AHMAD ALI, J. Petitioner , Abdul Qadeer son of Abdul Aziz, seeks the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 praying that; "It is, therefore, prayed that on acceptance of this writ petition, the impugned judgments of both the Courts below of respondents No.4 and 5 be set aside and petition U/S 12(2) CPC may be allowed to prove fraud in suit No.233/1 decided on 23.01.2016."
2. The brief and essential facts leading to filing of the present constitutional petition are that respondent No.2, Nasir Shahzad son of Mumtaz Ahmad filed a suit on 17.09.2014 against Mst. Nazima Shaheen , respondent No.1 for specific performance of agreement to sell dated 10.06.2014, whereby , respondent No.1 agreed to sell her share to the extent of 6 'Kanals ' 19 'Marlas in property bearing old 'Khasra ' No.69 and present 'Khasra ' No.268/238/69, measuring 58 'Kanals ' 12 'Marlas ", situated in 'Mauza' Shohal , Tehsil & District Haripur at the rate of Rs.200,000/- per 'kanal ', total Rs.1,390,000/- and received an amount of Rs.200,000/- as earnest money , while the remaining amount was agreed to be paid till 10.04.2015. Initially , the suit was contested by respondent No.1 by filing written statement. After recording partial evidence of respondent No.2, the parties entered into a compromise and a consent decree was passed in favour of respondent No.2 against respondent No.1 and the official defendants in the suit were directed to transfer the abov e mentioned land in favour of respondent No.2 vide judgment and decree dated 23.01.2016 passed by Civil Judge-VIII, Haripur .
3. The present petitioner filed an application under section 12(2) CPC for cancellation of decree in suit No.233/1 of 2014 on the basis of fraud and misrepresentation. It was alleged in the petition that after death of her husband, respondent No.1 become 'hissadar ' owner to the extent of 6 'kanals ' 191/2 'Marlas ' in the disputed property through inheritance mutation; that she executed a general power of attorney in favour of respondent No.3, Bilal Sarwar ; that respondent No.3 on the basis of said general attorney entered into an agreement with the petitioner regarding sale of the disputed property for a sale consideration of Rs. Rs.4,000,000/- and received an amount of Rs.2,000,000/- in advance from the petitio ner and the remaining amount was to be paid at the time of attestation of mutation or registered deed and as per agreement, possession was handed over to the petitioner; that on getting knowledge about the said agreement, she got cancelled the general power of attorney through revocation deed dated 16.01.2016; that petitioner came to know that a suit No.233/1 had been instituted in connivance between respondent No.1 and respondent No.2, who on getting knowledge about the agreement between the petitioner compromised the matter and obtained consent decree by suppressing material facts from the Court. The respondents were summoned, who appeared before the Court and contested the application by filing their separate replications. The petition under section 12(2) CPC was concurrently dismissed by both the Courts, hence, this petition.
4. Arguments heard. Record perused.
5. Perusal of the record reveals that the present petitioner has challenged the consent decree dated 23.01.2016 passed in favour of respondent No.2 against respondent No.1 in respect of land measuring 6 'Kanals ' 19 'Marlas ' comprised in 'Khasra ' No.23268/238/69, situated in Mauza Shohal, Tehsil & District Haripur on the ground of fraud and misrepresentation. The claim of the petitioner was that an agreement to sell was scribed regarding alienation of the suit property in his favour by respondent No.3 on the basis of a valid general power of attorney executed by respondent No.1, Mst. Nazima Shaheen in favour of respondent No.3. Notwi thstanding respondent No.2 in connivance with respondent No.1 obtained a consent decree from civil Court passed in his favour vide judgment and decree dated 23.01.2016. It is expedient to mention here that respondent No.2, Nasir Shahzad instituted a suit No.233/1 of 2014 on 17.09.2014 for specific performance of the agreement to sell dated 10.06.2014 against respondent No.1, Mst. Nazima Shaheen and the status quo was also in the field. The said suit was pending before the Court, when respondent No.3, alleged general attorney of respondent No.1, Mst. Nazima Shaheen entered into an agreement to sell qua the disputed property with the present petitioner on 06.01.2016. Now the precise questions involved in the present case are whether any fraud or misrepresentation was committed with the present petitioner by respondents No.1 and 2 and whether the doctrine of 'lis pendens ' is attracted to the sale transaction in favour of the present petitioner on behalf of respondent No.3 on the basis of general power of attorney or otherwise. Admittedly , respondent No.1 was lawful owner of the disputed property , who entered into an agreement to sell with respondent No.2 and settled the matter with him, as a result thereof, the consent decree was passed in favour of respondent No.2. Respondent No.1 never entered into any transaction or agreement to sell with the petitioner . The alleged agreement to sell on the basis of which petition under section 12 (2) CPC was instituted by the petitioner , was executed between the alleged general attorney of respondent No.1 and the petitioner during pendency of the suit on 06.01.2016, when restraining order of the Court regarding further alienation of the disputed property was in the field. Thus, no fraud or misrepresentation was committed by respondent No.1 with the petitioner or with the Court. Obviously , in the above mentioned peculiar facts and circumstances of the case, section 52 of the Transfer of the Property Act, 1882 being quite relevant is reproduced below:- "52. 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 Federal 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 to otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under 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 this sectio n, 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 procee ding has been disposed of by a final decree or order and complete satisfaction of 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."
6. The rule of 'lis pendens ' has thoroughly and elaborately discuss ed by the august Apex Court in Muhammad Ashraf Butt' s case (PLD 2009 SC 905) in the following words: "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 introduc ed. 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 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 view of the above settled principle of law, it is very much clear from record of the case that the petitioner has purchased the disputed property during pendency of the suit and no fraud or misrepresentation is visible from the material placed on file on the part of respondents No.1 and 2. Therefore, such transaction that took place during pendency of civil suit would be having no protection as it was hit by the doctrine of 'lis pendence' in terms of Section 52 of the Transfer of Property Act, 1882. Thus, the findings of both the Courts below being based on proper appreciation of facts and the law applicable thereto, need no interference in constitutional jurisdiction of this Court.
7. The fraud or misrepresentation, if any, on the part of respondent No.3 could be remedied only through suit for damages and recovery of amount paid by the petitioner to him. Reference in this respect may be made to 1992 CLC 1564, 1999 YLR 797 , 2014 CLC 1 172 and 2016 CLC (Note) 102 .
8. For the reasons stated above, the present petition being bereft of merit is dismissed.