Dr. Muhammad Waqar Khan Vs ADJ Sharaqpur etc

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

W.P. No.18303 of 2026 Dr. Muhammad Waqar Khan Versus Addl. District Judge and others Sr. No. of order/ Date of order/ Order with signature of Judge, and that of parties of counsel, where necessary proceeding Proceeding

14.4.2026 Muhammad Amjad Ali Khan Qadri, Advocate for the petitioner.

Through the instant constitutional petition orders dated 16.3.2026 and 25.5.2024 of learned Addl. District Judge and also the consequential orders/proceedings of Revenue Authorities have been assailed.

2.Late Mian Niaz Hussain (represented by respondent Nos.7-A to 7-F) instituted a suit for specific performance titled Mian Niaz Hussain v. Muhammad Ejaz, etc. claiming agreement to sell dated 14.3.1995 which was dismissed by learned Civil Judge on 30.3.2011. The appeal against this judgment and decree was allowed by learned Addl. District Judge, Ferozewala on 06.7.2011 in terms whereof the suit was ordered to be decreed ex parte. Later an application under Order IX, Rule 13, C.P.C. was filed by the contesting parties which was allowed by learned Addl. District Judge vide order dated 11.4.2015 whereby ex parte decree in appeal dated 06.7.2011 was set aside and the case was remanded to the Trial Court. Notwithstanding the fact that ex parte decree dated 06.7.2011 was set aside by Appellate Court on 11.4.2015 an execution petition was filed by the former decree-holder and in execution sale deed No. 782, bahi No.1, jild No.589 dated 31.3.2023 was executed through court representative. Later mutation No.3474 dated 22.12.2023 was attested on the basis of this sale deed in favour of petitioner who claimed that he had purchased the property from the legal heirs of Mian Niaz Hussain

predecessor-in-interest of respondent Nos.7-A to 7-F vide sale deed dated 25.5.2024.

3.It is evident that the execution of decree dated 06.7.2011 was filed in 2023 despite the fact that decree had been set aside on 11.4.2015. It was in these circumstances that an application under section 12(2), C.P.C. was filed by Ijaz Ahmad respondent for setting aside of the order of Executing Court which application was allowed vide order dated 25.5.2024 by learned Civil Judge, Ferozewala. In result the sale deed dated 31.3.2023 was cancelled and consequential proceedings based on the same including the sale deed of petitioner and also the mutation were held to be nullity. This order dated 25.5.2024 was challenged in revision petition by the petitioner herein claiming himself to be purchaser from heirs of late Mian Niaz Hussain which was dismissed by learned Addl. District Judge, Sharqpur vide impugned order dated 16.3.2026.

4.Heard.

5.Learned counsel for the petitioner submitted that the petitioner was purchaser on the basis of registered sale deed which was duly mutated in the Revenue record and, as such, he was liable to be declared as bona fide purchaser and could not be deprived on the basis of collusive proceedings. The learned Addl. District Judge, after considering the submissions raised by the petitioner observed and, rightly so, that sale deed of the petitioner and also the mutation based thereon were a result of fraud and were nullity in law as the vendor from whom the petitioner had purchased the property had no title therein. The decree on which claim of vendor was based to maintain assertion of title had already been set aside and suit for specific performance had been dismissed, therefore, all super structure raised thereupon shall fall. Being confronted with

the findings of the courts below, learned counsel for the petitioner, had not been able to point out any error of law or jurisdiction therein.

6.As observed from the facts noted supra the suit for specific performance filed by Mian Niaz Hussain on the basis of agreement to sell was dismissed on 30.3.2011. In appeal this judgment/order was set aside and suit was decreed on 06.7.2011. Later on application filed by Ijaz Ahmad, the aggrieved party, under Order IX, Rule 13, C.P.C. for setting aside of ex parte decree in appeal was allowed and decree dated 06.7.2011 was set aside, case was remanded to the learned Civil Judge for decision afresh. Order dated 25.5.2024 predicated on such structure of legal realities was unexceptionable. Petitioner filed a revision petition thereagainst and to also assail order dated 01.8.2024 of the Revenue Authorities of cancellation of mutations which was dismissed.

7.The learned Addl. District Judge opted to decide the matter on merits by observing that Mian Niaz Hussain or his heirs having no title in the property, their suit had been dismissed and that decree on the basis of which the sale deed was executed by the Executing Court was a result of fraud and that the same having been declared nullity in law, no title could be extended to him on the basis thereof. Submission of learned counsel was that the application under Order IX, Rule 13, C.P.C. filed against the decree passed in favour of Mian Niaz Hussain on 06.7.2011 was not maintainable as he could have moved an application under Order XLI, Rule 21, C.P.C. but same was not competent and liable to be dismissed. The objection raised is totally misconceived and absurd. Order IX, Rule 13, C.P.C. applies to the ex parte decree while Order XLI, Rule 21, C.P.C. applies for setting aside of ex parte judgment in

appeal. Since the ex parte judgment and decree was passed in appeal, therefore, the application was filed under Order IX, Rule 13, C.P.C. for setting aside ex parte decree claiming that the same had been obtained without notice to the aggrieved party and on the basis of misrepresentation. It is a settled law that misdescription of law does not debar the court from granting a relief to the party who was entitled to claim such relief. Reference can be made to the case of Malik Bakhsh v. Mst. Shamim Qasar [PLD 1960 (W.P.) Lah. 770]. This being so, the argument raised is misconceived and is repelled.

8.In a nutshell the only question in this case was as to whether the decree passed ex parte having been set aside on 11.4.2015, the case remanded for de novo hearing and no decree being in field whether an execution petition to execute a non-existent decree could be entertained and as to whether sale deed executed on misrepresentation, fraud and on the basis of non-existent decree could convey any title and whether such a person could further make alienation or transfer of title. Obviously, the rule is that where decree is set aside, suit dismissed, the whole structure and the proceedings based thereon, would vitiate and crumble down to the ground and in this case the title of Mian Niaz Hussain, etc. having disappeared their suit having been dismissed, neither could they execute any such non-existent decree nor on the basis of such document which had lost legal efficacy could the petitioner could to be bona fide purchaser.

9.Grievance of the petitioner that he has been left remediless is also misconceived. As an alleged purchaser from an imperfect title holder remedy of the petitioner falls either under section 18 of Specific Relief Act, 1877 or under section 43 of Transfer of Property Act, 1882 by

virtue whereof he could either sue for recovery of the price paid along with interest or damages or in case the vendor acquires subsequently any title in the property in any proceedings, the same will inure for the benefit of petitioner on the principle of feeding the estoppel which he can enforce at that time in the light of observations in S. Sibtain Fazli v. (1) Star Film Distributors and (2) Muhammad Ali Khan (PLD 1964 SC 337).

10.Subject to observations hereinabove constitutional petition is dismissed.

(RASAAL HASAN SYED)

JUDGE

` APPROVED FOR REPORTING

JUDGE

*Rabbani*