2017 PLP 329 (MLD)

MUHAMMAD IQBAL KALHORO, J.

Petitioner has impugned the Order dated 19.2.2015 passed by learned District Judge Karachi East on Civil Revision No.78/2014 filed by her against the dismissal order of application under Section 12(2), C.P.C. in Civil Suit No.1023/2004.

2. Briefly, the facts are that respondent No.3/Mehmood Ahmed filed above stated civil suit against the respondent No.1/ Messer's Akbar Builders for reliefs of declaration, permanent injunction, specific performance and mesne profit. The dispute between the parties was on Flat No.A-305 3rd floor Akbar Paradise, Plot No.A-2, National Cement Cooperative Housing Society Block 10-A, Gulshan-e-Iqbal Karachi that was purchased by respondent No.3 from respondent No.1. The suit was decreed to the extent of prayer clauses 1 and 3, but the relief sought in prayer clause 2 was declined vide judgment and decree dated 17.2.2009 and 25.2.2009. Respondents Nos.1 and 3 separately filed the appeals against the said judgment and decree. Learned appellate Court allowed the appeal filed by the respondent No 3 and included the relief sought by him in prayer clause 2 in the suit and dismissed the appeal preferred by respondent No.1 on 16.11.2011 by a single judgment. Resultantly, execution application was filed by respondent No.3 that was allowed vide order dated 28.1.2013 and on 27.3.2013 Nazir of the Court was directed to comply with the decree. Meanwhile petitioner filed the application under Section 12(2), C.P.C. assailing the judgment and decree in the said suit on the grounds of fraud, misstatement, misrepresentation and concealment of the facts. Her plea was that she was owner of the said flat by way of bona fide purchase without any notice of pending litigation to her and such registration stood in her favour. Her application however was dismissed by order dated 21.10.2014. The petitioner preferred the above referred civil revision application but that too was dismissed.

3. Mr. Abdul Wajid Wyne learned counsel for the petitioner stated that the petitioner was bona fide purchaser of the property whose rights were protected in terms of scheme under section 41 of the Transfer of Properly Act, 1882 (the Act). She had no notice of pending litigation on said flat; therefore principle of lis pendens was attracted in her case. He referred to Section 18 of Registration Act, 1908 and Section 52 of the Act to support his contentions and lastly relied upon the decisions reported in 2003 MLD 1970, 2000 CLC 250 and PLD 2006 SC 84.

4. On the other hand, Ms. Lali Tabassum Khan learned counsel for respondents Nos.2 and 3 contended that respondent No.1 fraudulently, after the suit of the respondent No.3 filed against it was decreed in his favour, sold out the property to the petitioner. She next argued that such sale had no sanctity in the law and was hit by the principle enunciated under section 52 of the Act. It was respondent No.1 that was at fault and action, if any should have been taken by the petitioner against it and not against the respondent No.2 because when he filed the suit for the subject flat, the petitioner was not in the picture to be made party. In her view the subsequent sale of the said flat in favour of the petitioner was illegal and against the judgment and decree passed by the trial Court. In support of her argument she relied upon the decision of Mohammad Ashraf Butt and another v. Muhammad Asif Butt and another reported in PLD 2011 SC 905.

5. After hearing the learned counsel and perusing the record including case laws cited at the bar, we are of the view that the petitioner has no case on merits. For the reasons that she was sold the suit property by the respondent No.1 after the decree was passed in favour of respondent No.3 in his suit. The respondent No.1, being the defendant, had participated in the said suit and was fully aware about such decree, which was challenged by it in appeal but remained unsuccessful. The act of selling the said flat to the petitioner by respondent No.1 does not appear to be influenced by any bona fide consideration rather obviously it so acted to defeat the execution of the decree in favour of respondent No.

3. As at the time of filing of the suit by the respondent No.3 and subsequently till it was decreed and appeals were filed, the petitioner was neither sold the subject flat nor was put into its possession, she cannot allege fraud, misrepresentation and concealment of facts against Respondent No. 3 for not making her party in the suit. In our estimation, no right over the said flat has ever accrued in her favour that is protected either under section 41 or under section 52 of the Act. But on the contrary it is clear that putting the petitioner in possession and transferring title of the said flat to her by respondent No.1 during pendency of the appeals were the acts tainted with mala-fide and ulterior motives. These acts for obvious reasons are hit by the principle of lis pendens and have no sanctity in the eye of law. Subsequent sale of the said flat in favour of the petitioner will not stultify or annul the right of respondent No.3 in the suit property, the petitioner is bound to fail as far as the relief she is seeking through the instant petition is concerned; she in view of the dictum laid down by the Hon'ble Supreme Court in the case of Muhammad Ashraf Butt, supra, has to swim and sink with her predecessor-in-interest, who remained unsuccessful in the litigation over the dispute of said flat. We have also seen that Nazir of the learned trial Court has executed sale deed in compliance of order of the decree in favour of respondent No.3 and now nothing remains controversial except the possession of the said flat is to be taken from the petitioner.

6. When we, for the reasons to be recorded, dismissed the petition in hand, by short order on 26.10.2015, Mr. Abdul Wajid Wyne, learned counsel for the petitioner made a request that at least police station concerned be directed to lodge an FIR against respondent No.1 and its partners as apparently they had sold the said flat to the petitioner by deceiving and cheating her. We, however, in view of such request directed the SSP concerned to personally ensure proper investigation in the matter in case of such an FIR, and to see guilty persons were dealt with in accordance with law and also directed him to submit progress report to this Court. Learned counsel also prayed for six months' time to vacate the said flat that we granted to him in view of peculiar facts and circumstances of the case.

7. In addition to above, we also observed that respondent No.1 and its partners were in violation and contempt of the order of II-Sr. Civil Judge, Karachi-East, whereby there were restrained from selling the subject property. We in the circumstances ordered for initiation of necessary proceedings against them for such violation and made sure that weekly progress reports were submitted to this Court through MIT. In such terms, the instant petitioner stands disposed of. These are the reasons of our short order dated 26.10.2015. JK/M-128/Sindh Petition dismissed.