SHAHID BILAL HASSAN-J : Succinctly , the petitioner No.1 entered into an agreement of sale dated 30.08.1 989 with late S.M. Akbar with regard to the suit property but said S.M. Akbar failed to honour his commitments made in the agreement of sale, so the petitioner No.1 instituted a suit for specific performance on 20.04.1990, which was, after prolonged litigation, decreed vide judgment & decree dated 09.03.2006 with respect to undisputed 3 Kanals of plot. However , during pendency of the suit S.M. Akbar died and his legal heirs i.e. respondents No.3 to 9 were impleaded. The judgment debtors when failed to execute the sale deed in favour of petitioner No.1, the execution proceedings were initiated. The respondent No.2 filed an application under section 12(2) C.P.C. challenging the judgment & decree dated 09.03.2006 with the assertion that S.M. Akbar had sold his 3 Kanal plot boundaries whereof were described in document No.5259, Bahi No.1, volume No.3731 registered with Sub-Registrar on 25.04.1963 and which was mentioned in the agreement of sale dated 30.08.1989 executed in favour of the petitioner No.I, on the basis of sale deed bearing document No.2728, Bahi No.1, volume No.2155 dated 06.04.1995 to Mst. Shama Khalid/respondent No.11. Said Mst. Shama Khalid firstly entered into an agreement of sale of the said plot in favour of respondent No.2 on 07.11.2002 and thereafter executed sale deed bearing No.6352, Bahi No.1, volume No.201 on 19.05.2003. The said application under section 12(2) C.P.C. was duly contested by the present petitioner. The learned Trial Court vide order dated 06.05.2010 dismissed the said application after appreciating all facts and circumstances.
It is necessary to mention here that when disputed plot was sold to Mst. Sham a Khalid/respondent No.11, the petitioner No.1 filed an application under Order 1 rule 10 C.P.C. for her impleadment as defendant but the learned Trial Court dismissed the said application on 05.09.1997 by holding that the sale during pendency of suit was hit by the principle of lis pendens. A civil revision bearing No.1510 of 1997 was filed before this Court and subsequently on 29.07.2003, the same was withdrawn as the learned Trial Court was restrained from passing final judgment till the disposal of the said civil revision.
2. Respondent No.2 being aggrieved of the order dated 06.05.2010 filed a civil revision bearing No.1758 of 2010 before this Court but due to increase in pecuniary jurisdiction, it was sent to the learned District Judge, concerned and same was entrusted to the learned Addl. District Judge, who vide impugned order dated 15.03.2017 accepted the civil revision and set aside the order dated 06.05.2010 passed by the learned Civil Judge; case was remanded to the learned Trial Court for deciding the application under section 12(2) read with section 151 C.P.C. after framing of issues and recording evidence of the parties in accordance with law . Hence, the instant constitutional petition.
3. Main thrust of the learned counsel for the petitioners is that the principle of lis pendens is attracted with full force in the instant case because the purchase made initially by respondent No.11 and then by respondent No.2 took place during pendency of the suit, which was instituted on 24.04.1990 and was decided on 09.03.2006, therefore neither the respondent No.11 nor respondent No.2 were necessary or proper party. Reliance has been placed on Muhammad Arshad Butt & others v. Muhammad Asif Bhatti & others (PLD 2011 SC 905). He further argues that in such an eventuality the application under section 12(2) read with section 151 C.P.C. was even not maintainable and same ought to have been dismissed at its inception by the learned Trial Court, which needful was done as there was no need to frame issues and record evidence but the learned Revisional Court by travelling beyond vested jurisdiction, without appreciating facts and circumstances of the case, mere on the basis of surmises and conjectures and wrong assumptions and presumptions, without appreciating law on the subject has illegally passed the impugned order, which is nothing but a mockery of law and can only be termed as an order passed to frustrate the ends of justice. He further argues that even the application under section 12(2) C.P.C. filed by respondent No.2 is lacking the ingredients necessary for filing such application, which was rightly dismissed by the learned Trial Court but the learned Revisional Court in allowing the revision petition and remanding the matter to the learned Trial Court for its regular trial has committed serious illegality and misreading of record, which has resulted in miscarriage of justice. Lastly, he has prayed that by allowing the instant constitutional petition, the impugned order dated 15.03.2017 may be set aside and order passed by the learned Trial Court dated 06.05.2010, whereby application under section 12(2) C.P.C. may be restored with costs. Apart from above judgment, further reliance has been placed on Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) and Bagh Ali v. Mst. Ayesha and others (2013 SCMR 551).
4. Contrarily , learned counsel appearing on behalf of respondent No.2 has argued that respondent No.2 is a bondafide purchaser with consideration without notice. He has been condemned unheard while defiling principle of audi alteram partem; he has vested interests as he has paid a huge amount for purchase of the disputed plot, therefore the learned Revisional Court after appreciating facts and circumstances of the case has rightly reached to the conclusion that the application under section 12(2) C.P.C. should be decided after framing of issues and recording evidence of the parties, becaus e plea of fraud could only ascertained and determined through evidence.
He has prayed for dismissal of the constitutional petition in hand. Relies on Town Committee, Sujawal v. Hakim Murtaza Khan and others (1989 MLD 1955 -Karachi) , Abdul Sattar and 6 others v. Ibrahim and others (PLD 1992 Karachi 323), Ghulam Muhammad v. M. Ahmad Khan and 6 others (1993 SCMR 662), Sunni View Cooperative Housing Society v. Irshad Hussain and others (1993 CLC 2336 -Lahore) , Mst. Saadat-Ur -Rehman through Legal Representative v. Muhammad Zaarat Khan and 3 others (PLD 1998 Peshawar 1), Muhammad Hussain v. Mst.
Razia Bibi and others (1999 MLD 3030 -Lahore) , Fazal Karim through Legal Heirs and others v. Muhammad Afzal through Legal Heirs and others (PLD 2003 Supreme Court 818), Allah Ditta v. Ahmed Ali Shah and others (2003 SCMR 1202 ), Akbar Ali and 4 others v. District Judge, Faisalabad and 4 others (PLD 2006 Lahore 600), Pir Muhammad Azam v. Pir Azizullah and 2 others (2011 CLC 355-Peshawar) , Sheikh Waseem v. Dr. Mrs. Tahira Hussain through Legal Heirs and others (2012 CLC 1019 -Sindh) , Muhammad Ramzan v. Muhammad Akbar Bhatti and others (2013 CLC 1561 -Sindh) and Haji Farman Ullah v . Latif-Ur Rehman (2015 SCMR 1708 ).
5. Heard.
6. The main question, which requires determination by this Court, is the competency of application under section 12(2) of the Code of Civil Procedure, 1908 (the Code) before the learned Civil Judge. Section 12(2) of the Code provides three perspectives for challenging the validity of a judgment, decree or order which reads infra:- "12. Bar to further suit. - (1)
(2). Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
The respondent No.2, in the present case, was indebted to prove the existence of any of the supra narrated pre- requisites i.e. fraud, misrepresentation and want of jurisdiction. In the present case, the suit was instituted on 20.04.1990, so at the time of institution of the suit, the respondent No.2 was not in screen because he allegedly purchased the suit property on 19.05.2003 , that too, from Mst. Shama Khalid who allegedly purchased the same on 06.04.1995 as has been stated above, so in this scenario, there appears no question of his impleadment in the suit, because section 52 of the Transfer of Property Act, 1882 is much clear on the subject and in this case principle of lis pendens fully attracts. For ready reference section 52 of the Act ibid with explanation is reproduced infra: "During the pendency of 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 an 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." (Underline for emphasis)
Though respondent No.2 had pleaded ignorance of knowledge and asserted that being bona fide purchaser , his rights were protected but in such like case principle of caveat emptor was equally applicable and when litigation in respect of the suit property was pending, such transfer was to be governed by the provisions of section 52 of the Act ibid which lays down that a transaction made during pendency of litigation cannot affect the rights of any other party to the litigation, which may be acquired by it under the decree passed by the Court; reliance can safely be placed on Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others (1999 SCMR 2874 ) and Khadim Hussain v. Abid Hussain and others (PLD 2009 Supreme Court 419) as well as the celebrated judgment reported as Muhammad Arshad Butt & others v. Muhammad Asif Bhatti & others (PLD 2011 SC 905 ).
7. So far as the contention of the learned counsel for the respondent No.2 that application under section 12(2) of the Code cannot be dismissed without framing of issue and recording of evidence is concerned, it is observed that the same is misconceived and ill-founded. It is not a universal principle that in each and every case, the Court is bound to frame issues before deciding the fate of an application under section 12(2) of the Code, rather the Court can decide such like application without framing of issues while considering the material made available on the record. In this regard reliance is placed on Nazir Ahmed v. Muhammad Sharif and others (2001 SCMR 46), wherein it has invariability been held:- '8. In Amiran Bibi and others v. Muhammad Ramzan and others (1999 SCMR 1334 ) this Court has laid down the rule which reads as follows:- "it is not the requirement of law that the Court while dealing with the allegation under section 12(2), C.P.C. must in all circumstances frame issues, record evidence and follow procedure prescribed for decision of the suit. The question whether or not the issues are to be formulated and evidence of the parties recorded in resolving the allegations of fraud and misrepresentation, depends upon the facts of each case in consonance with justice."
It was further observed that:- "the impugned order was passed by the learned Judge in Chambers after hearing both the parties but the petitioners never sought permission to produce evidence in support of their application nor there was any prayer for formulation of issue at the time of hearing of the application."
The above principle has again been reaffirmed by this Court in Mrs. Amina Bibi through General Attorney v.
Nasrullah and others 2000 SCMR 296 in the following terms:- "While dealing with allegations under section 12(2), C.P.C., it was not incumbent upon Court that it must, in all circumstances, frame issues, record evidence and follow procedure prescribed for the suit."
8. In addition to the above, mere allegation of fraud and misrepresentation is not sufficient to overdo the judgment of a Court of competent jurisdiction, rather the person who asserts fraud and misrepresentation has to bring on record cogent and plausible material in order to substantiate his such plea, which is lacking in this case. Perusal of the impugned order dated 15.03.2017 passed by the learned Addl. District Judge, Lahore goes to evince that while setting aside the order dated 06.05.2010 the main stress of the learned Revisional Court was on the point that learned trial Court decided the fate of the application without framing of issues. In this regard, suffice to say that in view of the principles laid down in the judgments referred to above there is no need of framing of issues in each and every case for deciding an application under section 12(2) of the Code, so interference in the order of the learned Civil Judge by the learned Revisional Court was not warranted. As such, the learned Revisional Court has erred in law while setting aside the well-reasoned order passed by the learned Civil Judge dismissing the application under section 12(2) of the Code.
9. Apart from this, the order of the revisional Court is not sacrosanct which cannot be interfered with in any of the circumstances. Whenever, it is established that the revisional court has committed some illegality culminating into passing of an order which is perverse and perfunctory , this Court is competent to exercise its constitutional jurisdiction as ordained in Article 199 of the Islamic Republic of Pakistan, 1973; in this regard guideline can be sought from Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255) and Muhammad Akbar v . Muhammad Malik and another (PLD 2005 Lahore 1 ), wherein it was held:- "7. Anyhow , as regards the objections of the learned counsel for the respondent, suffice it to say that, it is not an absolute rule that an order passed in revision, cannot at all be interfered in the Constitutional jurisdiction. In my view, where the justice demands, an exception can be taken thereto and the High Court besides Article 199 of the Constitution, can invoke its supervisory jurisdiction under Article 203 of the Constitution, to correct the orders, when are perverse, fraudulent, erroneous and have been passed either by express violation or the ignorance of any provision of law. Because the order of the learned revisional Court is of the above nature, therefore, I deem it proper to correct it in my constitution jurisdiction..."
10. For the foregoing reasons, it has been established that the learned revisional Court has failed to exercise vested jurisdiction as per mandate of law and by travelling beyond the vested jurisdiction has passed the impugned order illegally , which cannot be allowed to hold field further .
11. As far as, the case law relied upon by the learned counsel for the respondent No.2 is concerned, with utmost respect to the same, it has no relevance to the peculiar facts and circumstances of the case in hand; thus, it does not render any assistance or help to the respondent No.2' s case.
13. In view of the above, while placing reliance on judgments supra as well as judgments reported as Muhammad Arshad Butt & others v. Muhammad Asif Bhatti & others (PLD 2011 SC 905), Mst. Tabassum Shaheen v. Mst.
Uzma Rahat and others (2012 SCMR 983) and Bagh Ali v. Mst. Ayesha and others (2013 SCMR 551), the constitutional petition in hand is allowed, consequent whereof the impugned order dated 15.03.2017 passed by the learned Revisional Court is set aside and the order dated 06.05.2010 passed by the learned Civil Judge dismissing application under section 12(2) of the Code filed by the respondent No.2 stands restored, with no order as to the costs.