Anwaar Hussain, J. Through the present petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution" ), the petitioner namely , Samman Maqbo ol, has laid challenge to the in-action rather refusal on part of respondent, Punjab Housing and Town Planning Agency (hereinafter "the PHATA"), to initiate the process of transfer of plot of the petitioner in favour of her vendee namely , Muhammad Maqsood son of Hafiz Allah Yar Bhatti (hereinafter "the vendee" ).
2. Briefly stated facts of the case are that admittedly the petitioner is owner in possession of a residential plot bearing No.187-D Block-Y situated in Low Income Housing Scheme, Chishtian (hereinafter "the suit property" ) whereupon a double storey house has been constructed and the petitioner is residing therein. As per contents of the petition, the petitioner entered into an agreement to sell dated 18.10.2021 with the vendee and the cutof f date for payment of full and final consideration amount was settled as 20.12.2021, however , when the petitioner approached the PHATA, for completion of codal formalities and initiation of proce ss of transfer of suit property in the name of vendee, respondent No.02 flatly refused to entertain the request of the petitioner on the ground that respondent No. 3, namely , Kewan Karim Abbasi (hereinafter "respondent No.03" ), who is ex-husband of the petitioner and a serving police officer, has instituted a suit for specific performance against the petitioner and therefore, respondent No.02 is unable to transfer the suit property in the name of the vendee.
3. Notices were issued to the respondents and in response thereto, report and parawise comments have been filed on behalf of the PHATA, wherein it has been contemplated that since the matter is subjudice before the court of plenary jurisdiction in a suit for specific performance instituted by respondent No.03 against the petitioner in respect of the suit property , the PHATA cannot transfer the suit property in terms of its policy decision envisaged vide letter bearing No.SO(D-II)HP&EP-2-4/76 dated 10.12.1989 (hereinafter "the policy decision" ) which inter alia, contemplates that only such plots can be transferred to third party which are free from all encumbrances.
4. Learned counsel for the petitioner while reiterating his stance taken in the writ petition contends that mere pendency of litigation ipso facto does not restrict the PHATA to register a sale transaction, in its record, as mere institution of a suit does not amount to an encumbrance. Conversely , learned Law Officer, alongwith learned counsel for respondent No.03, has relied upon the contents of report and parawise comments and the documents annexed therewith, which include the copies of pending litigation in respect of the suit property and the policy decision, which governs the transfer of plots by the PHATA to contend that the policy is uniformly being followed to protect an innocent and bona fide third party from being defrauded.
5. Arguments heard. Record perused.
6. This Court is called upon to determine the legal question as to whether mere pendency of a civil suit constitutes an encumbrance and concomitantly proprietary right of a citizen can be put under clog on account thereof. It further involves the interpretation of clause (v) of the policy decision on the strength of which request of the petitioner for the transfer of the suit property in furtherance of an agreement to sell executed by her has been verbally refused in the garb of a pending litigation by construing the same as an encumbrance. At this juncture, it will be relevant to reproduce contents of the policy decision, which read as under: "Subject: TRANSFER OF PLOTS T O THIRD P ARTY IN AREA DEVELOPMENT SCHEMES IN PUNJAB.
Reference your letter No. DG-HMS-A-I/Policy 3/894377, dated 17.6.1989, on the subject noted above.
2. It has been decided to extend the facility of transfer of allotment rights of residential/commercial plots in Area Development Schemes in the Punjab in favour of the third-party subject to following conditions: i) Provisional/enhanced cost is paid. ii) Building stands constructed as per approved plan and completion certificate issued. iii) The transferee shall be deemed to be the original allottee and enter into a fresh agreement with the department, undertaking to pay the difference between the provisional/enhanced cost and final cost as and when determined by the department and to abide by the terms and conditions of the original allotment. iv) Transfer fee @ 15% on provisional/enhanced cost of the plot is paid. v) The plot is free from all encumbrances."
(Emphasis supplied)
7. The PHATA, is a housing authority created and established under the Punjab Housing and Town Planning Agency Ordinance, 2002 (hereinafter "the Ordinance, 2002" ). The word encumbrances has not been defined or explained in any of the provisions of the Ordinance, 2002. It is settled proposition of law that any term or word has to be construed and interpreted as the legislature has put it under some special and/or relevant legislation, however , the Courts may resort to common dictionary meaning ascribed to such term or word if it has not been defined in that special legislation. Guidance in this regard can be sought from case titled "Chairman, Pakistan Railway , Government of Pakistan, Islamabad and others v. Shah Jehan Shah" (PLD 2016 SC 534). Therefore, it is imperative to analyze the dictionary meaning of the term encumbrance. In Black' s Law Dictionary , Eleventh Edition, the term encumbrance has been defined in the following manner: "A claim or liability that is attached to property or some other right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest. An encumbrance cannot defeat the transfer of possession, but it remains after the property or right is transferred."
(Emphasis supplied)
In Corpus Juris Secundum , Volume 42, encumbrance has been defined as under: "A burden, a burdensome and troublesome had a clog, a hindrance, an impediment, an annoyance or trouble, an obstruction, anything that impedes motion or action, or renders it difficult or laborious and applied to realty , the common use of the term by the layman, as distinguished from its legal sense, is said to relate to something that is a lien on the property which requires the payment of money to discharge and that it is scarcely , if ever, used with reference to a restriction, reservation, right of way, or other easement . It has been held synonymous with "obstruction" and also has been distinguished therefrom."
(Emphasis supplied)
While referring to the definition in the Sixth Edition of Black' s Law Dictionary in case titled "Messrs Bismillah Textile Ltd. v. Habib Bank Limited and 55 others" (2008 CLC 504) (Karachi), it has been held by the learned Sindh High Court that the term encumbrance includes "the accrued and unpaid taxes". In case titled "M.
Ramakrishna Reddy vs Sub-Registrar , Banglore and another" (AIR 2000 Kant 46), an encumbrance has been defined as under: "The term 'encumbrance' in law refers to a burden, a charge, a legal claim, lien or liability attached to or upon a property . In the strict sense of the word , a sale or partition or release is not an encumbrance. Mortgage is an encumbrance".
(Emphasis supplied)
The above referred definitions clearly indicate that the term encumbrance does not cover pending litigation and the interpretation given by the PHATA, to the term encumbrance mentioned in the policy decision if accepted, will tantamount to create a clog upon the proprietary rights of the citizens dealing with the PHATA or similar housing authorities. The purpose of recording the encumbrances by a housing authority or similar regulators and refusing the transfer of the property on the basis of such encumbrance is to warn the prospective buyers because they cloud the properties' titles, requiring the prospective purchasers to investigate or resolve the alleged encumbrance before deciding whether to move forward with a purchase or not. Clog on the alienation or transfer of property or any right/interest therein on account of pendency of civil suit is or may be placed by a Court of competent jurisdiction, which is not the situation in the present case inasmuch as there is even no restraining order in favour of respondent No.3 in respect of the suit property . In the absence of any such restraint/injunction to alienate suit property , refusal on part of the PHATA, as instrumentality of the Province of Punjab, to transfer suit property as per agreement of the petitioner , prima facie violates fundamental right of the petitioner , enshrined under Articles 23 and 24 of the Constitution.
8. It would be apt to state that while a mortgage or charge on the property or other similar impediments such as unpaid amount of utilities or dues of a housing authority pertaining to the property burdens and diminishes the value of such property and is required to be cleared by the prospective vendees of the property , mere institution and/or pendency of a suit and that too on the basis of an oral agreement to sell does not create any right in favour of the plaintif f of such suit, like respondent No.03 in the instant case, to obstruct a sale, more so when by virtue of Section 52 of the Transfer of Property Act, 1882, (hereinafter "the Act 1882" ), legislature in its wisdom has envisaged and contemplated statutory effect of pending litigation in relation to transfer of the property during pendency of the lis. Section 52 of the Act 1882 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.
(Emphasis supplied)
Perusal of the above quoted provision of law throws illuminating light on the legislative intent that any vendee buying property during the pendency of the litigation does so at his own risk and peril and would be subject to the final decision of the Court and would step into the shoes of his vendor . Any right acquired during the pendency of the lis with respect to the property formin g subject matter of the litigation has to give way and/or remain subject to the final determination of the litigation. Thus, the rule incorporated in Section 52 of the Act, 1882 brings out legislative intent as well as the principle of law underlying the said provision. The law itself envisages that any transfer made during pendency of suit will only be subject to the consequences envisaged under Section 52 of the Act, 1882.
9. In the determination of the legal questio n involved in the instant case, the analog ical inference can also be drawn from other provision of law somewhat helpful if not instrumental in the decision of the instant petition. In this regard, provisions of Order XX of Supreme Court Rules, 1980 of the Hon'ble Apex Court contemplate that mere filing of a petition or an appeal would not be treated as a restraint order in the execution of a decree. Similarly , as per Order XLI, Rule 5, Code of Civil Procedure, 1908 (hereinafter "CPC" ), preference of appeal against a decree and/or order does not ipso facto operate as stay, meaning thereby that unless there is restraining order , lawful rights in favour of a person cannot be halted. Mere filing of a civil suit or pendency of the same without injunctive order cannot operate as an encumbrance or have the like effect just as mere filing of petition or appeal ipso facto does not operate as stay of the proceedings.
10. Admittedly , in the instant case, a suit for specific performance has been instituted by respondent No.03 wherein application for grant of interim relief in the form of injunctive order under Order XXXIX Rules 1 and 2, CPC was filed, which was dismissed on 06.10.2020. The said order has not been further challenged by respondent No.3, hence, no injunctive order restraining the alienation of the suit property is in field. Refusal to record transfer of the suit property as per the agreement of petitioner in favour of the vendee in the garb of the policy decision would imply that the right of the petitioner is taken away through policy decision when the law itself does not place any such embargo on the right of the petitione r. Since there is no clog or restraining order in respect of the suit property under the law, therefore, the petitioner 's right of alienating her suit property cannot be curtailed and/or tainted on the basis of an untenable interpretation of the term encumbrance. The factum of pendency of litigation regarding suit property can always be noted in its record by the PHATA, so that any subseq uent transferee, who deals with the suit property is aware of the true picture about the status thereof. The vendee in the instant case is well aware of the pending litigation and is willing to purchase the suit property and principle of lis pendens will certainly apply to the transaction between the petitioner and the vendee as well as any subsequent transfer of the suit property by the vendee who would step into the shoes of the petitioner being a judgment debtor if and when the suit of respondent No.03 is decreed in his favour and attains finality . In consonance with the principle of lis pendens , the entire edifice and superstructure built upon such transfer and alienation would cave in under the doctrine of lis pendens contemplated by virtue of Section 52 of the Act 1882. Therefore, this Court is of considered opinion that mere pendency of a civil suit in respe ct of the suit property does not fall under the purview of the term encumbrance and refusal on part of the PHATA to record transfer of the suit prope rty of the petitioner is unjustified and not sustainable under the law .
11. In view of the above, the present petition is allowed and respondent No.02 is directed to proceed with the process of transfer of the plot as per the request of the petitioner .