1990CLC670 (PLP)

Two short questions involved herein are:‑‑ (i) Until when may the rule of lis pendens continue to remain operative? and. (ii) Whether a transferee acting bona fide to obtain a property involved in a pending litigation may, on that account, be out of the purview of the rule of lis pendens?

2. The admitted facts are that a suit for specific performance of an agreement to sell a house was brought by Ghulam Muhammad respondent No.l against the promisor Ghulam Jaffar respondent No.2. After trial, the suit was decreed on 31‑7‑1988 to the extent only of the earnest money of Rs.1,00,000 being required to be returned to the plaintiff who was denied the relief of specific performance. This decree of the trial Court was impugned in two appeals brought by the parties in the District Court which presumably are still pending there. However, during the interregnum of denial of the relief of specific performance to the plaintiff and the impugning of that decree in either of the appeals. Ghulam Jaffar defendant purported to exchange the suit house with the present petitioner Muhammad Iqbal on the basis of a registered decd dated 16‑8‑1988 and on its basis latter brought a petition under Order I rule 10 of the C.P.C. for his being impleaded as a respondent in the appeal of the plaintiff Ghulam Muhammad. The transferor Ghulam Jaffar not only supported this application but also himself brought a separate identical application for impleadment of Muhammad Iqbal as a respondent. Plea made in these two applications was stoutly resisted by the plaintiff on the basis that rule of lis pendens applies to the transaction. Learned Additional District Judge seized of the appeals took up both the applications together and by a consolidated order dated 11‑4‑1989 rejected both of them for the reason of the rule of lis pendens getting attracted to the transfer made by Ghulam Jaffar.

4. It is argued for the applicant Muhammad Iqbal, that he entered into the transaction of exchange only in good faith and without knowledge of the litigation to obtain the suit house in exchange for a valuable property and he had thereby acquired good title which deserved to the protected but rule of lis pendens has been wrongly applied to defeat the petitioner's transaction which had actually been made at a time when there was no litigation pending in any Court and the plaintiff's claim to the house stood negatived.

5. After duly considering these pleas I have not found any substance in either of them. First of the abovementioned points stands adequately answered in the Explanation appearing under section 52 of the Transfer of Property Act reproduced hereunder:‑ "

52. During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto sunder any decree or order which may be made therein, except under the authority of the Court and on such terms at it may impose. Explanation.‑‑For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force." This section embodies a rule of equity and good conscience which has always been applied in this province. Reason for the rule is too obvious to require any emphasis. Since in providing that no party to a suit or proceeding may make any transfer to the prejudice of the other, rules take effect from the very moment that a suit or proceeding is instituted and remains operative upto the time that such suit or proceeding comes (to put it broadly) to its final end in all respects. Argument raised for the petitioner conveniently loses sight of the terms of section 52 (ibid) as also of the well‑established rule that appeal is a continuation of suit which cannot be considered to have come to an end until such time that either the limitation for filing of appeal therein expires or an appeal, if brought, is finally concluded. Neither of these eventualities having taken place in this case at the time of transfer made to the petitioner, his transaction cannot be saved from the operation of the rule of lis pendens. See I.L.R. 28 Calcutta

23. Once an appeal is actually maintained, its operation has to date back to the time of disposal of relevant suit or proceeding to rationalize the concept of continuance thereof or, else, the process of continuity would just not be there. Contention thus fails and is repelled. View of learned appellate Judge about the rule of lis pendcns applying to the transfer secured by the petitioner is correct in its entirety and is altogether unexceptionable.

6. The other contention with regard to bona fides, even if assumed to be correct on a factual plane, can be only irrelevant in relation to this rule which disables one party to a lis from acting to the prejudice of the other. It does not require any elaborate argument to demonstrate that since Ghulam Jaffar was incapacitated by the rule of lis pendens from doing any act prejudicial to the other party he, hence, did not have anything for being lawfully transferred. Therefore, Muhammad Iqbal would be not deemed to have acquired anything and muchless a lawful title qua the other party, Ghulam Muhammad against whom that transfer would just not exist. Defendant in the suit (Ghulam Jaffar) in law gave nothing as regards the plaintiff Ghulam Muhammad and Muhammad lqbal got nothing as against him so that Ghulam Jaffar will be deemed in law be continued to be vested with the title in the suit‑house. Even if Muhammad lqbal could be accepted to have acted bona fide and in ignorance of the litigation to enter into the transaction with the defendant Ghulam Jaffar; he may, at best, have a claim against his alienator who might have allured him through suppression of facts to enter into such a transaction, to either get the refund of his money or sue him for a lawful title in the house itself if it may happen to remain his property in the end‑result of the present litigation but he has none to urge against Ghulam Muhammad, the plaintiff whose litigation has to proceed with Muhammad lqbal being simply kept out of it and a decree with regard to the house, if ultimately passed in favour of the plaintiff, will be proceeded to be executed uninfluenced by either the existence of Muhammad Iqbal or his so‑called interest in the house. Otherwise, such results may follow as have been pointed out in Pir Abdullah Shah and 8 others v. Humayon and 5 others (PLD 1957 Lahore 1054). Such situations had to be guarded against in the rule of lis pendens for protecting the interests of justice because otherwise every case could have become liable to be easily defeated by creating interest in a third person during the pendency of litigation and no one might have allowed any case to proceed smoothly for his being able to frustrate it by a simple device of transferring suit property to any one of reliable persons who may further transfer it to another one by an endless process, each in his turn claiming to be joined as an opponent to have the whole affair started anew each time. Law has not been ignorant of such alarming situations and has provided a safeguard there against by enacting the rule of lis pendens which deserves to be followed in both its letter and spirit.

7. Petitioner has not only over‑assessed the position in which he has landed himself by entering into the transaction regarding the suit house but has also taken an altogether misguided step in applying for his being impleaded as a respondent in a pending appeal and that too by resort to the provisions of Order I rule 10 of the C.P.C. which apply only to suits and can have no application to appeals wherein it is not possible to for the first time implead a new person who may not have been a party to the suit in the trial Court. Such a fresh impleadment is not permissible either under Rule 4 or under Rule 20 of Order XLI of the C.P.C. which alone are the provisions dealing with impleadment of parties in appeals and the conditions thereof do not countenance joining of new persons at appellate stages. (See AIR 1925 Allahabad 768 and AIR 1929 Bombay 793). Another authority from this Court relevant hereto would be Shangara Singh and others v. Imam Din and others (AIR 1940 Lahore 314). The other contention also fails in the above view of the matter.

8. Result of the foregoing is that there is no substance in the revision petition which is accordingly dismissed in limine. H .B. T./M‑1802/L Revision dismissed.