INTRODUCTION
Section 52 of the Transfer of Property Act enacts the doctrine of “Lis-Pendens Bu simply, it means any right to immovable property, which is the subject matter of a legal proceeding, cannot be transferred or dealt with so as to defeat the rights of any party to the suit (except under the order of the court hearing the proceeding.
RELEVANT PROVISIONS
Section 52 of the transfer of property Act 1882.
LITERAL MEANING
Lis means a cause to action, and Pendes means a pending suit.
DEFINITION OF LIS PENDENS
The Jurisdiction, power, or control acquired by a court while a legal action is pending.
DOCTRINE OF LIS-PENDENS
According to Section 52 of the transfer of property Act 1882
During the pendency in any court having authority in Pakistan or established beyond the limits of Pakistan by the Federal Government of any suit or proceeding which is not collusive and which any night to the immoveable property is directly or specifically in question, the property can not be transferred or otherwise dealt with by any party to the suit or proceeding so and to effect the night 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
BASIS OF DOCTRINE OF LIS-PENDENS
The doctrine of Lis-Pendens is based on the maxim “Pendente lite minic innovature“. It means during litigation, nothing new should be introduced.
PURPOSES OF LIS-PENDENSE
Prevention of Multi Suit: The important purpose of Lis-Pendence is to prevent multiplicity of suits.
RULE OF RES JUDICATA
Section 52 of the Transfer of Property Act 1882 is an extension of the rule of res judicata. This rule makes the adjudication in the suit binding on alienees from parties during the pendency of the suit, just as much as the doctrine of res judicata makes adjudication binding not only on parties themselves but also on alienees from them after the decree.
ESSENTIALS OF DOCTRINE OF LIS-PENDENSE
Following are the essentials of the doctrine of Lis-Pendense.
1. Pendency of Suit
Transfer by any party to the litigation should have taken place during the pendency of the suit. The rule contained in Section 52 does not defeat a purchaser in the execution of a decree or order for the sale when litigation is pending in the suit in which that decree or order is passed.
2. Suit must be Non-Collusive
The collusive suit is one in which there is no contest, no judicial determination of cause agitated between real parties. The fact that the decree was made in pursuance of a compromise or by consent, does not exclude the application of section 52 provided that such compromise or consent is not tainted by fraud or collusion. Whether a suit is collusive or not, depends upon the facts of each case.
3. The suit must Relate to Immoveable Property
The suit must relate to immovable property. The property to which the doctrine of Lis pendency has application is a property that is the subject matter of the suit.
4. Right must be in Question
It is necessary that the right to immovable property must be directly and specifically in question.
- Property must be specified
- Right to property must be direct
- Property transferred or dealt with must be property actually in litigation
5. Suit Must be Before a Competent Court
The suit must be pending before a court. The court must have the competence to try the case the court does not have any jurisdiction to try the case a transfer during its pendency cannot be attracted by the doctrine of lis pendence. The explanation attached to the Section 52 says that the pendency of the suit is deemed to commence from the date of presentation of the plaint or from the time of the institution of the proceeding. But such institution of the proceeding or presentation of the plant must be, before the court of competent jurisdiction.
6. Application of the Section
Application of section when the same property is in litigation and that property is actually transferred.
EXCEPTIONS
When transfer can be made during the pendency by operation of Law.
SCOPE
The doctrine of Lis pendens bars the transfer or encumbering of any right to immovable property during the pendency of the suit or proceeding before a court of competent jurisdiction.
CONCLUSION
It is concluded that it is a general rule which the transfer of immovable property can not be made during the pendency of litigation in a court of competent jurisdiction. Lis-Pendense rule or doctrine protects the sanctity of the court. The rule does not apply to any transfer made before the filing of the suit. The doctrine does not apply to immovable property.
FAQs
What is meant by the term “Lis-Pendens”? Explain its ingredients along with illustrations.
(2019-S)
What do you understand by “Lis-Pendens”? Explain its ingredients.
(2018-A, 2015-S, 2014-A, 2012-A)
What do you understand by “Lis Pendens”? What are the essential requirements of this doctrine?
(2017-A)
Explain the principle of Lis-Pendens as provided in the Transfer of Property Act 1882.
(2016-S)
Explain the doctrine “Lis-Pendens” during a suit as understood with reference to the transfer of property.
