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Petitioner: MUHAMMAD ANWAR VS Respondent: MUNAWAR ALI and 6 others
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Aziz-ur-Rehman Title: MUHAMMAD ANWAR vs MUNAWAR ALI and 6 others Case No.: N.C.A. No, 220 of 2017 Date of Judgment:2018-02-06 Reported As: 2019 CLC 398 Result: Intra Court appeal allowed
JUDGMENT
JUDGMENT AZIZ-UR-REHMAN, J--- means of this High Court Appeal filed on 06.04.2017, under Section 15 of the Code of Civil Procedure (Amendment) Ordinance X of 1980 [Muhammad Anwar v. Munawar Ali and others], the appellant has challenged the impugned order dated 24.03.2017, passed by the learned Single Judge of this Court on C.M.A. No,18009/2016, filed by Defendant No,2 [Respondent No,1 herein] in Civil Suit No,127 of 2010 [Muhammad Sarwar and others v. Muhammad Anwar and others], whereby, the learned Single Judge directed the Nazir of this Court to put the property i,e, House No,B-185, Khudad Colony, Karachi, admeasuring 136.56 sq. yards, having ground plus two storey building [hereinafter subject property] to re-auction, with permission to everyone including Appellant herein [Defendant No,1], and Respondent No,1 herein [Defendant No,2] to participate in the auction process of the subject property. 2. Brief facts leading to the filing of the instant High Court. Appeal are that the Appellant and Respondents herein, are real sons, daughters and widow of deceased namely Ch. Abdul Rehman son of Najeebuddin, who claimed to be the exclusive and sole owner of the 'subject property'. Per assertions, made in the Memo of Appeal [In short MoA], after the death of the deceased Ch. Abdul Rehman, disputes arose between the parties viz. brothers, sisters and widow/mother, hence, Respondents Nos,3 to 7 [plaintiffs], filed a Civil Suit bearing No,127 of 2010, against the Appellant [Defendant No,1] and Respondents Nos,1 and 2 [Defendants Nos,2 and 3], for PARTITION before this Court with the prayers as follows:- a. To pass preliminary as well as final decree for the partition of the suit properly by metes and bounds, determining the shares of all parties to suit according to Muhammadan law and possession be delivered.
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b. That in case this Hon'ble Court find partition of the suit property impracticable in view of large number of heirs the suit property may not be partitioned by metes and bounds. may be pleased to pass decree appointing Nazir with specific direction to sell the suit property at market value and, thereafter; to first pay the amount of Rs,27,668/- to Plaintiff No,1, being the expenses incurred by the plaintiff No,1 and then to distribute the sale proceed amongst all the plaintiff and defendants above named according to their respective legal shares in accordance with Muhammadan Law. c. To restrain all the defendants, their attorneys, or legal ' representative etc, not to transfer or create third party interest in the suit property in any manner till the disposal of this suit. 3. Later on, when the above suit for PARTITION came-up before the Court on 12.09.2011, then PRELIMINARY DECREE and Order XX Rule 13, C.P.C., was passed and consequently, Nazir of this Court was appointed as commissioner to first see the possibility, as to whether the subject property bearing House No,B-185, Khudadad Colony, Karachi, admeasuring 136.56 sq.yards belonging to the deceased father of the Appellant and Respondents herein, can be partitioned, and if not then, to sell the same and distribute the sale proceeds amongst all the legal heirs as per their shares in accordance with law. 4. Munawar All and another feeling aggrieved and dis-satisfied with preliminary decree dated 12.09.2011, opted to file High Court Appeal No,169 of 2011 [Munawar Ali and another v. Muhammad Sarwar and others], mainly on the ground that the Appellants were not given an opportunity of hearing at the time of passing of a PRELIMINARY DECREE, when came-up before the Division Bench of this Court on 23.04.2012, then after hearing the learned counsel for the parties the 'impugned order' dated 02.09.2011 in the aforesaid HCA No,169/2011, was found as being a proper and valid Order. Being relevant, PARA 8 of Order dated 23.04.2012, passed by the Hon'ble Division Bench of this Court in High Court Appeal No,169 of 2011 [Munawar Ali and another v. Muhammad Sarwar and others 1 is reproduced herein-below:- "8. The Nazir while ascertaining the value of the property in question and inviting bids shall hear objections of all the parties with regard to its value. In case Appellant No,1 and Respondent No,6 want to exclusively retain the entire property for themselves then Respondents 1 to 5 who are seeking partition of the property shall be paid their respective share on the basis of the highest bid received by the Nazir. The Nazir shall give 90 days time to Appellant No,1 and Respondent No,6 to pay the shares Respondents Nos, 1 to 5 in case they are the highest bidders. As regards share of Appellant No,2, he has already sold his share to Appellant No,1 as is evident from Ground (E) taken in the memo of appeal and paragraph 5 of the written statement. While distributing shares, Nazir shall take into consideration that the share of Appellant No,2 has devolved upon Appellant No, 1. While calling for offers, the parties shall be free to make their own individual offers either directly or may bring in some other prospective buyer. Nazir to complete the exercise within four months. The time of 90 days for making payment by Appellant No,1 and Respondent No,6 shall commence once the Nazir has finally heard the objections of respective parties and ascertained the value of the property finally" [Emphasis supplied] Pursuant to and in compliance with Order dated 12.09.2011, whereby, a 'PRELIMINARY DECREE' was passed, Nazir of this Court, after physical inspection of the subject property submitted his report dated 15.11.2011. As per the said report, Nazir of this Court found the subject property as not being divisible/partitionable. The subject property, however, thereafter, could not be put to auction, perhaps, on account of pendency of HCA No,169 of 2011. Nevertheless, upon disposal of HCA No,169 of 2011 [Munawar Ali and another vs. Muhammad Sarwar and others], Plaintiff No, 1 viz. Muhammad Sarwar [Respondent No,3 herein], as well as Respondent No,1 viz. Munawar Ali [Defendant No,2], were present, in Court on 15.04.2013, when, they showed their willingness to purchase the 'subject property'. In view of such willingness the Nazir of this Court was directed to call all the Plaintiffs,
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Defendants and thereafter hold restrictive bidding and submit report before the Court. 6. Later on, per order dated 16.09.2013, it was clarified to the parties that no any further opportunity, shall be given to all the concerned including Defendant No,1 [Appellant herein] who, as appears, was declared ex-parte vide order dated 16.09.2010. Besides, per order dated 16.09.2013, though the Defendant No,1 [Appellant herein], was declared ex-parte, but still he was given chance / right to participate in the process of bidding. Keeping in view this position, notice along with copy of order dated 16.09.2013, was issued to the Defendant No,1 [Appellant herein], through all modes, except publication for compliance of Order dated 15.04.2013. Being relevant, Order dated 15.04.2013, is reproduced herein-below:- "For orders on Nazir's report dated 06.08.2012. For orders on Nazir's report dated 08.10.2012 15.04.2013 Plaintiff No,1 present in Court Mr. Muhammad Aziz Khan, advocate for defendants Defendant No,2 present in court. ....... "On last date of hearing, the Nazir was directed to submit report in view of Paragraph-8 of the order passed in High Court appeal but no report is available on record. Today Muhammad Sanvar, one of the plaintiffs and Munawar Ali, one of the defendants, both, are present and they submit that they want to purchase the property and agree to submit, their bids to the Nazir. Nazir is directed to call all the plaintiffs and defendants and hold respective bidding and submit the bid in Court on next date. Two weeks time is granted to Nazir for completing this exercise." [Emphasis supplied] 7. Since, in the case in hand, besides a Preliminary Decree under Order XX Rule 13, C.P.C., passed on 12.09.2011, Nazir of this Court was appointed as Commissioner to see the possibility, as to whether the 'subject property', can be partitioned if not, then to sell the same and pay the sale proceeds to the legal heirs in accordance with their shares. This position becomes quite clear from Order dated 04.11.2013, which reads as follows: - "For order on Nazir's report dated 28.09.2013: 04.11.2013: Plaintiff No,1, Muhammad Sarwar present in person Mr. Muhammad Aziz Khan, advocate for defendants Nos,2 and 3, Along with defendant No,2 "A preliminary decree under Order XX rule 13, C.P.C. was passed by this Court on 12.09.2011, whereby the Nazir was appointed as Commissioner to first see the possibility as to whether the suit property can be portioned, if not, then to sell the same and to pay the sale proceeds to the legal heirs in accordance with their shares. As the Nazir had, submitted a report that the suit property could not be divided or portioned, the Nazir was directed on 15.04.2013 to act upon the preliminary decree. Vide order passed on 16.09.2013, the parties were directed to appear before the Nazir on 21.09.2013 at 01:00 pm for compliance of the order passed on 15.04.2013. It was clarified on that date that no further opportunity shall be given to the parties for compliance of the said order. This report dated 28.09.2013 has been submitted by the Nazir, wherein he has reported that the bidding process between the parties wasinitiated by him, wherein plaintiff' No,1 Muhammad Sarwar and defendant No,2 Munawar Ali participated, who offered Rs,10,500,000.00 (rupees ten million and five hundred thousand only) and Rs,10,400,000.00 (rupees ten million and four hundred thousand only), respectively. As plaintiff No,1 Muhammad Sarwar was the highest bidder; he was directed by the Nazir to deposit by 23.09.2013 25% of the bid amount with the Nazir towards the earnest money. The Nazir had informed him that upon his failure, the second highest
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bid of Munawar Ali would be accepted; and in such an event, defendant No,2 was required to deposit 25% of the bid amount as the earnest money. The Nazir has reported that plaintiff No,1 and defendant No,2 have failed to deposit any amount with him. Plaintiff No,1 and defendant No,2 are present in person. They admit that they have not deposited any amount with the Nazir and they request, that further time be granted to them for this purpose. [Emphasis supplied]. Since the bidders/participants have failed to deposit 25% of the bid amount, which they were required to deposit with the Nazir, there is no other option left except for selling the suit property through public auction. The Nazir is directed to sell the suit property through public auction by advertising the auction notice in the English daily 'DAWN', Urdu daily 'JANG' and Sindhi daily 'KAWISH', and then to disburse the sale proceed amongst all the legal heirs in accordance with their shares." [Emphasis supplied]. 8. Pursuant to and in compliance with the aforesaid Order dated 04.11.2013, SALE NOTICE / AUCTION NOTICE, was got published in three [3] newspapers in daily 'DAWN' [English], daily 'JANG' [Urdu] and daily 'KAWISH' [Sindhi] in respect of the 'subject property' i,e, House No, B-185, Khudadad Colony, Karachi admeasuring 136.56 square yards having ground plus, two storeyed building for 21.12.2016, when Respondent No,1 herein viz. Munawar Ali [Defendant No,2], for self and on behalf of Respondent No. 2 herein [Defendant No,3], as being attorney, Appellant viz. Muhammad Anwar [Defendant No,1], Respondent No,3 viz. Muhammad Sarwar [Plaintiff No,1], M/s. Sher Muhammad and Muhammad Farooq in their capacities as builders along with their counsel Mr. Sohail Abbasi Advocate, appeared and participated in the bidding process. The appellant herein [Defendant No,1], as being a highest bidder offered Rs,1,13,50,000/- [Rupees One Crore Thirteen Lac Fifty Thousand only] and also deposited an amount of Rs,28,50,000/- through pay order No,10069739 dated 21.11.2016, as being an earnest money which amount ex-facie is more than 25% of his offered in the sum of Rs,1,13,50,000/-. 9. On 05.12.2016 when, the matter again came-up before the Court then, the highest offer of the Appellant [Defendant No,1], in the sum of Rs,1.13,50,000/- was ACCEPTED with direction to the Appellant herein [Defendant No,1], to deposit the balance sale consideration within a period of 15 days. The Order dated 05.12.2016, whereby, the highest offer of the Appellant herein [Defendant No,1], was ACCEPTED, reads as follows: - 1. For order on Nazir's Report dated 26.11.2016 2 For order on Nazir's Report dated 30.11.2016 05.12.2016 Plaintiffs Nos,1, 3 and 4 are present in person Defendant No,2 is also present in person Muhammad Arif Shaikh, Advocate "Nazir has placed his Reports dated 26.11.2016 and 30.11.2016 pursuant to Order dated 24.10.2016, auction of the property in question was conducted, wherein, the defendant No,1 has given the highest bid of Rs, 1,13,50,000/- and has deposited an amount of Rs,28,50,000/-, which is more than 25% of his offer. In the circumstances, Nazir's Reports are taken on record and highest offer of Rs,1,13,50,000/- is accepted. The defendant No,1 is directed to deposit the balance sale consideration within a period of 15 days." 10. It is significant to note that Respondent No,1 viz. Munawar Ali s/o Late Ch. Abdul Rehman [Defendant No,2 in Suit No,127/2010], was present in Court when, the aforesaid order dated 05.12.2016, was passed whereby, the highest offer of the Appellant viz. Muhammad Anwar [Defendant No,1 in Suit No,127/2010], was ACCEPTED, but Respondent No,1 herein, did not object the acceptance of the highest offer of the appellant in the sum of Rs,1,13,50,000/- [Rupees One Crore Thirteen Lac and. Fifty Thousand only]. The appellant in compliance with order dated 05.12.2016
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deposited the balance sale consideration within a period of 15 days. Upon deposit of the balance sale consideration of Rs,85,00,000/- vide pay order bearing No,10466538 dated 19.12.2016, the sale in favour of the Appellant herein [Defendant No,1], under law, is to be deemed and treated as confirmed: 11. Defendant No,2 viz. Munawar Ali [Respondent No,1 herein], in his own wisdom, however, opted to file an application under section XLVII Rule 1(a)(b)&(c), C.P.C. [C.M.A. No,18009/2016], on 22.12.2016 for RECALLING/REVIEWING of Order dated 05.02.2016. The aforesaid application bearing C.M.A No,18009 of 2016, filed in Suit No,127 of 2010 [Muhammad Sarwar and others v. Muhammad Anwar and others], when came-up before the Court on 23.12.2016, then the following order was passed: "23.12.2016 Mr. Muhammad Aziz Khan, advocate for defendant No,2. ------------- 1. Learned counsel for the defendant No,2 is seeking urgency in the matter, therefore, urgent application is granted. 2. By means of this Application under Order XLVII Rule 1(a)(b)&(c) C.P.C. read with section 151, C.P.C. C.M.A. No,18009/2016], the defendant No,2 is seeking review of order, dated 05.12.2016. Order dated 05.12.2016, of which a review has been sought by the learned counsel for the defendant No,2, it appears has been passed by any learned brother Justice Junaid Ghaffar. In view of this position, let this Review Application [C.M.A. No,18009/2016] be fixed before him on 10.01.2017. [Emphasis supplied] SD/- JUDGE" 12. Thereafter, the matter somehow, got adjourned for one reason or the other. Lastly the matter i,e, Review Application bearing C.M.A. No,18009 of 2016, when, came-up before another Hon'ble Judge in Chamber of this Court then, the following order was passed: "24.03.2017 Mr. Liaqat Ali, Advocate along with defendant No,1 Mr. Muhammad Aziz Khan, Advocate along with defendant No, 2 Through C.M.A. No,1 80009/2016, a request is made that the defendant No,2 is willing to offer higher price as compared to the price on which the Nazir accepted the bids. It seems from the Reference of the Nazir that in the open auction defendant No,1 offered highest bid price of Rs,11,350,000/- (one crore thirteen lacs and fifty thousand) along with a pay order of 25%. However, defendant No,2 was also present and made even higher bid, but he was not in the possession of the pay order, accordingly the Nazir accepted the bid from the defendant No,1, because it was accompanied by a pay order. Through the instant application; the defendant No,2 has sought intervention of this Court that he is willing and ready to buy the property in question at Rs, 14,000,000/- one crore forty lacs). Since there is substantial difference between the prices attained through the public auction by the Nazir at one hand, since it is in the interest of all the legal heirs that the property be sold at the highest possible price so 'that they all could be equally benefited. In the given circumstances, I find it prudent to order Nazir to put the property for re-auction, so that probably even higher bids could be achieved: Everyone including the defendants Nos,1 and 2 would be free to participate. Nazir to do the needful at the cost of Rs, 30,000/- within 15 days of this order, and file his report a week thereafter. The counsel for the defendant No,1 has filed the counter affidavit to the instant application, which is taken on record nonetheless. [Emphasis supplied] Sd/- JUDGE"
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13. The Appellant herein [Defendant No,1], feeling aggrieved and dis-satisfied with the 'impugned order' dated 24.03.2017, passed on the Review Application under Order XLVII Rule 1(a)(b)&(c), C.P.C. read with' section 151, C.P.C., was constrained to file the instant High Court Appeal on 06.04.2017 inter alia with a prayer for setting aside the 'impugned order dated. 24.03.2017. The prayers sought by the Appellant herein [Defendant No,l. in. Suit No,127 of 2010], through the instant High Court Appeal [In short HCA] read as follows: "i] To admit the appeal, call for R&Ps of Suit No, 127/2010, hear the parties and set aside the order dated 24.3.2017, passed by learned Single Judge of this Hon'ble Court in C.M.A. No,18009/16. ii] To suspend the operation of the impugned order and to direct the Nazir of this Hon'ble Court not to accept the bid of the respondent/defendant No,2. iii] To direct the Nazir of this Hon'ble Court to retain the sale proceeds in respect of house in question and to disburse/ pay the same amongst the respective legal heirs accordingly. iv] To direct the Nazir of this Hon'ble Court to transfer the suit property in the name of the appellant or his nominee. v] Any other relief which this Hon'ble Court may deem fit and proper under the circumstances may be awarded. 14. On 14.04.2017, when the HCA came-up before the Division Bench of this Court then while, recording the attendance of the contesting Respondent No,1 herein viz. Munawar Ali [Defendant No,2 in Suit No,127 of 2010], Court was pleased to suspend the 'impugned order' dated 24.03.2017. The Respondent No,1 viz. Manawar Ali [Defendant No,2], thereafter: filed a detailed common 'counter-affidavit' in response to the Memo of Appeal [In short MoA] and the Application under Order XLI Rule 5, C.P.C. wherein, Respondent No,1 while, defending the 'impugned order' dated 24.03.2017, passed by a learned Single Judge of this Court on the Review Application under section XLVII Rule 1(a)(b)&(c) C.P.C. [C.M.A. No,18009/2016], also controverted/denied the adverse assertions and stand taken by the Appellant herein in the MoA. 15. Lastly, on 30.01.2018, when the above High Court Appeal came-up before us then, we heard Mr. Liaquat Ali Hamid, learned counsel for the Appellant and Mr. Muhammad Aziz Khan, learned counsel for the contesting Respondent No,1 viz. Munawar All son of Ch. Abdul Rehman [late] and also gone through the available record with their assistance. 16. Mr. Liaquat Ali Hamid, learned counsel for the Appellant contended in vehemence that learned Single Judge of this Court has erred in law while, passing the 'impugned order' dated 24.03.2017, to take note of the settled procedure/principle of law that Review Application needs to be heard by same Hon'ble Judge who passes/passed the order dated 05.12.2016 whereby, the Appellant's offer in the sum of Rs,1,13,50,000/- was accepted in the presence of Respondent. No,1 herein. According to the Appellant's stand, the learned Single Judge in chamber however, while, ignoring such settled principles of law heard and decided the Review Application and that too without due application of mind.. Per learned counsel, on this count as well the 'impugned order', dated 24.03.2017 is liable to be set-aside otherwise, the Appellant shall be seriously prejudiced. 17. Arguing the case on merits, Mr. Liaquat Ali Hamid, learned counsel for the Appellant forcefully contended that learned Single Judge of this Court has also failed to consider the factum of ACCEPTANCE of the Appellant's offer in the sum of Rs,1,13,50,000/- upon deposit of more than 25% of the bid amount i,e, Rs,28,50,000/- vide Order dated 05.12.2016. Mr. Liaquat Ali Hamid, learned counsel for the Appellant next urged that upon ACCEPTANCE the highest offer on 05.12.20 1 6, the balance sale consideration in the sum of Rs,85,00,000/- [Rupees Eighty Five Lacs only] was also deposited within stipulated period of 15 days on 19.12.2016. Per learned counsel, through the 'impugned order' dated 24.03.2017, the vested/legitimate right of the Appellant created in his favour cannot be taken away. The `impugned order' dated 24.03.2017, per Mr. Liaquat Ali Hamid, learned counsel for the Appellant, besides being erroneous, illegal and without jurisdiction is liable to be set
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aside. 18. Per learned counsel, upon fulfilling all the requisite and codal formalities and deposit of 75% balance sale consideration/bid amount on 19.12.2016, the Defendant No,2 [Respondent No,1 herein], with a mala fide intention abruptly came forward with unclean hands and ulterior motives obviously with a view to hoodwink or otherwise, mislead this Court by way of filing a Review Application under section XLVII. Rule 1(a)(b)&(c), C.P.C. [C.M.A. No,18009/2016] and that too after deposit of 75% balance sale consideration in terms of order dated 05.12.2016 within 15 days with a prayer that Respondent No,1, intends to increase the bid amount. According to Mr. Liaquat Ali, learned counsel for the Appellant if, such practice is allowed then no bid can be finalized. Rather at all the time one may come forward by way of moving false/fictitious type of application, as the case in hand is to linger on the process of auction. The 'impugned order' dated 24.03.2017, passed by learned Single Judge of this Court on the Review Application [C.M.A. No,18009/2016], reviewing thereby, order dated 05.12.2016, passed by another Single Judge of this Court as urged by Mr. Liaquat Ali Hamid is not only illegal, without jurisdiction, but has been passed without appreciating the facts and circumstances of the case in hand properly and in its' true perspective. 19. While, concluding his arguments, Mr. Liaquat Ali Hamid, learned counsel for the Appellant finally urged that since, the 'impugned order' dated 24.03.2017 has been passed in clear violation of law, as such, the same is liable to be set-aside. 20. Against the above, Mr. Muhammad Aziz Khan, learned counsel for Respondent No,1 viz. Munawar Ali while, defending the 'impugned order' dated 24.03.2017, vehemently contended that the 'impugned order' is not only legal binding but also has been passed in accordance with law. The 'impugned order' dated 24.03.2017 besides, does not suffer from any illegality and/or any irregularity, as alleged, by the Appellant herein. Further, no delay, as alleged, by the Appellant [Defendant No,1], has ever been caused by Respondent No,1 herein [Defendant No,2 in Suit No,127 of 2010] i,e, to say in swift disposal of the suit. Rather, it is the Appellant [Respondent No,1], who always exercised delaying tactics to delay/linger on the quick disposal of suit, obviously with a view to somehow, deprive all the shareholder from their due shares in the 'subject property'. 21. Per Mr. Muhammad Aziz Khan, learned counsel for Respondent No,1, if, the 'impugned Order' dated 24.03.2017 is not upheld then, of course, all the shareholders in the subject property will be seriously prejudiced. According to the learned counsel for Respondent No,1, by means of the 'impugned order' dated 24.03.2017, the interest of all the shareholders has been fully saved/safeguarded. Mr. Muhammad Aziz Khan, next contended that if, the instant High'Court Appeal is allowed then, it will cause injustice to all the shareholders. Lastly, learned counsel for Respondent No,1 herein [Defendant…
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