Muhammad Munir Qureshi vs Abdul Qadir Shah

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

(Judicial Department)

W.P No. 41-B of 2010.

JUDGMENT

Date of hearing: 11.03.2015.

Appellant-Petitioner: Muhammad Munir Qureshi, By Haji Riaz Muhammad Khan Advocate.

Respondent: Abdul Qadir Shah and Arif Ullah (Respondents) Nemo.

MUHAMMAD YOUNIS THAHEEM, J. This

judgment is directed to dispose of present Writ Petition against the Judgment dated 20.01.2010 of Learned Additional District Judge-I, Bannu vide which the revision petition filed by the petitioner against the order of learned Civil Judge-V, Bannu dated 14.12.2009 was dismissed.

2.Brief facts of the case are that respondent No. 1 instituted a suit for pre-emption on 13.12.2008 impugning sale mutation No. 2808 dated 13.09.2008, which was pending before the learned trial court of

Civil Judge-V, Bannu. The Petitioner filed application for impleadment as defendant upon the strength of registered sale deed No. 720 dated 17.12.2008 with the plea that respondent Arif Ullah Khan has transferred the suit land to him and same respondent No. 2 is no more owner and hence had lost interested, therefore, he intended to defend his right in the suit property.

Upon this assertion respondent No. 1 submitted his replication before the trial court and after hearing arguments on application for impleadment, the same was rejected vide impugned order dated 14.12.2008, wherein it was held that sale through registered deed had been made during pendency of suit and would not effect the plaintiff’s rights in view of principle of lispendence. The same order dated 14.012.2008 was challenged by the applicant/present petitioner before the learned Revisional Court of District Judge, Bannu who entrusted the same petition to learned Additional District Judge-I, Bannu who dismissed the same petition vide order dated 20.01.2010 hence the instant Writ Petition.

3.Arguments heard and record perused.

4.Admittedly, alienation of suit land through registered sale deed No. 720 dated 17.12.2008

was stuck during pendency of suit. The date of institution of suit is 13.12.2008 while same suit land is shown to be transferred to petitioner on 17.12.2008.

5.The respondent No. 2/defendant

submitted his written statement on 30.01.2009, wherein the same plea regarding onward transfer to petitioner has been raised.

6.The petitioner got registered sale deed No. 720 in his favour during pendency of suit. In view of section 52 of the Transaction of Property Act, 1882 the petitioner has stepped into shoes of vendee/defendant, therefore, will fall or rise with vendee/defendant. Reliance can be placed on “Muhammad Ashraf Butt and others Vs Muhammad Asif Bhatti and Others” (PLD 2011 Supreme Court 905), wherein it has been held:

“The Proposition, in our view, in

present case is germane to the scope and application of section. 52 of the Transfer of Property Act, 1882, which reads as under:

“During the pendency in any

court having authority in

Pakistan or established beyond

the limits of Pakistan by the

Central Government of 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 or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any 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 of the proceeding in a Court of competent Jurisdiction, and to continue until the suit or proceeding has been disposed of

by a final decree or order and

complete satisfaction or

discharge of such decree or order has been obtained, or has

become unobtainable by reason

of the expiration of any period of limitation prescribed for the

execution thereof by any law for the time being in force.

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”.

The two courts below have rightly decided and rejected the application for impleadment in accordance with law, thus no circumstances exist to interfere with the judgment of the courts below by this court.

7.In view of above discussion, this petition being devoid of merit stands dismissed.

Announced.

JUDGE

JUDGE