1969 PLP 254 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 12th September 1968, in Regular Second Appeal No. 879 of 1967).

Act (V of 1912), S. 19‑Transfer prohibited under S. 19‑Agreement for sale without sanction of Government void and no specific performance of such agreement could be ordered. A transfer prohibited by section 19 of the Colonization of Government Lands (Punjab) Act, 1912, is void even as between the parties to the transaction. It is therefore, clear that in the absence of such consent, in writing of the Government, no specific performance of an agreement for sale could be ordered.

S. 54‑Injunction, permanent ‑Equitable relief‑Could not be granted to person foundation of whose claim rests upon illegality‑Parties in pari delicto‑It is defendant who can take advantage and not plaintiff. Muhammad Anwar Buttar, Advocate Supreme Court instructed by Iqbal Ahmad Qureshi, JUDGMENT HAMOODUR RAHMAN, C. J.‑The petitioners in this case claim that on the 10th February 1969, the respondents executed an agreement in their favour to sell certain State lands, held by them, for the consideration of Rs. 20,000, and in part performance of this agreement received Rs. 1,500. The balance of Rs. 18,500 was to be paid after the respondents had obtained the sanction of the Government for the transfer of the State land under section 19 of the Colonization of Government Lands (Punjab) Act, 1912. The petitioners further claim that they also obtained possession of the lands in pursuance of this agreement. The respondents, however, instead of applying for the sanction, started proceeding for ejectment of the petitioners and they were ultimately ejected by the order of the Collector on the 11th January 1961, but they managed, however, to re‑enter into possession subsequently and then instituted a suit on the 13th December 1961, for perpetually restraining the respondents from interfering with their possession, or in the alternative, for a decree for Rs. 1, 500. The respondents alleged that the agreement was executed under undue influence and coercion of the petitioners and that in any event the transaction was void under section 19 of the above‑mentioned Act. The trial Court took the view that there was no undue influence or coercion but granted only a decree for Rs. 1,500. The injunction was refused as the Court was of the view that the petitioners had, after being lawfully ejected from the lands, forcibly re‑entered into possession and such possession was, therefore, unlawful. The sale was also held to be invalid because the permission of the Collector had not been obtained. This decision was upheld in appeal by the District Judge, Rahimyar Khan and a second appeal was dismissed by a Division Bench of the High Court of West Pakistan in limine. The petitioners now seek special leave to appeal. It has now consistently been held that a transfer prohibited by section 19 of the Colonization of Government Lands (Punjab) Act, 1912, is void even as between the parties to the 4 transaction. It is, therefore clear that in the absence of such consent, in writing of the Government, no specific performance of an agreement for sale could have been ordered. The only question was whether the decree for permanent injunction could have been granted by way of an equitable relief. But this too has been refused in the present case, for on the concurrent findings of both the trial Court and the first appellate Court, it is clear that the petitioners having been lawfully evicted, wrongfully entered into possession. An equitable relief could not be granted to a person the foundation of whose claim rested upon an illegality. Equity moves in aid of the law and. not to defeat law. The next argument is that since both the petitioners and the respondents were in pari delicto their unlawful possession should have been taken into account for granting them the relief. We are unable to agree with this contention. The principle is that where the parties are in pari delicto it is the defendant who can take advantage and not the plaintiff. In the present case, therefore, if the petitioners have stuck to their illegal possessions and the respondents had filed a suit for evicting them, this principle may have been invoked in aid by the petitioners, but they cannot do so in a suit in which they are themselves plaintiffs. For these reasons we are of the opinion that the prayer for permanent injunction was rightly disallowed. We, accordingly, dismiss this petition. Leave refused.