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Petitioner: Allah Ditta and others VS Respondent: Muhammad Anwar and others
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title: Allah Ditta and others vs Muhammad Anwar and others Case No.: Civil Miscellaneous No. 3027 of 2015 in Civil Revision No. 1200 of 2002 Date of Judgment:2021-09-06 Reported As: 2022 YLR 336 Result: Revision allowed
JUDGMENT
JUDGMENT AHMAD NADEEM ARSHAD, J.---Through this Civil Miscellaneous application under section 12(2) of Code of Civil Procedure, 1908, the applicants challenged the validity of order dated 27.05.2015 passed by this Court on the grounds of fraud, misrepresentation and want of jurisdiction, whereby the Civil Revision No.1200-D of 2002 titled as "Muhammad Anwar and others v . Ata Ullah" was decided on the basis of compromise. 2. Brief facts, necessary for understanding and decision of this civil miscellaneous are that a registered agreement to sell dated 07.03.1979 was executed by Muhammad Hanif son of Haji Shah Muhammad, predecessor of pre- emptors/petitioners Nos. 6 to 10 (hereinafter called as respondents Nos.6 to 10) in favour of Atta Ullah respondent/vendee (herein after called as respondent No.11) regarding land measuring 110 kanal situated at Khewat No.21, Khatoni Nos. 200 to 215 mouza Mustafa Abad Tehsil and District Vehari (herein after referred as suit property). Respondent No.11 instituted a suit for specific performance of said agreement to sell regarding the suit property against Muhammad Hanif and the latter also instituted a suit for declaration against respondent No.11 by seeking cancellation of said agreemen t to sell before the Court of learned Senior Civil Judge, Vehari. Both the suits were consolidated and after full-fledged trial, the suit of respondent No. 11 was dismissed while the suit instituted by Muhammad Hanif was decreed by the learned trial Court vide judgment and decree dated 09.07.1985. Feeling aggrieved, respondent No.11 preferred an appeal which was allowed on 27.11.1990, resultantly his suit stood decreed and suit of Muhammad Hanif stood dismissed. A revision petition against that judgment and decree was filed by Muhammad Hanif which was dismissed by this Court on 11.12.1990. Muhammad Hanif filed C.P.L.As. Nos.24/L to 27/L of 1991 before august Supreme Court of Pakistan which were dismissed on 15.04.1991. Thereafter , respondent No.11 filed an execution petition, the learned executing Court got executed a sale deed No.73/1 regarding the suit property which was registered on 14.01.1992 in his favour . The legal heirs of Muhammad Hanif, respondents Nos.6 to 10 along with Muhammad Anwar , Muham mad Riaz, Muhammad Sarwar ,
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Abdul Hameed, sons of Sheikha and Mst. Naikan daughter of Sheikha petitioners Nos. 1 to 5 (here-in-after called as Respondents Nos. 1 to 5) instituted a suit for possession through pre-emption regarding the suit property against respondent No.11 on 07.03.1992 before the Court of learned Senior Civil Judge, Vehari, which, after full- fledge trial, was dismissed by the learned trial Court vide judgment and decree dated 09.12.2000 on the ground of non-fulfilment of necessary Talbs in accordance with law. Respondents Nos.1 to 10 challenged that judgment and decree by preferring an appeal which was dismissed by the learned appellate Court vide judgment and decree dated 23.07.2002. Respondents Nos.1 to 10 A challenged both the judgments and decrees of the learned Courts below by filing above titled Civil Revision No.1200-D of 2002 on 17.10.2002 before this Court, which was admitted for regular hearing on 18.12.2002 but without any restraining/stay order . During the pendency of civil revision, respondents Nos.1 to 11 settled their disputes by way of compromise and respondents Nos.1, 2b, 2c, 2d and 3 to 5 (petitioners Nos. 1, 2b, 2c, 2d and 3 to 5 ) withdrew their revision by filing a written application (C.M. No.1591-C- 2015) and this Court dismissed the revision petition to their extent as withdrawn and accepted the revision petition to the extent of remaining petitioners Nos.2a, 6 to 10 (respondents Nos. 2a, 6 to 10) on the basis of written application (C.M. No.1592-C-2015) and oral statement of special attorney of respondent No.11 and decreed their suit for possession through pre-emption vide order dated 27.05.2015. After the dismissal of the suit for pre-em ption from the learned courts below but before the filing of the revision petition, respondent No.11 (Atta Ullah) transferred the suit property measuring 95 kanal 18 marla through oral mutation of exchange No.5369 dated 16.09.2002 in favour of Machia son of Muhabat, predecessor of applicants, land measuring 01 kanal through oral mutation of sale No. 1995 dated 30.04.2005 in favour of Niamat Masih and land measuring 13 kanal 07 marla through oral sale mutation No. 2009 dated 30.04.2005 in favour of Shaukat Ali. The applicants being aggrieved, through the instant application under section 12(2) C.P.C. dated 19.09.2015, challenged the validity of the order dated 27.05.2015 of this Court. The application has been filed on behalf of five applicants who are successor in interest of Machia son of Muhabat, whom the suit property was transferred through inheritance mutation No. 7946 dated 25.07.2009 from the legacy of Machia. Respondents Nos. 6 to 10 and respondent No.1 1 filed their separate contesting written replies on 09.03.2017. On behalf of respondents Nos.1 to 5, power of attorney was filed but they did not file any written reply to the application. Today , no one appeared on behalf of respondents Nos. 1 to 5, therefore, they have been proceeded against ex-parte. The respondents moved an application (C.M. No.1977-C of 2015) for deletion of the name of petitioner No.2(a) and for correction of the judgment dated 27.05.2015 to that extent and also moved an application (C.M.No.1457-C of 2021) for bringing on record certified copies of W.P.No.10668 of 2010 titled "Allah Ditta v. DOR etc." and order dated 01.12.2010. The respondents did not press that applications during the course of arguments, therefore, same are dismissed as having not pressed. 3. Learned counsel appearing on behalf of the applicants states that no partial pre-emption decree could be passed as the revision to the extent of Respondents Nos. 1, 2b, 2c, 2d and 3 to 5 was dismissed as withdrawn; that respondent No.11 transferred the suit land through mutations Nos.5369, 1995 and 2009 by way of exchange and oral sale, therefore, became landless, hence could not enter into a compromise regarding decreeing of the suit; that the suit property was got partitioned through a 'process of law and separate wanda of the applicants came into existence and the suit property did not remain part of the joint khata; that the impugned order dated 27.05.2015 was procured by concealment of facts; that pre-emption suit could not be decreed in absence of fulfillment of Jequisite talbs; that the mala fide on the part of the respondents is apparent from the fact that they got the impugned order without impleading the applicants as a party by practicing fraud and misrepresentation. To fortify his contentions, learned counsel has relied on "Samar Qand and another v. Muhamm ad Yunis" (PLD 1972 Peshwar 115), "Ch. Jalal Din v. Mst. Asghari Begum and others" (1984 SCMR 386), "Sunni View Cooperative Housing Society v. lrshad Hussain and others" (1993 CLC 2336 ), "Muhammad Aslam and others v. Mst. Kundan Mai and others" (2004 SCMR 843), "Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others" (2004 SCMR 612), "Muhammad Yousuf Siddiqui v. Haji Sharif Khan through
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L.Rs. and others" (PLD 2005 Supreme Court 705), "Allah Ditta through L.Rs. and others v. Muhammad Anar" (2013 SCMR 866) and "Imam Bakhsh and others v . Fida Hussain and others" (2016 CLC 96). 4. Conversely; learned counsel appearing on behalf of respondents submits that the applicants are neither aggrieved persons nor they have any locus standi to file the instant application; that as per provisions 'of section 119 of the Transfer of Property Act, 1882 with the decree of the suit property , the exchange property of the applicants reverted to them, therefore, they have no locus standi to file the applica tion; that mutations of exchange were hit by the principle of lis pendens as the mutations were sanctioned during the proceedings of pre-emption suit; that the applicants have no independent right to challenge the validity of decree passed on the basis of the decree of the court; that the applicants had full knowledge of the pendency of pre-emption suit, thus they were bound to face the consequences of the decree; that respondent No.11 challenged the, validity of mutations sanctioned in favour of applicants by filing suit for declaration which lis is sub-judic e. While relying upon the cases reported as "Mukhtar Baig and others v. Sardar Baig and others" (2000 SCMR 45) "Ali and 3 others v. Abdul Ghani through Legal Heirs" (2003 MLD 618) [Lahore], "Basit Sibtain through Legal Heirs v. Muhammad Sharif through Legal Heirs" (2004 SCMR 578), "Feroze Din throug h L.Rs and others v. Hussain and others" (2005 CLC 1727 ) [Lahore], "Ghulam Muhammad and others v. Muhammad Hussain and others" (PLD 2006 Lahore 223), "Bashir Ahmed v. Messrs Muhamma d Saleem, Muhammad Siddique & Co. (Regd) and others" (2008 SCMR 1272), "Haji Nazeer Ahmed v. Raja Muhammad Saeed Khan and 11 others" (PLD 2010 Supreme Court (AJ&K) 47), "Mst. Rubina Badar through L.R.v . Mess rs Long Life Builders and 4 others" (2012 SCMR 84), "Bagh All v. Mst. Ayesha and others" (2013 SCMR 551), "Muhammad Zahid Aslam v. Haji Dilbagh and 7 others" (2015 YLR 186), "Aasia Jabeen and 3 others v. Liaqat Ali and others" (2016 SCMR 1773), "Dilnawaz Begum and others v. Muhammad Akbar Khan Afridi and others" (2017 CLC 1115),"Canal View Cooperative. Housing Society through General Secretary and another v. Mst. Nasim Begum and 4 others" (2017 MLD 1600 ) [Lahore], "Muhammad v. Sheikh Taj Muhammad and others" (2018 YLR 1543 ), "Muhammad lqbal v. Sajid Hussain Bhatti and others" (2019 MLD 537) [Lahore], "Muhammad Bashir v. Mst. Sakina and others" (2020 YLR 1358 ) and "Abdul Qadeer v. Mst. Nazima Shaheen and 4 others" ( PLD 2021 Peshawar 22 ) prayed for dismissal of the application under section 12(2), C.P .C. 5. I have heard learned counsel for the parties at full length and have also gone through the available record in addition to the case law cited at the bar . 6. Both the parties stated at the bar that there is no need for the recording of evidence as almost all the facts are admitted one, certified copies of relevant documents are available on the file and only legal questions are required to be determined. 7. Learned counsel appearing on behalf of Respondents by raising a preliminary objection stated that mutation No.5369 is the result of fraud and forgery and has no legal effect as respondent No.11 challenged its validity by way of filing a declaratory suit and his appeal is still pending before the learned appellate Court. A perusal of record reveals that a suit for declaration, whereby the validity of mutation of exchange No.5369 dated 16.09.2002 sanctioned in favour of predecessor of applicants and some other mutations were challenged, was shown to be instituted by respondent No.11 on 16.04.201 1. Although the plaint bears his signa ture, the applicants challenged the maintainability of the said suit by alleging that the suit was not instituted by respondent No.11. The learned trial court repeatedly summoned respondent No.11 in person but he failed to attend the Court, therefore, the suit was dismissed vide judgment and decree dated 09.07.2014. An appeal was preferred against that judgment and decree passed by the trial court but without signatures of respondent No.11. It is admitted position that mutation No.5369 was a mutation of exchange and respondent No.11 through his general attorney namely Muhammad Zahoor exchanged his 95 kanal and 18 mama of land with Machia son of Muhabat predecessor of applicants. An application (C.M. No.712-C-2004) was moved on behalf of respondent No.11 throu gh his general attorney , namely , Muhammad Zahoor on 01.06.2004 before this Court whereby a clarification regard ing order dated 18.12.2002 was sought and in the said application, respondent No.11 himself admitted that he transferred the suit land measuring 95 kanal and 18 marla through mutation of exchange No.5369 dated 16.09.2002 in favour of predecessor of applicants namely , Machia. In this way, when respondent No.11 himself acknowledged the transfer of suit property
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in the name of Machia, then it did not lie in his mouth and other respondents to deny the existence of that mutation of exchange at this later stage. 8. The respondents challenged the maintainability of the application under section 12(2), C.P.C. on the ground that the applicants have no locus standi as they did not fall within the category of aggrieved persons. In section 12(2), C.P.C. the word 'person' has been used. If the intention of the lawmaker had been to restrict the right of filing application only to the person who was party to the suit, then the word party ought to have been used. The august Supreme Court of Pakistan while relying upon "Ghulam Muhammad v. M.Ahmad Khan and 6 others (1993 SCMR 662) in its reported judgment titled as "Khawja Muhammad Yousaf v. Federal Government and others" (1999 SCMR 1516) has inter alia held as under:-- "If a person adversely affected by an order or judgment of a Court or tribunal rendered in proceedings to which he is not a party and to which proceedings C.P.C. is applicable, he can file an application under section 12(2), C.P.C. for the reason that the word "person" and not judgment debtor or his successor in interest or the words "party to the suit" have been used as highlighted in the above report." Further reliance can be placed on "Ch. Jalal ud Din v. Mst. Asghari Begum" (1984 SCMR 584). Machia, the predecessor of applicants got the suit property through mutation of exchange and his rights were directly affected through the judgment/order dated 27.05.2015 of this Court whereby the suit of the respondents Nos.2a, 6 to 10 was decreed on the basis of compromise, therefore, applicants have every right to file the instant application under section 12(2), C.P .C. 9. Before adverting to the validity of the impugned judgment, it would be apt to observe that section 12(2), "C.P.C." recognizes three eventualities for setting at naught a judgment, decree, or order and empowers a person to get his relief by way of proving these eventualities, which reads as under:-- "12. Bar to further suit.---( 1) Where a plaintif f is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies. (2) Where a person challenges the validity of a judgment, decree, or order on the plea of fraud, misrepresentation, or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree, or order and not by a separate suit." It is thus manifestly clear that a judgment, decree, or order can be annulled by the Court which passed the same if it is the product of fraud, misrepresentation, or is coram non judice. The august Supreme Court of Pakistan in its judgment reported as "Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd." (2010 SCM R 1097) while keeping in view the dictum laid down by the Courts and the legal dictionary defined the meaning of words "fraud", "misrepresentation" and "collusion" in the following manner:- "Fraud" "Every representation made to a court which is deliberately false amounts to a fraud and would vitiate a decree" (Mst. Izat and others v . Khuda Bakhsh PLD 1959 Karachi 221." "A party to a fraud is not allowed to plead his own fraud (Abdul Razzaq Hawaladar v. Sheikh Muhammad Shafi PLD 1962 SC 134 ). "Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true and the active concealment of fact by one having knowledg e or believe of the fact" (Allah Wasaya and 5 others v . Irshad Ahmad and 4 others 1992 SCMR 2184). "The collusion no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two person that one should institute a suit against the other in order to obtain a decree of a judicial tribunal for some sinister purposes" (Munir Ahmad Khan v . Sami Ullah Khan 1986 CLC 2655 ). "For the purpose of subsection (2) of section 12 of the C.P.C. the plea of collusion is as good as the plea of fraud" (Zafarullah etc. v . Dost Muhammad etc. PLD 1984 Lahore 396 ). "Fraud" "A false representation of a matter of fact, whether by words or by conduct by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that
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he shall act upon it to his legal injury".- -" A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling and any un-fair way by which another is cheated" (Blacks Law Dictionary Fifth Edition). "Misrepresentation." "Any manifestation by words or other conduct by one person to another that, unde r the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead." (Blacks Law Dictionary Fifth Edition). "Collusion" "An agreement between two or more persons to defraud a person of his rights by the forum of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employ ment of fraudulent means or of lawful means for the accomplishment of an unlawful purpose." (Blacks Law Dictionary Fifth Edition). Respondent No.11 posing himself as the owner of the suit property moved an application for acceptance of the revision Petition and a statement was made on his behalf before this court regarding acceptance of the civil revision and decree of the pre-emption suit while he was not the owner of the suit property as he himself transferred the suit property in the name of Machia, predecessor of applicants through mutation of exchange. Respondent No.11 knowingly that his statement was not true deliberately made a false representation and, in this way, he made active concealment of fact from this court which amounts to fraud. The respondents made a secret arrangement by way of compromise to obtain a decree from this court in order to deprive the applicants of the suit property and to defraud them of their rights. The order / Judgement dated 27-05-2015 squarely fell within the ambit of section 12(2), C.P .C. and is not sustainable as being the result of fraud and misrepresentation. 10. The main ground of defense of the respondents was that the predecessor of applicants obtained the suit property during the pendency of their pre-emption suit, and the mutation of exchange was sanctioned during the pendency of civil revision, therefore, the same was hit by the principle of lis pende ns as enshrined in section 52 of the Transfer of Property Act, 1882 and the applicants have no locus standi to challenge the validity of compromise decree passed in favour of respondents Nos. 2a, 6 to 10 and to further strengthen their arguments, referred the case law , as stated in the preceding paragraph of this judgment. 11. There is no cavil with the proposition that one who purchases a part .or the whole of the subject-matter , involved in the litigation from a party during the pendency of the suit, takes its subject to the final disposition of the cause and is bound by the decision that may be entered against the party from whom he derived title meaning thereby , whoever acquires property during the pendency of action is held bound by the judgment that may be made against the person from whom he derived his title even though such a purchaser was not a party to the action as had no notice of the pending litigation. Section 52 of the Transfer of Property Act, 1882 embodies manifestly the rule of lis pendens, which speaks 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 Central Government of 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 or otherwise dealt with by any party thereto under any 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 proceedings shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law of the time being enforce."
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From a bare reading of the above section , it appears that application of this section is subject to certain conditions; the suit must be relating to a specific immovable property in which any rights of the parties are directly and specifically in question, the suit should be pending at the time when the alienation in favour of the third person has been made and neither the suit itself nor the outcome thereof must be collusive, fraudulent and/or is meant to entrap, deceive, and defraud an innocent transferee. (underlining supplied for emphasis) In order to understand the principle of lis pendens, I have borrowed wisdom from the full bench judgment of the august Supreme Court of Pakistan reported as "Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others" ( PLD 201 1 SC 905 ) wherein it has been held 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 chan ged 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 immo vable 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 ultim ately 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 purchaser 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 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 pendent 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 proceedi ngs 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. In support of the above, reliance is placed upon Messrs Aman Enterprises v. Messrs Rahim Industries Ltd, and another (PLD 1993 SC 292), Muhammad Nawaz Khan v. Muhammad Khan and 2…
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