2022 PLP 2479 (YLR)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioners have challenged the validity of the order dated 09.02.2019 passed by the learned Additional District Judge, Lahore who accepted the appeal of the respondents, set aside the order dated 09.01.2014 passed by the learned Civil Judge, Lahore and dismissed the application under Order XXXIX, Rules 1 and 2, C.P.C. filed by the petitioners.

2. Brief facts of the case are that the petitioners/plaintiffs filed a suit for declaration, possession and cancellation of documents etc. alleging therein that petitioners' real brother namely Mehboob Elahi died leaving behind only one daughter namely Shaheen Kauser, respondent No.

5. The petitioners being brothers and sisters of Mehboob Elahi are entitled for 1/2 share of the legacy from Mehboob Elahi. The sale deed No.5284 dated 19.08.1999 is a fake document. Along with the suit, the petitioners/ plaintiffs filed an application under Order XXXIX, Rules 1 and 2, C.P.C. The respondents/defendants filed contesting written statement as well as reply of the application. The learned trial Court vide order dated 09.01.2014 accepted the prayer of the petitioners/plaintiffs made in the application under Order XXXIX, Rules 1 and 2, C.P.C. to the extent of restraining the respondents/defendants from alienating the suit property any further. Being aggrieved, the respondents/ defendants filed an appeal which was allowed by the learned appellate Court vide impugned order dated 09.02.2019 who while setting aside the order dated 09.01.2014 passed by the learned trial Court, dismissed the application under Order XXXIX, Rules 1 and 2, C.P.C. filed by the petitioners/plaintiffs. Hence, this civil revision.

3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.

4. Admittedly, Mst. Shaheen Kauser being real daughter of Mehboob Elahi is entitled to inherit 1/2 share in the estate of her deceased father. The petitioners/ plaintiffs have alleged in plaint that Imtiaz Ali respondent No.4 is not son of Mehboob Elahi, rather he is son of Faraz Ali alias Shahid Mehmood, as such, he was not entitled to inherit anything from the legacy of Mehboob Elahi. The dispute regarding parentage of the respondent No.4 is a factual controversy which requires recording of evidence.

5. As regard the request of the petitioners/plaintiffs that the respondents/ defendants may be restrained from alienating the suit property is concerned, suffice it to say that prima facie the respondents are shown owners in the suit property and if he alienated the suit property during the pendency of the suit that transaction shall be subject to the principle of lis pendens, which safeguards the rights of the petitioners/plaintiffs. The Hon'ble Supreme Court of Pakistan in its chain of judgments has held that if any alienation of the property made pendente lite is validated as to effect the rights of the opponent, then it would start endless litigation which will frustrate the ends of justice. The Hon' ble Supreme Court of Pakistan in its latest verdict titled as Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), has held as under:- "

11. Considering the plea of lis pendens raised by the appellants' 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. He is bound by the outcome 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."

6. The petitioners/plaintiffs could not make out a prima facie good arguable case in their favour, as such, the balance of convenience and irreparable loss also do not tilt in their favour. Learned counsel for the petitioners has failed to satisfy even this Court in respect of existence of necessary ingredients for grant of temporary injunction under Order XXXIX, Rules 1 and 2, C.P.C. i.e. existence of prima facie arguable case, balance of convenience and irreparable loss or injury, as such, the learned appellate Court rightly dismissed the application of the petitioners for grant of interim injunction. Reliance is placed on the cases of Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another (PLD 1970 SC 180) and Amtul Batool and another v. Qamar Sultana (PLD 1980 Lahore 647).

7. The learned counsel for the petitioners has not been able to point out any illegality or material irregularity in the impugned judgment passed by the learned appellate Court and has also not identified any jurisdictional defect. It is well settled law that in the event of conflict of judgments, findings of appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence. Reliance is placed on the case reported as Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398).

8. In view of above, this civil revision is dismissed being devoid of any merits. However, the learned trial Court is directed to decide the main lis between the parties within six months strictly in accordance with law. MHS/M-217/L Revision dismissed.