' This Revision assails the order dated 12-1-1986 of the learned Additional District Judge, Kasur, whereby the respondent Mst. Hajran's appeal was allowed and her suit was decreed.
2. Mst. Chandri, respondent made a gift of the land in question measuring 61 Kanals 17 Marlas by Mutation No,1415 dated 28-2-1979 in favour of her two daughters namely, Mst. Hajran and Mst.
Saeedan, each taking respectively 719/1237 and 518/1237 shares. Mst. Hajran brought the present suit to challenge this disposition of the property claiming that she was entitled to 3/4th and Mst.
Saeedan, her sister 1/4th. The donor Mst. Chandti did not contest the suit, whereas the petitioner Mst. Saeedan and her husband Muhammad Hanif opposed it, affirming correctness of the gift.
Another defendant Ghariba was joined as Lamberdar because of his association with the attestation of the mutation. He did not file any written statement.
3. The suit was dismissed on 28-7-1983 but it was decreed in appeal on 12-2-1986. The gift was consequently declared to be void.
4. The appellate judgment/decree were assailed in the present Revision apparently by the other donee Mst. Saeedan and four others, who claimed thatthey had purchased the land in good faith for value from her on 31-7-1983, that is only two days after dismissal of Mst. Hajran's suit when she had yet to avail an appeal against it.
5. Mst. Saecdan, petitioner No,1 lately made C.M. No,1332-C of 1990 expressing that she had not filed the present revision petition and that the same be dismissed as on her behalf. The other revision petitioners, namely Nos.2 to 5, who claimed to be bona fide vendees under her, resisted the said application urging that it was collusive and that they could maintain the revision in their own right as her successors-in-interest.
6. The primary question that falls for determination was whether the petitioners Nos.2 to 5 could bring the revision petition in their own right without filing an appeal as third party. Reliance in this behalf was placed upon section 146, C.P.C. And H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65. Counsel emphasized that since the revision petition was admitted to formal hearing, it would be presumed that the petitioners had been granted permission to maintain the same as third-party. Even a formal Application bearing No,4382-C of 1990 was said to have been filed for the purpose. That too was opposed on behalf of petitioner No,1 and the other respondents.
7. No authority was cited showing if a vendee under a party to a suit in his capacity as third person could bring a revision petition. The only authority on the point namely the H.M. Saya & Co.'s case related to filing an appeal which the revision petitioners admittedly did not avail. Since they claimed to have purchased tthe property from Ms Saeedan just two days after dismissal of the suit brought against her, it should have been known to them that the decree was subject to a right of appeal which in fact Mst. Hajran had availed and was able to get the relief. No explanation was offered as to why the petitioners did not go in for an appeal after obtaining leave of the appellate Court. May be the reason was that no R.S.A. Lay against the impugned judgment, but then that reason did not of its own force justify a revision at the instance of an outsider. It was cotcnded that a revision and an appeal were just alike remedies, and that the High Court could entertain the revision petition in the exercise of its supervisory jurisdiction conferred by section 115, C.P.C. No law was cited to substantiate the plea that an appeal was just like a revision and that a party having failed to avail the appeal, could seek the remedy of revision. In fact a revision petition under section 115, C.P.C. Lies only if there was no right of appeal and in this way the latter excludes the former. This is how the two could be distinguished. Next, more important than any other consideration was the exercise of revisional jurisdiction by the Court in the peculiar circumstances of the case. It will be noticed that the petitioners' assertion was that they were bona fide purchasers of the land for value under a party to the suit. Conversely, the vendor Mst. Saeedan denied having made the sale, and instead described it to be a sheer fraud. A controversy arises from the respective contentions of the parties determination whereof would require evidence from both the sides. Good faith, passing of consideration, absence of notice of any defect in the vendor's title, or conversely attributing fraud to the sale were indisputably all questions of fact which could not be decided for the first time in Revision by the High Court. Therefore, even if the petitioners had a right as third persons to bring the revision petition either under section 146, or Order XXII, rule 10, C.P.C., they would not be permitted to introduce such questions of fact as had not been raised before any of the lower Courts. Lately, it was ruled in Mst. Fauzia Parveen alias Fauzia Tiwana v. Mst.Sahib Khatoon and others 1988 SCMR 552 that questions even though of law much less of fact, if not raised before the Court of the first instance, could not be permitted to be raised subsequently. This rule as well will preclude the petitioners from agitating the above questions notwithstanding their status as sucessors-in-interest of Mst. Saeedan. A revision under section 115, C.P.C. Rests upon purely legal questions which by their nature would be different from somebody's good faith, knowledge or its absence in regard to defect of the vendor's title or payment of this or that amount as consideration. Section 115 would, therefore, itself be a bar against the type of revision the petitioners were trying to bolster up. Allah Ditta v. Ghulam Haider, and others 1988 SCMR 964 was an instance of disallowing questions of fact in revision.
8. Still next, section 146, C.P.C. Also does not appear to be helpful to the petitioners because it starts with a saving clause giving pre-eminence to any provision otherwise contained in the Code of Civil Procedure or any law for the time being in force. The provisions of law cited to oppose the revision petition, were section 52 of the Transfer of Property Act which put a complete embargo on transfer of property by any party to the suit or proceedings during pendency thereof as to affect the rights of the other party thereto. Section 41, T.P. Act as well had some effect on the circumstances of the case. The petitioner's claim appeared to be covered more by it inasmuch as they were asserting to be transferees in good faith after taking reasonable care to ascertain the transferor's power to make the transfer. Counsel urged that these sections of the T.P. Act did not apply in extenso to the Punjab though the principles contained therein were held in many cases to be applicable.
Obviously if the principle of lis pendens was applicable, it would preclude a party to a suit or proceeding from transferring the property during pendency to the extent that it shall not affect the rights of the opposite side. Consequently any such transfer was invalid vis-a-vis the respondents.
9. The term "pendency" has also been defined in the Explanation to section 52, T.P. Act. It commences from institution of the suit and continues till reaching the final decree or order, that is after exhausting all remedies. Here, Mst. Hajran still had at her disposal the normal period of limitation for filing appeal, but the revision petitioners hurriedly purchased the property from Mst.
Saeedan just two days after dismissal of Mst. Hajran's suit. The appeal succeeded. It was an irony that the petitioners apparently knew that Mst. Saeedan was arrayed in the litigation, yet they did not hesitate to purchase the land from her, nor did they prefer to become party in the appeal. As a result they had to be visited with the consequence contemplated by section 52, T.P. Act, or the principles derived therefrom. Seeking protection under section 41, T.P. Act was rather more rigorous in that it envisaged taking reasonable care in ascertaining the transferor's title and also proving one's own good faith in the context. It would be pertinent to note that the petitioners in their C.M.
No,4382-C of 1990 did not assert in any way that they had taken reasonable care in ascertaining the transferor's title or that they had otherwise acted in good faith. They were expected to establish by producing evidence how they took reasonable care and acted in good faith. These questions were not within the purview of the revisional jurisdiction and for this simple reason alone, the revision could be summarily dismissed. Other laws, saved by the saving clause of section 146, C.P.C.
Would exclude its own application. No better was the case of invoking Order XXII, rule 10, C.P.C. To sustain the present revision. It provides for "continuance of a suit if already filed by the original party. Here the revision petitioners did not claim a right to "continue" the same on the ground that it had already been filed by the original party. The truth of the matter is that the original party namely, Mst. Saeedan made C.M. No,1332-C of 1990 urging that she never filed the revision petition, nor had she a mind to further prosecute it. It would, therefore, emerge that the present case was not of "continuing" a remedy already filed by the original party. Contrarily, they themselves filed it on their own behalf and a priori was not in accord with the purport of rule 10 of Order XXII, C.P.C.
Moreover, if the assignment is held to be void under the substantive law like section 52, T.P. Act or the principles underlying it, obviously it will not create a right in favour of the assignee to "continue" any such remedy. What is void is void, and resultantly will not yield a right or remedy in favour of a party who is involved in the commission of such void acts. Or else the rule of lis pendens will be rendered totally nugatory.
10. Learned counsel for the petitioners quite forcefully submitted that section 52, T.P. Act did not apply to gifts made under Muhammadan Law. He placed reliance uppn Ghulam Qadir and others v. Ghulam Hussain PLD 1965 (W.P.) Lahore 200 rand Muhammad Akram v. Kaka PLD 1977 Lahore 1347. The objection though apparently quite substantial in nature, would be of no effect in the context of the present case. The point immediately before this Court is whether the petitioners have a locus standi to initiate the revision petition as third parties and not that the donor had the right to make the gift under personal law, or that the same could not be assailed on the ground of lis pendens. This question could be considered only if there was a proper remedy sought by the petitioners to protect a pendente lite sale. Any expression of opinion to this aspect would not be advisable, for it might prejudice the petitioner's remedy, if any. Oth rwise it has no relevance to the revision under consideration.
11. Counsel submitted that C.M. No,1332-C of 1990 for withdrawal of the revision petition by Mst.
Saeedan was collusive with her mother, sister and the other respondents and that for the reason of this collusion alone, section 52 of the T.P. Act could not be invoked. He sought support from the leave granting order reported in Messrs Anwar Industry Ltd. v. Mst. Rehmat Bibi and others 1986 SCMR 1435 wherein collusive nature of the suit had yet to be considered. It goes without saying that a mere leave granting order does not constitute a rule so as to adopt it in other cases. This was the view taken in Namoos Khan v. Government of N.-W.F.P. Through Secretary Home and Tribal Affairs Deptt. Peshawar etc. 1984 CLC 129. Besides, section 52 relates to the collusive nature of the suit during pendency whereof a transfer had been made by a party to it. Here, counsel frankly conceded that the suit brought by Mst. Hajran against her mother Chandri and sister Saeedan etc. Was not collusive. The transfer was made by Mst. Saecdan during pendency of that suit. Therefore, quite indisputably it fell within the mischief of the restraint imposed by section 52. On the other hand, the plea that Mst. Saeedan was now acting in collusion about the withdrawal of the revision petition would have no effect on the transfer made by herself long ago. The objection had no force.
12. For the reasons discussed above, the revision petition is dismissed.