Present: Tariq Parvez, Mian Saqib Nisar and Asif Saeed Khan Khosa,

' MIAN SAQIB NISAR, J.---This appeal, with leave of the Court, has arisen out of an application filed by the appellants under section 12(2), C.P.C. Challenging the judgment and decree dated 7-11-1987; the application was dismissed by the learned Civil Judge (the Trial Court), seized of the matter, vide order dated 27-3-2004 holding on the preliminary issue, that the appellants have no locus standi to move the same; aggrieved of the above, the appellants filed a revision petition, which was accepted on 15-7-2005, thus the order impugned therein was set aside and the matter was sent back to the first Court with the direction to afford an opportunity to the appellants to produce their evidence on that issue. This order was assailed by respondents Nos.1-4/decree holder (plaintiffs side) in a constitution petition before the High Court, which was allowed vide judgment dated 26-3-2007 and by setting aside the decision of the revisional Court, the order of the Civil Judge dated 27-3-2004 was restored.

' Leave to appeal, in this case, was granted on 18-5-2007 to consider, if Khasra No,7378 was allotted to the appellants' side (their predecessor in interest) by means of an open auction or it was allotted to the respondents by the Evacuee Trust Property Board, which allotment was maintained upto the level of this Court.

2. The brief facts of the case are, that one. Zulfiqar Ali, the predecessor in interest of respondents Nos.1-4 on 18-4-1977 filed a suit for the declaration etc. In, which he claimed title/ownership of either of the two properties, mentioned in the plaint, (the suit properties) primarily the claim was for a piece of land measuring 61/2 marlas bearing Khasra No,7377, however in the alternative he sought a declaration of his title qua the land measuring 61/2 marlas bearing Khasra No,7378 (a part of which is now in dispute) as well. It may be pertinent to mention here that in the suit Muhammad Khalid to whom Khasra No,7378 was transferred by way of auction by the settlement department was arrayed as defendant No,4, while the Islamic Republic of Pakistan through Secretary, Settlement and Rehabilitation and the Government of Punjab were impleaded as defendants Nos.2 and 3 respectively. About Khasra No,7378, it was specifically prayed in the plaint that the plaintiff is entitled to the vacant possession of that parcel of land and the defendant (obvious reference is to Khalid) should remove the superstructure and Malba from the plot; the auction/transfer of the plot in his (Khalid's) favour along with PTD should be declared as illegal and void.

3. Khalid filed his written statement in the matter disclosing that the piece of land before the institution of the suit has already been transferred by him in favour of one Muhammad Yagoob son of Muhammad Ishaq, accordingly the plaintiff moved an application under Order I Rule 10, C.P.C.

Seeking to add inter alia the above named as one of the defendants. The application was not contested by the then defendants of the case, which was, accordingly, accepted by the trial Court on 14-2-1980. Consequently, Yaqoob son of Ishaq was duly added as a defendant to the suit.

' It may be expedient to refer here, that on 2-4-1980, Muhammad Yagoob sold a part of the aforesaid piece of land measuring 2-1/2 marlas (the plot actually in dispute) in favour of Muhammad Yagoob son of Khuda Bakhsh, who further sold it to Jamshed Ahmed etc. And finally the plot was purchased by Muhammad Rafique, the predecessor in interest of the appellants vide sale deed dated 21-10-1984. This all happened during the pendency of the suit. From the record, it transpires that Muhammad Yaqoob son of Khuda Bakhsh was also shown as one of the defendants in the suit when an amended plaint was filed by the plaintiff, but it is asserted by the appellants that such an addition is an interpolation, because there is no order of the Court to that effect. Anyhow, as both the Yaqoobs failed to put in appearance, thus they were proceeded ex parte. The plaintiff of the case subsequently gave up his claim, about Khasra No,7377, restricting it only to the extent of Khasra No, 7378; the other official defendants were also got deleted from the array of the parties and ultimately the suit was decreed in his (plaintiff's) favour and against the defendants on 7-11-1987; it was obviously an exparte judgment and decree against Yaqoob son of Khuda Bakhsh.

4. Muhammad Yaqoob son of Khuda Bakhsh later moved an application under, section 12(2), C.P.C., to challenge the aforesaid decree, which after the contest was dismissed by the learned Civil Judge seized of the matter. This order was not challenged further by him, whereafter the present appellants moved another application under the said provisions, with the results mentioned above.

Hence this appeal.

5. It has been argued by the learned counsel for the appellants that the property in question was an evacuee property and was so declared by the custodian and accordingly auctioned to Khalid by the Settlement Department therefore, the Civil Court had no jurisdiction to pass any decree in relation to such property; the appellants had purchased the property through a sale deed dated 21-10-1984, followed by Mutation No,18999 dated 7-11-1984 sanctioned in their favour, thus they were necessary party to the suit, but were not so impleaded, therefore the decree against them is nullity in the eyes of law; and in any case it is not binding upon them in terms of section 43 of the Specific Relief Act. It is also submitted that Muhammad Yaqoob son of Khuda Bakhsh from whom the appellants have acquired the ownership of the property was also not arrayed as a party in time, as there is no order to the effect ever passed' by the Court, rather the plaintiff while submitting an amended plaint unauthorizedly added him as a defendant and, therefore, on that account too such decree was/is void and ineffective against their rights, resultantly, the rule of lis pendens is not attracted to the case; lastly, it is submitted that the learned High Court while exercising its Constitutional jurisdiction could not interfere in the order dated 15-7-2005, passed by the revisional Court.

6. On the contrary, learned Advocate Supreme Court for the respondents has vehemently pressed into service the rule of lis pendens as enunciated by section 52 of the Transfer of Property Act, 1882 and has argued that any transfer of the suit property in favour of the appellants made during the pendency of the suit, shall be subject to the final outcome of the litigation and, thus, the appellants cannot claim any independent right to the suit property and/or to be impleaded as a party to the suit, thus their non impleadment would not effect the validity of the decree passed in favour of the plaintiff. In the above context, it is argued that Muhammad Yaqoob son of Muhammad Ishaq had sold the suit property on 2-4-1980 to Yaqoob son of Khuda Bakhsh and at that time the former was duly impleaded as a defendant, as is envisaged by the order dated 14-2-1980 and, therefore, any transfer made by either of the Yaqoob's to any person thereafter shall be hit by the noted rule.

7. Heard. We are not convinced that in this case the question of jurisdiction of Civil Court is an issue; because even if the property was treated as an evacuee property and transferred to Khalid as such or that subsequently the plaintiff had deleted the Government of Pakistan or the Province of Punjab from the array of the parties, it would not affect the jurisdiction of the Civil Court to examine and decide the controversy about the title of the property and the validity of the transfer made by the Settlement/Rehabilitation Department, especially after the repeal of the evacuee laws. Besides, from the contents of the pleadings of the case, the plaint and the written statement of Khalid, it emanates that the dispute in effect is between two private parties, relating to the title of a property, which at the time of institution of the suit was a private property in A nature, notwithstanding the fact that at an earlier point of time it was treated as an evacuee property and was accordingly transferred by way of auction to Khalid. Therefore, in the context of appellants locus standi to file an application under section 12(2), C.P.C., the proposition, in our view, in the present case is germane to the scope and application of section 52 of the Transfer of Property Act, 1882, which reads as under:-- "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 under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."

Explanation:-- For the purpose 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."

The aforesaid section manifestly embodies the rule of lis pendens, which is available both in equity and at the common law. The rule and the section is founded upon the maxim "pendente lite nihil innovetur", which means that pending litigation, nothing should be changed or introduced. The virtual and true object of lis pendens is to protect and safeguard the parties to the suit and their rights and interest in the immovable suit property against any alienation made by either of the parties, of that property, during the pendency of the suit in favour of a third person. The rule unambiguously prescribes that the rights of the party to the snit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value; without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchasers in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest. The rule of lis pendens is founded upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienations pendente lite are permitted to prevail and the subsequent transferee is allowed to set out his own independent case, even of being the bona fide transferee against the succeeding party of the matter and ask for the commencement of de novo proceedings so as to defeat the claim which has been settled by a final judicial verdict. The foundation of the doctrine is not rested upon notice, actual or constructive, it only rest on necessity and expediency, that is, the necessity of final adjudication (Emphasis supplied) that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated. In support of the above, reliance is placed upon Messrs Aman Enterprises v. Messrs Rahim Industries Ltd. And another (PLD 1993 SC 292), Muhammad Nawaz Khan v. Muhammad Khan and 2 others (200/ SCMR 2003). Besides, in West Virginia Pulp and Paper Co. v. Cooper, 106 S.E. 55, 60, 87 W.Va. 781, it has been held "the doctrine of "lis pendens" is that one who purchases from a party pending suit a part or the whole of the subject-matter involved in the litigation takes it subject to the final disposition of the cause and is bound by the decision that may be entered against the party from whom he derived title."

' In Tilton v. Cofield, 93 U.S. 168, 23 L.Ed. 858, the view set out is "the doctrine of lis pendens is that real property, when it has been put in litigation by a suit in equity, in which it is specifically described, will, if the suit is prosecuted with vigilance, be bound by the final decree, notwithstanding any intermediate alienation; and one who intermeddles with property in litigation does so at his peril, and is as conclusively bound by the results of the litigation, whatever they may be, as if he had been a party from the outset."

In Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal (AIR 1959 Punj 490), it has been prescribed:-- "The rule of lis pendens lays down that whoever purchases a property during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derived his title (to the immovable property, the right to which is directly and specifically in question in the suit or proceeding) even though such a purchaser was not a party to the action or had no notice of the pending litigation....

' The intention of the doctrine is to invest the Court with complete control over alienations in the res which is pendente lite and thus to render its judgment binding upon the alienees, as if they were parties, notwithstanding the hardship in individual cases...."

In Story's Equity Jurisprudence Vol. I, 5.406 the doctrine has been expounded in the terms following:- "Ordinarily, it is true, that the decree of a court binds only the parties and their privies in representation of estate. 'But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title .... Where there is a real and fair purchase, without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise alienations made during a suit might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim, pendente lite, nihil innovetur; the affect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them."

' However, the application of the section and the doctrine is circumscribed by certain conditions: (1) the suit must be relating to a specific immovable property in which any rights of the parties are directly and specifically in question (2) the suit should be pending at the time when the alienation in favour of the third person has been made (3) neither the suit itself nor the outcome thereof must be collusive, fraudulent and/or is meant to entrap, deceive, and defraud an innocent transferee specially a bona fide purchaser.

8. While dealing with the proposition about the scope and application of section 52 ibid it may be relevant to state here, that as per the clear wording of the explanation to the section, when read as a whole, and especially by construing the expression "the suit or proceeding has been disposed of by a final decree or order" it undoubtedly means, that final verdict, which is given in an appeal or revision at the final level of the judicial hierarchy, which verdict has attained conclusiveness.

Therefore, the rule of lis pendens shall also be duly attracted and applicable during the period of limitation provided for an appeal or revision etc. To challenge a decree/order. If therefore an alienation of a suit property has been made by a party. To the lis, who succeeds at one stage (such as trial), but the transfer is during the, period of limitation available to the other (unsuccessful) party, to challenge that decision and ultimately the decree/order is over turned in its further challenge, such alienation made shall also be hit and shall be subject to the rule of lis pendens.

9. Now considering the instant case in the light of the principles mentioned above, it is clearly spelt out from the record that the appellants have purchased the property during the pendency of the suit and Yaqoob son of Ishaq was a party, to the suit who was duly implead as a defendant on 14- 2-1980 and had sold the property to Yaqoob .Son of Khuda Bakhsh on 2-4-1980 from whom the appellants via Jamshed acquired their title subsequently on 12-10-1984. In this context, it may be elucidated that Khalid had sold the property to Yaqoob son was Ishaq prior to the institution of the suit, therefore, if the :later was not impleaded as a party, and had made any transfer even during the pendency of the suit, such alienation would not have attracted lis pendens as being not a party thereto, but when the afore-named was arrayed as a defendant on 14-2-1980, from that point of time he shall for the purposes of section 52 ibid be the party to the suit, and thus for all considerations thereof was the predecessor in interest of the appellants, notwithstanding the fact that Yaqoob son. Of Khuda Bakhsh, who himself had purchased the property from him during the pendency of the suit was made' a party I to the suit or not. It is in this scenario that lis pendens shall be duly attracted and the appellants, shall have no locus standi to file application under section 12(2), C.P.C. Challenging the decree on account of any lapse in the impleadment of the defendants, and thus there was no question for the recording of the evidence on this issue In any case, as mentioned above, the appellant% would not acquire any independent right to challenge the said decree even on the score of being the bona fide purchaser, because the provisions of section 52 ibid are not subservient to section 41 of the Transfer of Property Act or section 27(b) of the Specific Relief Act or the general - equitable concept of bona fide purchaser, rather the section and the rule of lis pendens is an exception to the above provisions/concept. And the appellants could only sustain in their claim to challenge the decree on the basis of the three conditions of section 52 mentioned above, but they have failed to make out a case within the purview thereof. Before parting with the subject, it may be held that plea on which the leave was granted in the case vide order dated 18-5-2007, in view of the proposition resolved through this judgment is considered to be irrelevant.

10. Lastly, attending to the plea propounded by the learned counsel for the appellants that the constitutional jurisdiction could not be exercised by the learned High Court for interfering in the revisional order of the Addl. District and Sessions Judge. Suffice it to say that on account of the provisions of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is an alienable right of every citizen to enjoy the equal protection of law and to be treated in accordance with law, therefore, if a revisional Court has passed an order which does not qualify the test of Article 4 ibid and suffer from a patent error, of fact, such as non-reading/misreading of the facts on the record or has committed a grave illegality in applying the correct law, such as the error of misapplication and non application of correct law, thus being an illegality of a sheer nature can always be rectified by the High Court while exercising its constitutional jurisdiction under Article 199, as no bar/limitation in this behalf on the exercise of constitutional jurisdiction of the High Court either emanates from the plain reading of the Article or can be read into it.

11. In view of the foregoing, this appeal has no merits, which is hereby dismissed.