AHMAD NADEEM ARSHAD, J.---Through this application under section 12(2) of Code of Civil Procedure, 1908, the applicants have challenged the validity of the order , dated 27.05.2015, passed by this Court whereby Civil Revision No.1201-D of 2002 titled as "Muhammad Yaseen and others v. Atta Ullah" was allowed on the basis of compromise.
2. Brief facts, necessary for understandin g and decision of this application are that a registered agreement to sell dated 07.03.1979 was executed by Muhammad Hanif son of Haji Shah Muham mad, the predecessor of Pre- emptors/petitioners (hereinafter to be called as respondents Nos. 1 to 5) in favour of Atta Ullah respondent/vendee (hereinafter to be referred as respondent No.7) regarding land measuring 71 kanal 07 marla situated in Khewat No.3 min Khatoni No.8 min to 12 min mouza Qadir-W ah Tehsil and District Vehari (hereinafter to be referred as suit property). Respondent No.7 instituted a suit for specific performance of said agreement to sell regarding the suit property against Muhammad Hanif and the latter also instituted a suit for declaration against respondent No.7 by seeking cancellation of said agreement to sell before the Court of learned Senior Civil Judge, Vehari. Both the suits were consolidated and after a full-fledged trial, the suit of Atta Ullah was dismissed while that of Muhammad Hanif was decreed by the learned trial Court vide judgment and decree dated 09.07.1985. Feeling aggrieved, respondent No.7 preferred an appeal which was allowed on 27.11.1990, resultantly his suit stood decreed and the suit of Muhammad Hanif stood dismissed. A revision petition against that judgment and decree was filed by Muhammad Hanif which was dismissed by this Court on 11.12.1990. Muhammad Hanif filed C.P.L.As. Nos.24/L to 27/L of 1991 before the august Supreme Court of Pakistan which were dismissed on 15.04.1991. Thereafter , respondent No.7 filed an execution petition, the learned executing Court got executed a sale deed No.72/1 regarding the suit property which was registered on 14.01.1992 in his favour . The legal heirs of Muhammad Hanif, respondents Nos.
1 to 5 along with Muhammad Anwar/petitioner No.6 (hereinafter called as respondent No.6) instituted a suit for possession through pre-emption regarding the suit property against the respondent No.7 on 08.03.1992 before the Court of learned Senior Civil Judge, Vehari, which, after full-fledged trial, was dismissed by the learned trial. Court vide judgment and decree dated 20.12.2000 on the ground of non-fulfilment of necessary Talbs in accordance with the law. Respondents Nos.1 to 6 challenged that judgment and decree by preferring an appeal which was dismissed by the learned appellate Court vide judgment and decree dated 23.07.2002. Respondents Nos.1 to 6 challenged both the judgments and decrees of the learned Courts below by filing above titled Civil Revision No.1201-D of 2002 on 17.10.2002, which was admitted for regular hearing on 18.12.2002 but without any restraining/ stay order . During the pendency of said civil revision, respondents Nos. 1 to 7 settled their disputes by way of compromise and respondent No.6 (petitioner No.6) withdrew his revision by filing a written application (C.M.
No.1593-C-2015) and this Court dismissed the revision petition to his extent as withdrawn and accepted the revision petition to the extent of remaining petitioners Nos.1 to 5 (respondents Nos.1 to 5) on the basis of written application (C.M. No. 1594-C/ 2015) and oral statement of special attorney of respondent No. 7 and decreed their suit for possession through pre-emption vide order dated 27.05.2015.
After the dismissal of the suit for pre-em ption from the learned courts below but before the filing of the revision petition, respondent No.7 (Atta Ullah) transferred the suit property along with his other property measuring 74 kanal through oral mutation of exchange No.3160 dated 30.08.2002 in favour of Zahoor Ahmad son of Muhammad Anwar (Applicant No. 5), land measuring 06 kanal through registered exchange deed dated 30.09.2002 regarding which mutation No.3192 was sanctioned on 29.11.2002 in favour of 'Allah Ditta son of Machia (Applicant No. 1) and land measuring 45 kanal through oral sale mutation No.3347 dated 26.06.2004 in favour of Muhammad Ameer son of Machia (Applicant No.2). The applicants being aggrieved, through the instant application under section 12(2), C.P.C. dated 19.09.2015, challenged the validity of the order dated 27.05.20 15 of this Court. Although the application has been filed on behalf of five applicants but the suit property was transferred only in the name of applicant No.5 namely , Zahoor Ahmad son of Muhammad Anwar by respondent No.7 through mutation of exchange No. 3160 dated 30.08.2002. Respondents Nos. 1 to 5 and respondent No.7 filed their separate contesting written replies on 09.03.2017.
On behalf of respondent No.6 namely , Muhammad Anwar , power of attorney was filed by Rana Tahir Mehmood Advocate but he did not file any written reply to the application. Today , no one appeared on behalf of respondent No.6, therefore, he has been proceeded against ex-parte.
The applicants moved an application (C.M .No.2171-C of 2016) for issuance of restraining order while respondent No.7 moved an application (C.M. No. 254-C of 2017) for withdrawal of original Special Power of Attorney executed by the respondent No.7 and respondents - Nos.1 to 5 moved an application (C.M. No.1458-C of 2015) for bringing on record certified copies of W.P. No.10668 of 2010 titled as "Allah Ditta v. DOR and others" and order dated 01.12.2010. The applicants and respondents did not press that applications, therefore, same are dismissed as having not pressed.
3. Learned counsel appearing on behalf of the applicants states that no partial pre-emption decree could be passed as the revision to the extent of responden t No.6 was dismissed as withdrawn; that respondent No.7 transferred the suit land through mutations Nos.3160, 3192, and 3347 by way of exchange and oral sale, therefore, became landless, hence could not enter into a compromise regarding decreeing of the suit; that the suit property was got partitioned through a process of law and separate wanda of the applicant came into existence and the suit property did not remain part of the joint khata; that the impugned order dated 27.05.2015 was procured by concealment of facts; that pre-emption suit could not be decreed in absence of fulfillment of requisite talbs; that the mala fide on the part of the respondents is apparent from the fact that they got the impugned order without impleading the applicants as a party by practicing fraud and misrepresentation. To fortify his contentions, learned counsel has relied on "Samar Qand and another v. Muhammad Yunis" (PLD 1972 Peshwar 115). "Ch. Jalal Din v. Mst. Asghari Begum and others" (1984 SCMR 386), "Sunni View Cooperative Housing Society v. Irshad Hussain and others"
(1993 CLC 2336 ), "Muhammad Aslam and others v. Mst. Kundan Mai and others" (2004 SCMR 843), "Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others" (2004 SCMR 612), "Muhammad Yousuf Siddiqui v. Haji Sharif Khan through L.Rs. and others" (PLD 2005 Supreme Court 705), "Allah Ditta through L.Rs. and others v. Muhammad Anar" (2013 SCMR 866), and "Imam Bakhsh and others v. Fida Hussain and others"
(2016 CLC 96).
4. Conversely; learned counsel appearing on behalf of respondents submits that the applicants are neither aggrieved persons nor they have any locus standi to file the instant application; that as per provisions of section 119 of the Transfer of Property Act, 1882 with the decree of the suit property , the exchange property of the applicants reverted to them, therefore, they have no locus standi to file the applica tion; that mutations of exchange were hit by the principle of lis pendens as the mutations were sanctioned during the proceedings of pre-emption suit; that the applicants have no independent right to challenge the validity of decree passed on the basis of the decree of the court; that the applicants had full knowledge of the pendency of pre-emption suit, thus they were bound to face the consequences of the decree; that respondent No.7 challenged the validity of mutations sanctioned in favour of applicants by filing suit for declaration which /is is sub-judic e. While relying upon the cases reported as "Mukhtar Baig and others v, Sardar Baig and others" (2000 SCMR 45) "Ali and 3 others v. Abdul Ghani through Legal Heirs" (2003 MLD 618) [Lahore], "Basit Sibtain through Legal Heirs v. Muhammad Sharif through Legal Heirs" (2004 SCMR 578), "Feroze Din through L. Rs and others v. Hussain and others" (2005 CLC 1727 ) [Lahore], "Ghulam Muhammad and others v. Muhammad Hussain and others" (PLD 2006 Lahore 223), "Bashir Ahmed v. Messrs Muhammad Saleem, Muhammad Siddique & Co. (Regd.) and others" (2008 SCMR 1272), "Haji. Nazeer Ahmed v. Raja Muhammad Saeed Khan and 11 others" (PLD 2010 Supreme Court (AJ&K)
47), "Mst. Rubin Badar through L.R. v. Messrs Long Life Builders and 4 others" (2012 SCMR 84), "Bagh Ali v. Mst.
Ayesha and others" (2013 SCMR 551), "Muhammad Zahid Aslam v. Haji Dilbagh and 7 others" (2015 YLR 186), "Aasia Jabeen and 3 others v. Liaqat Ali and others" (2016 SCMR 1773), "Dilnawaz Begum and others v.
Muhammad Akbar Khan Afridi and others" (2017 CLC 1115),"Canal View Cooperative Housing Society through General Secretary and another v. Mst. Nasim Begum and 4 others" (2017 MLD 1600 ) [Lahore], "Muhammad v.
Sheikh Taj Muhammad and others" (2018 YLR 1543 ), "Muhammad lqbal v. Sajid Hussain Bhatti and others" (2019 MLD 537) [Lahore], "Muhammad Bashir v. uct. Sakina and others" (2020 YLR 358), and "Abdul Qadeer v. Mst.
Nazima Shaheen and 4 others" s(PLD 2021 Peshawar 22) prayed for dismissal of the application under section 12(2), C.P .C.
5. I have heard learned counsel for the parties at full length and have also gone through the available record in addition to the case law cited at the bar .
6. Both the parties stated at the bar that there is no need for the recording of evidence as almost all the facts are admitted one, certified copies of relevant documents are available on the file and only legal questions are required to be determined.
7. Learned counsel appearing on behalf of respondents Nos.1 to 5 and 7 stated that mutation No.3160 is the result of fraud and forgery and has no legal effect as respondent No.7 challenged its validity by way of filing a declaratory suit and his appeal is still pending before the learned appellate Court. A perusal of record reveals that a suit for declaration, whereby the validity of mutation of exchange No.3160 dated 30.08.2002 sanctioned in favour of applicant No.5 and some other mutations were challenged, was shown to be instituted by respondent No.7 on 16.04.201 1. Although the plaint bears his signature, the applicant challenged the maintainability of the said suit by alleging that the suit was not instituted by respondent No.7. The learned trial court repeatedly summoned respondent No.7 in person but he failed to attend the Court, therefore, the suit was dismissed vide judgment and decree dated 09.07.2014. An appeal was preferred against that judgment and decree passed by the trial court but without signatures of respondent No.7. It is admitted position that mutation No.3160 was a mutation of exchange and respondent No.7 through his general attorney namely Muhammad Zahoor exchanged his 74 kanal of land with 51 kanal land of applicant No.5. An application (C.M. No.710-C-2004) was moved on behalf of respondent No.7 through his general attorney , namely , Muhammad Zahoor on 01.06.2004 before this Court whereby a clarification regarding order dated 1812.2002 was sought and in the said application, respondent No.7 himself admitted that he transferred the suit land measuring 74 kanal through mutation of exchange No.3160 dated 30.08.2002 in favour of applicant No.5 namely , Zahoor Ahmad. In this way, when respondent No.7 himself acknowledged the transfer of suit property in the name of applicant No.5, then it did not lie in his mouth and other respondents to deny the existence of that mutation of exchange at this later stage.
8. The respondents challenged the maintainability of the application under section 12(2), C.P.C. on the ground that the applicants have no locus standi as they did not fall within the category of aggrieved persons. In section 12(2), C.P.C. the word 'person' has been used. If the intention of the lawmaker had been to restrict the right of filing application only to the person who was party to the suit, then the word party ought to have been used. The august Supreme Court of Pakistan while relying upon "Ghulam Muhammad v. M. Ahmad Khan and 6 others (1993 SCMR 662) in its reported judgment titled as "Khawja Muhammad Yousaf v. Federal Government and others" (1999 SCMR 1516) has inter alia held as under: "If a person adversely affected by an order or judgment of a Court or tribunal rendered in proceedings to which he is not a party and to which proceedings C.P.C. is applicable, he can file an application under section 12(2), C.P.C. for the reason that the word "person" and not judgment debtor or his successor in interest or the words "party to the suit" have been used as highlighted in the above report."
Further reliance can be placed on "Ch. Jalal ud Din v. Mst. Asghari Begum" (1984 SCMR 584). The applicant got the suit property through mutation of exchange and his rights were directly affected through the judgment/order dated 27.05.2015 of this Court whereby the suit of the respondents Nos.1 to 5 was decreed on the basis of compromise, therefore, appliant No.5 has every right to file the instant application under section 12(2), C. P . C.
9. Before adverting to the validity of the impugned judgment, it would be apt to observe that section 12(2), "C.P.C." recognizes three eventualities for setting at naught a judgment, decree, or order and empowers a person to get his relief by way of proving these eventualities, which reads as under:-- "12. Bar to further suit.-- (1) Where a plaintif f is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code' applies.
(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."
It is thus manifestly clear that a judgment, decree, or order can be annulled by the Court which passed the same if it is the product of fraud, misrepresentation, or is coram non judice. The august Supreme Court of Pakistan in its judgment reported as "Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd." (2010 SCMR 1097 ) while keeping in view the dictum laid down by the Courts and the legal dictionary defined the meaning of words "fraud", "misrepresentation" and "collusion" in the following manner: "Fraud"
"Every representation made to a court which, is deliberately false amounts to a fraud and would vitiate a decree"
(Mst. hat and others v . Khuda Bakhsh PLD 1959 Karachi 221."
"A party to a fraud is not allowed to plead his own fraud (Abdul Razzaq Halwaldar v. Sheikh Muhammad Shaft PLD 1962 SC 134 ).
"Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true and the active concealment of fact by one having knowledge or believe of the fact" (Allah Wasaya and 5 others v . Irshad Ahmad and 4 others 1992 SCMR 2184 ).
"The collusion no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two person that one should institute a suit against the other in order to obtain a decree of a judicial tribunal for some sinister purposes" (Munir Ahmad Khan v . Sami Ullah Khan 1986 CLC 2655 ).
"For the purpose of subsection (2) of section 12 of the C.P.C. the plea of collusion is as good as the plea of fraud"
(Zafarullah and others v . Dost Muhammad and others PLD 1984 Lahore 396 ).
"Fraud"
"A false representation of a matter of fact, whether by words or by conduct by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury".- - - -" A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling and any un-fair way by which another is cheated" (Blacks Law Dictionary Fifth Edition).
"Misrepresentation."
"Any manifestation by words or other conduct by one person to another that, unde r the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that 'which exists.
Colloquially it is understood to mean a statement made to deceive or mislead." (Blacks Law Dictionary Fifth Edition).
"Collusion"
"An agreement between two or more persons to defraud a person of his rights by the forum of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employ ment of fraudulent means or of lawful means for the accomplishment of an unlawful purpose." (Blacks Law Dictionary Fifth Edition).
Respondent No. 7 posing himself as the owner of the suit property moved an application for acceptance of the revision petition and a statement was made on his behalf before this court regarding acceptance of the civil revision and decree of the pre-emption suit while he was not the owner of the suit property as he himself transferred the suit property in the name of applicant No.5 through mutation of exchange. Respondent No.7 knowingly that his statement was not true deliberately made a false representation and in this way, he made active concealment of fact from this court which amounts to fraud. The respondents made a secret arrangement by way of compromise 'to obtain a decree from this court in order to deprive the applicant of the -suit property and to defraud him of his rights. The order/judgement dated 7-05-2015 squarely fell within the ambit of section 12(2), C.P.C. and is not sustainable as being the result of fraud and misrepresentation.
10. The main ground of defense of the respondents was that the applicants obtai ned the suit property during the pendency of their pre-emption suit, and the mutations of exchange were sanctioned during the pendency of civil revision, therefore, the same were hit by the principle of lis pendens as enshrined in section 52 of the Transfer of Property Act, 1882 and the applicants have no locus standi to challenge the validit y of compromise decree passed in favour of respondents Nos.1 to 5 and to further strengthen their arguments, referred the case law, as stated in the preceding paragraph of this judgment.
11. There is no cavil with the proposition that one who purchases a part or the whole of the subject-matter , involved in the litigation from a party during the pendency of the suit, takes its 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 meaning thereby , whoever acquires property during the pendency of action is held bound by the judgment that may be made against the person from whom he derived his title even though such a purchaser was not a party to the action as had no notice of the pending litigation. Section 52 of the Transfer of Property Act, 1882 embodies manifestly the rule of lis pendens, which speaks as under:- "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 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 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 proceedings shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceedings 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 of the time being in force."
From a bare reading of the above section , it appears that application of this section is subject to certain conditions; the suit must be relating to a specific immovable property in which any rights of the parties are directly and specifically in question, the suit should be pending at the time when the alienation in favour of the third person has been made and neither the suit itself nor the outcome thereof must be collusive, fraudulent and or is meant to entrap, deceive, and defraud an innocent transferee. (underlining supplied for emphasis)
In order to understand the principle of lis pendens, I have borrowed wisdom from the full bench judgment of the august Supreme Court of Pakistan reported as "Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others" (PLD 201 1 SC 905 ) wherein it has been held 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 chan ged or introduced. The virtual and true object of lis pendens is to protect and safeguard Ole parties to the suit and their rights and interest in the immo vable 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 ultim ately 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 purchaser 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 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 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 proceedi ngs 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 Pupl 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 lis which is pendent 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 V ol.1,5.406 the doctrine has been expounded in the terms following:- "Ordinarly , it is true, that the decree of a court binds only the parties and their prives 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, pendent lite, nihil in noveture; the affect of which is not to-an nul he conveyance, but only to render it abservient 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 thefinal 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 Us, 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."
12. The applicants while defending them selves from the principle of Us pendens state that section 52 of the Transfer of Property Act, 1882 was inapplicable because the proceedings of the revision were collusive inasmuch as the vendee/respondent No.7, in collusion with the preemperors/respondents Nos.1 to 5, had entered into compromise but also 'dishonestly and by concealing the true facts from the Court, deliberately and knowingly got the suit decreed. The Hon'ble Supreme Court of Pakistan in its reported judgment "Fazal Karim through legal heirs and others v. Muhammad Afzal through legal heirs and others" (PLD 2003 SC 818) while defining "Collusive" and "Fraudulent" proceedings in the light of section 52 of the Act ibid held as under:-- "11. Collusion in judicial proceedings is a secret arrangement between two persons where one institutes a suit against the other in order to obtain a judicial decision for some sinister purpose. In such case the claim is fictitious, the contest is unreal and the decree passed therein is a mere mask having the similitude of a judicial determination, with the object of confounding the third party . In a fraudulent proceedings, the claim is untrue but the verdict of Court is managed to be obtained by practising fraud on the Court. We have gone through this distinction laid down by Venkatarama Ayyar, J. in a Full Bench judgment of Indian Supreme Court in Nagubai Ammal v. B.
Shama Rao (AIR 1956 SC 593).
12. We are also confronted with another phenomenon that at times of judicial proceedings do not commence with collusion or fraud but subsequently the parties resort to collusion as well as fraud in order to jeopardize the right or interest of a third party . The proceedings may not be collusive from the very inception but collusion, if resorted to subsequently , is as good a collusion as that intended from the very beginning. In Periamurugappa Asari v.
Manicka Cherry AIR 1926 Madras 50, Venkatasubba Rao, J. observed, also with reference to a compromise, that decree passed in pursuance of a compromise does not exclude the application of section 52 provided that such compromise is not tainted with fraud or collusion. A genuine compromise is a norm al conduct of the parties and is not taken to be collusive but a compromise entered into by collusion or fraud excludes the application of section 52 of the T ransfer of (12) Statements made by- - -
(a) Persons who have any property or pecuniary interest in the subject-matter of the proceedings, and who make statements in their character of person so interested, or
(b) Persons from whom the parties to the suit have derived their interest in the subject-matter of the suit or admission if they are made during the continuance of the interest of the persons making the statements.
In "Saleem and another v. Malik Jalaluddin and 7 others" (PLD 1982 SC 457) the Hon'ble Supreme Court of Property Act. It is altogether immaterial as to whether the proceedings were collusive from the very inception or they became so at some subsequent stage. A suit may be collusive even at its very inception or a decree may be obtained by collusion in a suit which had initially started bona fide.
13. We, therefore, hold that in cases which are collusive at the very inception and the cases where decree is obtained by collusion or fraud section 52 of the Transfer of Property Act would not be applicable regardless of the fact, in the latter case, that the proceedings were initiated with honesty ."
13. The vendee/respondent No.7 transferred the suit property through exchange mutation No.3160 dated 30.08.2002 in the name of Zahoor , Ahmad/applicant No.5. Respondent No.7, during the proceedings of revision petition, moved an application (Civil Misce llaneous No.710-C of 2004) before this Court on 01.06.2004 whereby he himself acknowledged the sanction of mutation of exchange bearing No.3160 dated 30.08.2002 meaning thereby that at the time of execution of special power of attorney dated 21.05.2015, at the time of moving Civil Miscellaneous No.1694-C of 2015 dated 23.05.2015 and at the time of the decision of the revision petition on the basis of compromise, respondent No.7 was not the owner of the suit property and had not possessed any interest in the suit property , therefore, his admission or statement regarding acceptance of the civil revision had no sanctity in the eye of law. Article 31 of the Qanun-e-Shahadat Order , 1984 states the nature and scope of an admission made by a party or his agent to a proceed ing. To avoid consulting the text time and again, Article 31 of the Qanun- e-Shahadat Order , 1984 for sake of convenience, is reproduced below: "A.31. Admission by party to proceeding or his agent etc.
(1) Statement made by a party to the proceedings, or by an agent to any such party , whom the court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, or admission.
(2) Statements made by parties to suits suing or sued in a representative character , are not admissions, unless they were made while the party making them held that character .
Pakistan clinched the issue under discussion and held as follows: "A plain reading of this provision makes it clear that statement of a person, from whom a party to the suit has derived his interest in the subject-matter of the suit or proceedings, are receivable as admissions against the latter , if the statements were made during the continuance of the interest of the former . It is only in regard to such statements, that the party against whom the statement is tendered in evidence, can be said to be in "Privity" with the person making a statement. Once the interest of the maker of such statement ceases to exit, the privity comes to an end and no statements thereafter can bind successor -in-interest on any principle. The ground upon which such statements are received as admissions is that the maker of the statement and the person who has derived his interest from him are identified in interest. Thus, it was held in Bhagirathi v. Pandit Onkar Nath (1), that under section 18 of the Evidence Act, statements made by persons from whom the parties to the suit have derived their interest in the subject-matter of the suit are admissible as admissions, only when the admissions are of a date prior to the date of transfer . Since in the present case, the so-called admission was made by respondent No. 1 much after he transferred his interest in favour of respondent No.4, clearly this statement cannot be received as a an admission binding on the latter ."
This Court, in a reported judgment "Muhammad Ilyas and others v. Muhammad Sharif and others" (2001 CLC 1194) held as under:-- "According to Article 31 of the Qanun-e-Shahadat Order , 1984, the statement made by said party was to constitute admission only if same was during the subsistence of interest."
14. The mutation of exchange was quite within the knowledge of respondents. Applicants Nos.1 and 5 along with Machia son of Muhabat filed an application for partition of khata on the basis of the above-referred mutations of exchange against the respondents on ,15.10.2002 which was allowed on 12.05.200 3. Respondents Nos.1 to 6 filed an appeal which was dismissed and their revision also met the same fate, thereafter , they filed a revision petition
(ROR) before the Board of Revenue, Punjab, Lahore. Applicant No.5/Zahoor Ahmad also instituted a suit for recovery of his share of produce on the basis of that mutation of exchange against the respondents before the court of Assistant Commissioner/Collecto r, Vehari which was decreed on 09.04.2013, an appeal against that order was dismissed on 03.12.2014. The respondents challenged both the orders before the court of Member Board of Revenue, Punjab Lahore, by way of filing revision of revision (ROR). The application for partition of the joint khata and suit for recovery of share of produce were hotly contested by respondents. The respondents deliberately and knowingly concealed those material facts from this Court while getting a decision of the civil revision on the basis of compromise. The active concealment of that material facts also tantamount to fraud and misrepresentation.
15. Undeniably , the suit for pre emption of respondents was concurrently dismissed by the learned lower Courts due to non-fulfillment of requisite talbs. This Court did not pass a pre-emption decree in favour of respondents Nos.1 to 5/pre-emptors on merits but it was the vendee/respondent No.7 who made a statement before the Court that the suit for possession through pre-emption instituted by the respondents Nos.1 to 5 be decreed against him and both the judgments and decrees of the learned lower courts regarding the dismissal of the suit concurrently be set-aside whereas, before making the statement, he had already transferred the suit property in favour of the applicant No.5. The respondent No.7 could not, through a compromise, surrender or concede any right in respect of the suit property in favour of respondents Nos.1 to 5 as on the date of the compromise, he had no right or interest therein, having transferred the same to applicant No.5. Respondent No.7 deliberately with mala fide intention concealed this material fact before this Court in order to give benefit to respondents Nos.1 to 5. Had the civil revision was decided on merits, the result might have been different as prima facie the transaction took place in favour of applicant No.5 was hit by the principle of applicant No.5 did not hit by the principle of lis pendens. This Court in a case titled as "Muhammad Zubair v. Muhammad Tahir Shafique and another" (PLD 2013 Lahore 154), whereby , a suit for pre-emption was instituted, which was dismissed and the appeal also met the same fate. During the pendency of the revision petition, parties arrived at a compromise and a compromise deed was filed in the Court and the Civil Revision was partially accepted in terms of the said compromise vide order dated 23.05.201 1 of this Court. In this back drop an application under section 12(2), C.P.C. was filed, wherein it was contended that the applicant purchased a portion of the property in dispute through a registered sale deed from respondent No. 1/vendee and also another portion of the property from respondent No.2 vide registered sale deed and challenged that compromise decree on the ground that the suit property was already transferred, therefore, the decree passed in the civil revision is a result of misrepresentation and fraud played by the parties of the civil revision, held as under: "In case in hand, it is not denied that this court has not passed a pre-emption decree in favour of pre-emptor on the basis of merits of the case but it was one of the vendee/defendant No.2 who made a statement before the court that the concurrent dismissal decrees in a pre-emption suit in his favour be set-aside and suit of revision petitioner be decreed under section 12(2) of C.P. C. In these circumstances, I having absolutely no doubt in my mind that the case law referred to by learned counsel for the respondent (revision petitioner) are not applicable, and too, section 52 of the Transfer of Property Act (IV of 1882) is not applicable to the facts of this case. If the civil revision was to be allowed on merits, then certainly transaction during the pendency of this revision was hit by the principle of lis pendens but on merits this civil revision could not have been accepted or a decre e could not have been passed, therefore, in these circumstances of this case the transaction is not hit by the princi ple of lis pendens. In this view of the matter , when transaction of applicant is not hit by the principle of lis pendens, therefore, this decree has been procured through misrepresenta-tion and practicing fraud with this Court because at the time of making statement by respondent No.2/defendant No.2, he has not apprised the facts to this Court that he had already transferred a portion of property in favour of applicant of this application under section 12(2) of the C.P.C., therefore, applicant has a right to file application under section 12(2) of the C.P .C. which has been validly filed."
16. That judgment of this Court was assailed before the august Supreme Court of Pakistan through Civil Appeal No.50 of 2013 titled as "Muhammad Zubair v. Muhammad Tahir Shafique and others" , while deciding the same it was held as under:-- "On the date, when the compromise was given effect to before the learned High Court, Respondents Nos.1 and 2 were no longer vested with any right in the property having sold the same to respondent No.3, hence, surrender of any such right or part thereof in favour of the Appellant was for all intents and purposes fraudulent, specially when the fact of such transfer was deliberately not disclosed to the learned High Court. In the circumstances, the learned High Court has rightly set aside the order dated 23.05.201 1 passed on the basis of a so-called compromise."
In a case titled "Muhammad Yaqub and another v. Mahboob Ali Qureshi" (1998 PLC (C.S.) 11), whereby the facts of the case were that two suits for possession of land by pre-emption were instituted against the first vendee and the second vendee which were decreed and appeals were also dismissed by the appellate court. Second appeals were filed, during the pendency of second appeals applications were filed on the grounds that compromise had been effected between the parties and by deleting the name of the first vendee, that second appeals were got allowed by setting aside the judgments and decrees of both the courts and result antly the suits of the pre-emptor were dismissed. Against that judgments and decrees which were passed in the second appeals, two applications were filed with the contention that the pre-emptor , after the decree of his suit, mutated the pre-empted land in favour of the applicant and the parties of the second appeal maliciously and by withholding correct facts from the court obtained the judgments and decrees by fraud and misrepresentation. This Court after taking replies of the applications, framed issues, and recorded evidence of the parties and while keeping in view the facts, circumstances, and evidence of the parties held as under:-- "The appellants as well as the respondent were unable to show the legitimacy of the conduct of the respondent in the matter . He could not have given any consent for allowing the appeals as he had no concern with the suit property . The appellants and the respond ent knew about the assignment, the appellants did not make any effort to bring the petitioner on record and a conscious effort was made to withhold the correct factual position from the Court. The respondent never sought leave of the court which ought to have done under provisions of Order DUI, Rules 10/11, C.P.C. Whatever was done by the respondent after assignment was done in violation of law and without authority . The Court as well as the petitioner were kept in the dark by both the appellants and the respondents and they had joined hands with another in commission of the fraud. If this is not fraud, then this word would need redefining. The petitioner having acquired interest in the property for consideration had a right to be associated with the adjudication of appeals particularly when the respondent had covenanted to do that. As the appellants and the respondent had colluded with one another to deprive the petitioner of his rights or interest in the disputed property , the petitioner not withstanding being a vendee pendent elite had a right to get undone the wrong committed on him."
Also held further that "For the foregoing reasons it is held that the petitioner having been assigned the rights in the suit property by the respondents after the receipt of consider ation has a right to defend his interest and this issues Nos. 1 and 3 are decided in his favour and against the defendants. The appellants and the respondents by active concealment of facts had committed fraud in the matter and respondent though not authorized to continue with the litigation after assignment of his rights to the petitioner colluded with the appellants and gave consent to passing of decrees incompetently , the decrees dated 12.2.1994 passed by this Court were admittedly result of fraud, mis- representation and collusion."
This Court in a case titled as "Sunni View Cooperative Housing Society v. Irshad Hussain and another" (1993 CLC 2336 ) whereby , an application filed by petitioner under section 12(2), C.P.C., was rejected by trial court on sole ground that petitioner was not party in said suit and was hit by principle of lis pendens, as he had purchased property in dispute from one of the party in said suit, during its pendency , this court while considering that purchaser of property from one of the party in suit during pendency of suit could challenge the decree obtained in the said suit by the parties on ground of collusiveness, which ground was also available under section 12(2), C.P.C., held that the order of the trial court suffers from jurisdictional defect inasmuch as taking erroneous view of the matter and failed to exercise jurisdiction vested in it under the law to decide the said application on merits, remanded the case to the trial court for disposal of the application filed under section 12(2), C.P.C. on merits after framing of issues and recording of evidence.
17. It is clear from the facts and circumstances that the respondents are trying to undo the transaction of exchange in order to get back the property through process of the Court, and infact attemptin g to take advantage of their own fraud. This conduct, on their part, would contravene the well known principle embodied in the Legal Maxim "Nullus Commodum Capere Potest de injuria sua propria (Co.Litt.148 (b) (No man shall take advantage of his own wrong).
It will be against the administration of justice that benefit of wrong be given to a wrong doer. Reference may be made to the judgments of the Hon'ble Supreme Court of Pakistan reported as "Mian Muhamamd Saeed and another v. The Province of West Pakistan and others" (PLD 1964 SC 572) and "Sakhi Jan and others v.
Shah Nawaz and another" (2020 SCMR 832).
18. The case law referred to by the respondents are not relevant to the facts and circumstances of the case.
19. Epitome of the above discussion is that the application under section 12(2) of the C.P.C. (C.M. No.3030-C of 2015 in Civil Revision No.1201-D of 2002) is allowed . Resultantly , the judgment/order dated 27.05.2015 passed by this Court in Civil Revision No.1201-D-2002 is set aside and recalled and the Civil Revision is restored and be set down for hearing in due course. Costs of this litigation to be borne by the respondents of this application.