Defence Housing Authority Lahore Vs Ijaz Ahmad etc

Stero.HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

(JUDICIAL DEPARTMENT)

Regular Second Appeal No.221080 of 2018.

Defence Housing Authority Lahore through its Secretary.

Versus

Ijaz (Aijaz) Ahmad, etc.

JUDGMENT

DATE OF HEARING: 29.01.2026.

APPELLANT BY: M/s Tariq Masood and Hassan Tariq, Advocates.

Ch. Bashir Hussain Khalid, Advocate for appellant in connected appeal.

RESPONDENT No.1 BY: Mr. Khalid Mehmood Sheikh, Advocate.

AHMAD NADEEM ARSHAD, J. Through this single

judgment, I intend to decide the above-captioned Regular Second Appeal as well as the connected Regular Second Appeal No.254772 of 2018 titled as "Shehzad Iqbal vs. Aijaz Ahmad, etc.", as both the appeals have arisen out of the same judgment and decree dated 28.04.2018 passed by the learned lower Appellate Court, whereby, while accepting the appeal of respondent No.1 (Aijaz Ahmad), his suit was decreed as prayed for.

2.Tersely, the facts forming background of the proceedings in hand are that respondent No.1 instituted a suit for specific performance along with declaration and permanent injunction against Muhammad Daud (hereinafter referred to as 'respondent No.2'), Asghar Ali (hereinafter referred to as 'respondent No.3'), DHA Lahore (hereinafter referred to as 'the appellant'), and the Registrar

Cantt. Lahore (hereinafter referred to as 'respondent No.4').

Respondent No.1 pleaded that respondent No.2 was the owner of land measuring 27 kanals and 1 marla situated in Khewat No.499, Khatoni No.636, on the strength of Mutation No.11466 (hereinafter referred to as "the suit property"). It was averred that respondent No.2 agreed to sell the suit property to respondent No.1 for a total consideration of Rs.1,08,20,000/-, and after receiving Rs.27,05,000/- as earnest money, executed an agreement to sell dated 30.08.2004. It was further agreed that the remaining consideration amount would be paid on 30.09.2004. He averred that respondent No.1 paid Rs.62,00,000/- through pay order dated 22.10.2004 drawn on Prime Commercial Bank, DHA Branch, Lahore, and Rs.19,00,000/- through demand draft dated 22.10.2004 drawn on Union Bank, DHA Branch, Lahore, however, despite repeated approaches and requests for performance of the agreement to sell, respondent No.2 allegedly remained reluctant to fulfill his commitment and alienated the suit property in favour of respondent No.3 through a registered sale deed dated 18.02.2005.

Upon refusal by respondents No.2 and 3 to execute the sale deed in his favour and to cancel the registered sale deed dated 18.02.2005, respondent No.1 was constrained to institute the suit, seeking specific performance of the agreement to sell dated 30.08.2004 and a declaration to the effect that the sale deed dated 18.02.2005 had no effect upon his rights. In response to the summoning by the learned Trial Court, no one appeared on behalf of respondent No.2;

consequently, he was proceeded against ex-parte. Respondent No.3 contested the suit by filing a written statement raising preliminary

objections, inter alia, that the suit was collusive between the plaintiff (respondent No.1) and defendant No.1 (respondent No.2); that he (respondent No.3) was a bona fide purchaser for valuable consideration without notice of the alleged agreement to sell, and therefore, in view of Section 27-B of the Specific Relief Act, 1877, the suit was not maintainable against him; that the suit was not maintainable in its present form; that the plaintiff had no cause of action or locus standi to file the suit; that the plaintiff had approached the Court with unclean hands by misstating and misrepresenting facts and was thus not entitled to equitable relief; and that the suit was frivolous, mala fide, and vexatious, filed to harass and blackmail him, and, therefore, liable to dismissal with special costs under Section 35- A CPC. On merits, he denied the averments of the plaint and asserted that he had purchased the suit property through a registered sale deed bona fide, for valuable consideration, and without notice of any prior agreement to sell. The appellant (defendant No.3 in the suit) also filed a contested written statement raising preliminary objections that the suit was not maintainable in its present form; that the plaintiff had not approached the Court with clean hands; that the suit was false and frivolous and liable to dismissal with special costs; and that the plaintiff had no cause of action against the answering defendant. On merits, the averments of the plaint were denied, and it was stated that although the suit property had been offered for sale to the answering defendant, the process for its purchase was halted when it transpired that the land in question was under litigation. Dismissal of the suit was accordingly prayed for.

3.In view of the divergent pleadings of the parties, the learned trial Court framed the necessary issues on 23.05.2007 and called upon the parties to produce their respective evidence. After recording oral as well as documentary evidence produced by the parties pro and contra, the learned trial Court dismissed the suit in the following manner:-

“the suit in hand is hereby dismissed, however, in view of my detailed findings on Issue Nos.7 to 9, specifically findings on issue No.8 shows that the plaintiff paid the total consideration amount including the balance amount through different modes of payment in context of an agreement to sell dated 30.08.2004 i.e. ExP-1, to the defendant No.1 and in the light of findings on Issue No.9 it was also inferred on convincing terms that the defendant No.1 with mala fide intention sold and transferred the suit property to the defendant No.2 by entering into a subsequent sale transaction through a registered sale deed i.e. ExhD-1 executed in favour of the defendant No.2. In this scenario the plaintiff is entitled to recover the total consideration amount paid to the defendant No.1 in context of an agreement to sell dated 30.08.2004 i.e. ExhP-1 and also to receive 6% interest annually in proportion to the total consideration amount paid by the plaintiff to the defendant No.1, till the realization of total consideration amount paid by the plaintiff to the defendant No.1 and the period for receiving 6% interest over the total consideration amount will be counted from the date of institution of this suit till it is paid by the defendant No.1 to the plaintiff in future. Here it is pertinent to mention that even without a formal prayer by the plaintiff for seeking compensation, it can be granted under Section 18 &19 of Specific Relief Act, 1877, reliance is placed upon REF PLD 2003 SC 494 & 2002 YLR 2865 [D.B Lahore].”

4.Feeling aggrieved, respondent No.1 preferred an appeal.

However, neither the appellant nor respondents No.2 and 3 filed any appeal or cross-objection against the findings of the learned trial Court on issues No.1 to 9; hence, those findings attained finality. The

learned lower Appellate Court, vide judgment and decree dated 28.04.2018, allowed the appeal of respondent No.1 and decreed the suit as prayed for. Being dissatisfied, the appellant (DHA Lahore) filed the instant Regular Second Appeal. Likewise, one Shehzad Iqbal, claiming that he had purchased the suit property during the pendency of the suit through a registered sale deed dated 03.11.2010 from respondent No.3, filed connected time-barred appeal bearing RSA No.254772 of 2018.

5.I have heard the learned counsel for the parties at considerable length and have also perused the record with their able assistance.

6.A perusal of the record reveals that respondent No.1 sought specific performance of the agreement to sell dated 30.08.2004, whereby respondent No.2 agreed to sell land measuring 27 kanals and 1 marla for a consideration of Rs.1,08,20,000/- and received earnest money of Rs.27,05,000/-. Respondent No.1 maintained that he paid the remaining consideration amount through a pay order dated 22.10.2004 amounting to Rs.62,15,000/- drawn on Prime Commercial Bank, DHA Branch, Lahore, and Rs.19,00,000/- through a demand draft dated 22.10.2004 drawn on Union Bank, DHA Branch, Lahore.

7.Respondent No.2 was proceeded against ex parte, and the suit was contested by respondent No.3, who asserted that he had purchased the suit property through a registered sale deed bearing Sr.

No.4272, Bahi No.1, Jild No.1142 dated 18.02.2005 for valuable consideration; therefore, he was a bona fide purchaser for value without prior notice of the agreement to sell.

8.Although the appellant filed a contested written statement, during the pendency of the suit it moved an application under Order I Rule 10 CPC on 06.11.2007 for deletion/striking off its name from the array of parties. Respondent No.1 filed a contested reply thereto. The learned trial Court, vide order dated 13.10.2008, dismissed the application, observing that the appellant had failed to establish how it was an unnecessary or improper party, particularly when the plaintiff had sought to restrain it from acquiring or taking possession of the suit property. The appellant did not challenge the said order any further.

However, despite remaining a party to the proceedings, it produced no evidence during the trial.

9.The learned trial Court decided issues No.1 to 6 against the defendants (the appellant and respondents No.2 to 4) and issues No.7 to 9 in favour of the plaintiff (respondent No.1). While discussing the evidence, the learned trial Court observed that respondent No.1 had proved due execution of the agreement to sell by producing the marginal witnesses and had also proved payment of the consideration amount through the Bank Statement (Exh.P-2) and by examining Ali Raza, Officer Grade-II, Saudi Pak Bank, who deposed that as per the Bank’s record, both pay orders were encashed in favour of respondent No.2 on 28.10.2004.

10.The learned trial Court, while passing the decree, declared that the plaintiff was entitled to recover the total consideration amount paid to defendant No.1 (respondent No.2) under the agreement to sell dated 30.08.2004, along with 6% annual interest proportionate to the amount paid, from the date of institution of the suit till realization.

11.However, the learned trial Court dismissed the claim for specific performance in view of its findings on issues No.10 and 11, observing that respondent No.1 had failed to establish that the agreement to sell dated 30.08.2004 was within the knowledge of respondent No.3. Consequently, the benefit of Section 27-B of the Specific Relief Act, 1877 is extended to respondent No.3 by declaring him a bona fide purchaser for value without notice of the prior agreement.

12.The learned lower Appellate Court, while allowing the appeal of respondent No.1, held that respondent No.3 had failed to prove through evidence the essential ingredients of Section 27-B of the Act, 1877, particularly the payment of consideration. It was observed that in the absence of proof of payment of consideration, respondent No.3 could not be termed a bona fide purchaser for value.

13.It is an admitted position that respondents No.2 and 3 did not challenge the judgment and decree of the learned lower Appellate Court any further; thus, the same attained finality to that extent.

14.The judgment and decree of the learned lower Appellate Court have been assailed by the appellant (DHA Lahore) as well as by Shehzad Iqbal, who filed the connected appeal on the ground that he had purchased the suit property during the pendency of the suit.

15.During the course of arguments, learned counsel for the appellant was confronted with the question of maintainability of the appeal, inasmuch as the appellant had categorically stated in its written statement that it had stopped the process of acquiring the suit property and had no concern whatsoever with it. Learned counsel

failed to satisfactorily respond to this query. Although it was contended that the appellant had acquired the suit property, no sale deed or acquisition proceedings were produced on record to substantiate this stance. It is, therefore, evident that the suit property was neither purchased nor acquired by the appellant through any lawful process, nor does the appellant have any subsisting concern with it.

16.It was further argued on behalf of the appellant that during the pendency of the appeal an application under Sections 107 and 151 read with Order XLI Rule 33 CPC and Sections 195 and 476 Cr.P.C.

was filed for taking notice of the alleged commission of offences by the plaintiff under Sections 191 to 193 PPC and for passing an appropriate order dismissing the appeal as well as the suit, while initiating proceedings against the persons allegedly guilty of offences against public justice. It was contended that although respondent No.1 filed a contested reply, the learned lower Appellate Court failed to decide the said application while passing the impugned judgment and decree.

17.Admitedly, the appellant filed said application and it remained unattended. Now the question before this Court is that whether on the basis of said undecided application the matter should be remanded for decision afresh. No doubt, the august Supreme Court of Pakistan in numerous judgments held that un-attending and non-deciding the miscellaneous applications amounted to mis-reading and non-reading of record and remanded the case for deciding the miscellaneous application first and then decide the main lis.

18.In case titled “MUHAMMAD UMER versus MUHAMMAD QASIM and another” (1991 SCMR 1232), the august Supreme Court of Pakistan observed as under:-

"5.We have heard the learned counsel for the petitioner and the respondents who were on notice. The contention of the petitioner before the learned Judge of the High Court was that a proper application under Order XLI, rule 27, C.P.C. was filed before the appellate Court, it did take note of the same but in spite of the arguments addressed by the parties ignored it and did not adjudicate upon it and prayed that the case be remanded to the learned Appellate Court to decide the case in the light of the order of the Land Commissioner. This argument, however, did not find favour with the learned High Court, the ground being, amongst others, that the petitioner had failed to place the order of the Land 'Commissioner before the Civil Judge and that at a belated stage no grievance could be made of the fact that the Appellate Court did not consider the order of the Land Commissioner and further that no valid reason had been given in the application under Order XLI, rule 27,C.P.C. as to why the order of the Commissioner was not placed before the trial Court.

6.The same point has been urged before us. The learned Civil Judge while dismissing the suit of the petitioner mainly relied upon the order of the Deputy Land Commissioner whereby the land allotted in the name of the petitioner was cancelled. But this order of cancellation was set at naught by then Land Commissioner. As per the record, the petitioner sought to produce the same vide application made under Order XLI, rule 27,C.P.C.,and we think that once the Appellate Court was seized of the matter, i.e. the application under Order XLI. rule 27, C.P.C., it ought to have adjudicated upon the same before disposing of the appeal."

19.In case titled “MUHAMMAD YOUSUF and 12 others versus ABDUL KHALIQ and others” (1991 SCMR 1981), the apex Court held as under:-

“2. When the petition came up for hearing on an earlier date and this grievance was reiterated, we issued notice to the respondents "as to why this petition be not converted into appeal and case

remanded to the High Court in view of non-consideration/non- disposal of the application for additional evidence", for disposing of the question of additional evidence and thereafter dealing with the appeal. In response to the notice, respondent No.1 has appeared in person and does not object to the suggested course being followed.

3.We find that the statements of facts made by the learned counsel for the petitioners find support from the record. In the circumstances, this petition is converted into appeal, accepted, the judgment of the High Court is set aside and the matter is remanded to the High Court for disposal afresh after dealing with the applications for additional evidence.”

20.The Hon’ble Supreme Court of Pakistan in case titled “Mst.

IMTIAZ BEGUM versus Mst. SULTAN JAN and others” (2008 SCMR 1259) observed as follows:-

“4. We have examined the record and have analyzed the arguments of the learned counsel. Respondent's learned counsel had not been able to controvert the fact, as to why the application of Qamar Zaman for withdrawal of civil revision was not decided at the final stage and by the learned High Court. In the trial Court as well as from the learned Appellate Court, Mst. Imtiaz Begum was granted decree in her favour, as against Qamar Zaman also, who had filed Civil Miscellaneous Application No.22 of 1996 before the learned High Court for withdrawal of revision to his extent, which was kept pending with an order to be decided at the stage of final decision of the civil revision. We have found that no order was passed upon this application in the final impugned judgment, which was too delivered in another Civil Revision No.13 of 1996 and only passing reference was made for the decision of this Civil Revision Petition No.14 of 1996, in the impugned judgment, and no independent/supportive order/decision was passed in Civil Revision No.14 of 1996.

5.Accordingly, we do not consider it a complete and full adjudication of the disputations/questions of law and facts involved in Civil Revision No.14 of 1996. So, the impugned judgment with regard to Civil Revision Petition No.14 of 1996, delivered by the learned Peshawar High Court, Abbottabad Bench is set aside and the case is remanded to the aforementioned learned High Court,

considering Civil Revision No.14 of 1996 to be pending before it, with direction to decide the application Civil Miscellaneous No.22 of 1996 filed by Qamar Zaman as well as the civil revision afresh after grant of opportunity of hearing to the parties to the above noted revision.”

21.In another case titled “MUHAMMAD AZAM versus MUHAMMAD ABDULLAH through L.Rs.” (2009 SCMR 326) the Apex Court observed as under:-

“We have examined the record of learned High Court, according to which appellant had filed application (Civil Miscellaneous Application No.370/C of 1990) for production of additional evidence on 23-1-1990. Notice was issued to the respondent and it was observed that this application shall be decided along with main case (Civil Revision No.83 of 1990). However, the learned High Court decided the revision petition brought by appellant without taking into consideration documents in question and without disposal of said application for additional evidence. As such we find that case of appellant has been prejudiced. Even otherwise the case of appellant is that he is co-sharer in the Khewats in question, therefore, it was in the interest of justice that High Court should have decided his application before final adjudication of the case.

For what has been discussed above, we are of the considered opinion that impugned judgment is not sustainable in law. As such this appeal is accepted, impugned judgment is set aside and the case is remanded to the learned High Court for decision afresh on merits and in accordance with law after dealing with the application for additional evidence. No order as to costs.”

22.A perusal of the aforementioned judgments of the august Supreme Court of Pakistan indicates that where pending applications were directly related to the merits of the case, and their adjudication could have influenced the final outcome, the courts have consistently remanded the matter for fresh consideration. In the instant case, however, the circumstances are materially different. The appellant- authority itself filed an application under Order I, Rule 10 of the Civil Procedure Code, seeking deletion or striking out of its name from the

array of parties. In its written statement, the appellant also specifically maintained that it had no concern with the suit property, as it had halted any process of acquisition and did not participate in the trial proceedings. Moreover, the appellant failed to actively press or pursue this application before the learned lower Appellate Court. In these circumstances, it is evident that the application was not connected with the substantive merits of the dispute. Consequently, the contention arising from this application has no bearing on the merits of the case and cannot form a basis for interference with the judgment of the lower Appellate Court.

23.This Court in the case of “Peer Bakhsh and others vs Nabi Bakhsh and others” (2002 YLR 1630) discussed about superfluous applications which have been left undecided and main case/appeal gets decided. It was observed: -

“The contention of the learned counsel for the petitioners that it is the legal obligation of the learned trial or Apellate Court to dispose of all applications filed before it may not be incorrect. However, this principle is not an inflexible rule of law but is adhered to for the larger interest of administration of justice. When, however, it is found that the contention in an application is superfluous and has been dealt with implicity by the relevant Court, this fact alone shall not thwart the proceedings of the Courts, if otherwise the matter is consciously dealt with by it.”

24.A Division Bench of Honorable Sindh High Court in the case “Aijaz Mahmood vs Hong Kong and Shanghai Banking Corporation” (2014 C L C 1313) discussed about the pending applications, decision of which would not have affected merits and final findings, in the following words:-

“In above mentioned cases the pending applications were touching to merits of cases and their decisions might have changed the

orders passed by the courts, while the situation in present appeal is totally different, therefore, we have no hesitation to conclude that the facts and circumstances of the above referred case-law are quite distinguishable from the peculiar circumstances of the instant appeal, and the decision of pending applications in either way, would not affect, alter and change the merits and final findings of the impugned judgment, and the appellant cannot take any benefit in this context mere agitating the technicalities, while he has miserably failed to establish his case on merits.”

25.The matter also came under discussion in the case “Khaki vs Aqleemun” (2015 C L C 290) where Hon’ble Peshawar High Court held as under:-

“First of all, I would advert to the submission of the learned counsel for the petitioner that the two miscellaneous applications have remained un-decided. No doubt, an appellate Court is duty bound to decide first a miscellaneous application before the disposal of appeal which is legal duty but in case the appellate Court fails to perform his such legal function, then its such omission ipso facto will not nullify its judgment on main appeal. The omission will be seen in juxta position with merit of the case and contents of the miscellaneous application. If the un-attended and un-decided miscellaneous application has no direct bearing on the merit of the case, then in such like eventuality non-disposal of the application would not be taken seriously and on this score alone a case should not be remanded to the appellate Court for re- decision.

6.In the two referred miscellaneous applications, one is for production of a copy of a compromise deed dated 8-10-2010 allegedly executed between the petitioner and the respondent No.1.This deed is scribed subsequent to the alleged sale effected by the petitioner with the respondent No.1 and therefore, has no nexus with or direct bearing on the initial cause of action of the petitioner, therefore, non-disposal thereof has no serious repercussion or consequences on the main case. So far as the second application for decision of the case on special Oath is concerned, suffice it to say that non-disposal of this application too would not be a factor which could be made a base and ground to remand the case as its decision will not affect merit of the case.

Therefore, it is held that though the two miscellaneous applications were not decided by the learned appellate Court but non-disposal thereof have not brought any prejudice to the petitioner's case, therefore, argument of the learned counsel to the above effect is of no help to him.”

26.This Court in the case of “Mairaj BiBi and 4 others Vs Muhammad Shafique through L.Rs and others” (PLD 2020 Lahore 888), while referring to the “Peer Bakhsh Case”, discussed Supra, discussed the question of applications, having no effect on merits of the case, which remained pending despite final adjudication of the case and it was held:

“There was only a miscellaneous application under Section 151"C.P.C." seeking reconstruction of record relating to "an affidavit purportedly submitted by the respondents along with application seeking condonation of delay for submission of statement of net profits. It is evident that said application has no material bearing on the merits of the case. The appellants have even never raised this question in the previous round though matter went up to the Hon'ble Supreme Court of Pakistan. It is not an inflexible rule that in all eventualities non-decision of an application would affect the merits of the case. When it is found that the contents of application are superfluous, failure to pass an order on such application shall not cast aspersions on the proceedings of the Court. Reliance in this respect can be placed on "Peer Bakhsh and others v. Nabi Bakiishand others" (2002 YLR

27.A Division Bench of this Court again in the case of “Atta Muhammad and another versus Mst. Farrukh Batool” (2021 LHC 6881), while referring to the case of “Aijaz Mahmood vs Hong Kong and Shanghai Banking Corporation” (2014 CLD 1313), “Khaki vs Aqleemun” (2015 CLC 290) and “Mst. Mairaj BiBi and 4 others versus Muhammad Shafiq” (PLD 2020 Lahore 888), concluded in the following words:-

“We are of considered view that purported pending application even if decided would not have resulted into any different conclusion of the revision petition...

However, in performance of such function, it is also the responsibility of the learned appellate or revisional Courts or the learned higher foras to keep in mind the object of filing such unattended application, its relevance and any bearing on the merits of the case. When miscellaneous application is totally irrelevant and/or does not have any bearing on the merits of the case as well as when unattended application, on face of it, is an attempt by a delinquent to cause delay by misuse of process of law, the non-disposal of miscellaneous application alone, cannot be a reason to interfere with a judgment, which otherwise is as per the law and is based on sound reasoning. Any other approach to aforesaid rule can aid the delay in justice and wastage of time in fruitless exercise but at the same time it will encourage delinquents to misuse the process by filing extraneous applications.”

28.According to section 99 of Civil Procedure Code, 1908 a decree cannot be reversed or varied and a case cannot be remanded in appeal on account of any error or irregularity in any proceedings not affecting merits of the case. Section 99 CPC goes as follows:- “No decree shall be reversed or substantially varied nor shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder or parties or causes of action or any error defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court.”

29.In many cases including “Qazi SHAMSUR REHMAN and another versus Mst. CHAMAN DASTA and others” (2004 SCMR 1798), “SHOAIB MUSHTAQ versus MUHAMMAD QASIM and others” (2013 CLC 487), “KHUSHI MUHAMMAD and others versus NOOR BIBI and others” (2005 YLR 2645), “FAZAL BIBI versus Syed JIND WADDA SHAH and others” (2005 MLD 1906), while referring to section 99 of Civil Procedure Code, 1908, it was concluded that procedural

irregularity cannot stand in the way of justice unless some serious miscarriage of justice has been caused.

30.The appellant cannot take benefit in this context by mere agitating the technicalities. In such like eventuality, non-disposal of the application would not be taken seriously and on this score alone the case could not be remanded for re-decision.

31.The learned trial court non-suited respondent No.1 on the ground that he failed to establish that agreement to sell was in the knowledge of respondent No.3, however learned lower appellate court reversed the findings on the ground that respondent No.3 failed to establish the basic ingredient that he purchased the suit property for a consideration. Before discussing further, it is better to see Section 27 of the Specific Relief Act, 1877, which reads as under:- “27. Relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against—

(a)either party thereto;

(b)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 contact;

(c)any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d)when a public company has entered into a contract and subsequently becomes amalgamated with another public company, the new company which arises out of the amalgamation;

(e)when the promoters of a public company have, before its incorporation, entered into a contract, the company; provided that the company has ratified and adopted the contact and the contract is warranted by the terms of the incorporation.”

32.In the cases pertaining and relating to the protection under Section 27(b) of the Specific Relief Act, 1877, undoubtedly, it is the subsequent vendee who asserts and avows in the defence that his case falls within the purview and parameters of noted section i.e. he is a transferee for value; the money (consideration) has been paid in good faith; and that he had no notice of the original (earlier) contract between the plaintiff and the vendor. In other words, that he is a bona fide purchaser without notice. Obviously the existence of the facts aforementioned and the ascertainment thereof is an issue between the parties which requires resolution from this Court. Under this Section, the subsequent vendee has to discharge the onus as under:- “(1) that he acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise;

(2)there was no dishonesty of purpose or tainted intention to enter into the transaction which shall settle that he acted in good faith or with bona fide;

(3)he had no knowledge or the notice of the original sale agreement between the plaintiff and the vendor at the time of his transaction with the later.”

33.Since in civil suits an issue is to be decided by preponderance of evidence, initial burden would be on the plaintiff of the suit for specific performance to prove his prior contract, which if discharged, the burden of proving the subsequent bona fide transfer for value without notice would be on the party alleging it. The august Supreme Court of Pakistan in a case titled “Hafiz TASSADUQ HUSSAIN versus LAL KHATOON and others” (PLD 2011 Supreme Court 296) observed as under:

“6. In the afore-noted context, it is thus required that a subsequent vendee should adduce in evidence his sale instrument or the mutation of his transaction, if not otherwise on the record having been brought by the plaintiff himself or any other proof in this connection such as the receipt of payment made to the vendor or the bank record etc. or should lead credible oral evidence in this behalf; these are some conceivable modes of proving the transfer for value and shall be a sufficient discharge of onus in this respect in ordinary cases. If however, a specific attack has been made in the plaint or the replication by the plaintiff that the subsequent transaction is without consideration, or the value given is colourable, understated, underpaid and illusionary, it becomes the bounden duty of the subsequent transferee to establish through positive evidence that adequate price was paid, because this factum shall also have a close nexus to the good faith and the bona fides of the said transferee as well; when it is so done, the onus shall switch over to the plaintiff to prove otherwise.”

The Hon’ble Supreme Court of Pakistan further elaborated in case titled “GULZAR AHMAD and others versus MUHAMMAD ASLAM and others” (2022 SCMR 1433) which reads as under:- “11. The constituent of a supplication as bona fide purchaser against a valuable consideration without notice is coupled with a strict proof. According to Article 117 of Qanun-e-Shahadat Order, 1984, a person desires any court to give judgment as to any legal right or liability, burden lies on him to prove that those facts exist. Whereas under Article 119 of QSO the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. It is most relevant for us to discuss the nomenclature and classification of section 27 of the Specific Relief Act which is hooked up and connected to the relief of specific performance against parties and persons claiming under them by subsequent title. Consistent with this section, specific performance of a contract may be enforced against any person claiming title subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Mere denial by the subsequent vendee that he had no knowledge of the prior

agreement would not enough to discharge his burden of proof. It is also to be proved by the subsequent vendee that he acted in good faith and after due diligence entered into an agreement to sell. The 9th Edition of Black’s Law Dictionary (page 1355) defines a “bona fide purchaser” as “one who buys something for value without notice of another”s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller”s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”

Said verdicts were followed by the august Supreme Court of Pakistan in its recent judgment reported as “Faqir Syed ANWAR UD DIN deceased through L.Rs versus Syed RAZA HAIDER and others” (PLD 2025 Supreme Court 31) by observing as under:-

“This Court, in Hafiz Tassadaq Hussain”s case, has held that in cases involving protection under section 27(b) of the Specific Relief Act 1877 (“Act of 1877”) the subsequent vendee who asserts that he is a bona fide purchaser i.e. a transferee for value has to discharge the initial onus. The latter has to discharge the initial onus to the effect that; he had acquired the property for due consideration and thus is a transferee for value; he or she, as the case may be, has to show that the sale was for a price paid to the vendor and not otherwise; there was no dishonesty of purpose of tainted intention to enter into the transaction thereby meaning that the latter had acted in good faith or bonafidely and, lastly, that he/she had taken reasonable care to inquire i.e. had acted as a person of ordinary prudence in making inquiries expected of a purchaser who intends to acquire a good title for the value being paid for. These principles have been affirmed by this Court in Gulzar Ahmed”s case.”

34.Respondent No.3 asserted that he had purchased the suit property from respondent No.2 for a consideration. A careful perusal of the evidence reveals that he failed to discharge the onus of proof required under Section 27(b) of the Specific Relief Act, 1877, to qualify as a bona fide purchaser for value without notice. In his

RSA Nos.221080 & 254772 of 2018. 20

statement recorded as DW-1, respondent No.3 stated that he had entered into the transaction through an intermediary and could not recall the name of the person through whom the deal was executed.

He claimed to have paid a total consideration of Rs.1,19,98,000/- to respondent No.2, of which Rs.81,20,000/- was allegedly paid through a bank draft from the account of his elder brother, Muhammad Sher, and Rs.28,00,000/- was allegedly paid in cash. He admitted that when said draft was paid, he was not present there. While he admitted to be present at the time of the cash payment, he could not produce any receipt or documentary evidence to substantiate either mode of payment. The exact deposition is as under:

”ادایگیئ الپٹیک رمق یھبڑبے اھبیئ ےک ااکؤٹن ےس وہیئ۔ انم اناک دمحم ریش ےہ۔ کنب االفلح زہاراککنبڈراٹفانباھت۔بجہیڈراٹفدےیےئگاُسوتقںیم02الھک18رباچنربلیٹڈراٹف یک ردیسPayment وہیئ ںیم وموجد اھت۔ ریمے اپسpayment وموجد ہن اھت۔ نکیل بج دقن "ہنےہ۔ رضورتڑپےنرپشیپرکدںیےگ۔ 35 Moreover, he stated that the cash payment comprised currency notes of Rs.5,000, Rs.1,000, and Rs.500 denominations, as corroborated by local commission agents, Khalid Saleem Bhatti and Zafar Iqbal Patwari, who were purportedly present at the time. The exact deposition is as under:-

الھک وہیئ یھت وتریمے العوہ الہنشیمک اخدل االسم یٹھب اور01 غلبمPayment ”بج دورسی “ -وسےکونوٹںرپلمتشمیھت022زہاراور,زہار5ہیرمق-رفظاابقلوٹپاریہقلحوموجدےھت

36.During cross-examination, DW-2, Zafar Abbas, stated that he had no knowledge of the payments being made and was not present at the time, and respondent No.3 failed to produce Khalid Saleem Bhatti and Zafar Iqbal Patwari as witnesses to corroborate his stance. The inability of respondent No.3 to furnish credible documentary evidence

or summon independent witnesses to prove the payment of consideration seriously undermined his claim of being a bona fide purchaser for value. Consequently, the evidentiary requirement under Section 27(b) remained unfulfilled.

37.Furthermore, an examination of the State Bank of Pakistan’s notification dated 26.05.2006 establishes that currency notes of Rs.5,000 denomination were introduced only with effect from 27.05.2006. This directly contradicts the assertion of respondent No.3 that part of the alleged payment in cash, amounting to Rs.28,00,000/-, was made in Rs.5,000 notes in the year 2005, when the sale deed was executed. This inconsistency casts serious doubt on the veracity of respondent No.3’s claim regarding the payment and, by extension, his status as a bona fide purchaser.

38.In the connected appeal, Shehzad Iqbal contended that he had purchased the suit property through a registered sale deed dated 03.11.2010 during the pendency of the suit. However, he never sought to implead himself as a party in the suit, despite the fact that the appeal filed by respondent No.1 remained pending until 28.04.2018.

Shehzad Iqbal continued to refrain from participating in the proceedings, neither contesting the appeal nor establishing any independent right in the property. As such, under the doctrine of lis pendens enshrined in Section 52 of the Transfer of Property Act, 1882, he cannot claim any right superior to that of respondent No.3, whose claim itself was legally untenable. The principle is well-settled that a purchaser during the pendency of litigation acquires no better title

than the vendor and remains bound by the eventual outcome of the suit.

39.It is well settled that where a party purchases property during the pendency of litigation, the principle of lis pendens, as embodied in Section 52 of the Transfer of Property Act, 1882, squarely applies.

The doctrine is founded upon public policy to prevent defeat of the ends of justice through alienation of disputed property during litigation. For facility of reference, Section 52 of the Act ibid is reproduced 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, 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 to otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.”

Explanation : For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution continue until the suit or proceeding has been disposed of by a of the proceeding in a Court of competent jurisdiction, and to final decree or order and complete satisfaction or discharge of unobtainable by reason of the expiration of any period of such decree or order has been obtained, or has become limitation prescribed for the execution thereof by any law for the time being in force."

40.The legal effect of a purchase made pendente lite is that the purchaser steps into the shoes of his vendor and acquires no better title than that of the seller. The law does not nullify the transfer altogether but subordinates it to the rights of the parties as may be eventually determined in the pending litigation. In other words, a subsequent

purchaser takes the risk of the outcome of the litigation and is bound by the decree passed therein. A pendente lite transferee must sink or swim with the transferor. If the seller loses the case, the purchaser cannot claim an independent right in derogation of the decree or allege fraud to set aside the decree obtained against his seller.

Therefore, the appellant, Shehzad Iqbal having purchased the suit property from respondent No.3 who ultimately failed to establish his claim before the Court, cannot claim a right superior to him.

41.Hon’ble Supreme Court of Pakistan in a case titled

“MUHAMMAD ASHRAF BUTT AND OTHERS V. MUHAMMAD ASIF

BHATTI AND OTHERS” (PLD 2011 Supreme Court 905), while explaining the principle of lis pendens observed that the transferee of the suit property, even the purchaser for value, without notice of the pendency of the suit, who in the ordinary judicial parlance is known as a bona fide purchaser, in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects.

The apex Court also highlighted that even if an alienation of the suit property has been made by the party to the lis, who succeeds at one stage (such as trial), but the transfer is during the period of limitation available to the other (unsuccessful) party, to challenge the decision and ultimately the decree/order is over turned in its further challenge, such alienation made shall also be hit and shall be subject to the rule of lis pendens. Relevant portion is reproduced as under:- “The aforesaid section manifestly embodies the rule of lis pendens, which is available both in equity and at the common law. The rule and the section is founded upon the maxim "pendente lite nihil innovetur", which means that pending litigation, nothing should be changed or introduced. The virtual and true object of lis

pendens is to protect and safeguard the parties to the suit and their rights and interest in the immovable suit property against any alienation made by either of the parties, of that property, during the pendency of the suit in favour of a third person. The rule unambiguously prescribes that the rights of the party to the suit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value, without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchasers in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The Transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest. The rule of lis pendens is founded upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienations pendente lite are permitted to prevail and the subsequent transferee is allowed to set out his own independent case, even of being the bona fide transferee against the succeeding party of the matter and ask for the commencement of de novo proceedings so as to defeat the claim which has been settled by a final judicial verdict. The foundation of the doctrine is not rested upon notice, actual or constructive, it only rest on necessity and expediency, that is, the necessity of final adjudication (Emphasis supplied) that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated.”

42.Learned counsel for the appellant failed to satisfy the Court with regard to presence of basic ingredients of regular second appeal that the impugned judgment and decree are contrary to law or failed to determine material issue of law, or usage having the force of law; committed a substantial error or defect in the procedure provided by C.P.C, or by other law for the time being in-force, which may

possibly have produced error or defect in the decision of the cases upon the merits. In this view of the matter, the findings of learned lower appellate court on question of fact and law are based upon proper appreciation of oral as well as documentary evidence, which are not liable to be reviewed or substituted while exercising jurisdiction under section 100 of the CPC. Therefore, I am unable to disagree with the findings recorded by the learned lower appellate court as no case for interference by this Court while exercising jurisdiction u/s 100 of the CPC has been made out. In this context, the august Supreme Court of Pakistan in its judgment “GULZAR AHMAD and others versus MUHAMMAD ASLAM and others” (2022 SCMR 1433) held as under:-

“7. Compliant with section 100, C.P.C., the second appeal only lies in the High Court on the grounds that the decision is being contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law for the time being in force which may possibly have emanated an error or slip-up in the determination or decisiveness of the case on merits. Meaning thereby, it does not lie to question the findings on facts. In the case of Madan Gopal v. Maran Bepari (PLD 1969 SC 617), this court held that if the finding of fact reached by the first appellate court is at variance with that of trial court, such a finding by the lower appellate court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first court which have been disfavored in the contrary finding. It was further held that interference would be justified if the decision of the lower courts is found to be contrary to law or some usage having the force of law has failed to determine some material issue of law. Whereas in another case reported as Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR 1), the court held that in case of inconsistency between the trial court and the appellate court, the findings of the latter must be given preference in the absence of

any cogent reason to the contrary as has been held by this court in the judgments reported, as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300).”

43.Epitome of above discussion is that the instant appeal (R.S.A. No.221080 of 2018) as well as connected appeal (R.S.A.

No.254772 of 2018) having no merits are hereby dismissed. No order as to costs.

(AHMAD NADEEM ARSHAD)

JUDGE

APPROVED FOR REPORTING.

JUDGE

Announced in Open Court on ______________.

JUDGE

Qurban*