H CJ D A -3 8

JUDGMENT SHEET
IN THE LAHORE HIGH C OURT, LAHORE
JUDICIAL DEPARTMENT

Civil Revision No. 4749 of 2015

Bashir Ahmad
versus
Shaukat Ali and 13 others

JUDGMENT

Date of hearing: 10.02.2025

Revision-petitioner by: M/s. Shezada Mazhar & Syed

Sumir Sohail, learned Advocates.

Respondents No.1 to 7 Mr. Muhammad Mahmood

and 14 by: Chaudhry, learned Advocate.

Respondent No.8 by: Mr. Muhammad Akram Khan,

learned Advocate.

Respondents No. 9 to 13 Ex-parte vide order dated

by: 26.06.2023.

Sultan Tanvir Ahmad, J:- This civil revision

has arisen out of judgment dated 25.11.2015 passed by
the learned Additional District Judge, Sheikhupura,
whereby, application dated 11.12.2014 (the
„application‟) filed by Bashir Ahmad under section
12(2) of the Code of Civil Procedure-1908 (the „CPC‟)
has been dismissed.

2. Bashir Ahmad filed the application, with the

deep-seated grievance that Muhammad Riaz after
obtaining decree dated 09.07.2014 (the „decree‟) in suit
dated 09.12.1999 for declaration (the „suit‟) against
Abdul Qayyum and others, sold him 4-kanal 7-½ marla
(the „disputed property‟) and then Muhammad Riaz got
 Civil Revision No. 4749-2015 2

recorded his statement with patwari on 15.07.2014 and

mutation No. 4432 dated 25.07.2014 was passed in
favour of Bashir Ahmad; thereafter, Muhammad Riaz
in collusion with Abdul Qayyum and others gave
statement dated 20.10.2014, before the District Court,
to the effect that he has no objection to set-aside the
decree and suit be dismissed as withdrawn, upon which
the learned District Court on the same day dismissed
that suit.

3. On 11.12.2014 the application was filed by

Bashir Ahmad, however, the learned District Court
proceeded to dismiss the application, without framing
issues and recording evidence, vide impugned judgment
dated 25.11.2015.

4. I have heard the learned counsel for the

parties on 07.10.2024 and 10.02.2025. They have also
filed written arguments, supported by judgments of the
Honourable Supreme Court as well as this Court to
substantiate their adopted positions. The record is also
perused.

5. The learned Court below summarily

dismissed the application for the reasons that (i) the
rule of lis pendens is applicable to the case and (ii) no
fraud has been committed with Court, which is essential
to maintain an application under section 12(2) of the
CPC.

6. The application of doctrine of lis pendens is

circumscribed by certain conditions1. One of the well
recognized exception is when the provisions of section

_________________________________________________________________
1
“Muhammad Ashraf Butt and others versus Muhammad Asif
Bhatti and others” (PLD 2011 Supreme Court 905) (see
paragraph 7).
 Civil Revision No. 4749-2015 3

41 of the Transfer of Property Act-1882 (the „Act‟) are

squarely applicable to the case.

7. Mr. Muhammad Mahmood Chaudhry,

learned Advocate for respondents namely Shaukat Ali,
Inayat Ali, Abdul Qayyum, Muhammad Jawaid,
Mujahid Ali, Zahid Sarfaraz, Basharat Ali and
Muhammad Ayub has emphasized that rule of lis
pendens applies because Bashir Ahmad purchased the
property during the pendency of appeal as his mutation
was sanctioned on 25.07.2014 and even if it is assumed
that the purchase was finalized prior to filing of appeal,
it should make no difference as the rule applies during
the period of limitation to file appeal. He referred to
Sheikh Muhammad Iftikhar Ahmad case2. However, the
judgment relied is not applicable to the present case, as
no consent decree was involved in the said case and
even otherwise, the facts therein were significantly
different. The allegation in the application is that
Muhammad Riaz after obtaining the decree sold the
disputed property to Bashir Ahmad and soon thereafter
appeared in appeal to give consent, on the basis of same
compromise and requested to set-aside the decree. The
possibility of collusiveness, in the circumstance, cannot
be ruled out.

8. The Honourable Supreme Court has already

settled that a genuine compromise is a normal conduct
of parties but a compromise entered into by collusion or
fraud excludes the application of section 52 of the Act3.

_________________________________________________________________
2
“Sheikh Muhammad Iftikhar Ahmad and others versus Faiz
Ahmad and others” (2023 SCMR 2158)
3
(i) “Fazal Karim through Legal Heirs and others versus
Muhammad Afzal through Legal Heirs and others” (PLD 2003
Supreme Court 818) and (ii) reference can also be made to
Civil Revision No. 4749-2015 4

9. Another reason that prevailed, for summary

dismissal of the application, is that fraud is not
committed with the Court and no misrepresentation was
made in course of the proceedings. It is once again
ignored that the allegation is collusion in judicial
proceedings. If the fraud is inter se the parties and no
fraud with the Court is committed or no
misrepresentation is made before the Court, the
provisions of section 12(2) of the CPC are not
applicable, in absence of jurisdictional defect4.
However, the position is different when consent decree
is obtained to have the premium of the fraud5.

10. Mr. Shezada Mazhar, learned Advocate for

the revision petitioner, has also made correct reference
to the following part of Muhammad Zubair case6 to
support the legal proposition put-forth before this
Court:-

“…In case in hand, it is not denied that this

Court has not passed a pre-emption decree in
favour of pre-emptor on the basis of merits of
the case but it was one of the vendees/defendant
No.2, who made a statement before the Court
that the concurrent dismissal decrees in a pre-
emption suit in his favour be set aside and suit
of revision petitioner be decreed against him,
whereas before making the statement he had
already transferred a portion of suit property in
favour of applicant of this application filed
under section 12(2) of the C.P.C.. In these
circumstances, I having absolutely no doubt in
my mind that the case law referred to by
learned counsel for the respondent (revision
petitioner) are not applicable, and too, section

“Muhammad Iqbal etc. versus Khair Din (decd.) through L.Rs.

etc.” (PLJ 2014 SC 11)
4
“Sheikh Muhammad Iftikhar Ahmad and others versus Faiz
Ahmad and others” (2023 SCMR 2158) referred again
5
“Syed Mehmood Ali Shah versus Zulfiqar Ali and 5 others”
(PLD 2013 Supreme Court 364)
6
“Muhammad Zubair versus Muhammad Tahir Shafique and
another” (PLD 2013 Lahore 154)
 Civil Revision No. 4749-2015 5

52 of the Transfer of Property Act (IV of 1882)

is not applicable to the facts of this case if the
civil revision was to be allowed on merits, then
certainly transaction during the pendency of
this revision was hit by the principle of lis
pendens but on merits this civil revision could
not have been accepted or a decree could not
have been passed, therefore, in these
circumstances of this case the transaction is not
hit by the principle of lis pendens. In this view
of the matter, when transaction of applicant is
not hit by the principle of lis pendens, therefore,
this decree has been procured through
misrepresentation and practicing fraud with
this Court because at the time of making
statement by respondent No.2/defendant No.2,
he has not apprised the facts to this Court that
he had already transferred a portion of
property in favour of applicant of this
application under section 12(2) of the C.P.C.,
therefore, applicant has a right to file
application under section 12(2) of the C.P.C.,
which has been validly filed.”

11. Argument was also raised that section 12(2)

of the CPC does not apply because Bashir Ahmad was
not party to the suit or the appeal. This argument has no
force as fraud alleged is not only amongst the parties or
out of the Court but it is an attempt to take shelter of
judicial proceeding and decree. In my opinion facts of
the case attract the view adopted by learned Peshawar
High Court in Abdur Rauf case7, which is also approved
by the Honourable Supreme Court8. The relevant
extract is as under:-

"It is obvious that in section 12(2), C. P. C. the

word 'person' and not the judgment-debtor or
his successor-in-interest or the word party to
the suit have been used, thus it would not be
permissible to import into that provision of law
something which has not been mentioned
therein. It appears that the law-maker has
purposely used the word 'person'. Had the
_________________________________________________________________
7
“Abdur Rauf and others versus Abdur Rahim Khan, Advocate”
(PLD 1982 Peshawar 172)
8
“Ch. Jalal Din versus Mst. Asghari Begum and others” (1984
SCMR 586)
 Civil Revision No. 4749-2015 6

intention of the law-maker been to restrict the

right of filing the application under section
12(2), C. P. C. only to the judgment-debtor or
his successor-in-interest or a person who was
party thereto then nothing was easier for the
law-maker to have said so. If the argument of
the learned counsel for the petitioner is
accepted then the very purpose behind enacting
the aforesaid provision of law would be
frustrated because then a person not being a
judgment-debtor or his successor-in-interest or
a party to the suit, although his rights may have
been jeopardized by the decree obtained by
fraud or misrepresentation, shall be obliged to
undergo the exercise of filing a suit for the
purpose because a number of cases can be
visualized in which fraudulent decrees are
obtained in order to cast clouds on the legal
rights of their opponents."

12. The learned District Court, while refusing to

frame issue(s) and recording evidence, has clearly fell
to error. The case is not that required summary
dismissal. When no case of fraud or misrepresentation
or jurisdiction is made out and it is apparent from the
record that application under section 12(2) of the CPC
is filed just to derail the proceedings, superfluous or it
is to cause delay in execution; such attempt requires
summary dismissal. Oral and / or written submissions
are sufficient when no complicated question is
involved. Nevertheless, when facts require
determination, recording evidence and question being a
mixed question of law and facts would need proper
determination9.

13. For the foregoing reasons, the present civil-

revision is allowed and while setting aside the
impugned judgment, the case is remanded to the
learned District Court concerned for decision on the
_________________________________________________________________
9
(i) “Muhammad Nawaz Khan versus Muhammad Khan and 2
others” (2002 SCMR 2003) and (ii) “Mrs. Anis Haider and
others versus S. Amir Haider and others” (2008 SCMR 236)
 Civil Revision No. 4749-2015 7

application after framing issue(s) and providing

opportunity to produce evidence. This case being an old
matter will need an early disposal. No order as to costs.

14. Before parting, the discussions made above

are only to reach conclusion of legal proposition.
Observations shall not cause prejudice.

(Sultan Tanvir Ahmad)

Judge
Announced in open Court on 24.02.2025.
Approved for reporting

Iqbal* Judge