2026 PLP 201 (CLC)

SULTAN TANVIR AHMAD, J.

This civil revision has arisen out of judgment dated 25.11.2015 passed by the learned Additional District Judge, Sheikhupura, whereby, application dated 11.12.2014 (the application ) filed by Bashir Ahmad under section 12(2) of the Code of Civil Procedure-1908 (the C.P.C. ) has been dismissed.

2. Bashir Ahmad filed the application, with the deep-seated grievance that Muhammad Riaz after obtaining decree dated 09.07.2014 (the decree ) in suit dated 09.12.1999 for declaration (the suit ) against Abdul Qayyum and others, sold him 4-kanal 7- marla (the disputed property ) and then Muhammad Riaz got recorded his statement with patwari on 15.07.2014 and mutation No. 4432 dated 25.07.2014 was passed in favour of Bashir Ahmad; thereafter, Muhammad Riaz in collusion with Abdul Qayyum and others gave statement dated 20.10.2014, before the District Court, to the effect that he has no objection to set-aside the decree and suit be dismissed as withdrawn, upon which the learned District Court on the same day dismissed that suit.

3. On 11.12.2014 the application was filed by Bashir Ahmad, however, the learned District Court proceeded to dismiss the application, without framing issues and recording evidence, vide impugned judgment dated 25.11.2015.

4. I have heard the learned counsel for the parties on 07.10.2024 and 10.02.2025. They have also filed written arguments, supported by judgments of the Honourable Supreme Court as well as this Court to substantiate their adopted positions. The record is also perused.

5. The learned Court below summarily dismissed the application for the reasons that (i) the rule of lis pendens is applicable to the case and (ii) no fraud has been committed with Court, which is essential to maintain an application under section 12(2) of the C.P.C.

6. The application of doctrine of lis pendens is circumscribed by certain conditions

1. One of the well recognized exception is when the provisions of section 41 of the Transfer of Property Act, 1882 (the Act ) are squarely applicable to the case.

7. Mr. Muhammad Mahmood Chaudhry, learned Advocate for respondents namely Shaukat Ali, Inayat Ali, Abdul Qayyum, Muhammad Jawaid, Mujahid Ali, Zahid Sarfaraz, Basharat Ali and Muhammad Ayub has emphasized that rule of lis pendens applies because Bashir Ahmad purchased the property during the pendency of appeal as his mutation was sanctioned on 25.07.2014 and even if it is assumed that the purchase was finalized prior to filing of appeal, it should make no difference as the rule applies during the period of limitation to file appeal. He referred to Sheikh Muhammad Iftikhar Ahmad case

2. However, the judgment relied is not applicable to the present case, as no consent decree was involved in the said case and even otherwise, the facts therein were significantly different. The allegation in the application is that Muhammad Riaz after obtaining the decree sold the disputed property to Bashir Ahmad and soon thereafter appeared in appeal to give consent, on the basis of same compromise and requested to set-aside the decree. The possibility of collusiveness, in the circumstance, cannot be ruled out.

8. The Honourable Supreme Court has already settled that a genuine compromise is a normal conduct of parties but a compromise entered into by collusion or fraud excludes the application of section 52 of the Act3.

9. Another reason that prevailed, for summary dismissal of the application, is that fraud is not committed with the Court and no misrepresentation was made in course of the proceedings. It is once again ignored that the allegation is collusion in judicial proceedings. If the fraud is inter se the parties and no fraud with the Court is committed or no misrepresentation is made before the Court, the provisions of section 12(2) of the C.P.C. are not applicable, in absence of jurisdictional defect

4. However, the position is different when consent decree is obtained to have the premium of the fraud5.

10. Mr. Shezada Mazhar, learned Advocate for the revision petitioner, has also made correct reference to the following part of Muhammad Zubair case6 to support the legal proposition put-forth before this Court:- In case in hand, it is not denied that this Court has not passed a pre-emption decree in favour of pre-emptor on the basis of merits of the case but it was one of the vendees/defendant No.2, who made a statement before the Court that the concurrent dismissal decrees in a pre-emption suit in his favour be set aside and suit of revision petitioner be decreed against him, whereas before making the statement he had already transferred a portion of suit property in favour of applicant of this application filed under section 12(2) of the C.P.C.. In these circumstances, I having absolutely no doubt in my mind that the case law referred to by learned counsel for the respondent (revision petitioner) are not applicable, and too, section 52 of the Transfer of Property Act (IV of 1882) is not applicable to the facts of this case if the civil revision was to be allowed on merits, then certainly transaction during the pendency of this revision was hit by the principle of lis pendens but on merits this civil revision could not have been accepted or a decree could not have been passed, therefore, in these circumstances of this case the transaction is not hit by the principle of lis pendens. In this view of the matter, when transaction of applicant is not hit by the principle of lis pendens, therefore, this decree has been procured through misrepresentation and practicing fraud with this Court because at the time of making statement by respondent No.2/defendant No.2, he has not apprised the facts to this Court that he had already transferred a portion of property in favour of applicant of this application under section 12(2) of the C.P.C., therefore, applicant has a right to file application under section 12(2) of the C.P.C., which has been validly filed.

11. Argument was also raised that section 12(2) of the C.P.C. does not apply because Bashir Ahmad was not party to the suit or the appeal. This argument has no force as fraud alleged is not only amongst the parties or out of the Court but it is an attempt to take shelter of judicial proceeding and decree. In my opinion facts of the case attract the view adopted by learned Peshawar High Court in Abdur Rauf case7, which is also approved by the Honourable Supreme Court

8. The relevant extract is as under:- "It is obvious that in section 12(2), C.P.C. the word 'person' and not the judgment-debtor or his successor-in-interest or the word party to the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word 'person'. Had the intention of the law-maker been to restrict the right of filing the application under section 12(2), C.P.C. only to the judgment-debtor or his successor-in-interest or a person who was party thereto then nothing was easier for the law-maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person not being a judgment-debtor or his successor-in-interest or a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents."

12. The learned District Court, while refusing to frame issue(s) and recording evidence, has clearly fell to error. The case is not that required summary dismissal. When no case of fraud or misrepresentation or jurisdiction is made out and it is apparent from the record that application under section 12(2) of the C.P.C. is filed just to derail the proceedings, superfluous or it is to cause delay in execution; such attempt requires summary dismissal. Oral and / or written submissions are sufficient when no complicated question is involved. Nevertheless, when facts require determination, recording evidence and question being a mixed question of law and facts would need proper determination9.

13. For the foregoing reasons, the present civil-revision is allowed and while setting aside the impugned judgment, the case is remanded to the learned District Court concerned for decision on the application after framing issue(s) and providing opportunity to produce evidence. This case being an old matter will need an early disposal. No order as to costs.

14. Before parting, the discussions made above are only to reach conclusion of legal proposition. Observations shall not cause prejudice. UN/B-6/L Revision allowed. 1 Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 Supreme Court 905) (see paragraph 7). 2 Sheikh Muhammad Iftikhar Ahmad and others v. Faiz Ahmad and others (2023 SCMR 2158). 3 (i) Fazal Karim through Legal Heirs and others v. Muhammad Afzal through Legal Heirs and others (PLD 2003 Supreme Court 818) and (ii) reference can also be made to Muhammad Iqbal and others v. Khair Din (decd.) through L.Rs. and others (2014 SCMR 33). 4 Sheikh Muhammad Iftikhar Ahmad and others v. Faiz Ahmad and others (2023 SCMR 2158) referred again. 5 Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others (PLD 2013 Supreme Court 364). 6 Muhammad Zubair v. Muhammad Tahir Shafique and another (PLD 2013 Lahore 154). 7 Abdur Rauf and others v. Abdur Rahim Khan, Advocate (PLD 1982 Peshawar 172). 8 Ch. Jalal Din v. Mst. Asghari Begum and others (1984 SCMR 586). 9 (i) Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCMR 2003) and (ii) Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCMR 236).