WIQAR AHMAD, J. This order is directed to dispose of the instant application filed by the petitioners under section 12 (2) CPC for setting aside judgment of this Court dated 01.12.2015 passed in C.R No. 501-P of 2007.
2. Facts of the case leading to institution of the instant petition are that responden t No. 4 (plaintif f) had filed a suit against respondent No. 5 (defendant) for declaration, permanent injunction as well as possession of the suit property measuring 79 Kanal 18 Marlas situated in Moza Dagai District Buner , which had been decreed by the learned civil Court vide its judgment dated 25.09.2004. Appeals filed there-against had also been dismissed by the learned appellate Court vide its judgme nt dated 21.02.2007. Feeling aggrieved there-from, respondent No. 5 (defendant) had filed revision petitions before this Court, which were also dismissed by this Court vide its consolidated judgment dated 01.12.2015. Thereafter , present petitioners had filed an application under section 12
(2) CPC before learned civil Court on 05.12.2018 for setting aside earlier judgment dated 25.09.2004 passed in suit titled Syed Muhay-ud-din vs. Muhammad Ullah on the ground of fraud, which was returned to them by the learned civil Court vide its order dated 29.04.2019 for its presentation before the competent forum. They therefore filed the instant application under section 12 (2) CPC before this Court with the following prayer; "It is, therefore, respectfully prayed that on acceptance of the instant application the impugned order , judgment and decree of august Peshawar High Court Bench at Mingora District Swat in C.R No. 501/2007 may kindly be set aside and adjudged to have no legal effect upon the rights of the petitioners qua suit property regarding survey Nos. 4311, 4312, 4313, 4314, 4315, 4316, 4318, 4319, total measuring 79 Kanal 18 Marlas Muza Dagai, Buner ."
3. Arguments heard and record perused.
4. Perusal of record reveals that petitioners have mainly been contending in their application under section 12 (2)
CPC that the property had been acquired by them from respondent No. 5 - who had been defendant and judgment- debtor in earlier proceedings - through oral sale on 13.12.1994, in respect of which mutation No. 5109 had subsequently been attested on 17.04.2014 in Moza Dagai District Buner . Said plea of the petitioners, raised in their application under section 12 (2) CPC filed before this Court, appears to be an afterthought and a baseless story .
No such assertion had ever been raised by Muhammad Ullah, the original defendant who had contested the suit with his full vigor whereafter he had also filed appeal against judgment and decree dated 25.09.2004 before the Court of Additional District Judge Buner at Daggar . After dismissal of the appeal, he had also engaged a counsel, filed revision petition before this Court and had contested it with full force till the final judgment of this Court given on 01.12.2015. This would never appeal to a prudent mind that a person who had sold out his property in the year 1994 would contest the litigation right from the civil Court till the High Court with such vigor and force despite the fact that he had not been left with any stakes in the disputed property .
5. Even otherwise, the story of transaction of oral sale in the year 1994 could not be found in first application of petitioners filed before civil Court. Same story has been mentioned in the application under section 12 (2) CPC filed by same petitioners before this Court subsequently but for the first time. Such a plea had therefore not at all been believable.
6. So far as mutation No. 5109 attested on 17.04.2014 in Moza Dagai District Buner is concerned, it is also important to note that the petitioners had made no mention of this mutation in their application filed before the learned civil Court. Even if we assume for a while that same mutation had duly been attested, petitioners could not deny the fact that they had got the property mutated from a judgment-debtor on 17.04.2014, while judgment had been rendered against him by the learned civil Court on 25.09.2004. No sanctity is attached to a transaction effected during pendency of civil revision before this Court, after the decree had been passed against the judgment-debtor . If such like transactions are allowed to be entertained, then no litigation could ever be finalized and the Courts would face repeated 12 (2) petitions.
7. Whatever rights are acquired during the course of litigation have always been treated subject to the final outcome of such litigation, due to the well-entrenched doctrine of pendente lite. The doctrine of pendente lite i.e. lis pendens had been available in equity as well as in common law. The doctrine is based on the maxim "pendente lite nihil innovetur" meaning that nothing should be changed or introduced during pending litigation. In our jurisdiction, said doctrine of lis pendens stood well entrenched by way of express provision of Section 52 of the Transfer of Property Act, 1882 (hereinafter referred to as the "Act" ). Main purpose of the doctrine of lis pendens has been to obviate the chances of any intermeddling with a property under litigation and if any one so intermeddles, he does it at his own risk. The purpose has been to provide protection to interest of the parties under litigation and therefore any rights accrued during the course of litigation have been made subject to the final outcome of such litigation under the doctrine of lis pendens , as held by the Hon'ble Supreme Court of Pakistan in its judgment given in the case of Muhammad Ashraf Butt and others vs. Muhammad Asif Bhatti and others reported as PLD 2011 Supreme Court 905, which case had also arisen out of facts similar to those of the present case. Relev ant part of observations of the august Court given in said judgment is reproduced hereunder for ready reference; 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 (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 pendin g suit a part or the whole of the subject-matter invol ved 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 Its 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 ah 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...."
In Story's Equity Jurisprudence V ol, I, 5.406 the doctrine has been expounded in the terms following:- "Ordinarily , 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, pendente lite, nihil innovetur; the affect of which is not to annul the conveyance, but only to render it subservient 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."
Further ahead in said judgment, it had also been held that the course of litigation would also include the appeal, revision available under the law and filed therein, as well as the period of limitation provided for such appeals, revisions. During all these times, when a transaction takes place, same would be subject to the principle of lis pendens. Relevant part of observation of the Hon'ble Court in this regard is also reproduced hereunder for ready reference; "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 the final 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 lis, 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.
A person acquiring property from a judgment-debtor cannot claim his rights protected under section 41 of the Act, as a bonafide purchaser. His rights acquired during the course of litigation will have to give way to final outcome of the suit as held by the Hon'ble Supreme Court of Pakistan in its judgment given in the case of Messrs Aman Enterprises, Sialkot vs. Messrs Rahim Industries Pakistan Ltd. Sialkot and another reported as PLD 1993 Supreme Court 292.
Further reliance in this respect may also be placed on judgment of the Hon'ble Supreme Court of Pakistan given in the case of Muhammad Nawaz Khan and Muhammad Khan and 2 others reported as 2002 SCMR 2003 as well as judgment of the Hon'ble Lahore High Court given in the case of Risaldar Ghazi Khan and another vs. Abdur Rehman and another reported as 1984 CLC 1615.
8. When rights of petitioner had been subject to final outcome of the adjudication, which had got finalized with judgment dated 01.12.2015 of this Court passed in C.R No. 501-P/2007, he cannot challenge said judgment in his application filed under section 12 (2) CPC on the grounds discussed above. The application in hand is therefore not at all maintainable as a challenge to orders of Court finalized may not be raised by a person purchasing property during the course of earlier litigation, unless a case falls in any of the three clauses identified in judgment of Hon'ble Supreme Court of Pakistan in the case of Muhammad Ashraf Butt supra. Said part of judgment is also reproduced hereunder for ready reference; "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." Learned counsel appearing on behalf of petitioners could not place the instant case in any of the three clauses reproduced above.
9. In light of what has been discussed above, the application in hand was found non-maintainable and same is accordingly dismissed in limine.