferee of
subject -matter of a lis was not entitled to be impleaded in the suit and to defend his title
independently; and had to swim and sink with the defendant from whom he had purchased
the suit- property--- Respondent (alleged vendor) had though denied selling out the suit -
property; and even if he had sold it, the alleged vendee was neither a necessary nor a proper
party; and he would be bound by the final outcome of the suit as the respondent/vendor would be, on the principle of lis pendens ---No interference by the High Court in concurrent
orders passed by both the Courts below was made out ---Constitutional petitions were
dismissed, in circumstances.
Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and
Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905
ref.
Syed Saleem Akhtar for Petitioner.
Khalil -ur-Rehman and for Respondents Nos. 5 and 6.
Respondent No.1- F as well as attorney for Respondents Nos.1- A to 1 -E and 2 to 4)
present in person.
Date of hearing: 4th May, 2023.
JUDGMENT
GUL HASSAN TAREEN, J. ---Through this common order, we intend to decide the
Constitutional Petitions Nos. 1709 and 1710 of 2022, filed by the petitioner against concurrent orders passed by the Courts below whereby applications made by the petitioner, under Order I, Rule 10 and Order XIII, Rule 2, the Civil Procedure Code, 1908 ('C.P.C') were dismissed.
2. Briefly, facts of the case are that respondent Nos. 1 to 4 instituted a Civil Suit for
declaration, possession, cancellation of mutation entry No. 828 against the petitioner and the Respondent Nos. 5 to 7, which came up for hearing before the Court of learned Civil Judge -
IX, Quetta ('Trial Court'). During pendency of the suit, petitioner made two applications before the Trial Court, one under Order I, Rule 10, C.P.C for impleading Munir Ahmed Baloch as party in the suit who, during pendency of the suit, allegedly purchased the suit property from the respondent No. 6 vide agreement dated 29 January, 2018 and the second under Order XIII, Rule 2, C.P.C for placement of said agreement. The applications were contested and vide separate orders of even date i.e. 17 June, 2022; the Trial Court dismissed both applications. Against such orders, the petitioner preferred Civil Revision Petitions Nos. 12/2022 and 14/2022. The Court of learned Additional District Judge -IX, Quetta vide
separate orders dated 06 October, 2022 dismissed the Civil Revision Petitions.
3. We have heard Mr. Saleem Akhtar, the learned counsel for the petitioner, attorney of
respondents Nos. 1- A to 4 in person and Mr. Khalil -ur-Rehman, the learned counsel for the
respondent Nos. 5 and 6 and gone through the record of the case.
4. The petitioner made two applications before the Trial Court, one for impleading
Munir Ahmed Baloch and the second for placement of an agreement dated 29 January, 2018
on record of the suit, whereby the said Munir Ahmed Baloch purchased the suit property during pendency of the suit. The petitioner's counsel contends that the said vendee is a necessary party and if he is not impleaded than the decree that may be passed would not be executable against such person. The contention of petitioner's counsel is misconceived, because a person who purchases an immovable property (subject matter of suit) from party to the suit, such person is neither a necessary nor a proper party even though, he purchases such property without notice of the pendency of suit, in good faith and for consideration. Where it is allowed that a purchaser, bona fide or otherwise, who purchases suit property during pendency of the suit, is a necessary party, then there would be no end of litigation and it would result in an endless multiplicity of litigation. In order to overcome, such situation and not to deprive a party from the fruits of a decree, law has introduced the doctrine of lis pendens through section 52, the Transfer of Property Act, 1882 ('T.P.A'). The doctrine of lis
Pendens, embodies in section 52 rests on an equitable principle of 'ut lite pendente nihil
innovetur' (pending litigation, nothing new should be introduced).
5. The provision of section 52, T.P.A, is founded upon great public policy, that whoever
purchases a property during pendency of a suit, he is bound by the judgment that may be made against the person from whom he derived title even though he was not a party to the suit and even a bona fide and innocent purchaser/transferee. Though a transferee, who purchased subject matter of a suit before institution of suit is entitle to be impleaded as
defendant in the suit under Order I, Rule 3, C.P.C. or during pendency of suit under Order I, Rule 10, C.P.C to defend his title and to prove that his transfer is protected by the statutory application of the equitable doctrine of estoppel as embodied in section 41, the T.P.A. However, the protection of section 41 T.P.A. is not available to a purchaser pendente lite, as the principle of lis pendens is based on public policy, that there should be an end of litigation. Section 41, the T.P.A is subordinate to section 52 of the T.P.A or in other words the principle of lis pendens embodied in section 52, T.P.A. supersedes the statutory application of law of estoppel.
6. The principle of lis pendens operates very hardly but it is a rule founded upon public
policy, for otherwise alienations pendente lite would defeat the very purpose of law. The effect of such principle is not to annul the conveyance of the vendee, but only to render it subservient to the right of parties and to the final outcome of the lis. The Supreme Court of Pakistan in the case of Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) authoritatively held as under:
"5. The afore -referred provision enshrines the age old and well established principle
of equity that ut 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 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: -
(i) the pendency of any suit or proceeding in a court law;
(ii) the court must have jurisdiction over the person or property;
(iii) the property must have specifically described and should be affected by the termination of the suit or proceedings;
(iv) the right to the said property be directly and specifically be in question in any suit or proceeding;
(v) an alienation of such immovable property without the permission or order of the court; and
(vi) the alienation should be during the pendency of any such suit or proceeding and a suit or proceeding in question is not collusive.
7. A transferee of subject matter of a lis is not entitled to be impleaded in the suit and to
defend his title independently and has to swim and sink with the defendant from whom he purchased the suit property. Reliance is placed on the case reported as Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905).
8. The respondent No. 6 has, though denied that he has not sold out the suit property,
even if he has, even then, the said Munir Ahmed Baloch is neither a necessary party nor a proper party and he would be bound by the final outcome of suit as respondent No. 6 would be, on the principle of lis pendens.
For afore discussion, we are not inclined to interfere with the impugned concurrent
orders of the Courts below, as such, the Constitutional Petitions are dismissed.
MQ/78/Bal. Petitions dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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