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Official Citation: 2026 LHC 1385
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Ahmad Nadeem Arshad)
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Ahmad Nadeem Arshad), officially reported as 2026 LHC 1385. In this matter between the Petitioner and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Lahore High Court (Honorable Mr. Justice Ahmad Nadeem Arshad) DECISION DATE: 29-01-2026 TAGLINE: The protection of a subsequent purchaser as a bona fide transferee under Section 27(b) of the Specific Relief Act is conditional upon strict proof of payment of consideration made in good faith and without notice of the prior agreement. Mere technical irregularities, such as non-decision of a miscellaneous application, do not warrant remand where they have no bearing on the merits of the case. CASE DETAILS: Regular Second Appeal 221080/18 ============================================================ Stero.HCJDA 38. Judgment Sheet IN THE LAHORE HIGH COURT, LAHORE.
(JUDICIAL DEPARTMENT) ………. Regular Second Appeal No.221080 of 2018.
Defence Housing Authority Lahore through its Secretary.
Versus
Ijaz (Aijaz) Ahmad, etc.
JUDGMENT
DATE OF HEARING: 29.01.2026.
APPELLANT BY: M/s Tariq Masood and Hassan Tariq , Advocates. Ch. Bashir Hussain Khalid, Advocate for appellant in connected appeal. RESPONDENT No.1 BY: Mr. Khalid Mehmood Sheikh, Advocate.
AHMAD NADEEM ARSHAD , J. Through this single judgment, I intend to decide the above -captioned Regular Second Appeal as well as the connected Regular Second Appeal No.254772 of 2018 titled as "Shehzad Iqbal vs. Aijaz Ahmad, etc." , as both the appeals have arisen out of the same judgment and dec ree dated 28.04.2018 passed by the learned lower Appellate Court, whereby, while accepting the appeal of respondent No.1 (Aijaz Ahmad), his suit was decreed as prayed for. 2. Tersely, the facts forming background of the proceedings in hand are that respond ent No.1 instituted a suit for specific performance along with declaration and permanent injunction against Muhammad Daud ( hereinafter referred to as 'respondent No.2 '), Asghar Ali ( hereinafter referred to as 'respondent No. 3'), DHA Lahore (hereinafter referred to as 'the appellant'), and the Registrar RSA Nos.221080 & 254772 of 2018. 2 Cantt. Lahore (hereinafter referred to as 'respondent No. 4'). Respondent No.1 pleaded that respondent No.2 was the owner of land measuring 27 kanals and 1 marla situated in Khewat No.499, Khatoni No.636, on the strength of Mutation No.11466 (hereinafter referred to as "the suit property"). It was averred that respondent No.2 agreed to sell the suit property to respondent No.1 for a total consideration of Rs.1,08,20,000/-, and after receiving Rs.27,05,000/- as earnest money, executed an agreement to sell dated 30.08.2004. It was further agreed that the remaining consideration amount would be paid on 30.09.2004. He averred that respondent No.1 paid Rs.62,00,000/ - through pay order dated 22.10.2004 drawn on Prime Commercial Bank, DHA Branch, Lahore, and Rs.19,00,000/- through demand draft dated 22.10.2004 drawn on Union Bank, DHA Branch, Lahore, however, despite repeated approaches and requests for performance of the agreement to sell, respondent No.2 allegedly remained reluctant to fulfill his commitment and alienated the suit property in favour of respondent No.3 through a registered sale deed dated 18.02.2005. Upon refusal by respondents No.2 and 3 to execute the sale deed in his favour and to cancel the register ed sale deed dated 18.02.2005, respondent No.1 was constrained to institute the suit, seeking specific performance of the agreement to sell dated 30.08.2004 and a declaration to the effect that the sale deed dated 18.02.2005 had no effect upon his rights. In response to the summoning by the learned Trial Court, n o one appeared on behalf of respondent No.2; consequently, he was proceeded against ex-parte. Respondent No.3 contested the suit by filing a written statement raising preliminary RSA Nos.221080 & 254772 of 2018. 3 objections, inter alia, that the suit was collusive between the plaintiff (respondent No.1) and defendant No.1 (respondent No.2); that he (respondent No.3) was a bona fide purchaser for valuable consideration without notice of the alleged agreement to sell, and therefore, in view of Section 27 -B of the Specific Relief Act, 1877, the suit was not maintainable against him; that the suit was not maintainable in its present form; that the plaintiff had no cause of action or locus standi to file the suit; that the plaintiff had ap proached the Court with unclean hands by misstating and misrepresenting facts and was thus not entitled to equitable relief; and that the suit was frivolous, mala fide, and vexatious, filed to harass and blackmail him, and, therefore, liable to dismissal with special costs under Section 35 - A CPC. On merits, he denied the averments of the plaint and asserted that he had purchased the suit property through a registered sale deed bona fide, for valuable consideration, and without notice of any prior agreement to sell. The appellant (defendant No.3 in the suit) also filed a contested written statement raising preliminary objections that the suit was not maintainable in its present form; that the plaintiff had not approached the Court with clean hands; that the s uit was false and frivolous and liable to dismissal with special costs; and that the plaintiff had no cause of action against the answering defendant. On merits, the averments of the plaint were denied, and it was stated that although the suit property had been offered for sale to the answering defendant, the process for its purchase was halted when it transpired that the land in question was under litigation. Dismissal of the suit was accordingly prayed for. RSA Nos.221080 & 254772 of 2018. 4 3. In view of the divergent pleadings of the par ties, the learned trial Court framed the necessary issues on 23.05.2007 and called upon the parties to produce their respective evidence. After recording oral as well as documentary evidence produced by the parties pro and contra, the learned trial Court d ismissed the suit in the following manner:- “the suit in hand is hereby dismissed, however, in view of my detailed findings on Issue Nos.7 to 9, specifically findings on issue No.8 shows that the plaintiff paid the total consideration amount including the balance amount through different modes of payment in context of an agreement to sell dated 30.08.2004 i.e. ExP -1, to the defendant No.1 and in the light of findings on Issue No.9 it was also inferred on convincing terms that the defendant No.1 with mala fi de intention sold and transferred the suit property to the defendant No.2 by entering into a subsequent sale transaction through a registered sale deed i.e. ExhD -1 executed in favour of the defendant No.2. In this scenario the plaintiff is entitled to recover the total consideration amount paid to the defendant No.1 in context of an agreement to sell dated 30.08.2004 i.e. ExhP -1 and also to receive 6% interest annually in proportion to the total consideration amount paid by the plaintiff to the defendant No .1, till the realization of total consideration amount paid by the plaintiff to the defendant No.1 and the period for receiving 6% interest over the total consideration amount will be co unted from the date of institution of this suit till it is paid by the defendant No.1 to the plaintiff in future. Here it is pertinent to mention that even without a formal prayer by the plaintiff for seeking compensation, it can be granted under Section 18 &19 of Specific Relief Act, 1877, reliance is placed upon REF PLD 2003 SC 494 & 2002 YLR 2865 [D.B Lahore].”
4. Feeling aggrieved, respondent No.1 preferred an appeal. However, neither the appellant nor respondents No.2 and 3 filed any appeal or cross-objection against the findings of the learned trial Court on issues No .1 to 9; hence, those findings attained finality. The RSA Nos.221080 & 254772 of 2018. 5 learned lower Appellate Court, vide judgment and decree dated 28.04.2018, allowed the appeal of respondent No.1 and decreed the suit as prayed for. Being dissatisfied, the appellant (DHA Lahore) filed the instant Regular Second Appeal. Likewise, one Shehzad Iqbal, claiming that he had purchased the suit property during the pendency of the suit through a registered sale deed dated 03.11.2010 from respondent No.3 , filed connected time-barred appeal bearing RSA No.254772 of 2018. 5. I have heard the learned counsel for the parties at considerable length and have also perused the record with their able assistance. 6. A perusal of the record reveals that respondent No.1 sought specific performance of the agree ment to sell dated 30.08.2004, whereby respondent No.2 agreed to sell land measuring 27 kanals and 1 marla for a consideration of Rs.1,08,20,000/ - and received earnest money of Rs.27,05,000/ -. Respondent No.1 maintained that he paid the remaining considera tion amount through a pay order dated 22.10.2004 amounting to Rs.62,15,000/- drawn on Prime Commercial Bank, DHA Branch, Lahore, and Rs.19,00,000/ - through a demand draft dated 22.10.2004 drawn on Union Bank, DHA Branch, Lahore. 7. Respondent No.2 was proc eeded against ex parte, and the suit was contested by respondent No.3, who asserted that he had purchased the suit property through a registered sale deed bearing Sr. No.4272, Bahi No.1, Jild No.1142 dated 18.02.2005 for valuable consideration; therefore, he was a bona fide purchaser for value without prior notice of the agreement to sell. RSA Nos.221080 & 254772 of 2018. 6 8. Although the appellant filed a contested written statement, during the pendency of the suit it moved an application under Order I Rule 10 CPC on 06.11.2007 for deletion/striking off its name from the array of parties. Respondent No.1 filed a contested reply thereto. The learned trial Court, vide order dated 13.10.2008, dismissed the application, observing that the appellant had failed to establish how it was an unnecessary or improper party, particularly when the plaintiff had sought to restrain it from acquiring or taking possession of the suit property. The appellant did not challenge the said order any further. However, despite remaining a party to the proceedings, it produced no evidence during the trial. 9. The learned trial Court decided issues No.1 to 6 against the defendants (the appellant and respondents No.2 to 4) and issues No.7 to 9 in favour of the plaintiff (respondent No.1). While discussing the evidence, t he learned trial Court observed that respondent No.1 had proved due execution of the agreement to sell by producing the marginal witnesses and had also proved payment of the consideration amount through the Bank Statement (Exh.P -2) and by examining Ali Raza, Officer Grade-II, Saudi Pak Bank, who deposed that as per the Bank’s record, both pay orders were encashed in favour of respondent No.2 on 28.10.2004. 10. The learned trial Court, while passing the decree, declared that the plaintiff was entitled to rec over the total consideration amount paid to defendant No.1 (respondent No.2) under the agreement to sell dated 30.08.2004, along with 6% annual interest proportionate to the amount paid, from the date of institution of the suit till realization. RSA Nos.221080 & 254772 of 2018. 7 11. However, the learned trial Court dismissed the claim for specific performance in view of its findings on issues No.10 and 11, observing that respondent No.1 had failed to establish that the agreement to sell dated 30.08.2004 was within the knowledge of respondent No.3. Consequently, the benefit of Section 27 -B of the Specific Relief Act, 1877 is extended to respondent No.3 by declaring him a bona fide purchaser for value without notice of the prior agreement. 12. The learned lower Appellate Court, while allowing the appeal of respondent No.1, held that respondent No.3 had failed to prove through evidence the essential ingredients of Section 27 -B of the Act, 1877, particularly the payment of consideration. It was observed that in the absence of proof of payment of consideration, respondent No.3 could not be termed a bona fide purchaser for value. 13. It is an admitted position that respondents No.2 and 3 did not challenge the judgment and decree of the learned lower Appellate Court any further; thus, the same attained finality to that extent. 14. The judgment and decree of the learned lower Appellate Court have been assailed by the appellant (DHA Lahore) as well as by Shehzad Iqbal, who filed the connected appeal on the ground that he had purchased the suit property during the pendency of the suit. 15. During the course of arguments, learned counsel for the appellant was confronted with the question of maintainability of the appeal, inasmuch as the appellant had categorically stated in its written statement that it ha d stopped the process of acquiring the suit property and had no concern whatsoever with it. Learned counsel RSA Nos.221080 & 254772 of 2018. 8 failed to satisfactorily respond to this query. Although it was contended that the appellant had acquired the suit property, no sale deed or acquisi tion proceedings were produced on record to substantiate this stance. It is, therefore, evident that the suit property was neither purchased nor acquired by the appellant through any lawful process, nor does the appellant have any subsisting concern with it. 16. It was further argued on behalf of the appellant that during the pendency of the appeal an application under Sections 107 and 151 read with Order XLI Rule 33 CPC and Sections 195 and 476 Cr.P.C. was filed for taking notice of the alleged commission of offences by the plaintiff under Sections 191 to 193 PPC and for passing an appropriate order dismissing the appeal as well as the suit, while initiating proceedings against the persons allegedly guilty of offences against public justice. It was contended that although respondent No.1 filed a contested reply, the learned lower Appellate Court failed to decide the said application while passing the impugned judgment and decree. 17. Admitedly, the appellant filed said application and it remained unattended. Now the question before this Court is that whether on the basis of said undecided application the matter should be remanded for decision afresh. No doubt, the august Supreme Court of Pakistan in numerous judgments held that un -attending and non -deciding th e miscellaneous applications amounted to mis -reading and non -reading of record and remanded the case for deciding the miscellaneous application first and then decide the main lis. RSA Nos.221080 & 254772 of 2018. 9 18. In case titled “MUHAMMAD UMER versus MUHAMMAD QASIM and another ” (1991 SCMR 1232 ), the august Supreme Court of Pakistan observed as under:- "5.We have heard the learned counsel for the petitioner and the respondents who were on notice. The contention of the petitioner before the learned Judge of the High Court was that a prop er application under Order XLI, rule 27, C.P.C. was filed before the appellate Court, it did take note of the same but in spite of the arguments addressed by the parties ignored it and did not adjudicate upon it and prayed that the case be remanded to the learned Appellate Court to decide the case in the light of the order of the Land Commissioner. This argument, however, did not find favour with the learned High Court, the ground being, amongst others, that the petitioner had failed to place the order of t he Land 'Commissioner before the Civil Judge and that at a belated stage no grievance could be made of the fact that the Appellate Court did not consider the order of the Land Commissioner and further that no valid reason had been given in the application under Order XLI, rule 27,C.P.C. as to why the order of the Commissioner was not placed before the trial Court. 6. The same point has been urged before us. The learned Civil Judge while dismissing the suit of the petitioner mainly relied upon the order of t he Deputy Land Commissioner whereby the land allotted in the name of the petitioner was cancelled. But this order of cancellation was set at naught by then Land Commissioner. As per the record, the petitioner sought to produce the same vide application mad e under Order XLI, rule 27,C.P.C.,and we think that once the Appellate Court was seized of the matter, i.e. the application under Order XLI. rule 27, C.P.C., it ought to have adjudicated upon the same before disposing of the appeal."
19. In case titled “MUHAMMAD YOUSUF and 12 others versus ABDUL KHALIQ and others” (1991 SCMR 1981), the apex Court held as under:- “2. When the petition came up for hearing on an earlier date and this grievance was reiterated, we issued notice to the respondents "as to why t his petition be not converted into appeal and case RSA Nos.221080 & 254772 of 2018. 10 remanded to the High Court in view of non -consideration/non- disposal of the application for additional evidence", for disposing of the question of additional evidence and thereafter dealing with the appeal . In response to the notice, respondent No.1 has appeared in person and does not object to the suggested course being followed. 3.We find that the statements of facts made by the learned counsel for the petitioners find support from the record. In the circumstances, this petition is converted into appeal , accepted, the judgment of the High Court is set aside and the matter is remanded to the High Court for disposal afresh after dealing with the applications for additional evidence.”
20. The Hon’ble Suprem e Court of Pakista n in case titled “ Mst. IMTIAZ BEGUM versus Mst. SULTAN JAN and others ” (2008 SCMR 1259) observed as follows:- “4. We have examined the record and have analyzed the arguments of the learned counsel. Respondent's learned counsel had not been able to controvert the fact, as to why the application of Qamar Zaman for withdrawal of civil revision was not decided at the final stage and by the learned High Court. In the trial Court as well as from the learned Appellate Court, Mst. Imtiaz Begum was granted decree in her favour, as against Qamar Zaman also, who had filed Civil Miscellaneous Application No.22 of 1996 before the learned High Court for withdrawal of revision to his extent, which was kept pending with an order to be decided at the stage of final decision of the civil revision. We have found that no order was passed upon this application in the final impugned judgment, which was too delivered in another Civil Revision No.13 of 1996 and only passing reference was made for the decision of this Civil Revision Petition No.14 of 1996, in the impugned judgment, and no independent/supportive order/decision was passed in Civil Revision No.14 of 1996. 5. Accordingly, we do not consider it a complete and full adjudication of the disputations/questions of law and facts involved in Civil Revision No.14 of 1996. So, the impugned judgment with regard to Civil Revision Petition No.14 of 1996, delivered by the learned Peshawar High Court, Abbottabad Bench is set aside and the case is remanded to the aforem entioned learned High Court, RSA Nos.221080 & 254772 of 2018. 11 considering Civil Revision No.14 of 1996 to be pending before it, with direction to decide the application Civil Miscellaneous No.22 of 1996 filed by Qamar Zaman as well as the civil revision afresh after grant of opportunity o f hearing to the parties to the above noted revision.”
21. In another case titled “MUHAMMAD AZAM versus MUHAMMAD ABDULLAH through L.Rs .” (2009 SCMR 326 ) the Apex Court observed as under:- “We have examined the record of learned High Court, according to wh ich appellant had filed application (Civil Miscellaneous Application No.370/C of 1990) for production of additional evidence on 23-1-1990. Notice was issued to the respondent and it was observed that this application shall be decided along with main case ( Civil Revision No.83 of 1990). However, the learned High Court decided the revision petition brought by appellant without taking into consideration documents in question and without disposal of said application for additional evidence. As such we find that case of appellant has been prejudiced. Even otherwise the case of appellant is that he is co -sharer in the Khewats in question, therefore, it was in the interest of justice that High Court should have decided his application before final adjudication of the case. For what has been discussed above, we are of the considered opinion that impugned judgment is not sustainable in law. As such this appeal is accepted, impugned judgment is set aside and the case is remanded to the learned High Court for decision a fresh on merits and in accordance with law after dealing with the application for additional evidence. No order as to costs.”
22. A perusal of the aforementioned judgments of the august Supreme Court of Pakistan indicates that where pending applications were directly related to the merits of the case, and their adjudication could have influenced the final outcome, the courts have consistently remanded the matter for fresh consideration. In the instant case, however, the circumstances are mate rially differ ent. The appellant - authority itself filed an application under Order I, Rule 10 of the Civil Procedure Code, seeking deletion or striking out of its name from the RSA Nos.221080 & 254772 of 2018. 12 array of parties. In its written statement, the appellant also specifically maintained that i t had no concern with the suit property, as it had halted any process of acquisition and did not participate in the trial proceedings. Moreover, the appellant failed to actively press or pursue this application before the learned lower Appellate Court. In these circumstances, it is evident that the application was not connected with the substantive merits of the dispute. Consequently, the contention arising from this application has no bearing on the merits of the case and cannot form a basis for interferen ce with the judgment of the lower Appellate Court. 23. This Court in the case of “Peer Bakhsh and others vs Nabi Bakhsh and others ” (2002 YLR 1630 ) discussed about superfluous applications which have been left undecided and main case/appeal gets decided. It was observed: - “The contention of the learned counsel for the petitioners that it is the legal obligation of the learned trial or Apellate Court to dispose of all applications filed before it may not be incorrect. However, this principle is not an infle xible rule of law but is adhered to for the larger interest of administration of justice. When, however, it is found that the contention in an application is superfluous and has been dealt with implicity by the relevant Court, this fact alone shall not thw art the proceedings of the Courts, if otherwise the matter is consciously dealt with by it.”
24. A Division Bench of Honorable Sindh High Court in the case “Aijaz Mahmood vs Hong Kong and Shanghai Banking Corporation ” (2014 C L C 1313) discussed about the pending applications, decision of which would not have affected merits and final findings, in the following words:- “In above mentioned cases the pending applications were touching to merits of cases and their decisions might have changed the RSA Nos.221080 & 254772 of 2018. 13 orders passed by the courts, while the situation in present appeal is totally different, therefore, we have no hesitation to conclude that the facts and circumstances of the above referred case -law are quite distinguishable from the peculiar circumstances of the instant appeal, and the decision of pending applications in either way, would not affect, alter and change the merits and final findings of the impugned judgment, and the appellant cannot take any benefit in this context mere agitating the technicalities, while he has miserably failed to establish his case on merits.”
25. The matter also came under discussion in the case “Khaki vs Aqleemun” (2015 C L C 290 ) where Hon’ble Peshawar High Court held as under:- “First of all, I would advert to the submission of the learned counsel for the petitioner that the two miscellaneous applications have remained un -decided. No doubt, an appellate Court is duty bound to decide first a miscellaneous application before the disposal of appeal which is legal duty but in case the ap pellate Court fails to perform his such legal function, then its such omission ipso facto will not nullify its judgment on main appeal. The omission will be seen in juxta position with merit of the case and contents of the miscellaneous application. If the un-attended and un-decided miscellaneous application has no direct bearing on the merit of the case, then in such like eventuality non -disposal of the application would not be taken seriously and on this score alone a case should not be remanded to the ap pellate Court for re- decision. 6. In the two referred miscellaneous applications, one is for production of a copy of a compromise deed dated 8 -10-2010 allegedly executed between the petitioner and the respondent No.1.This deed is scribed subsequent to the alleged sale effected by the petitioner with the respondent No.1 and therefore, has no nexus…
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