The petitioners have in the instant revision petition challenged orders dated 12.1.2004 passed by learned Civil Judge, Lahore and 9.12.2004 of the learned Addl. District Judge, Lahore respectively, wherein the relief of temporary injunction was declined to the petitioners.
2. Brief facts giving rise to the filing of this revision petition are that Muhammad Aziz, pre-decessor- in-interest of the parties, was owner of 80 kanals of land in village Raiwaind District Lahore, died in the year 1952, leaving behind Mst. Hidayat Bibi (widow), Mst. Nazir Begum (daughter), Mst. Ulfat Bibi (daughter) and Muhammad Tahir, (son). Among the said legal heirs, Mst. Hidayat Bibi died in the year 1975 and thereafter Mst. Ulfat Bibi died, latter is survived by Petitioners Nos, 2, 3 and Respondent No,
2. Muhammad Tahir, Respondent No, 1, got 80 kanals of land/suit property, mutated in his name through Mutation No, 1744 dated 15.5.1961. The mutation refers to an oral sale dated 1.5.1961 and a gift, without any distinction about the vendors and the donors.
3. Petitioner No, 1 instituted a suit for declaration and permanent injunction that mutation of sale and Gift No, 1744, is illegal, void, inoperative and ineffective against the rights of the plaintiffs.
Petitioners Nos, 2 & 3 who impleaded in the array of defendants, were transposed as plaintiffs subsequently. The respondents are contesting the suit and also resisted the interim relief of injunction, sought by the petitioners, through application under Order XXXIX, Rule 1 & 2 read with sub-section 151 CPC. Learned trial Court dismissed the application of the petitioners for interim relief on 12.1.2004, which order was affirmed and upheld by the learned lower appellate Court vide its order dated 9.12.04. The Courts below have declined; the grant of temporary injunction, to the petitioners mainly on the grounds that impugned mutation was sanctioned in the year, 1961, presumption of truth is attached to it and it's cancellation requires proof through cogent evidence and as such the plaintiff has no prima facie case. Further the rights of the petitioner are protected under the principle of lis pendens. The principle of lis pendens, since holds the field, therefore, specific restraint order may not be the requirement of law.
4. Learned counsel for the petitioners has submitted that by refusing to grant temporary injunction to the petitioners, learned Courts below have enlarged the scope of dispute between the parties, The object of temporary injunction is to minimize the litigation between the parties and to avoid the multiplicity of proceedings. Learned counsel in this respect found support from the judgment in the case of "Mst. Muhammad Bibi vs. Additional Settlement Commissioner, Khairpur and 2 others" (PLD 1976 Karachi 181). He has further argued that the principle of lis pendens was made the sole basis of the impugned orders, which according to him is no ground to refuse the relief of temporary injunction. To support his contention, he has placed reliance on the following cases:--
(i) Sardar Wali Muhammad vs. Sardar Muhammad Iqbal Khan Mokal and 7 others (PLD 1975 Lahore 492).
(ii) Haji Gul Muhammad Haji Ismail and others vs. Munawar Ali Khan and others (1987 MLD 2828).
(iii) Fateh Muhammad vs. Muhammad Hanif and another (PLD 1990 Lahore 82).
(iv) Muhammad Zafar uz Zaman and 4 others vs. Faqir Muhammad through Legal Heirs (PLD 2001 S.C. 44).
(v) Muhammad Nawaz Khan vs. Muhammad Khan and 2 others (2002 SCMR 2003).
5. It was also contended that the rights of bona fide purchaser are protected under Section 41 of Specific Relief Act and principle of lis pendens cannot hinder the rights of a bona fide purchaser. He lastly submitted that the Courts below have failed to take into consideration the questions of irreparable loss and injury as well as the balance of convenience and the case law referred in this respect was not considered.
6. Learned counsel for the respondents, on the other hand, supported the impugned orders and contended that the petitioners have approached the Court with unclean hands and falsely stated the year of death of Mst. Hidayat Bibi as 1960, in earlier plaints and corrected the year of death as 1975, in the third plaint (plaint originally filed was amended twice during the course of proceedings). He has stated that the impugned mutation was entered in the last column of register of mutations by Patwari on 15.5.1961, Girdawar made verifications on 20.5.61 and the same was presented for the attestation. The entires of mutation were compared with the revenue record.
The mutation was attested after complying with all the formalities and the same remained unchallenged until 17.9.2003, which speaks of it's genuineness. He has argued that certain portion of suit-land has already been alienated through registered sale-deeds and remaining land still vests in the name of Respondent No, 1, in the revenue record and has referred to Misl-e-Miadi in this respect. He has placed reliance on the judgments in the cases of "Syed Ahmad Shah vs. Lal Khan and 8 others" (1999 CLC 1044) and "Irshad Hussain vs. Province of Punjab and others" (PLD 2003 S.C.
344) to contend that the relief of temporary injunction was rightly refused to the petitioners on the basis of principle of lis pendens. The respondents learned counsel also argued that the suit under reference is hopelessly time barred and the Courts below have rightly refused the grant of temporary injunction, in a suit which is time barred and concurrent findings arrived at, by the Courts, do not call for interference in revisional jurisdiction.
I have heard the learned counsel for the parties and perused the material on the record.
8. Learned Courts below have declined the relief of temporary injinction to the petitioners on the ground that the rights of the petitioners are protected under the doctrine of lis pendends. There is no doubt that the object and scope of the doctrine of lis pendens, contemplated in Section 52 of the Transfer of Property Act is that neither party to litigation can alienate the property in dispute so as to effect his opponent. During the course of litigation nothing new should be introduced which means that neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to effect his opponent. The primary object is to protect parties to a litigation against alienation by their opponents during the pendency of the suit. It has been held by the superior Courts, within and outside the country, that broad purpose of Section 52, is to maintain the status quo un-effected by the Act, to parties to litigation pending its determination. The rights of successful litigants are protected against alienation but the application of this principle cannot be stretched too far, as in certain cases where a property is purchased against valuable consideration without the knowledge of the pendency of a litigation, the rights of such transferee are protected u/S. 41 of the Transfer of Property Act, being bona fide purchaser.
9. Learned counsel for the petitioners in order to establish his prima facie case, has referred to the judgment in the case of "Ghulam Ali and 2 others vs. Mst. Ghulam Sarwar Naqvi" (PLD 1990 S.C, 1) to contend that possession held by one co-sharer in the joint property would be taken to be the possession of other co-sharers and no adverse possession can be claimed. Respondent No, 1 was in possession of the suit land on behalf of the petitioners as well and as such the question of limitation does not arise. He has further referred to the judgment in the case of "Jamil Ahmad vs. Provincial Government of West Pakistan and 4 others" (PLD 1982 Lahore 49) to contend that temporary injunction is not granted where perpetual injunction is barred u/S. 56 of the Specific Relief Act and it is to be granted where provisions of Section 56 of the Specific Relief Act is attracted. The petitioners are entitled to the grant of injunction to prevent multiplicity of proceedings and as there is continuing breach of obligation, thus it provides an opportunity for filing a suit every time and in such cases injunction shall not ordinarily be refused.
10.The applicability of the doctrine of lis pendens has been held by this Court as no ground for refusing to issue temporary injunction in case titled "Sardar Wali Muhammad vs. Sardar Muhammad lqbal Khan Mokal and 7 others" (PLD 1975 Lahore 492) with the following main observation:-- "I am of the view that the applicability of principle of lis pendens is no ground for refusing to issue a temporary injunction. In case where prima facie the property in suit is jointly owned by a party, the denial of the right of one party by the other may be a source of causing irreparable loss and injury.
In the present case the suit has been filed for rendition of accounts against Sardar Wali Muhammad. If the alienates this property, the persons who will be in possession of the property by way of alienation will have to be impleaded as party to the case at least in order to compel them to make a restitution of whatever income and profits the plaintiff is deprived. In these circumstances, I am of the view that the temporary injunction was rightly issued and the balance of convenience was in favour of the issuance to temporary injunction inter alia on the ground that it would avoid multiplicity of suits or inclusion of stranger to the suit. The appeal of Sardar Wali Muhammad has no force and is liable to be dismissed."
The question of grant of injunction on the ground that the purchaser was bound by the doctrine of lis pendens was also discussed in the case of "Haji Gul Muhammad Haji Ismail and others vs. Munawar Ali Khan and others" (1987 MLD 2828) wherein it was held as under:-- "The object of granting interim injunction is to maintain the status quo and not to disturb it. The Defendants 3 to 6 therefore cannot be allowed to sell, alienate or deal in any manner whatsoever or develop or to construct a building or to change the entire situation to the disadvantage of the other party."
In order to prohibit and avoid introduction of strangers the grant of injunction was upheld by this Court in the case of "Fateh Muhammad vs. Muhammad Hanif and another" (PLD 1990 Lahore 82) in the following terms:-- "Though rule of lis pendens applied to the suit for specific performance and amply protected the plaintiff against apprehended pendent elite alienations, yet in order to prohibit and avoid introduction of strangers into the lis which is likely to enlarge the scope of dispute between the parties, injunction ought to issue to prohibit the defendants from transferring the land in suit."
11. The criteria as mentioned herein above, in the cases cited supra, there is no cavil with the proposition that despite applicability of the doctrine of lis pendens, the Court can pass temporary injunction to avoid multiplicity of the proceedings and to prohibit the introduction to strangers into lis to enlarge the scope of dispute between the parties, provided the petitioner succeeds in establishing his case on the parameters of prima facies case, balance of convenience and irreparable loss and injury, in its favour.
12.The learned Courts below have not considered the case in the light of the above point and the cases relied upon by the learned counsel for the petitioners have not been discussed in the impugned orders. The refusal to issue temporary injunction by the learned Courts below is arbitrary exercise of jurisdiction vested in the Courts.
13.For the foregoing discussion, this revision petition is accepted and the orders dated 12.1.2004 and 9.12.2004 passed by the learned Civil Judge, Lahore and learned Addl. District Judge, Lahore respectively, are set aside. Resultantly, I grant the petitioners temporary injunction by accepting the application filed u/S. 39 Rules 1 & 2 CPC. Parties are left to bear their own costs.