2018 PLP 15 (CLCN)

MUJAHID MUSTAQEEM AHMED, J.

The factual matrix giving rise to this civil revision petition and necessary for its adjudication is that present petitioner filed suit for specific performance of contract against the respondents (legal heirs of Mehboob Alam deceased) alleging that vide agreement to sell dated 26.06.2014, Mehboob Alam agreed to sell the suit property i.e. shops comprising 4-1/2 marla against consideration of Rs.40,00,000/- out of which Rs.35,00,000/- were paid as earnest money but subsequently predecessor in interest of respondents failed to perform his part of contract, so the petitioner while approaching the civil court prayed a decree for specific performance of contract in his favour. Along with the suit, he moved an application under Order XXXIX, Rules 1 and 2, C.P.C. with the prayer that till final decision of the suit, the respondents be restrained from further alienating the suit property or changing its nature/character.

2. The respondents/defendants contested the suit as well as application filed for interim injunction mainly on the grounds that the purported agreement to sell is based on fraud, misrepresentation and without consideration. Learned Civil Judge 1st Class, Sialkot vide impugned orders dated 26.09.2016 dismissed this application. The petitioner assailed this order before learned Additional District Judge Sialkot but the appeal was also dismissed vide judgment dated 27.01.2017. As such the petitioner has assailed these orders/judgments by filing this revision petition under section 115 of the Code of Civil Procedure (Act V of 1908) mainly on the grounds that the same are against facts, law, result of misreading and non-reading of evidence and the lower fora has refused to exercise the jurisdiction vested with it.

3. Relying upon precedent reported as Muhammad Sattar and others v. Tariq Javaid and others (2017 SCMR 98) it has been maintained that agreement to sell is enforceable in accordance with law. The petitioner has succeeded to prove all the necessary ingredients for grant of ad-interim injunction.

4. In the light of submissions of learned counsel for the petitioner, I have perused the available record.

5. Both the Courts below have come to the conclusion that the petitioner has failed to establish the necessary ingredients for grant of interim injunction in his favour and any sale made during pendency of the suit will be governed by the principle of lis pendens.

6. There is no cavail that if during pendency of suit any alienation is made by a party to the suit, it is governed by the principle of lis pendens. Principle of lis pendens is universally recognized and accepted rule of justice; it is a principle of law, equity, good conscience and public policy. Basic object underlying principle is to maintain "status quo" and preserve the corpus of lis during the continuance of litigation and till the final decision of dispute so as to be ultimately made over to adjudge right holder. In case Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187) following principle has been laid down:- "Considering the plea of lis pendens raised by the appellant's learned counsel, it may be mentioned that the scope, the principle and the application of rule of lis pendens has been elaborately dilated in the judgment reported as "Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others" (PLD 2011 SC 905). The ratio of the above law is that a subsequent transferee cannot sustain his transfer (e.g. the sale) if he has purchased the property during the pendency of the suit, obviously that shall be so if the case is decided against the transferor from whom he is purchasing the property or against the transferee if he is a party to the case, but if the lis is decided in his favour, there shall be no question about the application of the rule of lis pendens." In another case Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) following principle has been laid down: "The afore-referred provision enshrines the age old and well established principle of equity that ut lite pendent nihil innovetur (pending litigation nothing new should be introduced) and stipulates that pendent lite parties to litigation wherein right to immovable property is in question, no party can alienate or otherwise deal with such property to the detriment of his opponent. Any transfer so made would be hit by this Section. 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. 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. In Lalji Singh v. Remeshuwar Misra [(1983) 9 All LR 269 (271) (All)], the essential ingredients of section 52 ibid or the condition precedent to attract this principle were construed as follow:- (i) The pendency of any suit or proceeding in a court law; (ii) The court must have jurisdiction over the person or property; (iii) The property must have specifically described and should be affected by the termination of the suit or proceedings; (iv) The right to the said property be directly and specifically be in question in any suit or proceedings; (v) An alienation of such immovable property without the permission or order of the court; and (vi) The alienation should be during the pendency of any such suit or proceeding and a suit or proceeding in question is not collusive." In celebrated precedent reported as Col. (Retd.) Sadiq Hasan Sheikh v. Abdul Rashid and another (1993 MLD 486), it has been held as under:

Mutation of suit land sanctioned during pendency of appeal in suit being hit by the principle of lis pendens would not take effect so far as property in question was concerned. In case law reported as Basit Sibtain through Legal Heirs v. Muhammad Sharif through Legal Heirs (2004 SCMR 578) Supreme Court of Pakistan while interpreting section 52 of Transfer of Property Act, 1882, has laid down following principle: 52

Sale During pendency of suit could not frustrate ultimate decree, which would operate against purchaser pendent lite. Similar view has been taken in precedent reported as Muhammad Asad v. Abdullah Tahir and others (2014 YLR 2021 Lahore).

7. In view of the above referred case law, to my view the application moved by the present petitioner under Order XXXIX, Rules 1 and 2, C.P.C. is misconceived one, as if any transfer of suit property is made by respondents, it will be governed by principle of "Lis Pendens" and as such the learned Courts below have rightly dismissed the application filed for interim injunction. The learned counsel for the petitioner could not substantiate his plea that the impugned orders are against facts, law and as such not sustainable. The impugned orders have been passed by the Courts of competent jurisdiction, in proper exercise of discretion vested with them and as such call for no interference by this Court in its revisional jurisdiction. Consequently, the instant civil revision is dismissed in limine. MH/M-144/L Revision dismissed.