2020 PLP 1358 (YLR)

SALAHUDDIN PANHWAR, J.--Heard learned counsel for respective parties at length.

2. Learned counsel has mainly emphasis that Petitioner purchased Plot No.35 from one Muhammad Iqbal and residing in that premises whereas case of the Respondent No.1 pertains to Plot No.156, having no nexus.

3. In contra, learned counsel for Respondent No. 1 inter alia contends that property is same, however,. Muhammad Iqbal and present Applicant have tried to confuse the trial Court thereby attempted to defeat the proceedings. He further contends that in Civil Appeal No.136 of 2009, learned V-Additional District and Sessions Judge, Karachi South has categorically replied with regard to number of plots as agitated by Muhammad lqbal.

4. The core issue relates to principle of ut lite pendente nihil innovetur (pending litigation nothing new should be introduced) which stipulates that pendente lite parties to litigation no party can alienate or otherwise deal with an immovable property to the detriment of his opponent. The doctrine by now is recognized both in law and equity and underpins the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail. It also needs to be added that even the plea of bona fide purchaser is of no legal consequence if the transferor's title loses its root in a pending litigation. Reference is made to the case of Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 wherein it is categorically held at page-913 as:- "..The effect of such alienation would be that the plaintiff would be defeated by defendants alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with lurking fear that he could again be defeated by the same trick. The doctrine of lis pendens in pith and substance is not only based on equity but also at good conscience and justice. 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.

5. To see whether the applicant has an exception to above principle, it would be conducive to refer Paragraphs Nos.9, 10, 11 and 12 of the impugned order, which are that:-- "

9. I have heard learned counsel for the parties at length, perused the impugned order so also the record. On appraisal of record, it reveals that Civil Suit No.1044/1998, filed by the respondent No.3 against the respondent No.1 for possession, declaration and permanent injunction, claiming to be owner of House No.156. situated in Gali No.20, Neelam Colony, Karachi having acquired/purchased the same from one Muhammad Siddique. As per respondent No.3, the respondent No.1 was his wife, whom he divorced but did not ask to vacate the said house but on coming to know that she intends to sell out the same, filed the above Suit, which was decreed in favour of the former by the learned XV-Civil Judge, Karachi South vide Judgment dated 27.01.1999. In pursuance to said decree, the respondent No.3 got the possession of the said property in Execution proceedings bearing No.01/1999.

10. Later on, the respondent No.1 Mst. Sakina had filed an application under Section 12(2), C.P.C. for setting aside of said ex parte Judgment and Decree, but the same was dismissed vide order dated 17.5.2005 by Vth Civil Judge, Karachi South. Such order was assailed by the respondent No.1 Mst. Sakina in Civil Appeal No.95/2005, and the learned VIth Additional District Judge, Karachi South, vide Judgment dated 31.5.2006 allowed the said appeal and ex parte Judgment and Decree passed in Civil Suit No.1044/1998 was set aside, remanding the matter back to the learned trial Court for decision on merits. Record further indicates that after remand of the matter, the respondent No. 1/ defendant had filed written statement, issues were settled by the trial Court, however, subsequently on failure of the respondent No.3/plaintiff to make appearance, the said suit was dismissed for non prosecution on 15.11.2008. After dismissal of the Suit, the respondent No.1 Mst. Sakina had Wed an application under section 144, C.P.C. read with section 151, C.P.C. in Suit No.1044/1998 for restoration of possession of the subject property acquired by the respondent No.3 on the basis of ex-parte judgment/ decree, such application was dismissed at the first instance by the learned XII Civil Judge, Karachi South, vide order dated 04.7.2009, the said order was assailed by her through Civil Appeal No.136/2009. which was allowed by the learned Vth Addl. District Judge, Karachi South vide order dated 13.10.2010, with the observation that since the very base of possession of subject property by the respondent No.3 is no more in field, therefore, the respondent No.1/Judgment Debtor is entitled for taking back the possession and her application under section 144, C.P.C. read with section 151, C.P.C. was allowed. Thereafter, the said order passed in Civil Appeal No.136/2009 by learned V Additional District Judge, Karachi South, was challenged by the respondent No.2, by filing application under section 12(2) read with section 151, C.P.C. and the same was dismissed by the learned Vth Addl. Sessions Judge, Karachi South vide order dated 01.12.2015.

11. Under the above state of affairs, it quite clearly appears that the Possession of the subject property was taken by the respondent No.3 from respondent No.1 in pursuance to ex parte decree passed in his favour, which was later on set aside, therefore, the respondent No.1 has rightly invoked the provision of section 144, C.P.C. for restoration of possession of the subject property, which was duly allowed by the competent Court of law. So far as the claim of the appellant as raised in his application under Order XXI, Rule 99, C.P.C., is concerned, he claims to have purchased house bearing Sheet No.2. Katchi Abadi, Shah Rasool Colony-2, Clifton Karachi and stated that the possession of his said house which is claiming under the writ is different, but the respondent No.1 under the garb of decree fraudulently wants to get the same. The learned trial Court while deciding the said application observed as under:- Record shows that as per order dated 30.11.2010 passed on execution application by this Hon'ble Court reveals that in execution of ex parte judgment and decree dated 27.01.1999 possession was taken over by the Decree Holder but the same could not sustain and was set aside in Civil Appeal No.95/2005 by the Hon'ble VI Additional District Judge, Karachi vide judgment dated 31.05.2006 remanding the case for deciding the matter on merit within six months and following such directions the matter was proceeded and ultimately suit was dismissed on 15.11.2008 for non-prosecution. Record further reveals that thereafter an application under section 144 read with section 151, C.P.C. was moved by the Judgment Debtor for having the possession of the suit property back but that application was dismissed vide order dated 04.07.2009 by the learned XII Judicial Magistrate, Karachi but this order could not sustain and has been set aside in Civil Appeal No.136/2010 filed before V Additional District Judge Karachi South vide judgment dated 13.10.2010 with the observation that since the base of delivery of possession of suit property by the decree holder is no more in field, therefore the Judgment Debtor is legally entitled to have the possession of the suit property back and further allowing this application moved by Judgment Debtor under section

144. Record further shows that when the appeal was dismissed on 1st December, 2015, the dismissal order was not challenged in the Hon'ble High Court and by lapse of time it became final and during pendency and having purchased the said property on 10th August, 2015 fell within the ambit of lis pendens when the order was passing by the Hon'ble V Additional District Judge, Karachi South, I would like to refer the case law:- 1989 SCMR 1781 O.XXXI R.58....Objection to the execution of decree rejected by Courts below on the principle of lis pendens... petitioners' claim on the facts that they were purchaser pendente lite, had rightly been rejected on principle of lis pendens

Objection petition on other grounds was not competent leave to appeal refused. 1984 CLC 1458

O.XXI Rr.99, 100 & 101

Object... Petition.. Competency of

Held: objection petition, if mala fide to be dismissed on that short ground (alone) without holding any inquiry into question of objection occupying premises on his account and not on account of judgment debtor executing court finding claim of petitioner mala fide regarding occupation of disputed property in his own right-- Held: Court to be competent to non-suit petitioner even without investigation his claim. 1988 CLC 1652 ( Karachi)

O. XXI, Rr. 99, 101 & 102

Transfer of Property Act (IV of 1882), S.52

Doctrine of lis pendens

applicability of-- person who had been transferred property by judgment debtor after institution of suit, in which a decree had been passed against such judgment-debtor, held could not take advantage of Rr.99, 101 of Order XXI, C.P.C."

12. Perusal of findings of the learned trial Court referred above, it is revealed that learned trial Court while deciding the application of the appellant after considering each and every aspects of the case and in view of the state of affairs discussed supra, it is quite clear on record that the respondent No.1 was out of possession on the basis of ex parte Judgment and decree, which was subsequently set aside and as such lawfully invoked the provision of section 144, C.P.C. for restoration of possession of the subject property, allowed by the competent Court. It is noted that the appellant during the proceeding alleged purchased the suit property, which rightly held by the learned trial Court being transaction based on mala fide and did not give any lawful right to the appellant to put hindrance for retaining back possession of the subject property as allowed by the competent Court of law. I have much respect for the case law relied upon by the learned counsel on behalf of the appellant, but the same are not applicable in the instant matter having variant facts to each other.

6. Record further shows that admittedly Muhammad Iqbal filed application under section 12(2), C.P.C., that was dismissed by judgment dated 01.12.2015 while responding to the plea of property, being different. Relevant paragraph of that judgment is that:-- "In view of the above facts and circumstances, it is quite clear that change in number of the house from 156 to 308 has not intact changed the suit property but because of renumbering of the plots being Katchi Abadi. It is rather the same property on which decree was passed in ex-parte in the year 1999 and execution was allowed whereby plaintiff/decree holder was put in possession. It is the same property on which the applicant/ Muhammad Iqbal claims to be bona fide purchaser deriving title through sale agreement from the plaintiff/decree holder Khushi Muhammad. Thus it is the same property for which application under section 144, C.P.C. was filed as the judgment and decree were set aside and the plaintiff's suit has been dismissed in non-prosecution. "

7. Since, prima facie, Muhammad Iqbal failed to challenge the same and whereas Muhammad Bashir is claiming ownership through very Muhammad Iqbal, who had lost his case and that order has attained finality, hence Muhammad Bashir legally cannot agitate same plea in his independent right because he, in fact, does not have an independent right but his rights, if any, are derived from Muhammad Iqbal hence he was always, to sail or sink with such transferor. Accordingly, instant revision application is hereby dismissed along with listed application. ZC/M-15/Sindh Petition dismissed.