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Official Citation: 2026 LHC 4586
Court / Jurisdiction: Lahore High Court (Honorable Mr. Justice Rasaal Hasan Syed)
Parties: ZIA UD DIN ETC vs ADJ ETC
Ruling Summary: This decision was rendered by the Lahore High Court (Honorable Mr. Justice Rasaal Hasan Syed), officially reported as 2026 LHC 4586. In this matter between ZIA UD DIN ETC and ADJ ETC, 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 Rasaal Hasan Syed) DECISION DATE: 15-06-2026 CASE DETAILS: Writ Petition 16130-18 ============================================================ Stereo.HCJDA-38 JUDGMENT SHEET IN THE LAHORE HIGH COURT MULTAN BENCH MULTAN JUDICIAL DEPARTMENT
W.P. No.16130 of 2018
Zia-ud-Din and others v. Addl. District Judge and others
J U D G M E N T Date of hearing 15.6.2026
Petitioners by Ch. Zia-ud-Din, Advocate.
Respondent No.3 Mr. Shafqat Raza Thaheem, Advocate.
Rasaal Hasan Syed, J. This constitutional petition has been filed to assail judgment and order dated 17.9.2018 of learned Addl. District Judge, Taunsa Sharif whereby on accepting the civil revision order dated 26.6.2014 of the Trial Court was reversed, application under section 12(2) , C.P.C. was allowed and judgment and decree dated 05.4.2010 was set aside. 2. Facts necessary for the disposal of this matter are that the petitioners along with others instituted a suit titled Zia-Ud-Din, etc. v. Jumma Khan, etc. for permanent and mandatory injunction and recovery of possession, claiming themselves to be the owners of suit property and their illegal dispossession therefrom by the defendants who were characterized to be trespassers having forcibly and illegally tak en possession of the suit property. Su it was instituted on 26.11.1999; despite issuance of summons defendants did not turn up and they were proceeded against ex part e. Relying on evidence comprising Exh.P-1 to Exh.P -8 and other oral evidence , the suit was decreed ex parte on 05.4.2010 by learned Civil Judge, Taunsa Sharif. On 29.4.2013 , Mst. Sobia Bibi daughter of Jumma W.P. No.16130 of 2018 -2-
Khan wife of Muhammad Masood respondent No.3 herein , filed an application under section 12(2), C.P.C. to assail the ex parte decree on the ground that it was obtained by fraud and that she was necessary party who was not impleaded in the suit, as such, the decree was not binding on her and that having purchased the property vide mutation No. 1715 dated 31.7.2004 she had valuable interest in the property who ought to have been impleaded as a party and that the factum of purchase of property was concealed and that the proper service of defendants was not obtained. The application was contested by the petitioners by raising preliminary objection s that the application was time -barred which having been filed after more than three years from the purported knowledge of decree, as per Article 181 of Limitation Act, 1908, was not within time and that the petitioner being claimant of purchase of propert y pendente lite in violation of injunctive order issued in the suit on 12.9.2001 the contemplated purchase was mala fide and void ab initio; and that the petitioner was not necessary party and that the application was not legally and factually tenable. Number of other objections on legal and factual side were also taken to show that the alleged purchase was under knowledge of pending suit and the entire transaction was collusive. After recording evidence, the learned Civil Judge dismissed the application u nder section 12(2), C.P.C. vide order dated 26.6.2014. Respondents’ revision thereagainst was allowed by learned Addl. District Judge, Taunsa Sharif vide order dated 17.9.2018, in result, the application under section 12(2), C.P.C. was accepted and in cons equence thereof the decree dated 05.4.2010 was set aside by order dated 17.9.2018 which is under challenge in this petition. 3. Heard. 4. Perusal of documents available on the file reveals that the suit for permanent and mandatory injunction and recovery of W.P. No.16130 of 2018 -3-
possession was filed by the petitioners Zia -Ud-Din, etc. on the ground that they were owners of property and that the defendants in the suit had illegally dispossessed them and forcibly taken possession of the suit property and that they were trespassers and were liable to be dispossessed. Suit was admittedly instituted on 26.11.1999 , defendants in the suit did not turn up despite summons and were proceeded against ex parte whereafter the suit was decreed based on oral and documentary evidence on 05.4.2010. After more than three years i.e. on 29.4.2013, Mst. Sobia Bibi wife of Muhammad Masood respondent No. 3 (defendant in the suit) , filed a n application under section 12(2), C.P.C. to challenge the decree on the grounds that she had purchased the property from Israr - Ul-Haq son of Faiz -Ud-Din vide mutation No. 1715 dated 31.7.2004 and being owner of one kanal she had raised construction over it and was necessary party to the knowledge of decree -holder/petitioner but despite th is she was not impleaded as a party, therefore, the decree was liable to be set aside. 5. The application was seriously opposed by the petitioners legally and factually by asserting that she being purchaser pendent lite had no r ight to be impleaded as a party who was aware of the pending suit and despite that purchased the property in violatio n of injunctive order issued in the suit and that her husband Muhammad Masood and other close relatives were already party to the suit who never opted to apply for her impleadment as party and that the application was barred by rule of lis pendens and otherwise not maintainable. 6. Issues were framed and evidence was got recorded whereafter the learned Civil Judge on indepth scrutiny of evidence concluded that the petitioner being purchase r pendente lite was not a necessary party and that sale in her favour was mala fide and otherwise legally impermissible and W.P. No.16130 of 2018 -4-
that the application was not maintainable under section 12(2), C.P.C. In revision thereagainst the learned Addl. District Judge took the view that the petitioners were awar e of purchase/sale in favour of Mst. Sobia Bobi, as such, was a necessary party who was not impleaded , therefore, the decree was assumed to have been obtained by fraud. 7. Undisputedly the suit was instituted on 26.11.1999 which was based on the plea of ownership and prayer therein was for permanent and mandatory injunction and for recovery of possession. On application under Order XXXIX, Rules 1 and 2, C.P.C. the learned Civil Judge issued injunctive order on 12.9.2001. Israr -Ul-Haq from whom the respondent No. 3 claimed to have purchased the property was a party in the said suit who was bound to obey the injunctive order. Sale in favour of petitioner on 31.7.2004 by mutation No. 1715 was admittedly during the subsistence of injunctive order and pendency of suit. Section 52 of Transf er of Property Act, 1882 bars any alienation or alterations, change of position qua the suit property during the pendency of suit without the permission of the court. It is settled rule that transferee does not acquire any legal title free from clog of uns uccessful transferor in whose shoes they step into for all intents and purposes and must swim and sink with the predecessor-in- interest. Reference can be made to the case of Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) wherein it was observed that transferee of suit property and even the purchaser for value without notice of 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 strict senso in all respects as the transferor would be bound. Learned Civil Judge noted that respondent No.3 was fully aware of pending suit; that her husband was party in the suit and had appeared in W.P. No.16130 of 2018 -5-
the partition proceed ings and that she was living in the house of her husband Muhammad Masood and her father -in-law was also living in the same house and that they were both party in the suit and that it was unbelievable that in such circumstances respondent No.3 could claim t o be ignorant of the suit which was ultimately decreed. 8. The other objection to the application under section 12(2), C.P.C. was that sale was claimed to be in violation of injunctive order, respondent No.3 claimed to have taken possession from a trespasser who was party in the suit and, therefore, the sale was void ab initio. While considering the fact of alienation/transactions made by the defendants in violation of injunc tive order it was observed in the case of Muhammad Sabir Khan and 13 others vs. Rahim Bakhsh and 16 others (PLD 2002 SC 303) to the effect that no legal sanctity attached to any action done during the pendency of the lis and against the court orders . In Muhammad Mushtaq and others v. Mst. N adira and others (2017 YLR 613) following the rule in the case supra it was observed that the applicant purchasing the property in the presence of injunctive order could not claim to be bona fide purchaser and that transfer of property made during the pendency of litigation could not affect the rights of any other party to the litigation who might acquire it under the decree passed by the court. 9. Another objection to maintainability of application under section 12(2), C.P.C. was that in the instant case no fraud was committed on the court and , as such , the application under section 12(2), C.P.C. was not maintainable. Reference may be made to Sheikh Muhammad Iftikhar Ahmad and others v. Faiz Ahmad and others (2023 SCMR 2158) where it was observed to the effect that pivotal condition upon which section 12(2), C.P.C. turns is that fraud or misrepresentation be played on the court and that consequently the order obtained is through fraud W.P. No.16130 of 2018 -6-
or misrepresentation and that it may not be invoked where the fraud or misrepresentation is inter se the parties and that the principle of lis pendens shall be applicable when one purchases from a party during pendency of a suit where in the same property is the subject -matter and consequently the parties are bound by the final decision notwithstanding any intermediate alienation of the property. 10. Considering the effect of section 52 of Transfer of Property Act, 1882 it was observed in Muhammad Sharif and others v. Mst. Fateh Bano and others (2004 SCMR 813) to the effect that sale mutation during the pendency of suit would be hit by doctrine of lis pendens and that such purchase would have no locus standi to take up cudgels for defendant/vendor and seek dismissal of suit on the ground of limitation. Reference can also be made to Ch. Zulfiqar Ali v. Additional District Judge, District Okara and 9 others (2013 MLD 92) where it was observed to the effect that a purchaser during the pendency of suit having purchased the property without leave of the court as required by section 52 of Transfer of Property Act, 1882 could not be impleaded as a party in the suit already pending. 11. In view of the facts and law referred supra it is manifest that the learned Civil Judge accurately analyzed the facts on record and applied correct law whereupon it was concluded that the application under section 12(2) , C.P.C. was not maintainable and that the purchase by respondent No.3 was hit by principle of lis pendens , as such , the same was untenable and that the respondent No.3 being purchaser pendent lite was bound by the decree against the vendor and that the purchase was otherwise illegal, being violative of injunctive or der and that respondent No. 3 was not necessary and proper party and that the application was otherwise untenable in law. The revisional court illegally ignored the law applicable on the W.P. No.16130 of 2018 -7-
subject and completely misread the evidence and misinterpreted and mi sapplied the law. The impugned judgment by the revisional court being based on misreading and non -reading of evidence and being against law, suffer s from serious jurisdictional error which is contrary to law and is, therefore, liable to be annulled and accordingly set aside. 12. Resultantly this constitutional petition is allowed; impugned judgment dated 17.9.2018 of learned Addl. District Judge, Taunsa Sharif is set aside and the order dated 26.6.2014 of learned Civil Judge, Taunsa Sharif whereby the application under section 12(2), C.P.C. was dismissed, is restored.
(RASAAL HASAN SYED) JUDGE
APPROVED FOR REPORTING
JUDGE
Imran*