' TASSADUQ HUSSAIN JILLANI, J .--This order shall dispose of Civil Petitions Nos.840-L to 842-L, 944-L and 966-L of 2009 as they are directed against the same judgment dated 27-4-2009 vide which the learned High Court allowed Writ. Petitions Nos.11114 of 2006, 13365 of 2006 and Civil Revision No,185 of 2007 and dismissed Writ Petition No,3709 of 2007. In those petitions (which were allowed), the petitioners had challenged the order dated 2-10-2006 passed by the District Judge whereby by reversing the order of the Civil Judge dated 2-5-2005, it dismissed the suit for specific performance of contract for non-deposit of decrial amount within time by accepting the application filed by Mst.
Sanobar Jan, wife of the judgment debtor.
2. Facts giving rise to the afore-referred petitions briefly stated are that Shaukat Ali respondent/plaintiff filed a suit for specific performance with regard to the suit land, which was decreed in terms of a compromise vide the judgment and decree dated 18-10-1995 and the respondent/plaintiff was directed to deposit the decrial amount of Rs,700,000 by or before 15-2- 1996. The same was deposited on 14-2-1996. However, Mst. Sanobar Jan wife of the judgment debtor filed an application under section 12(2), C.P.C. Alleging fraud and by way of interim relief, the Court suspended the judgment and decree dated 18-10-1995. After the suspension of the decree, the .Decree holder with the permission of the Court and with the consent of the judgment debtor withdrew the decrial amount on 3-7-1996. The application under section 12(2), C.P.C. Was dismissed by the Civil Court, which order was challenged in Civil Revision and the learned District Judge granted stay order on 11-12-1997. However, the said Civil Revision was withdrawn with permission to file it before the High Court, which was duly filed and the learned High Court granted interim relief on 9-4-1999 but ultimately the said Civil Revision (459 of 1999) was dismissed by the learned High Court on 15-12-1999. The case of the respondent decree holder was that the judgment was reserved and finally he obtained certified copy of the id judgment on 23-6-2000 where after he filed an application before the learned Civil Judge, which was allowed on 2-5-2005 pursuant to which the amount was re-deposited, the judgment and decree was executed where after Mutation No,1315 was attested in the revenue record in the name of the decree holder. In accepting the application of the decree holder for re-deposit of the decrial amount and in dismissing the application of Mst. Sanobar Jan (who filed the same after dismissal of her revision by the High Court, wherein she prayed for dismissal of the suit for late re-deposit of the decrial amount), the learned Civil Judge was persuaded by the fact that the judgment debtor had withdrawn the amount by order of the Court; that the same could not be re-deposited on account of the pendency of the application under section 12(2), C.P.C. Filed by Sanobar Jan and the interim relief granted therein; that the matter remained pending till the passage of the final order in the. Civil Revision filed by Sandbar Jan dated 15-12-1999 wherein no specific date was given for re-deposit and that the judgment and decree of specific performance still held the field. This order of the Civil Judge dated 2-5-2005 was reversed by the District Judge, Toba Tek Singh in terms of its order dated 2-10-2006 by holding as follows:-- "13. Again during the pendency of his application as per order sheet the then learned Civil Judge ordered, through evasively, that he was to deposit the money by or before 31-3-2001 but he failed to do so. The aforesaid order on his application was categorical and clear under which he was again given the 'last opportunity' to deposit back the money by or before 9-4-2001 but he did not perform his duty. The matter was simply hushed up. It appears that he had no money with him, throughout this period to deposit. He was, however, successful, in lingering on the matter, till the date of impugned order i,e, for more than long 5 years without paying any thing.
14. To say the least in the words of the case of Haji Abdul Latin the impugned order is arbitrary and fanciful as it is against facts and law. The respondent was indolent to perform his part of the contract right from 1996 to 2005. He got repeated opportunities as said above to deposit back the money but he failed to do So.
It cannot be a bona fide a guilt. During this long span of time the appellant Sandbar Jan had definitely obtained valuable rights of dismissal of suit, for want of payment by the respondent.
These could not be taken away. It appears, that during this period, 'on ultimately failure of the respondent, to deposit back the money, and revive his decree of 18-10-1995, she sold out the land to the appellants Nos.2 to 4, for about Rs,30 laces with the above conduct and attitude the respondent could not be allowed to pay now and to purchase back the same property, just for Rs, 7 lacs. It is against law and justice, that he should be allowed to reap the fruit of his own guilt."
3. In reversing the afore-referred order of the District Judge, the learned High Court came to the conclusion that in dismissing the application of the decree holder for re-deposit of decrial amount and thereby dismissing the suit for specific performance, the District Judge had misread the record; it failed to notice that the learned High Court seized of Civil Revision 459 of 1999 filed by Sandbar Jan arising out of the application under section 12(2), C.P.C. Though heard the case on 15- 12-1999 but the certified copy was made available only on 22-5-2000; that no specific date for re- deposit was given and that the delay in re-deposit was on account of the circumstances beyond the control of the decree holder. Reliance was placed by the learned Judge on a judgment of this Court reported at Shabbir Ahmed and others v. Zahoor Bibi and others PLD 2004 SC 790).
4. Learned counsel for the petitioner Abdul Majeed in Civil Petitions Nos.840-L to 842-L and 944-L of 2009 submits that he is a bona fide purchaser; that he purchased the suit property from Mst.
Sanobar Jan on 5-5-2005 vide .Mutation No,1288; that he has been defrauded and that the learned High Court failed to appreciate that the non-deposit of the decrial amount immediately after the dismissal of the civil revision filed by Sanobar Jan was a contumacious act and had to be visited with the dismissal of suit for specific performance for non- compliance of the condition precedent i,e, deposit of decrial amount of Rs,700;000.
5. Learned counsel for the petitioner Sandbar Jan in Civil Petition No,966-L of 2009 adopted the arguments of petitioner's learned counsel in Civil Petitions Nos.842-L to 844-L and 944-L of 2009.
6. Learned counsel appearing for decree holder, defended the impugned judgment by submitting that the decrial amount was withdrawn by the decree holder with the consent of the judgment debtor; that the same could not re-deposited on account of the application filed by Sanobar Jan under section 12(2), C.P.C. And that the impugned judgment is not only unexceptionable but the judgment and decree stands executed and even the decrial amount has been withdrawn by the judgment debtor.
7. Having heard learned counsel for the parties at some length, we find that it is not disputed that the decrial amount was withdrawn with the permission of the court and with the consent of the judgment debtor on account of the stay order granted against the judgment and decree in the application filed against the said judgment under section 12(2), C.P.C. By wife of the judgment debtor, which ultimately culminated in the order of the learned High Court whereby the Civil Revision of sandbar Jan was dismissed, copy of which order was made available to the decree holder on 22-5-2000 and thereafter without any unreasonable delay, the amount was re- deposited and has been withdrawn by the judgment debtor after execution of the judgment and decree. In reversing the order of the District Judge vide the Impugned judgment and restoring the order of the Civil Court whereby the applicant/decree holder was allowed to re-deposit the decrial amount, the learned High Court considered the import of section 35 of the Specific Relief Act and relied on a judgment of this Court in Shabbir Ahmed supra wherein, Humble Mr. Justice Nazim Hussain Siddiqui speaking for the `Court, held as follows:-- "16. Perusal of section 35(c) clearly indicates that even after passing of decree, the Court possesses the power to rescind the contract and' consequently set aside the decree, which it had passed earlier. Irresistible conclusion, therefore, would be that a suit, which was once decreed, could be dismissed again if the case falls within the scope of section 35(c). The main characteristic of section 35 is that the Court has been empowered to rescind or not to rescind the contract, despite the fact that decree has already, been passed. If still the Court permits the decree to remain operative, certainly the time could be extended. Normally in a civil suit after passing of decree, the proceedings come to an end. In a suit for specific performance, the situation is different and if the case falls under clause (c) of section 35, still the order of rescission can be passed: This brings it within the scope of preliminary decree, as further proceedings, as a rule, are to be taken before a suit could be completely disposed of. Besides, such decree itself assumes the Characteristics of a contract, whereby certain acts are yet to be performed, including depositing of the purchase price, cost of purchase price of necessary; stamps for execution of conveyance deed, the seller has also to put his appearance for signing conveyance deed, to receive the purchase price, etc.
17. Decrees for specific performance and for pre-emption suits are altogether different. The pre- emption decree is required to be formulated in accordance with the provisions of Order XX, rule 14 of C.P.C. In case of failure to deposit the pre-emption money, the suit is to be dismissed. In above Rule 14 requiring payment of purchase money in Court is a mandatory provision and its non- compliance entails positive and negative penalties barring application of general principles that technicalities should not he permitted to hinder justice and rule of substantial justice. The provisions of Order XX, Rule 14(1) are penal in nature, strict compliance whereof is necessary to impose on the party the penalty of dismissal of suit, whereas as suit for specific performance is entirely on different footing and the principle applicable in pre-emption suit cannot be invoked in a suit for specific performance."
8. The argument of learned counsel for the petitioner that he is a bona fide purchaser is of no avail as admittedly the transaction in question is dated 5-4-1990 when the suit was pending and the said transaction is squarely hit by principle of lis pendens and the judgment of this Court reported at Muhammad Ashraf Butt v. Muhammad Asif Bhatti (PLD 2011 SC 905) wherein at page 912, it has been held as follows:-- "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 pendent, which is available both in equity and at the common law. The rule and the section is founded upon the maxim "pendent lite nail innovator", which means that pending litigation, nothing should be changed or introduced.
The virtual and true object of lis pendent 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 favor of a third person. The rule unambiguously prescribes that the rights of the party to the suit, 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 lies. 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 pendent shall be bound by the result of the suit strict sense 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 lies pendent 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 pendent 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 (2002 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 "lies pendent" 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 hound by the decision that may be entered against the party from whom he derived title."
9. For what has been discussed above we do not find any merit in these petitions, which are dismissed and .