Sale During Dismissal and Restoration of Pre-emption Suit: Applicability of Doctrine of Lis Pendens.
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| Lis pendens 2025 scmr 2095 |
Lis Pendens
اور حقِ شفعہ: سپریم کورٹ کی واضح رہنمائی
تمہید
کیس کا پس منظر
بنیادی قانونی سوال
سپریم کورٹ کا اصولی مؤقف
بعد کے خریداروں کی قانونی حیثیت
حقِ شفعہ اور
Lis Pendens
ہائی کورٹ کے فیصلے پر تبصرہ
نتیجہ
آخرکار سپریم کورٹ نے اپیل منظور کرتے ہوئے ہائی کورٹ کا فیصلہ کالعدم قرار دیا اور یہ اصول مضبوطی سے طے کر دیا کہ دورانِ مقدمہ جائیداد خریدنے والا شخص مقدمہ کے حتمی فیصلے کا پابند ہوتا ہے۔Must read judgement
2025 S CMR 2095
[Supreme Court of Pakistan]
Present: Shahid Bilal Hassan and Aamer Farooq, JJ
MUHAMMAD SADIQ (deceased) through L..Rs. -Appellant
Versus
ADDITIONAL DISTRICT JUDGE, TOBA TEK SINGH and others-Respondents
C.A. No. 636-L of 2012 in C.P.I..A. No. 1637-1. of 2010, decided on 10th July, 2025. (Against order dated 12.07.2010 passed in W.P. No. 1631 of 2008 by Lahore High Court, Lahore).
(a) Transfer of Property Act (IV of 1882)---
-S. 52-Punjah Pre-emption Act (IX of 1991), S. 13-Pre-emption suit-Dispute over actual sale consideration-Suit dismissed for non-prosecution---Restoration of suit-Alienation of property during interregnut--Effect and legality-Lis pendens-Principle---Applicability---Alienation of suit property after dismissal of suit for non-prosecution and before its restoration falls within the sphere of lis pendens-Factual background of present case was that appellants/plaintiffs (pre-emptors) filed a suit for possession through pre-emption against respondent No. 5 (vendor) regarding the suit land claiming the sale price was Rs.200,000, while respondent No.5 asserted that it was Rs.250,000---Suit was dismissed for non-prosecution and was later on restored---After dismissal of suit and before its restoration, respondent No.5 (vendor) sold the property to respondents Nos. 2 to 4 (subsequent vendees)... During pendency of the suit, respondent No. 5 (vendor) made a statement before the trial court that the original vendor could be summoned to confirm the actual sale consideration and that whatever amount the vendor admitted to have received could be treated as the sale price for decreeing the suit-The only question before the Trial Court requiring determination was the price of the suit land and respondent No.5 had no objection if the original vendor was summoned for ascertaining the actual amount of sale, but the Trial Court did not accede to the request of the appellant and proceeded to frame the issues---Trial Court dismissed the said request but the revisional court accepted it, decreeing the suit-Respondents Nos. Nos. 2 to 4 (subsequent vendees) challenged the revisional court verdict before the High Court, whereby, the decree was set aside and the matter was remanded for decision on merits, prompting the present appeal by the preemptor concerning the applicability of the doctrine of lis pendens Primary question warranting determination before the Supreme Court was as to "whether the Respondents Nos. 2 to 4, who purchased the suit property during the pendency of the pre-emption suit despite a stay order, were bound by the statement of their predecessor-in-interest under the rule of lis pendens, and whether the appellant (pre-emptor), who had already deposited the amount of Rs.250,000/- in compliance with that statement, could claim that the transaction was struck by lis pendens and was entitled to have the suit decreed?" Held: So far as the argument that the property was purchased during the the per period when the suit was dismissed, therefore, the principle of lis pendens did not apply to the case of the subsequent buyers, the said argument had no force, because if a suit was dismissed and then restored, the restoration order related to back period and a transfer/sale after dismissal and before restoration was subjected to the principle of lis pendens embodied in section 52 of the Transfer of Property Act, 1882-However, in the present case, the petitioners purchased the disputed property through a mutation when the proceedings in the suit were in progress after its restoration after dismissal for non-prosecution---Respondents Nos. 2 to 4 had acquired the title to the suit property subject to the final outcome of the lis and as such were bound by the result of the suit stricto sensu in all respects, as their transferor i.e. respondent No.5 was bound-High Court erred in law while passing the impugned order, which suffered from material illegality, therefore, same could not be be allowed to sustain further Resultantly, the the impugned order was set aside and appeal was allowed, in circumstances.
Aasia Jaheen v. Liaqat Ali 2016 SCMR 1773 rel.
(b) Transfer of Property Act (IV of 1882)-
- 52-Punjab Pre-emption Act (IX of 1991), S. 13-Preemption suit---Doctrine of lis pendens---Applicability-Exception stated---The doctrine of lis pendens is fully applicable to suits for pre-emption---Validity of a pre-emption decree is not affected by any sale made during litigation and is binding on the purchaser The only exception to the doctrine of lis pendens applicable to pre emption claims is in one situation, where the sale by the vendee is to one who has a superior right of pre-emption provided that the sale is within the period of limitation when such right can be exercised.
Basit Sibtain v. Muhammad Sharif 2004 SCMR 578 and Sawar Muhammad Sharif v. Makhmool 1991 SCMR 1419 rel.
(c) Transfer of Property Act (IV of 1882)-
Ss.41 & 52---Lis pendens---Principle---Defence against lis pendens---Being bona fide purchaser, plea of-A transfer by ostensible owner does not automatically become void simply because it was made pendente lite but such transfer cannot affect the rights of the other parties in the suit, thereby making the sale subject to the outcome of the decree---In other words, a bona fide purchaser, who retains title, remains bound by the final decree and bears the risk that any rights declared in the suit will prevail over their purchase---Even a bona fide purchaser without notice of litigation is bound by the result of the suit-Where a suit land is alienated during pendency of proceedings before the Supreme Court any person who purchases the land or raised construction thereon would he doing so at his own risk and cost.
Muhammad Nawaz Khan v. Muhammad Khan 2002 SCMR 2003; Muhammad Ashraf Burt v. Muhammad Asif Bhatti PLD 2011 SC 905; Sheikh Muhammad Iftikhar Ahmad v. Faiz Ahmad 2023 SCMR 2158; Tabassum Shaheen v. Uzma Rahat 2012 SCMR 983 and Aasia Jabeen v. Liaqat Ali 2016 SCMR 1773 rel..
Ch. Muhammad Maqsood Buttar, Advocate Supreme Court for Appellant.
Mian Muhammad Athar, Advocate Supreme Court for Respondents Nos. 2 and 3.