ALI AKBAR QURESHI, J.-- This case has a checkered history spreading over almost thirty years, therefore, it is necessary to state the facts of the case.
2. National Development Leasing Corporation, the predecessor-in-interest of the of Muslim Commercial Bank Limited (MCB), the petitioner herein, executed an agreement to sell dated 18.11.1990 in respect of the property bearing No,5, measuring 03 Kanal 10 Marla situated at Jail Road, Lahore with Agricultural Cooperative Development and Investment Limited (ACDIL), the defunct corporation; the defunct-ACDIL did not perform its part of the agreement whereupon the petitioner instituted a suit for specific performance of the agreement, which was abated on the promulgation of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 and all the assets/liabilities of the defunct-ACDIL vested in the Punjab Cooperative Board for Liquidation (PCBL)/ respondent No,1; that the petitioner on 25.08.1992 filed a Cooperative Petition No,140-C/1992 before the then learned Cooperative Judge of this Court which was accepted on 09.02.1995 and a direction was issued to the PCBL to execute the sale deed of the property in question in favour of the petitioner after receiving the balance consideration. The order dated 09,02.1995, passed by learned Cooperative Judge, was assailed by one Mian Hamid Ahmad, ex-Director of defunct-ACDIL before the Hon'ble Supreme Court of Pakistan through Civil Appeal No,262 of 1995 wherein status quo order qua the property in question was passed on 26.04.1995; however, the same was dismissed on 11.11.1999 and till the dismissal of the civil petition, the status quo order remained intact.
3. After the dismissal of the civil appeal by the Hon'ble Supreme Court of Pakistan, the petitioner approached to the respondent No,1 through letter dated 29.12.1999 to execute the sale deed, and also submitted an undertaking with this letter to pay the balance amount of Rs,9,142,500/- at the time of registration of sale deed; this fact was admitted by the respondent No,1 in his parawise comments and also by the Chairman, Punjab Cooperative Board for Liquidation, while dictating the order dated 26.12.2016.
4. During this period, one Mian Hamid Ahmad instituted a Writ Petition No,643/2000 before this Court praying therein, that the order dated 09.02.1995, passed in Cooperative Petition No,140-C/ 1992 be set aside. The petition came up for hearing before this Court wherein an injunctive order was passed and PCBL was restrained to execute or register any sale deed in favour of the petitioner. Being confronted with situation, the petitioner also filed a W.P. No,8474/ 2000, seeking implementation of the order dated 09.02.1995 passed in Cooperative Petition No,140-C/1992.
5. The respondent-PCBL, despite having knowledge of the implementation order and passing of the interim order dated 13.09.2000 in W.P.No,643/2000, published an advertisement in the year 2003 offering the property for public auction. The auction could not be held due to the restraining order dated 17.03.2003, passed by this Court. Said Mian Hamid Ahmad withdrew his petition, W.P.No,643/2000, vide order dated 22.05.2007 and after few days i,e, on 31.05.2007, the property in, question was sold through negotiations to the respondent No,2.
6. The petitioner also filed a petition, W.P.No,8474/2000 before this Court seeking declaration to get the sale deed executed and registered in his favour in terms of the order dated 09.02.1995. The said petition was disposed of on 08.06.2011, on the ground, that the order dated 09.02.1995, passed by the then learned Cooperative Judge, is to be executed by the Cooperative Judge of this Court. The petitioner, in pursuance of the order passed in W.P. No,8474/2000, filed an application bearing No,19-C/2012 before the then learned Cooperative Judge of this Court seeking implementation of the order dated 09.02.1995; the said application was disposed of with the direction to the petitioner to approach the respondent No,1/PCBL for an appropriate order in the matter; the petitioner approached the respondent No,1 along with the order passed in Petition No,19-C/2012 but no action was taken and respondent No,1 did not comply with the order. The petitioner, as stated, having no option filed a contempt petition bearing No,1 of 2013. The respondentPCBL first time, during the proceedings of the contempt petition disclosed, that the property in question has already been sold in favour of the respondent No,2.
7. The petitioner again filed a Cooperative Petition No,19-C/2013 before the then learned Cooperative Judge of this Court for seeking implementation of order dated 09.02.1995 which was disposed of on 14.10.2016 with the direction to the parties to the case to appear before the Chairman, PCBL on 22.11.2016 who, after hearing the parties, will pass an appropriate and speaking order within a period of one month.
8. As claimed by the petitioner, his learned counsel went to appear before the Chairman, PCBL but the case could not be heard as the Chairman was not available and it was asked to the learned counsel that the next date shall be communicated through notice.
9. Another contempt petition was filed wherein the Chairman, PCBL was given final opportunity to conclude the matter within a period of 20 days.
10. The petitioner in this regard, through a letter dated 13.10.2017, again made a request to the Chairman, PCBL to comply with the order and disposed of the application timely but no response was given nor the order was complied with. The petitioner had to file another Contempt Petition No,106513/2017 wherein the Chairman, PCBL was summoned and was directed by this Court to decide the Cooperative Petition within 10 days.
11. When the petitioner, through his counsel, appeared before the Chairman, PCBL, in compliance of the order dated 17.11.2017, passed in Crl. Org. No,106513/2017, it was informed to the petitioner, that previous Chairman has already passed an order on 26.12.2016 on the application of the petitioner.
12.The petitioner, as appears from the record, also filed an application in this petition seeking a direction to the respondent-PCBL to bring on record the documents pertaining to the purported sale of property in favour of respondent No,2. The record was placed which contains two documents; No Objection Certificate No,2029 dated 14.06.2007 and sale deed in favour of respondent No,2. From the documents, as claimed by the petitioner, it revealed, that the property was sold on 31.05.2007 through negotiation in favour of the respondent No,2 for a consideration of Rs,40,234,487/-.
13. The Chairman, PCBL in compliance of the order passed by this Court, filed report and parawise comments wherein the transaction through the agreement to sell made in favour of the petitioner and the order dated 09.02.1995 was not denied, however, it was asserted, that the petitioner failed to make the balance payment, therefore, the order dated 09.02.1995 could not be complied with. In the parawise comments, the respondent-Board also admitted that firstly, the advertisement to auction the land in question was given but the auction could not be materialized because of the injunctive order passed by this Court and finally, the land in question was sold in favour of respondent No,2 through private negotiation.
14. Learned counsel for the petitioner submits, that the petitioner repeatedly, through different modes, approached to the respondent-Board for the implementation of order dated 09.02.1995 and to execute and register the sale deed in his favour but all the time, the matter was put off on different pretexts. Also submitted, that all the litigation qua the land in question and the injunctive order passed by this Court were very much in the knowledge of the respondent-Board therefore, there was hardly any reason to dispose of the property through private negotiation in favour of respondent No,2. Further argued, that the land in question has been sold during the litigation, therefore, the sale is liable to be set at naught following the principle of lis pendens. Lastly submitted, that the order dated 09.02.1995 passed by the then learned Cooperative Judge of this Court still holds the field and the PCBL, in the presence of the order dated 09.02.1995, in any case, was not authorized and had no lawful authority to sale out the property in any manner whatsoever, therefore, sale made in favour of the respondent No,2 be cancelled and PCBL be directed to execute sale deed in favour of the petitioner.
15. Learned counsel appearing on behalf of the respondent-PCBL submits, that the petitioner did not, throughout the period, approach to the PCBL to pay balance consideration of the suit land, therefore, the PCBL rightly disposed of the property to liquidate the liabilities of the PCBL and no illegality has been committed by the PCBL. Further submitted, that, the land in question could not be auctioned because of the injunctive order passed by this Court and thereafter, the same was sold through private negotiation at market price to the respondent No,2 to compensate the effecties and it is provided in the law to dispose of the property through private negotiation.
16. Mr. Asad Manzoor Butt, Advocate, appearing on behalf of respondent No,2 submits, that the respondent No,2 is a bona fide purchaser who purchased the land in question strictly in accordance with law after making payment of the total consideration and thus, no illegality has been pointed out by the petitioner in the process of selling the property. Also submitted, that the possession of the land in question from the day first, is with the respondent No,2 being owner, therefore, this petition be dismissed with cost.
17. Heard. Record perused.
18. The petitioner, Muslim Commercial Bank Limited (MCB), successor of NIB Bank, instituted this Cooperative Petition for the implementation of an order dated 09.02.1995, passed in Petition No,140- C of 1992, by the then learned Cooperative Judge of this Court. The operative part of the said order is reproduced as under:-- ".........I, therefore, hold that respondent No,1 at the time of going into liquidation was in possession of the property in suit as its owner. The agreement of sale executed by respondent No,1 in favour of the petitioners shows a sale consideration of Rs,1,20,00,000/-. This agreement of sale was executed much before the appointment of liquidator in respect of the property belonging to respondent No,l. The Liquidation Board, which is the liquidator of respondent No,1 has no objection to give effect to the above agreement of sale between respondent No,1 and the petitioners subject to the payment of balance of sale price. The petitioners have so far paid part consideration of Rs,29,32,500/-. Since the Liquidation Board has no objection to the execution of sale deed in favour of the petitioners on payment of balance sale price which appears to be quite reasonable and according to the market value of the suit property, the petition is allowed. The Liquidation Board is directed, to execute a sale deed in favour of the petitioners on payment of balance transfer price in accordance with the law.
19. The voluminous record of, this case, spreading over 28 years, was perused with the assistance of learned counsel for the parties during the course of lengthy arguments and found, that the order dated 09.02.1995, passed by the then learned Cooperative Judge, still holds the field and has not been altered, modified, varied or set aside in any manner whatsoever by any appellate forum. The learned counsel appearing on behalf of the respondents Nos.1 and 2 have also admitted during the course of arguments, that the order dated 09.02.1995 is still intact but anyhow, submitted, that the same was not acted upon or complied with because of the petitioner's conduct who neither approached to the PCBL timely nor deposited the balance consideration.
20. Firstly, it is to be seen and adjudged, as to whether the predecessor of the petitioner entered into an agreement to sell with the defunctADCIL, paid earnest money and also agreed to pay the remaining amount at the time of executing and registering the sale-deed.
21. From the record and particularly the order dated 09.02.1995, passed by the then learned Cooperative Judge, it is proved, that the Cooperative Petition No,140-C/1992 filed by predecessor of the petitioner was duly contested by the responded-PCBL and other claimants of the land. The said petition was decided in favour of the petitioner and finally in a clyster clear terms, respondent- Board was directed to execute the sale deed of the land in question in favour of the petitioner.
Therefore, it is proved, that the predecessor of the petitioner lawfully purchased the land in question through agreement to sell after paying earnest money and the same was approved by the then learned Cooperative Judge through the order dated 09.02.1995.
22. The protracted litigation among the parties i,e, the petitioner, and respondents was very much in the knowledge of respondents Nos.1 and 2 being the parties to the litigation and even while filing the reply/parawise comments by the respondent-PCBL, it has not been denied, that the petitioner had been agitating its claim continuously through different petitions for the implementation of order dated 09.02.1995.
23. There is another important aspect of the case which is also astonishing and totally contrary to the rules and regulations of the PCBL and also the verdict ruled by the Hon'ble Supreme Court of Pakistan in plethora of judgments. The PCBL, at one point of time, decided to sell the property in question through public auction by giving the advertisement in the press. The auction could not be held, as appears from the record, because of an injunctive order passed by a competent Court of law but thereafter, strangely, respondent No,2 at once withdrew his petition W.P.No,643/2000 on 22.05.2007 and the property was sold to him through private negotiation on 30.06.2007 on "As Is, Where Is" basis, on a fake ground to compensate the poor effecties/depositors. This action of the PCBL was sheer violation of the rules and regulations of the PCBL and also the principle laid down by the Hon'ble Supreme Court of Pakistan in chain of judgments, that the public property, by a government/semi government department, can only be sold through public auction. Even the justification given by the PCBL is totally baseless, unfounded and having no substance therein, therefore, such type of the sale, in any circumstances and at any cost, cannot be permitted or approved.
24. During the course of arguments, it was repeatedly asked to the learned counsel for the PCBL and the respondent No,2 to justify the sale of the land in question through private negotiations particularly in the circumstances when earlier this land was advertised for auction, both the learned counsel could not refer any law. Particularly, the learned counsel appearing on behalf of the PCBL was given time to refer any law on this point, but the learned counsel remained unsuccessful to assist the Court on this important aspect of the case.
25. Learned counsel for the respondent-Board repeatedly argued, that the petitioner did not approach to the PCBL for the implementation of the order dated 09.02.1995 neither paid the consideration but this stance of the learned counsel is totally contrary to the record even submitted by the respondent-Board.
26. The Chairman, PCBL, while passing the order dated 26.12.2006, impugned herein, has admitted in paragraph No,13 of the order, that NDLC, predecessor of the petitioner, wrote a letter dated 29.12.1999 showing his willingness to execute the sale deed after making payment of balance amount. The respondent-PCBL could not place on record anything that the PCBL ever gave reply of the said letter and asked the petitioner to pay the amount within such period.
27. Through the above, at least it proves, that the petitioner continuously had been making the efforts for the implementation of the order dated 09.02.1995, passed in Cooperative Petition No,140- C/1992 through litigation and also filed applications but the respondent-PCBL did not attend or redress the grievance of the petitioner.
28. Now it is to be seen, whether the validity of the order passed by the Cooperative Board can be questioned and dealt with under the provisions of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993. Section 11 of the Act ibid is relevant, which is reproduced as under:-- "Application to the Cooperatives Judge.---A person if aggrieved by an act or decision of the CooperativesBoard,may [including the Chairman or his delegate may within a period of sixty days from the date of the act or decision] apply to the Cooperatives Judge, who may confirm, reverse, or modify the act or decision complained against, and make such order as he may think just in the circumstances of the case."
(Emphasis added)
29. The order dated 26.12.2016, passed by the Chairman, PCBL was perused and examined with the assistance of learned counsel for the parties and found, that the Chairman, while dictating the order, has not denied the following important aspects of the case: i. The order dated 09.02.1995, passed by the then learned' Cooperative Judge in Cooperative Petition No .140-C/1992 still holds the field and has not been reversed, varied or modified by any appellate forum. ii. The petitioner wrote a letter dated 29.12.1999 for the implementation of the order dated 09.02.1995 but no action was taken by the respondent-PCBL. iii. The property in question firstly published for auction and when the auction could not be materialized, the same was sold through negotiation to the respondent No,2. iv. The respondent No,2 withdrew his Writ Petition No,643/2000, vide order dated 22.05.2007 and the property in question was sold to the respondent through private negotiation.
30. From the above, it is crystal clear, that the litigation qua the property in question was very much in the knowledge of the respondent-Board, when the property was sold through negotiation, therefore, the principle of lis pendens is fully applicable in this case. Principle of lis pendens, enshrines in Section 52 of the Transfer of Property Act, 1882, reads as under:-- "Transfer of property pending suit relating thereto. During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government 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."
31. Section 52 of the Transfer of Property Act, 1882 has beautifully been explained by the Hon'ble Supreme Court of Pakistan in a judgment cited as Muhammad Ashraf Butt and others v.
Muhammad Asif Bhatti and others (PLD 2011 SC 905). The relevant portion of the judgment (supra) is reproduced as under:-- "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 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 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 (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 "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 ...."
Further reliance is placed on Khadim Hussain v. Abid Hussain and others (PLD 2009 SC 419), Mst.
Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCM R 983) and Bagh Ali v. Mst. Ayesha and others (2013 SCM R 551).
32. It is established on record, that the property in question was sold through negotiation by the respondent-Board to the respondent No,2 during the litigation and squarely hit by the principle of lis pendens, therefore, the same is not sustainable in the eye of law.
33. As regard the petitioner, it is manifest from the record, that the petitioner always remained ready to perform his part of the agreement and for this purpose, filed different cooperative petitions and writ petitions. The petitioner also filed applications to the respondent-Board for the implementation of the order by showing his willingness to pay the remaining consideration amount and further, the order dated 09.02.1995, passed in Cooperative Petition No,140-C/ 1992 still holds the field and requires implementation. Hence, it held, that the petitioner is entitled to take the property in question in compliance of the order dated 09.02.1995. Although the petitioner has paid the earnest money Rs,2,932,500/- and agreed to purchase the land at the rate of Rs,12,075,000/- whereas the property in question was sold to the respondent No,2 for Rs,40,234,487/-, since the amount received by the PCBL is for compensation to the poor cooperative effective and depositors and considerable time has elapsed, therefore, the petitioner shall pay the price of the property in question Rs,40,234,487/-, paid by the respondent No .2 .
34. In view of above, this petition is allowed, the sale-deed No,2464 dated 30.06.2017, made by the respondent-Board in favour of the respondent No,2 through negotiation, N.O.0 dated 11.06.2007, issued in favour of the respondent No,2 and the order dated 26.12.2016, passed by Chairman, PCBL are set aside and the respondent-Board is directed to execute the sale deed of property in question in favour of the petitioner after receiving the remaining consideration amount, as mentioned above, along with other charges. The petitioner is directed to deposit the remaining consideration amount and other charges with the respondent-department within one month. No objection certificate (NOC) shall also be issued in favour of the petitioner. No order as to costs.