SALAHUDDIN PANHWAR, J. Admittedly Civil Suit No.1480 of 2004 was decreed in favour of the Applicant in terms of compromise. Subsequently, application under Section 12(2), C.P.C. was filed that was allowed vide order dated 31.5.2014 and that order was assailed before the Appellate Court.
During pendency of civil suit, due to non-compliance in filing amended title, by joining Respondent No.2 Imran Rauf as Defendant, suit was dismissed in non-prosecution. However, that order was not challenged in time but at belated stage application under Order IX, Rule 9, C.P.C., was preferred, same was dismissed on the ground that same is time barred as well on merit. However, appeal preferred against the order passed on application under Section 12(2), C.P.C. is yet pending for adjudication.
2. Cue of the Respondent No.2 is that a collusive suit was filed. In fact Respondent No.2 purchased subject matter property from the legal heirs of Mst. Mehmooda Farooqui, who gifted that property in favour of her legal heirs. Whereas, learned counsel for the Applicant has emphasis Family Registration Certificate available at Page 201 of the Court file which is not reflecting that she was having any family tree as well it has come on record that she filed Suit No.487 of 2007 seeking cancellation of documents against Respondent No 2 Imran Rauf and his mother as well the legal heirs from whom Imran Rauf purchased this property. Since decree was passed in favour of the Applicant, though same was set aside with directions to proceed with the merits and right of opportunity was provided to Imran Rauf, but Plaintiff failed to join him by filing amended title, written statement was not filed and suit was dismissed in non-prosecution,
3. Needless to mention that no one should, normally, be knocked out on technicalities rather rights of the parties need to be adjudicated on merits. Dismissal of suit solely on account of failure in timely filing amended title was always a little harsh. A leniency needs to be shown when the default is one relating to procedural formality / requirement and not of grave in nature because for such like situation the dismissal is left upon discretion by use of word "may" (Order IX, R.2, C.P.C.). In such like situation the penal consequence needs to be avoided at first occasion else wisdom, in using word 'may', shall stand frustrated. In the case of Rehmat Ali v. Fazal Hassain [1990 CLC 761] it is observed as:- "8. The rules of procedure are framed for advancing the cause of justice. These rules do provide a channel of procedure for effectual and expeditious trial of suit. The imposition of penalty listed under Rule 2 of Order IX of the Code, rests on the discretion of the Court. This discretion is to be exercised sparingly only, m a case of grave negligence, and not in routine. Therefore, the omission on the part of the plaintiff, in this case, to pay the expense for effecting substituted service on vendors-defendants, does not warrant penalty in the shape of dismissal of his suit, particularly including those defendants who were already served and present before the Court. The order is defective. It necessitates interference of this Court."
4. As regard, moving of application late, it would suffice to say that since the very dismissal of the suit was a little harsh and defective one hence learned trial Court was required to have appreciated this aspect while dealing with application. No harm or prejudice was likely to fall on allowing restoration of /is because same, otherwise, was affirming proper and fair opportunity to all, including one ordered to be impleaded as one of the parties. Further, in the instant matter, the compromise decree was set aside on application under section 12(2), C.P.C., and matter was to he decided afresh on merits. Here, it may well be added that appeal against main order of allowing application under section 12(2), C.P.C. is still pending meaning thereby that same, if allowed, may bring the compromise decree to life again. If so, it would again bring whole proceedings in question as of no substance. At this point, the applicant also showed his readiness to part with, appeal (not pursuing same) and to have adjudication of all questions on merits. The proposition arising also tilts the matter for interference so as to avoid any future complications.
5. In consequence to what has been discussed above, I am of the clear view that instant revision application carries weight, hence impugned orders, whereby suit, application under Order IX, Rule 9, C.P.C. and appeal were dismissed are hereby set aside with directions to the trial Court to decide the subject matter suit preferably within six (06) months after providing opportunity to all parties.
Applicant shall file amended title within two weeks after receipt of this order before trial Court. At this juncture, learned counsel for Applicant contends that property in question may be handed over to the Nazir of this Court. Since parties would be at liberty to file application as provided under CPC and contest the suit but all shall ensure principle of lis pendens alive. Accordingly, no party can alienate or otherwise deal with such property to the detriment of his opponent. Any transfer so made would be hit by this Section. Reference may be made to the case of Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others [2012 SCMR 983] wherein such principle of equity defined as:-
5. The afore-referred provision (Section 52 of the Transfer of Property Act, 1882) enshrines the age old and well established principle of equity that at lite pendente nihil innovetur (pending litigation nothing new should be introduced) and stipulates that pendente lite parties to litigation wherein right to immovable property is in question, no party can alienate or otherwise deal with such property to the detriment at his opponent. Any transfer so made would be hit by this Section. The doctrine by now is recognized both in law and equity and underpins the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail. The effect of such alienation would be that the plaintiff would be defeated by defendants alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with lurking fear that he could again be defeated by the same trick. The doctrine of lis pendens in pith and substance is not only based on equity but also at good conscience and justice. In Lalji Singh v. Rameshuwar Misra (1983) 9 ALL LR 269 (271)(All) the essential ingredients of section 52 ibid or the conditions precedent to attract this principle were construed as follows:-
(i) the pendency of any suit or proceeding in n court law:
(ii) the court must have jurisdiction over the person or property;
(iii) the property must have specifically described and should be affected by the termination of the suit or proceedings; (iv)the right to the said property be directly and specifically be in question in any suit or proceeding:
(v) an alienation of such immovable property without the permission or order of the court: and
(vi) the alienation should be during the pendency of any such suit or proceeding and a sun or proceeding in question is not collusive.
Thus, any departure shall be subject to the decision of lis; accordingly, Parties shall appear before the trial Court on 21.12.2019, on that date the Applicant shall file amended title.
This revision application stands disposed of along with listed applications.