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Petitioner: Mst. Naseem Sajjad VS Respondent: Additional District Judge and 4 others
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Mst. Naseem Sajjad vs Additional District Judge and 4 others Case No.: Writ Petition No.1869 of 2018 Date of Judgment:2021-02-25 Reported As: 2021 CLC 1319 Result: Petition dismissed
JUDGMENT
JUDGMENT TARIQ SALEEM SHEIKH, J.----This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, assails the wires of judgment dated 1.2.2018 passed by the learned Additional District Judge, Mian Channu, whereby he upheld the order of the Civil Judge/Executing Court dated 30.1.2018 and dismissed the Petitioner's revision petition. Brief facts 2. Brief facts of the case are that on 12.9.2006 Respondent No.3 instituted a suit against Respondent No.4 in the Civil Court at Mian Channu seeking specific performance of an oral agreement dated 20.12.2005 through which, he alleged, the latter had agreed to sell him his land measuring 09 kanals 15 marlas comprised in Khewat No.26, Khatooni No.91; and 06 marlas 03 sarsahis in Khewat No.24, Khatooni Nos. 88 & 89 situated in Chak No. 130/15- L, Mian Channu (the "Property"). Respondent No.4 contested the said suit denying having entered into any such agreement. On 2.7.2009 the trial court framed Issues and directed Respondent No.3 to produce evidence to prove his claim which he did. On his turn Respondent No.4 sought nine adjournments but did not examine any witness. On 3.4.2010 he offered to resolve the matter through a referee. Respondent No.3 agreed whereupon the trial court made reference to Haji Abdul Sattar son of Umar Din. On 10.4.2010 the said referee submitted his report that Respondent No.3 was on the right and had a valid claim. Consequent thereupon the court decreed the suit in his favour the same day. On 8.6.2010 Respondent No.3 filed a petition for execution of decree dated 10.4.2010 but before any material steps could be taken, on 10.6.2010, the Petitioner challenged it under section 12(2), C.P.C., on the ground that it was fraudulent and collusive. She claimed that her father , Muhammad Fazil (Respondent No.5), purchased the Property from Respondent No.4 in consideration of Rs. 2,000,000/- vide Sale Deed No. 1078 dated 24.7.2009 and then transferred it to her through Tamleek Nama No.1739 dated 24.12.2009 which was given effect in the revenue record vide Mutation No.5387 dated 30.1.2010. She contended that on 3.4.2010 Respondent No.4
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was not the owner of the Property so he could not ask the court for referring the dispute to a referee. Respondent No.3 contested the said application conte nding that those transactions were collusive and even otherwise did not affect his rights under the doctrine of lis pendens. The court framed Issues, recorded evidence and dismissed the application vide Order dated 23.12.2013 which was upheld by the Additional District Judge while exercising revisional jurisdiction and by this Court in Writ Petition No.9785/2015 decided on 24.4.2017. The Petitioner is stated to have filed CPSLA before the Hon'ble Supreme Court of Pakistan but, according to the learned counsel, it has not been taken up so far . 3. The execution proceedings resumed after the dismissal of the Petitioner's revision petition by the Additional District Judge. The Executing Court invoked Order XXI, Rule 34, C.P.C. and registered Sale Deed No.1439 dated 23.6.2015 in favour of Respondent No.3 and on 2.7.2015 issued warrant of possession. However , further proceedings were stayed by this Court in Writ Petition No.9785/2015. After its decision, on 3.6.2017, the Executing Court again issued warrant of possession on which the Tehsildar submitted a report that it could not be executed because Respondent No.4 had alienated the Property in favour of Respondent No.5 who further transferred it to the Petitioner . Thereupon Respondent No.3 (the decree-holder) filed an applicatio n for cancellation of Sale Deed No.1078 dated 24.7.2010 and Tamleek Nama No.1739 dated 24.12.2009. Contemporaneously the Petitioner moved an objection petition and prayed for withdrawal/annulment of the warran t of possession. The Executing Court accepted the application of Respondent No.3 and dismissed that of the Petitioner vide consolidated order dated 30.1.2018. The Petitioner preferred revision petition thereagainst which failed. Hence, this constitutional petition. Submissions of the learned counsel 4. Learned counsel for the Petitioner contended that the learned courts below had failed to appreciate the facts of the case properly and apply the correct law which had caused serious miscarriage of justice. He argued that, firstly , Respondent No.3 had procured decree dated 10.4.2010 through fraud and collusion. On 3.4.2010 Respondent No.4 was not competent to ask the court to make reference to a referee as he had alienated his rights in the Property before that date and was no longer its owner . Even if it was assumed that he had such authority , judgment and decree dated 10.4.2010 was not sustainable as the trial court did not afford an opportunity to Respondent No.4 to file objections to the referee's report. Secondly , decree dated 10.4.2010 was not binding on the Petitioner as she was not a party to the suit. Thirdly , Respondent No.3 had the knowledge of Sale Deed No.1078 and Tamleek Nama No.1739 and the mutations attested on the basis thereof but had not filed a suit for their cancellation. Inasmuch as they were still in the field, the Executing Court could neither cancel nor disregard them. In the circumstances, issuance of warrant of possession against the Petitioner was illegal. Lastly , decree dated 10.4.2010 was inexecutable because Respondent No.3 had not prayed for possession of the Property in his plaint. The Executing Court could not go behind the decree. 5. Learned counsel for Respondent No.3 controverted the aforementioned contentions and supported the impugned order . He contended that Resp ondents Nos.3, 4 and 5 were real brothers while the Petitioner was the daughter of Respondent No.5. The other two plotted against Respondent No.3 to deprive him of the Property . However , he was protected under sectio n 52 of the Transfer of Property Act, 1882 ("TPA"). The learned counsel further contended that the Petitioner earlier filed an application under section 12(2), C.P.C. for setting aside judgment and decree dated 10.4.2010 which was dismissed upto the High Court. She could not be permitted to assail it again on the same grounds in the second round. 6. Respondents Nos.4 and 5 are proforma Respondents. They have not opposed this petition. Opinion of the Court 7. I first take up the Petitioner's objection relating to the vires of judgment and decree dated 10.4.2010. Admittedly , previously she challenged it through an application under section 12(2), C.P.C. but failed and the Civil Court's order dated 23.12.2013 has been maintained upto this Court. The policy of law is that there should be end to litigation when the matter has been conclusively decided. It is also reflected in two maxims res judicata pro veritate accipitur ("a thing adjudicated must be taken for truth" or, in other words, "a decision which is once rendered by a competent court on a matter in issue between the parties after a full enquiry should not be permitted to be agitated over
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again") and interest reipublicae ut sit finis haunt' ("in the interest of society as a whole litigation must come to an end"). Section 1 1, C.P .C. is dictated by that wisdom. 7. Hukam Chand writes:2 "The doctrine of res judicata is of universal application and in fact a fundamental concept in the organization of every jural society . Justice requires that every cause should be once fairly tried and public tranquility demands that having been tried once all litigation about that cause should be concluded between those parties forever . The maintenance of public order , the repose of society and the quiet of families requires that what has been definitely determined by competent tribunals shall be accepted as irrefragable legal truth. If it were not for the conclusive effect of all such determinations there will be no end of litigation and no security for any person; the rights of parties would be involved in endless confusion and great injustice often done under cover of law, while the courts if stripped of their most efficient powers would become little more than advisory bodies; and thus the most important function of {{FOOTNOTE}} An alternative phrase for "expedit rei publicae ut sit finis litium". 2 Hukam Chand, Law of Res judicata (1894), cited by Aamir Raza in his treatise "Code of Civil Procedure", Ninth Edition (2005). {{FOOTNOTE}} Government - that of ascertaining and enforcing their rights -would go unfulfilled." 9. The principle of res judicata is now reckoned as an integral part of the rule of law. In M. Nagabhushana v. State of Karnataka and others (AIR 201 1 SC 1 113) the Supreme Court of India held: "The principle of finality of litigation is based on high principle of public policy . In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy . That is why it is perceived that the plea of res judicata is not a techn ical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This princip le seeks to promote honest and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties." The Islamabad High Court made similar observations in Shafqat Hussain v. President of the Islamic Republic of Pakistan and 8 others (PLD 2016 Islamabad 1 ). 10. In view of the foregoing, our courts have held that unless it is specifically excluded by law the principle of res judicata is also applicable to proceedings other than suits, to execution proceedings4 and {{FOOTNOTE}} 3 .Fazal Din and 14 others v. The Custodian, Evacuee Property , Lahore and 21 others (PLD 1971 SC 779); Muhammad Tufail v. Atta Shabir and 5 others (PLD 1977 SC 220); The Commissioner of Income Tax, Lahore v. Messrs Lucky Stores & Zubair Medical Stores, Lahore Cantt. (1981 SCMR 656); Muhammad Sharif and others v. Settlement Commissioner , Bahawalpur and others (1981 .SCMR 1048); Divisional Evacuee Trust Committee v. Muhammad Idris Qureshi and another (1984 SCMR 851); Atiq-ur -Rehman and others v. Muhammad Ibrahim and another (1984 SCMR 1469 ); Syed Mir Ahmad Shah v. Pakistan and others (1986 SCMR 1200); Mst. Naseeban Bibi v. Muhammad Yahya Khan and another (1986 SCMR 1964 ); Mazhar Saeed Qureshi v. Government of the Punjab through Secretary , Irrigation and Power Department, Lahore and 49 others ( 1986 SCMR 12 ). Ejaz Hussain v Bashir Ahmad and others (2000 SCMR 1190); Dauran Khan and another v. Mst. Shamim Akhtar (1990 CLC 1208 ); Sher Jan v. Karim Dad Khan through Legal Heirs (1990 CLC 1845 ); Faqir Muhammad v. Saifullah and others ( 1994 MLD 1820 ); and Shaikh Abdul Aziz v . Mirza and 3 others ( PLD 1989 SC AJK 78 ). {{FOOTNOTE}} even to miscellaneous applications.5 In the present proceedings the Petitione r has attempted to challenge judgment and decree dated 10.4.2010 on the same grounds on which she filed an application under section 12(2),
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C.P.C. earlier that was dismissed upto this Court. I agree with the learned counsel for Respondent No.3 that she cannot be permitted to do so. The principle of res judicata applies. 11. Section 52 of the TPA provides for the situation where the property is transferred while civil litigation in respect thereof is pending in the court. It stipulates: 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, 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 to the suit or proceeding so as to affect the rights of any other 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 purposes 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 proceeding 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 for the time being in force. 12. Section 52 is founded on the maxim pendente lite nihil innovetur which means that "pending litigation nothing new should be introduced." The said maxim has its roots in the Roman Law which ordained that "a thing concerning which there is a controversy is prohibited during the suit from being alienated." The rule of lis pendens {{FOOTNOTE}} Hanifa Begum and others v. Muhammad Qamaruzzaman through legal heirs (1992 CLC 1699 ); Messrs New Rahat Engineering Works through proprietor and 4 others v. National Bank of Pakistan and another (2003 CLD 382); Messrs Masoom Industries v. Habib Bank Limited and another (2003 CLD 386); and National Bank of Pakistan through Vice President/General Attorney v. Messrs Murtaza Haseeb Textile Mills Ltd. through Chief Executive and 13 others ( 2016 CLD 784 ). {{FOOTNOTE}} and the principle of res judicata have affinity as both aim at bringing end to litigation and giving finality to court orders once the matter has been conclusively determined. Tuner L.J. explained the rationale behind this doctrine in Beliamy v . Shabine (1857) 1 De. G. & J 566 as follows: "It is as I think, a doctrine common to the Courts both of Law and Equity , and rests, as I apprehend upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendent lite were permitted to prevail. The plaintif f would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceedings." 13. Discussing the principles of lis pendens, in Gouri Dutt Maharaj v. Sk. Sukur Moham med (AIR 1948 PC 147), the Privy Council observed: "The broad purpose of section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment, and in the view of the Board, the learned subordinate judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8.6.1932, had not been registered." 14. In Rajendar Singh and others v. Santa Singh and others (AIR 1973 SC 2537) the Supreme Court of India observed: "The doctrine of lis pendens is intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending , by private dealings which may remove the subject-matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree."
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15. Section 52 of TPA has also come up for consideration before the Hon'ble Supreme Court of Pakistan in a lot many cases. In Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) it elucidated its meaning and import as follows: "[Section 52] manifestly embodies the rule of lis pendens, which is available both in equity and at the common law. The rule and 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 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 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." 16. In Ashraf Butt's case, supra, the apex Court laid down the following principles for application of section 52 of TPA:6 i) At least three conditions must be fulfilled before section 52 is invoked: (a) the suit should be in respect of a specific immovable property in which any rights of the parties are directly in issue; (b) the suit should be pending at the time when {{FOOTNOTE}} 6 reproduced as nearly as possible in the language of the Court. {{FOOTNOTE}} that property is alienated in favour of a third person; and (c) neither the suit nor its outcome should be collusive or fraudulent and should not be a subterfuge to entrap, deceive an innocent transferee, especially a bona fide purchaser . ii) In view of the clear language of the Explanation to section 52 TPA, the rule of lis pendens is fully attracted to an alienation made during the period of limitation provided for an appeal or revision etc. to challenge a decree/order . iii) If K had sold the property to Y prior to the institution of the suit, and the latter was not impleaded as a party , even if he makes any transfer during the pendency of the suit, such alienation would not attract the doctrine of lis pendens. However , if he is subsequently arrayed as a defendant, from that point of time he shall for the purposes of section 52, ibid, be the party to the suit and the rule would apply . iv) The provisions of section 52 of TPA are not subservient to section 41 of the said Act or section 27(b) of the Specific Relief Act or the general equitable concept of bona fide purchaser . Rather , the said section and the rule of lis pendens is an exception to them. v) The principle of lis pendens does not have the effect to annul the conveyance but renders it subservient to the rights of the parties in the litigation. So far as the said parties are concerned, the conveyance is treated as it never had any existence.
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Ashraf Butt's case was cited with approval in Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983 ) and Farzand Ali and another v . Khuda Bakhsh and others (PLD 2015 SC 187 ). 17. The Petitioner's contention that section 52 of the TPA is not attracted to the facts of the instant case as Respondent No.3 obtained judgment and decree dated 10.04.2010 in collusion with Respondent No.4 was considered and repelled by this Court in Writ Petition No.9785/2015 which she filed in the previous round of litigation. Relevant excerpt is reproduced hereunder: "Admittedly , the parties are closely related and there is no denial of the relationship between the parties. Muhammad Khalid is elder brother of the Petitioner [Naseem Sajjad], Athar Pervai z is cousin of the petitioner (son of her aunt/Phuphi) while Shakeel Ahmad son of Abdul Rehman is her uncle (Mamo on). [Respondents] Muhammad Nawaz, Muhammad Adil and Muhammad Faazil (father of the petitioner) are real brothers. Agreement Exh.R-13 was executed between [Muhammad Nawaz] and Athar Pervaiz son of Siraj Din for the purchase of suit property for a consideration of Rs.10,00,000/-. The agreement was executed on 11.03.2008, during pendency of the suit filed by [Muhammad Adil]. It is specifically mentioned in the agreement to sell Exh.R13 that sale deed could not be executed due to status quo order passed by civil court and that the property would be transferred after the vacation of injunctive order . On the back of this agreement Exh.R13, Athar Pervaiz, cousin of the petitioner further negotiated the matter and made a statement in favour of [Muhammad Faazil], who is father of the present petitioner , to the effect that the property is transferred in the name of Muhammad Faazil and this was followed by execution of registered sale deed No.1778/1 through which [Muhammad Nawaz] transferred the property to [Muhammad Faazil], the property was further alienated in the name of the petitioner through Tamleek No.1739 dated 24.12.2009. It is established from the record that the petitioner and [Muhammad Faazil] were fully aware of the pendency of the suit filed by [Muhammad Adil] against [Muhammad Nawaz]. On the basis of this transfer in favour of [Muhammad Faazil], they never made any effort to become party in the suit. The property was transferred without knowledge of [Muhammad Adil] in order to frustrate the decree that could have been passed in his favour . Similarly , Shakeel Ahmad uncle of the petitioner and Khalid her elder brother were instrumental in getting the property transferred in the name of the petitioner as admitted by her in her cross -examination, she admitted that she used to consult them on important matters. All these persons were fully aware of the pendency of the suit, their names are duly reflected as witnesses in agreement Exh.R13. [Muhammad Faazil] filed conceding written reply to the application under section 12(2), C.P.C. he was aware of all the transactions and pendency of the suit that is why, he did not appear as a witness. The alienations were made during penden cy of the suit, it was rightly held that transactions were hit by section 52 of the Transfer of Property Act, 1882. In these circumstances both the learned lower courts rightly concluded that there is no element of fraud on the part of jMuhammad Adil] in whose favour decree was passed." (emphasis added) 18. The above findings still hold the field. As already discussed, section 11, C.P.C. bars the Petitioner from re- agitating her aforementioned contention in these proceedings. 19. The learned counsel for the Petitioner has relied upon Rashid Ahmad v. Mst. Jiwan and 5 others (1997 SCMR 171), Muhammad Iqbal and others v. Khair Din through L. Rs. and others (2014 SCMR 33) and Allah Bakhsh v. Allah Yar and 4 others (2017 CLC Note 9) to argue that the Petitioner is not bound by judgment and decree dated 10.04.2010 as she was not impleaded as a party to the suit. I am afraid, all these cases are distinguishable. In Rashid Ahmad the Hon'ble Supreme Court was called upon to consider whether the rule of lis pendens could be set up as a bar to an application by a transferor pendent lite from being impleaded as a party to the pending proceedings. The apex Court held that section 52 of the TPA did not envisage any such prohibition. In Muhammad 1qbal's case the respondent claimed to have purchased suit land from the vendor under a written agreement and filed a suit for its specific performance which was decreed in his favour through a…
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