PLJ 1987 Lahore 97

and justice, same to be invoked (here also from time to time). (P. 102]C

PLD 1957 Lah. 1054 & PLD 1973 Lah. 546 re/. Ch. Muhammad Rafiq Iqbal, A'dvocate for Petitioner. Date of hearing : 22-11-1986.

order

This Civil Revision arises out of a suit instituted on 23-6-76 by the petitioner against respondent No. 1 in the Civil Court at Lahore for a declaration that the petitioner was an owner of one half of House No. 7 Street No, 9 Dharampura, Lahore, along with a prayer for a permanent injunction restraining respondent No, 1 from dispossessing her alleging that she purchased the said house in consideration of Rs. 20.COO/- from Mst. Khurshid Begum respondent No. 2, widow of Safdar Hussain, through a Registered Sale Deed dated 1-1-76 respondent No. 1 had nothing to do with the property so vesting in her, as he had no right to the same.

2. Respondent No, 1 controverted the suit by claiming that he was an owner of one half ot the house in question while Mst. Khurshid Begum, respondent No. 2, was the owner of the other half. Respondent No. 2 executed an agreement dated 8 5-1974 to sell her share of the house in con sideration of Rs. 17250/- towards which respondent No. 1 had paid Rs 'iO.OOO/-. Since respondent No. 2 did not perform the agreement, resjv ndent No. 1 instituted a suit for specific performance of the agreement to s-sl which suit was decreed in his favour after a full contest by Malik Rwtam Ali, Civil Judge, Lahore, vide judgment dated 2ft-7-76. It was further maintained that during the pendency of the suit on his application for temporary injuction, the learned Civil Judge, seized of the matter, had issued on 5-3-19 5 an interim injunction restraining respondent No. 2 from alienating the property in question. As such respondent No. 2 was not
competent to sell trie second half of the house on 1-1-1976 to the petitioner. After the written statement so made the petitioner filed an amended plaint i.e. on 3-10-1978. The petitioner in her amended plaint took up a ground that the decree dated 26th of July 1976 in favour of reipondcnt No. 1 and the Sale Deed executed and registered through the court under tke said decree in favour of respondent No, 1 were void ab initio being based on fraud, misrepresentation active concealment of facts, collusive, malafide without lawful authority and inoperative as such against the very rights of the petitioner. She also stated that ths decree obtained by res pondent No. 1 was not binding upon her as she was a bona fide purchaser for consideration without notice and in possession of tne suit property under the Registered Sale Deed dated 1-1-1976.

Respondent No.2 who was joined at that stage as defendant admitted the claim of the petitioner in her written statement. Respondent No. 1 reiterated the defence as already taken by him and denied the allegations made by the petitioner as to fraud etc. He maintained that respondent No. 2 was not competent to sell the other half of the house to the petitioner since she had been restrained through a temporary injunction from alienating the property during the pendency of the suit.

3. The learned Civil Judge was of the view that the sale by respon dent No. 2 of the property in question in favour of the petitioner stood proved and as the petitioner, and respondent No. 2 had denied, any knowledge as to the previous suit so respondent No. 1 ought to have put to them all the relevant documents, when they denied the facts, and proved the Sitne in accordance with law. According to him, the documents relied upon by respondent No. 1 could not be availed of against the petitioner and respondent No 2 Tha petitioner had been put into possession of the property in dispute by respondent No. 2 under the sale which was completed on 31-12-1975 in which circumstance that was for respondent No. I to implead her as a party to the suit with the result that the decree passed in favour of respondent No 1 had no legal effect against the petitioner. Respondent No. 1 could seek the cancellation of the sale deed in favour of the petitioner. The case was not covered by Section 47 CPC. The learned Civil Judge further entertained that Section 52 of the Transfer of Property Act as to the doctrine of Us pen dens has no application to the facts of the case. He decreed the suit of the petitioner vide his judgment dated 9-6-54.

4. The respondent No. 1 feeling aggrieved thereby filed an appeal in the court of the learoed District Judge, Lahore. The learned District Judge observed as to the observation of the learned Civil Judge that respondent No. 1 should have sued for the cancellation of the deed of sale in favour of the petitioner, that the decision Syed Miihal Shah v. Kh. Rafi Ullah (PLD 1975 Karachi 930) upon which the learned Civil Judge had relied was not approved by the august Supreme Court in Muhammad Sharif v. Sughran Bano (1984 SCMR 1139). He was of the view that, that was not a case in which respondent No. 1 had merely set up a previous agreement to sell and had based his claim to the ownership of the property in question in preference to Afst. Jhandi piaintiff on that agreem;nt alone, but that was a case which took the support from the decree dated 26-7-76 having bsen passed for the specific performance of the said agreement against respondent No. 2 which suit had been duly contested by respondent No. 2 in which the temporary injunction had been issued on the assurance of Ch. Habib Ullah Advocate that his client Mst. Knurshid Begum was not minded to alienate the property in dispute. The agreement to sell in favour of respondent No. 1 and merged into decree passed on 20-7-76 in favour of respondent No. 1 had as that was the case of the petitioner that the decree dated 26-7-76 had been obtained by fraud and misrepresendation, that was for her to have proved the facts which constituted fraud and mis-representation which was not done except that there was a bald assertion. The petitioner had stepped into the shoes of respondent No 2, so she could not escape the consequence of the decree dated 26-7-76 merely by saying that she was not a party to the suit resulting in the decree. The failure of respondent No. 1 to confront her with the documents was not fatal since the on as to prove that the impugned decree dated 26-7-76 was a result of fraud and misrepresentation under issue No. 2 was on the petitioner because her claim was founded upon a deed of sale which had been executed during the pendency of respondent No. 1's suit. There was over-whelrcirjg evidence that the suit Sled by respondent No. 1 was hotly contested by respondent No. 2 which militated against the proceedings being in any way collusive. The petitioner had admitted that she had learnt of the suit instituted by respondent No. 1 from hsr mohalladars yet according to her she chose instead of becoming a party, to file her suit when the suit of respondent No. 1 was still pending which fact tended to support the case of respondent No, 1 that in point of fact thet petitioner not only knew of the suit .but had applied for being joined as a party and her application was rejected by the learned Civil Judge's order dated 8-7-76.

5 The learned District Judge was also of the view that Section 47 CPC was a bar to the suit in so far as the asked the relief that respondent No. 1 " was not entitled to get possession of the suit property in pursuance of the impugned decree dated 26-7-76. As transferee from Mst. Khurshid Begum, the petitioner was her respresenrative and the decree was therefore, binding upon her, The relief then related to the execution and satisfaction of the decree. Further the learned District Judge observed that that was of a little consequence that the petitioner was not a party to the previous suit for she had stepped into the shoes of respondent No 2 and as the latter during the pendency of the suit, was not competent to sell the house in question to the petitioner, the sale deed dated 1st January 1976 must have been held to be hit by the doctrine of lls-pendens and, therefore, of no legal effect as against respondent No. 1. Then in summing up the case, the learned District Judge was of opinion that, that was amply proved that respondent No. 2 had herself contested the suit through Ch. Habib Ullah Advocate and the petitioner having taken the risk of purchasing the property during the pendency of respondent No. 1's suit she must have beea held to be bound by the decree. The petitioner had learnt of the suit and hat implied that she had also learnt of the agreement dated 8th May 197", As to the assertion that the petitioner had been given the physical po<Cession of the house at the time of the sale in her favour, respondent No. 1 was not a party to the sale deed and the recital as to the possession therein was not binding on him so as to make it for respondent No 1 to implead the petitioner in his suit. The learned District Judge was not prepared in the circumstances of the case to take the words of the petitioner and respondent No. 2 on the face value that the petitioner had been given possession by respondent No 2, The learned District Judge in accepting the appeal set aside the judgment and decree appealed from and dismissed the suit as brought by the petitioner with costs. This is vide judgment dated 12-10-1986,

6. The learned counsel for the petitioner has contended that the pe- titioner is a bonafide purchaser without notice of the agreement in favour of respondent No. 1 therefore, the said agreement cannot be enforced against her. The learned counsel has referred to the provision of Section il of the Specific Relief Act and has relied upon clause (b) to the section wherein it has been said that the specific performance of a contract may be enforced against "any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original •contract". This provision of law caters for the situation where the . [transferee acquires the property in good faith without having notice of the (original contract before the institution of a suit for specific performance }and not during its pendency,

7. The second contention of the learned counsel is that the sale made by respondent No. 2 to the petitioner even in violation of the temporary injunction does not impair the position of the petitioner as a bona fide transferee without notice. For this he has relied upon Saeeda Akhtar and others \. Lai Din and others (PLJ 1981 Lahore 345) wherein it has been held that the violation of a prohibitory interim order preventing the sale of property merely entails penal consequences for the persons who violate the same but the order by itself does not detract from the validity of the sale.

No benefit can be drawn from the decision so relied upon since, in the said decision the suits instituted were for the recovery of money on the basis of pronotes during the pendency of which an interim injunction restraining the defendant from alienating his land bad been passed but despite that he executed a sale deed transferring all his land to another, suffice it to note that there the land which was sold was not subject matter of the suit and there arose no implications as to the transaction having been hit on the principle of lis-pendens.

As to the decision Belt Ram and Brothers v. Rain Lai and others [AIR 1925 Lahore 644(2)] next relied upon, the said observation holds true. This decision has also been referred to in Mst. Saetda Akhtar and others v. Lai Din and others (PLJ 1981 Lahore 345).

8. The next position taken up by the learned counsel for the petitioner is that the principle of lis-pendens is not applicable in a suit for possession through specific peformance, since a decree for specific performance declares the right of the decree-holder to have the property transferred in his favour covered by the decree and so long as the sale deed is not executed in favour of the decree-holder either by the judgment debtor or the court, the title of the property remains vested in the judgment debtor. The reliance is placed on Muhammad Ishaq v. Muhammad Siddique (PLJ 1975 Lahore 262). In this case in an application filed for ejectment by one Muhammad Isbaq against Muhammad Siddique, the learned District Judge had accepted the appeal of Muhammad Siddique on the ground that since a decree for specific performance of the agreement with regard to sale of the property in question had been passed in favour of Muhammad Siddique, therefore, the question of occupying the shop in question by him as a tenant did not arise. He had further held that in view of the principle laid down in Section 53A of the Transfer of Property Act, the possession of the respondent over the shop would be that of an owner. It is in this regard that while disagreeing the learned Judge observed that "according to law a decree for spscific performance only declares the right of the decree-holder to have the property transferred in his favour covered by the decree and so long as the sale deed is not executed in favour of the decree-holder by the judgment-debtor or by the Court, the title of thi property remains vested in the judgment-debtor".

As the application of the principle of^lis-pendens is in issue in the present case, therefore, the said decision is not conclusive of the matter as nothing of the sort was in issue in it.

In Jahar Lai Bhutra and others \. Bhupendra Nath Basu and others [AIR 1922 Calcutta 421(2)], the plaintiff had sued Srinarayan Santra and others for specific performance of an agreement, the suit was decreed on the 25th of April, 1910. It was during the pendency of the suit instituted that the Santras sold away their interest to the defendants, it was held that the defendants were manifestly the purchasers ptmdente-Hte and the interest they purchased was bound by the decree in the suit for specific performance. The learned Division Bench in turn relied on Moti Lai Pal v. Priya Nath Ultra [(908) 13 CWN 226.(9) CLJ 9o)], in which it was held that a suit for specific performance of a contract for transfer of immovable property operated as iis-pendens. The said decision of the Calcutta High Court was relied upon in Atar Ali v. Abed AH and others (PLD 1*54 Dacca 158).

In view of the above decisions, there is do force in the contention of Jthe learned counsel that the principle of lis-pendens is not applicable to a |suit/or specific peformance.

9. The last contention of the learned counsel is that the petitioner had no notice of the pendency of the suit, therefore, the sale to the petitioner remained un-affected,

The finding of fact has been returned by the learned District Judge that the petitioner had the knowledge of the suit. As to the notice, reference can conveniently be made to Bellamy v. Sabine [(l857)l-De G & J 566)] in which Lord Cranworth, apart from the observation made as to the principle of lis-pendens by Turner, L.J. observed : —

"It is scarcely correct to speak of lis-pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party".

Maharaj Bahadur Singh v. Sh. Abdul Rahim (AIR 1922 Patna 394) where it has been held that no notice i? necessary in order to apply the principle of I is pendens which principle applies to immovable property. In Krishanji Pandharinath v. Anusayabai and another (AIR 1959 Bombay 475), it has been held that the application of the doctrine of lis-pendens does not depend upon the purchaser having notice of the suit, even if the transferee pendente-lite from a party has no notice of the suit, the rights of other party to a suit in which a right to immovable property is directly and specifically in question under the decree cannot be prejudicially affected by the transfer.

10- The idea behind the doctrine of lis-pendens has been expounded by Turner L J, in the above said case i.e. Bellamy v. Sabine |(1857) 1-De G. & J. 56b)] saying "it is as I think a doctrine common to the courts both of Law and Equity, and rests, as I apprehend, upon this foundation—that it would plainly be impossible thai any action or suit could be brought to a successful termination, if alienations, pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding".

Though the provision of Section 52 of the Transfer of Property Act •has not been specifically made applicable to Punjab yet the principle _cjcnunciated by the section ha? been invoked from time to time since it is in |;onsonaace with the principle of equity good conscience and justice. The said principle has been invoked in Pir Abdullah and 8 others v. Humayon and 5 others (PLD 1957 Lahore 1054) wherein it has been said that the principle underlying Section 52 of the Transer of Property Act is applicable to the case since no interest which is created during the pendency of the suit can effect any decree passed in the suit. To the same effect as to ths application of the principle there stands as an authority Haider Ali and another v. Akbar Ali and another (PLD 1973 Lahore 546) which has been relied upon by the learned District Judge.

11. The learned District Judge has rightly applied the principle of lis-pendens to which no exception c*n be taken a$ the suit for specific peformance was not a collusive one, that was vigorously contested by respondent No.2. This civil revision is, therefore, dismissed in limine being without any substance.

(TQM) Petition dismissed