' MUHAMMAD BASHIR JEHANGIRI, J.---Muhammad Anwar, respondent, had purchased land measuring 3 Kanals 1 Marla 7 Sarsais, on the basis of Mutation No,7099 sanctioned on 9-10-1983 which was pre-empted by Laiq Zaman (since dead and represented by respondent No,3(i) to (viii).
On 3-12-1996 the suit of the pre-emptor was dismissed for non-prosecution. Before the restoration, however, Muhammad'Anwar, first vendee transferred the disputed land in favour of the petitioners.
The suit of Laiq Zaman pre-emptor on restoration was decreed ex parte on 9-5-1987. The deceased decree-holder took out execution proceedings. The petitioners filed an objection petition under section 47, C.P.C. On 9-2-1989 on the ground that the pre-emptor having made no 'Talabs' under the law, the suit was not maintainable but the learned trial Court dismissed it on 23-2-1989.
Feeling aggrieved, the petitioners went in revision petition before the Additional District Judge, Swabi, which too was dismissed vide order dated 15-4-1992. The petitioners still dissatisfied filed the Constitutional Petition (W.P. No,775 of 1992). A learned Division Bench which was seized of the matter observed that the contention of the learned counsel for the petitioners that after 31-7-1986 no decree could be passed in favour of the pre-emptor without complying with section 13 of the N.- W.F.P. Pre-emption Act (X of 1987) was untenable on the two authorities of this Court: (i) Mst. Kharo and others v. Sher Afzal alias Sheray (1992 SCM R 1844) and (ii) Abdul Hamid and 8 others v. Haji Shabbir Khan and another (PLD 1995 SC 649). In the two precedents aforesaid, similar question whether or not requisite 'Talabs' were made and all other conditions regarding thereto were satisfied were held to be question of fact and that it was open to the defendant-vendee either to raise or give up the plea regarding Talabs. In the instant case, the learned Judges observed that at the time of ex parte decree in the pre-emption suit neither the petitioners applied for setting aside the ex parte decree nor they had preferred any appeal against it. According to the learned Judges, the petitioners were even absent at the time of passing of ex parte decree and, therefore, they were not allowed to raise this plea for the first time in the executing Court. The second plea of the petitioners was also not entertained on the ground that the mutations in question were the result of collusion between the petitioners on the one hand and the defendant-vendee in the suit on the other. The learned Judges further observed that the contesting defendant had not resisted the claim of the plaintiff-pre-emptor and that in the first instance he entered the mutation in the names of the petitioners during the pendency of the suit and managed to get the suit dismissed in default and then absented himself on the date of ex parte decree and thus the plaintiff was kept in dark "of all the misdeeds collusively". The learned Judges noticed that even after the ex parte decree neither any application under Order IX, rule 13 of the Civil Procedure Code nor any appeal was filed. The petitioners, according to them, were waiting for execution proceedings to dilute the effect of the decree. Lastly, it was observed that seeking relief in writ petition was not a right but it was discretionary which could not be granted to a person who was guilty of collusion to deprive others of their legal rights. In this view of the matter, the findings of the two Courts below that the objections of the petitioners were not tenable and, therefore, they were not held entitled to any relief under Article 199 of the Constitution were held to be well-founded.
2. Mian Yunus Shah, learned Senior Advocate Supreme Court, representing the petitioners invited our attention to the law laid down by the two old authorities of the pre-partition era which he had also cited before the High Court, namely, Parmeshari Din v. Ram Charm and others (AIR 1937 PC 260) and (ii) Chanan Singh v. Waryam Singh and others (AIR 1947 Lahore 175) and contended that the word 'representative' employed in section 47, C.P.C. Is wider than the term 'legal representative' and included a 'transferee'. This contention was repelled by the learned Division Bench holding that in both the judgments referred to them, "the decree-holder could proceed against the transferee under the judgment-debtor". In this context, the counter-arguments of the learned counsel for the respondents were that, even if for the sake of arguments, it was admitted that the suit land had been validly transferred during the execution proceedings, the vendees/objectors had stepped into the shoes of judgment-debtor.
3. Another argument of the learned counsel for the petitioner which was reiterated before us and had been conceded by the learned counsel for the respondents before the learned Division Bench was that the principle contained in section 52 of the Transfer of Property Act, 1882, namely, lis pendens covers not only the suit while the explanation added to the section 52 ante completely covers proceedings before the final decree or order. Reference was made to an old authority from Lahore jurisdiction in the case of Muhammad Saddiq v. Ghasi Ram (AIR 1946 Lahore 322). The learned Division Bench then noticed that the application for restoration of the suit was brought on the day when it was dismissed for non-prosecution on 3-12-1986; the mutation in favour of the petitioner had been entered during the pendency of suit on 17-11-1986 and 1-12-1986. Respondent No,3 immediately applied for the restoration of the suit and thus the proceedings for the restoration of the suit were in process even on 7-12-1986 when the impugned mutations were sanctioned. It was, therefore, held by the High Court that the questioned Mutations Nos.7808 and 78.10 had been entered during the pendency of the suit and were sanctioned pending the restoration proceedings, therefore, under the principle of lis pendens no right or title could possibly be transferred to the petitioners. In this view of the matter, the learned Division Bench in the High Court found the impugned order passed by the two Courts below warranting no interference in exercise of the Constitutional jurisdiction. Finding no illegality or material irregularity in the said order the writ petition, as stated earlier, was accordingly dismissed with costs.
4. After going through the impugned judgment of the High Court, we find that the reasoning that found favour with the learned Judges was not such which could be termed to be improper or not sustainable on the settled principles regulating the grant or refusal of relief in the Constitutional jurisdiction of the High Court. On merits, we, therefore, concur with the finding of the High Court that the writ petition was not maintainable as the petitioners were not aggrieved persons in stricto senso, therefore, they could not invoke the Constitutional jurisdiction in the High Court; that on the parity of the reasons aforesaid, the petitioners were devoid of any locus standi to raise the objection of lack of requisite 'Talabs' on the part of the pre-emptors/respondents; that the mutation in question sanctioned in favour of the petitioners was the outcome of collusion between them and the defendant-vendee in the suit; that grant of relief in Constitutional jurisdiction was discretionary which could not be granted to a person who was guilty of collusion in order to deprive others of their legal rights.
5. Under the doctrine of lis pendens falling within the ambit of section 52 of the Transfer of Property Act (IV of 1882), the property could not be transferred or otherwise dealt with by any party so as to affect the rights of any other party thereto under any decree or order which may be made therein, during the pendency, in any competent Court, of any suit or proceedings which is not collusive and in which any right of immovable property is directly and specifically is in question. In Abdul Karim v.
Kala Khan and another (PLD 1987 Azad J&K 139), the definition of term 'proceeding' was held to include an application for restoration of a suit which related to the immovable property to which prior right of purchase (right of pre-emption) is directly and specifically in dispute. The first vendee being a party to the proceedings was not possessed of any right to alienate the land the subject of dispute, as laid down , under section 52 of the Transfer of Property Act. The finding of the learned District Judge as per the case of Abdul Karim (supra) was affirmed that in the presence of the pendency of the application for restoration of the suit, the subsequent transaction of sale in favour of Abdul Karim petitioner therein was held to be hit by the rule of lis pendens.
6. After going through the facts of the case in Abdul Karim (supra) we are inclined to approve the principle enunciated therein.
7. In this view of the matter, this petition is without substance and is, therefore, dismissed accordingly.