The unanimous orders dated 07.04.2017 & 23.05.2017 of the two Courts below are the subject of petition in hand, whereby not only application under Section 12(2) of the Code, 1908 for setting aside of decree dated 08.10.2009 of the present petitioners, but also their Revision Petition dismissed.
2. Arguments heard and record scanned with the able assistance of worthy counsel for the parties.
3. The available record suggests that Jewan Abbas, Respondent No. 2 was exclusive owner of the subject area.
He on 24.05.2001 was sued by Malik Khalid Pervaiz, Respondent No. 1 through suit for specific performance of contract dated 23.05.2001 asserting that the former had, settled transaction of sale with him, therefore prayed for grant of decree for is enforcement. During its proceedings an application u/o. I rule 8 of the Code ibid on behalf of present petitioners was filed for their impleadment in the group of defendants pleading that they had purchased the suit area vide oral sale mutations No. 210 & 230 dated 09.01.2006 as well as 30.06.2006 respectively , therefore, they were added, however , on their part, the suit was not diligently pursued, rather they were proceeded against ex-parte and ultimately the suit of Respondent No 1 decreed on 07.10.2009. The petitioners soon thereafter on 10.11.2009 preferred application u/s. 12(2) before the same Court for setting aside of ex-parte decree, which on behalf of Respondent No 2 or any other contestant(s) was never assailed. In their said application, the stance of the petitioners was that they had never applied for their impleadment in the suit for specific performance of contract, rather on their behalf, forged/fictitious application as well as written statement while practicing impersonation was managed by the plain tiff/ Respondent No. 1 on the suit file, so as to defeat their (petitioners) sale matured in their favour through attestation of afore-noted mutations. The stance of the petitioners was refuted by the decree holder/ Respondent No. 1 vide his reply , pleading that the formers by engaging a counsel submitted application for their impleadment, which was allowed and thereafter they joine d the trial proceedings through submission of contesting written statement, that due to their non-appearance, they were proceeded against ex- parte and after issuance of decree, the application u/S. 12(2) was filed with false & concocted stance. Having considered the pleadings, the Courts below passed adverse unanimous order duly disclosed, in para 1 ante, therefore, this petition by the bootless petitioners.
3. Arguments heard, record consulted.
4. The stance of the petitioners that they did not file the application for their impleadment was not appealable to a prudent man. There was no fun for Respo ndent No. 1 to initiate any such move so that his case could be contested by an additional party . It is absolute rule that judicial proceedings bear strong presumption of correctness and cannot be taken away easily for mere bald assertion. Had it been fake, collusive move to be added in the suit planted on behalf of Respondent No. 1 the petitioners/might have initiated some proceedings against the latter or at least against counsel, who represented them, but admittedly such remedy was never availed at any forum.
5. The real drastic aspect of the petitioners' case was that they had purchased the subject property during the pendency of the B ongoing suit inter se Respondents No. 1 & 2, so the proposition in hand to that effect, is covered by section 52 of the Transfer of Property Act, 1882, which reads 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 Federal 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 and on such terms as it may impose.
Explanation.-- For the purposes 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 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 there of by any law for the time being in force.
The ambit & import of the aforesaid provision is to protect/safeguard the parties to the litigation as well as their rights and interest qua the immovable property involved therein against any alienation made by either of the parties during its pendency in favour of a third person, who shall acquire title of the said property subject to the final decision of the litigation. In such circumstances, the third party , who acquires any interest or right in the property under litigation, even for value or through an exchange of value or without notice of the pendency of the lis shall be bound by its result stricto sensu in all respects alike his transferor . It is well established by now that subsequent transferee, therefore, does not acquire any independent legal title, but he has to swim and sink with his transferor .
The theory involved herein has already been clinched by the apex Court in its esteemed judgments cited as Industrial Development Bank of Pakistan through Deputy Chief Manager vs. Saadi Asmatullah and others (1999 SCMR 2874 ), Muhammad Ashraf Butt and others vs. Muhammad Asif Bhatti and others (PLD 2011 S.C 905), Mst. Tabassum Shaheen vs. Mst. Uzma Rahat and others (2012 SCMR_983) & Syed Hussain Naqvi and others vs. Mst. Begum Zakara Chatha through LRs and others (2015 SCMR 1081 ). Relevant portion of the second last judgment, for ready reference, is reproduced as under: "Principle of lis pendens unambiguously prescribes that the rights of the party to the suit, who ultimately succeeds in the matter are not affected in 'any manner whatsoever on account, of the alienation, and the transfer of the property shall acquire the title to the property subject to the final outcome of the lis. In view of the ruleldoctrine of lis pendens, a transferee of the suit property , even if a bona fide purchaser , without notice of the pendency of suit, shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. 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."
This view has further been approved by the same Court in a recent case reported as Aasia Jabeen and 3 others vs. Liaqat Ali and others (PLD 2016 SC1773).
6. The emphasis of Mr. Rao, learned counsel for the petitioners while relying upon judgments reported as Lahore Development Authority through Director General vs. Arif Manzoor Oureshi and others (2006 SCMR 1530 ) & Hazoor Muhammad vs. Raqia Begum (deceased) through LRs (2020 CLC Note 19) that assertion so raised by his clients involved factual controversy revolving around elements of fraud, collus iveness or impersonation could only be decided through settlement of issues and requiring evidence of the parties, but the learned Courts below committed material irregularity/patent illegality in defeating them summarily , therefore, impugned orders are liable to be reversed, is not well-founded. Normally only application u/S. 12(2), which calls for factual inquiry , in appropriate cases, should follow regular trial, but it cannot be applied as a universal principle. Where an application, if on the face of it, is found to be frivolous/vexatious or in the facts & circumstances of the case and the Court reaches the opinion that filing thereof was with ulterior motive or mala fide, then the rival party/beneficiary must not be compelled to face another round of litigation, otherwise there will be no end of litigation. This Court while dealing with similar question in judgment reported as Mst. Shahida Hakim through General Attorney vs. Tanveer Ahmad Khan through General Attorney and others (2008 YLR 119) has already held in the following manner:
6. So far as the grievance about non-fram ing of issues and non-availability of opportunity to produce evidence is concerned, suffice it to observe that there is no ride of absolute nature that in all applications under section 12(2) of the Code of Civil Procedure, 1908 the Court must necessarily frame issues and record evidence. In Mrs. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCMR 296) it was observed that while dealing with the allegations, under Section 12(2) C.P.C. it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit as held in Amiran v.
Muhammad Ramzan (1999 SCMR 1334 ). In the instant case, we have gone through the application under section 12(2), C.P.C., moved by the petitioner and the material available on record. In view of the facts and circumstances of the case and the judicial orders passed up to this Court during the protracted litigation, the application filed by the petitioner u/S. 12(2), C.P.C, was, liable to be dismissed without formulating issues and recording evidence of parties". Similar was the view taken in Mst. Nasira Khatoon and another v. Mst. Aisha Bibi and 12 others (2003 SCMR 1050 ).
Also see Mst, Shaban Irfan vs. Muhammad Sham Khan and others (2009 SCMR 40), Mst. Nasira Khatoon and another vs. Mst. Aisha Bai and 12 others (2003 SCMR 1050 ) & Messrs Dadabhoy Cement Industries Ltd. and 6 others vs. National Development Finance Corporation, Karachi (FLD 2002 SC 500).
7. In such facts and circumstances, the learned lower for a was quite justified to knock out the petitioners on the valid reasons. The case-law cited by learned counsel for the petitioners being run on distinguishable' features is not applicable here, moreover , it is now well settled that each matter has to be decid ed keeping in view its peculiar facts and circumstances.
8. The petitioners' learned counsel though argued the case to the best of his ability while availing maximum time, but failed to persuade that either verdicts under attack are coram non judice/ultra vices or suffering from jurisdictional defect to call for interference, hence this petition having no substance is dismissed with no order as to costs.