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    Saturday, 7 February 2015

    Lis Pendence and its Essentials


    1. INTRODUCTION: 
    Lis Pendence generally means pendency of a suit in a court. Lis Pendence is a Latin word. Legally it embodies this principle that subject matter of suit should not be transferred to third party during the pendency of suit in a competent court. Transferee is bound by result of suit in a case when such subject matter is transferred during pendency of suit. During the pendency of suit nothing new should be introduced. 

    2. MEANING OF LIS PENDENCE: 
    The word Lis Pendence is a Latin word. And there are two part of this word. Lis means cause of action and litigant and the Pendence means pending before the court. So Lis Pendence means a pending suit before a court. In simple words a judicial proceeding brought by one party against another; one party prosecutes another for a wrong done or for protection of a right or for prevention of a wrong. 

    3. DEFINITION OF LIS PENDENCE: 
    According to black law dictionary: The jurisdiction, power, or control procured by a court over property while a legal action is pending.



    4. DOCTRINE OF LIS PENDENCE ACCORDING TO SEC # 52 OF T.P.A. 
    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 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 purposes 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 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 enforce.

    5. BASIS OF DOCTRINE OF LIS PENDENCE: 
    This doctrine of Lis Pendence enacted in section 52 is based on the common law maxim “pendente lite nihil innovatur” i.e. during litigation, nothing new should be introduced.

    6. PURPOSE OF LIS PENDENCE: 
    The real aim of this doctrine is to prevent multiplicity of suits. It would be plainly impossible that any action could be brought to a successful termination if pending litigation were permitted to prevail. The plaintiff would be liable to be defeated in every case and would be driven to commence his proceedings afresh subject against to be defeated by the same course of proceedings. 

    Case Law:
    According to the case of Ghulam Rasool Vs Muhammad Latif 1986 CLC 2830, the rule of Lis Pendence, would be applicable to pre-emption where vendee improves his status after period of litigation otherwise than through inheritance or succession.

    7. ESSENTIALS OF DOCTRINE OF LIS PENDENCE: 

    Following are essentials of doctrine of Lis Pendence:

    7.1 TRANSFER DURING THE PENDENCY OF SUIT: 
    Transfer by any party to the litigation should have taken place during the pendency of suit.

    7.2 COMPETENT COURT OF JURISDICTION: 
    Suit must be pending in the court of competent jurisdiction. 

    7.3 SUIT SHOULD BE NON-COLLUSIVE: 
    Suit should be non-collusive. If the litigation is collusive then this doctrine is not applicable. 

    7.4 SUIT RELATING TO IMMOVEABLE PROPERTY: 
    Suit must the relating to immovable property.

    7.5 RIGHT TO IMMOVEABLE PROPERTY MUST BE DIRECTORY: 
    It is necessary that right to immoveable property must be directly and specifically in question.

    7.6 RIGHTS OF OTHER PARTY: 
    It is also essentials of doctrine of Lis Pendence that transfer or disposal of immovable property
    should affect rights of other party to suit or proceeding. 

    8. EXCEPTION OF LIS PENDENCE: 
    There is an exception in doctrine of Lis Pendence when to property transfer by the operation of law then this doctrine is not applicable. 

    9. RELIEF UNDER DOCTRINE OF LIS PENDENCE: 
    Relief under section 52 being n equitable relief had to be obtained on the totality of factors appearing on the record and not on the mere compliance or non compliance of the amended provision of transfer of property act and registration act. 

    10. CONCLUSION: 
    To conclude it can be stated that basic principle, which works behind doctrine of Lis Pendence is that nothing new should be introduced during litigation. It reveals that primary object of this doctrine is to maintain status quo and protect parties to some litigation against their opponents alienation of property during pendency of litigation particularly when some right to immoveable property is in question in such litigation.








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    Item Reviewed: Lis Pendence and its Essentials Rating: 5 Reviewed By: Usman Ali
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