Ch. Hafeez Ul Rehman vs Mst. Uzma Sattar etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH,

MULTAN

JUDICIAL DEPARTMENT

Civil Revision No.414 of 2023

Ch. Hafeez-ur-Rehman

Versus

Mst. Uzma Sattar & others

JUDGMENT

Date of hearing: 09.09.2026.

Petitioner by: M/s. Malik Javed Akhtar Wains and Muhammad Imran Shahzad Bhatti, Advocates.

Respondents by: M/s. Muhammad Asghar Bhutta and Haji Shamim Ahmad Khan, Advocates.

MUHAMMAD SAJID MEHMOOD SETHI, J.:- This consolidated judgment shall dispose of instant revision petition along with connected revision petition i.e. C.R. No.1321 of 2023 as common questions of law and facts are involved in these cases.

2.Through instant revision petition, petitioner has assailed the judgment dated 11.03.2023 passed by the learned Additional District Judge, Multan, whereby, while allowing the application filed by Respondent No.3 under Order I Rule 10 CPC, the learned appellate Court set aside the judgment and decree dated 28.10.2022 passed by the learned trial Court and remanded the matter for fresh decision after impleadment of respondent No.3, besides directing restoration of possession of the suit property in its favour.

Through connected revision petition i.e. C.R. No.1321 of 2023, petitioner has challenged the subsequent order dated 22.06.2023, whereby the learned appellate Court dismissed the petitioner's

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application under Sections 144/151 CPC seeking restoration of possession, principally on the grounds that the matter had become sub judice before this Court and that the learned appellate Court had become functus officio. The petitioner has called in question the legality and propriety of both the judgment as well as order on the ground that the learned appellate Court acted with material irregularity and jurisdictional error in entertaining and allowing the impleadment application in the pending appeal, in overlooking the effect of the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act, 1882, and in directing restoration of possession to a pendente lite purchaser without first determining its substantive entitlement to the suit property.

3.Briefly stated, the petitioner instituted a suit for possession under Section 8 of the Specific Relief Act, mesne profits and permanent injunction in respect of Plot No.173, measuring 02-Kanal, Gulberg Phase-II, Multan. The learned Trial Court, after recording evidence, decreed the suit vide judgment and decree dated 28.10.2022, declaring the petitioner entitled to possession on the basis of registered Sale Deed No.1874 dated 29.06.1993. Pursuant thereto, possession was delivered to the petitioner through execution proceedings on Respondent No.1 preferred an appeal against the said judgment and decree. During pendency thereof, respondent No.3, namely Arabian Private Limited, moved an application under Order I Rule 10 CPC, claiming to have purchased the property through five registered sale deeds dated 19.12.2020 and 04.08.2021, and asserted itself to be a bona fide purchaser without notice of the pending litigation. Vide impugned judgment dated 11.03.2023, the learned appellate Court allowed the application, set aside the Trial Court's judgment and decree, remanded the matter for fresh decision after impleadment of respondent No.3 and further directed restoration of possession to it. The petitioner challenged the said order through instant revision petition i.e. C.R. No.414 of 2023. This Court suspended operation of

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the impugned order on 29.03.2023. Thereafter, the petitioner sought restoration of possession before the learned appellate Court under Sections 144/151 CPC, but his application was dismissed vide order dated 22.06.2023, giving rise to connected C.R. No.1321 of 2023.

4.Learned counsel for the petitioner contends that the purchase by respondent No.3 was admittedly made during pendency of the suit and was, therefore, hit by the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act, 1882. He argues that respondent No.3 could not acquire any better right than respondent No.1 and that its plea of bona fide purchase without notice was legally immaterial. He further contends that the application under Order I Rule 10 CPC was for impleadment in the suit which had already been finally decided and, therefore, the learned appellate Court could not use such application as a basis for setting aside the decree and remanding the entire matter. It is also argued that the direction for restoration of possession was beyond the prayer and jurisdiction of the appellate Court, particularly when possession had been delivered through execution proceedings.

5.Conversely, learned counsel for respondent No.1 defends the impugned decisions.

6.I have heard learned counsel for the parties and examined the record.

7.The controversy, in substance, revolves around three inter- connected questions: firstly, the legal effect of the purchase made by respondent No.3 during pendency of the litigation; secondly, whether the subsequent purchase and the application under Order I Rule 10 CPC justified setting aside the Trial Court's decree and remanding the matter; and thirdly, whether the learned Appellate Court was justified in directing restoration of possession to respondent No.3 at that stage. As regards the first question, the suit was admittedly instituted on 08.05.2018, whereas the sale deeds relied upon by respondent No.3 were executed in December 2020 and August 2021. Thus, there is no dispute that the alleged purchase was made pendente lite.

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Section 52 of the Transfer of Property Act embodies the well- established doctrine of lis pendens, the object whereof is to prevent a party to litigation from transferring the subject matter thereof so as to prejudice the rights which may ultimately be declared by the Court. A transferee pendente lite ordinarily takes the property subject to the result of the pending litigation. Therefore, the mere assertion that respondent No.3 had no actual notice of the suit cannot, by itself, take the transaction outside the operation of Section 52. At the same time, the mere fact that respondent No.3 acquired the property during pendency of the litigation did not render its application under Order I Rule 10 CPC non-maintainable. Where a transferee pendente lite claims an interest in the subject matter, the Court may, in an appropriate case, permit its participation so that the controversy is effectively adjudicated and multiplicity of proceedings is avoided. In the circumstances of the present case, the learned Appellate Court was competent to allow the application for impleadment, and no jurisdictional error is found merely in permitting respondent No.3 to participate in the pending appeal. Impleadment, however, is distinct from determination of substantive rights. Such impleadment neither confers upon respondent No.3 any title superior to that of its transferor nor takes the transaction outside the consequences of Section 52 of the Transfer of Property Act, 1882. The substantive rights and liabilities arising from the transaction are matters to be determined by the learned Appellate Court while deciding the appeal on merits.

8.The more serious infirmity lies not in allowing the application under Order I Rule 10 CPC, but in the consequences which the learned Appellate Court attached to such impleadment. The original suit had already culminated in a decree dated 28.10.2022. What was pending before the learned Appellate Court was the appeal against that decree. Although the learned Appellate Court was competent to bring a necessary or proper party before it, the mere impleadment of respondent No.3 did not, by itself, justify setting aside the entire Trial Court decree and remanding the matter for a fresh decision. Such a

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course required consideration of the relevant provisions governing remand under Order XLI CPC, the nature of the controversy raised by the newly impleaded party and the extent to which a fresh trial was actually necessary. The impugned judgment does not satisfactorily undertake that exercise. The order of impleadment, therefore, may remain intact, but the consequential setting aside of the Trial Court decree and remand of the matter cannot be sustained merely on that basis.

9.The direction concerning possession stands on still weaker footing. Possession had already been delivered to the petitioner through lawful execution of the decree dated 28.10.2022. Respondent No.3 was not the decree-holder in whose favour such possession had originally been delivered. The learned Appellate Court, while dealing with the application for impleadment, proceeded to direct issuance of a warrant of possession in favour of respondent No.3 and thereby altered the factual position of possession without first determining its substantive entitlement to the property in the pending appeal. The mere fact of impleadment could not furnish a lawful basis for such consequential relief.

10.The provisions of Section 144 CPC are restitutionary in nature and contemplate restoration of a benefit consequential upon variation or reversal of a decree or order. Such power cannot be employed as a substitute for adjudication of title or possession of a person claiming through a pendente lite transaction. Moreover, where possession has been delivered in execution, the Court competent to deal with restitution must act within the statutory scheme governing restitution and execution. The impugned judgment does not adequately disclose the legal basis upon which possession was ordered to be delivered to respondent No.3 at that stage.

11.The chronology of the events of 22.11.2022 also assumes significance. The learned Appellate Court proceeded on the premise that possession had been taken from respondent No.3 in the presence of an injunctive order. Such a finding required determination of the

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precise sequence and timing of delivery of possession and passing of the interim order. An order of injunction cannot retrospectively invalidate an act which had already lawfully taken place before the order became operative. The impugned judgment does not undertake this necessary factual determination. This aspect, too, shall require consideration by the learned Appellate Court while deciding the appeal afresh.

12.Coming to the connected revision petition i.e. C.R. No.1321 of 2023, the petitioner sought restoration after this Court suspended operation of the order dated 11.03.2023 on 29.03.2023. The learned Appellate Court dismissed the application primarily on the ground that it had become functus officio and that the matter was sub judice before this Court. The reasoning, in my view, is too broad. The doctrine of functus officio does not mean that a Court is incapable of dealing with every consequential matter arising from an order already passed, particularly where the order itself has subsequently been subjected to an order of suspension by a superior Court. Nevertheless, suspension of an order does not, in every circumstance, by itself amount to a final adjudication of the parties' entitlement to restitution. The Court was required to examine the precise effect of this Court's interim order, the legal status of the possession and the requirements of Sections 144/151 CPC. The learned Appellate Court did not undertake that exercise and dismissed the application merely by invoking functus officio. Such approach cannot be sustained.

13.It is also significant that the petitioner's application in the connected revision petition was a consequential proceeding arising directly from the order dated 11.03.2023, the operation whereof had been suspended by this Court. Once the foundation of the order directing possession to respondent No.3 was under judicial restraint, the learned Appellate Court was required to pass an appropriate order consistent with the superior Court's direction and the existing status of the litigation, rather than simply declining consideration on the ground of sub judice. The question of entitlement to restoration, however, shall

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be considered by the competent Court in accordance with law and shall not be treated as finally determined merely by the present order.

14.The Trial Court's findings on title, particularly its reliance upon the registered Sale Deed No.1874 dated 29.06.1993, the revenue record and the documents concerning the subsequent transactions, constitute matters which are part of the merits of the original appeal. This Court, while exercising revisional jurisdiction, need not finally pronounce upon the correctness of each factual finding at this stage. Likewise, the allegations concerning collusion arising from the consenting reply of respondent No.1 and the sale deeds executed in favour of a deceased person are matters to be considered by the learned Appellate Court, if necessary, on the basis of the record and evidence. What is material for present purposes is that the impleadment of respondent No.3 is permissible, but its substantive rights arising from the pendente lite purchase cannot be treated as finally established merely by virtue of such impleadment. Those rights shall remain subject to the result of the appeal and the legal consequences flowing from Section 52 of the Transfer of Property Act, 1882.

15.For the foregoing reasons, this Court is of the considered view that the learned Appellate Court did not commit jurisdictional error merely in allowing the application under Order I Rule 10 CPC; the material irregularity occurred in treating such impleadment as a basis for setting aside the Trial Court decree, remanding the matter for fresh decision and directing restoration of possession to respondent No.3 without adequately determining the legal consequences of its pendente lite purchase and its substantive entitlement to the suit property. The subsequent order dated 22.06.2023 is also unsustainable to the extent that the application for restoration was dismissed merely on the grounds of functus officio and sub judice without examining the effect of this Court's suspension order.

16.Consequently, instant revision petition i.e. C.R. No.414 of 2023 is allowed. The impugned judgment and decree dated 11.03.2023 passed by the learned Additional District Judge, Multan, is set aside to

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the extent it set aside the judgment and decree dated 28.10.2022, remanded the matter for fresh decision and directed restoration of possession to respondent No.3. The order allowing respondent No.3's application under Order I Rule 10 CPC shall, however, remain intact, and respondent No.3 shall continue as an impleaded party in the pending appeal. The appeal filed by respondent No.1 shall stand restored to the file of the learned Appellate Court, which shall decide the same afresh on its merits in accordance with law, after affording appropriate opportunity of hearing to all parties, including respondent No.3 as an impleaded party. The learned Appellate Court shall determine the substantive rights of the parties, including the legal consequences of respondent No.3's pendente lite purchase, in accordance with the applicable law, including Section 52 of the Transfer of Property Act, 1882.

In consequence, connected C.R. No.1321 of 2023 is also allowed. The impugned order dated 22.06.2023 is set aside. The application filed by the petitioner under Sections 144/151 CPC shall be considered by the competent Court afresh in accordance with law, keeping in view the present judgment, the order of this Court dated 29.03.2023 and the fact that the appeal has been restored for adjudication on merits. No observation contained herein shall be construed as a final determination of the title or ultimate substantive rights of respondent No.3 in the suit property. Till the appeal is decided, the parties shall maintain status quo with regard to the nature and alienation of the suit property, subject to any order passed by the learned Appellate Court in accordance with law.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*A.H.S.*