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Petitioner: MRs, SHAKILA ZAIDI through Attorney and 8 others VS Respondent: HAMMAD ASIF DOSSLANI and others
Court Name: Sindh High Court Judge(s): Syed Hassan Azhar Rizvi Title:MRs, SHAKILA ZAIDI through Attorney and 8 others vs HAMMAD ASIF
DOSSLANI and others Case No.: Judicial Miscellaneous No,34 and C.M.As. Nos.7758, 9515 of 2009 Date of Judgment:2011-03-17 Reported As: 2011 CLC 1011 Result: Petition dismissed Judgment ORDER ' SYED HASAN AZHAR RIZVI, J.--- The applicants by the present Judicial Miscellaneous Application bearing No,34 of 2009 under section 12(2) read with section 151, C.P.C. Have challenged the order and decree dated 6-3-2009 obtained by the respondents Nos.1 and 2 in Suit No,642 of 2006 (Hammad Asif Dosslani versus MRs, Badr-e-Rahim and another). ' Brief facts of the case are that Lt. Col. (R) S.H.M. Zaidi the predecessor-in-interest of the applicant had filed a suit bearing No,426 of 1987 against the respondent No,2 MRs, Badar Rahim in this Court for specific performance of contract, declaration and permanent injunction claiming himself to be the owner and beneficiary of property bearing Plot Nos.23/I and 23/II Mehmoodabad Road, D.H.A. Karachi and respondent No,2 above named as ostensible/benami owner thereof and further sought relief of direction to specifically perform her obligations under two affidavits dated 10-12- 1977 and 18-2-1985. On 10-6-1987 interim injunction was granted restraining the respondent No,2 MRs, Badar Rahim from disposing of the property, the interim order was confirmed by this Court vide order dated 6-8-1987. Thereafter, vide order dated 19-8-1990 the respondent No,2 who had already got "A" Lease in respect of the aforesaid properties was restrained from obtaining 'B' Lease from the DHA till decision of the suit and further restrained to mortgage or otherwise encumber the said property and dispossess the plaintiff from any part thereof except in accordance with law. After change in pecuniary jurisdiction of this Court, the aforementioned suit was transferred to District Judge, Karachi (South) where it was numbered as Suit No,2227 of 1996 and was assigned to learned VI Senior Civil Judge, Karachi (South) where that suit was dismissed for non-prosecution
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vide order dated 9-10-2000. The Application for restoration was filed on 5-11-2004 by the applicants and that suit was restored on 18-12-2004. ' On 21-12-2004 the applicants above named filed an application under Order I, Rule 10 read with section 151, C.P.C. In Suit No,2227 of 1996 for impleading the respondent No,1, whom the respondent No,2 had agreed to sell the suit property subject to approval by the trial Court of learned Senior Civil Judge and Muhammad Yousuf Moosa whom the respondent No,2 had fraudulently and surreptitiously sold out and transferred Plot No,23-II part of the suit property and Defence Housing Authority, Sub-Registrar T. Division and Province of Sindh through Secretary Land Utilization, Board of Revenue Sindh, Karachi. After receipt of notice of application under Order I, Rule 10, C.P.C. The respondent No,1 had filed his counter affidavit on 22-3-2006. It is alleged in the application by the applicants that the respondent No,1 with mala fide intention filed Suit No,642 of 2006 on 16-5-2006 in this Court against the respondent No,2 MRs, Badar Rahim and respondent No,3 Defence Housing Authority, Karachi for specific performance and injunction. The respondent No,1 filed copy of the said application under Order I, Rule 10, .C.P.C. In Suit No,642 of 2006 as Annexure 'E' however, in affidavit of Major (R) Syed Jaffar Siddiq Nizam in support of the said application under Order XXXIX, Rule 2(3), C.P.C. Read with sections 3 and 4 of the Contempt of Courts Act, 1976 against the respondents. It is stated in the application that the respondents have suppressed the factum of filing Suit No,642 of 2006 filed by respondent No,1 against the respondents Nos.2 and 3 however, the Counsel for the respondent No,1 filed a statement on 22--12-2008 in Suit No,2227 of 1996 before VI Senior Civil Judge, Karachi (South) that copies of order and decree passed in Suit No,642 of 2006 on 6-3-2009 by this Court along with copy of compromise application under Order XXIII, Rule 3, C.P.C. (C.M.A. No,2103 of 2009) filed by the respondents Nos.! And 2 in that suit. The applicants in their applications stated that the compromise order and decree in Suit No,642 of 2006 was obtained by the respondents by playing fraud, misrepresentation and concealment of facts that Suit No,2227 of 2006 was pending in the Court of VI Senior Civil Judge, Karachi (South) filed by the predecessor-in-interest of the applicants, who had been claiming himself to be real owner of the said property and respondent No,2 as benami/ostensible owner and at the same time claiming specific performance of obligations by the respondent No,2 in respect of same property created under two affidavits dated 10-12-1977 and 18-2-1985, executed by the respondent No,2 for transferring the title of suit property in favour of predecessor in interest of applicants. ' It is also stated by the applicants in the application that respondents Nos.1 and 2 in collusion with each other obtained order and decree in Suit No,642 of 2006 dated 6-3-2009 by playing fraud and misrepresentation. However, it was admitted in para-9 of the said application that the sale agreement dated 7-8-2004 executed between the respondents Nos.1 and 2 in respect of the suit property was duly witnessed by one of the applicants/legal heirs of Lt. Col. (R) G.M. Nizamuddin in token of consent by all the legal representatives of said deceased but submits that Major (R) Syed Jaffar Siddiq Nizam son of Lt. Col. (R) G.M. Nizamuddin the applicant No,9 had signed the sale agreement dated 7-8-2004 executed between the respondents Nos.1 and 2 as witnesses in his personal capacity on the assurance of respondent No,2 who is widow of applicant's No,9 maternal uncle that the said sale agreement would be got suppressed by the Court in Suit No,2227 of 1996 and the sale consideration will be shared at 55% by the respondent No,4 and 45% by the applicants. It is stated in the application that in view of provision of section 52 of the Specific Relief Act alleged sale agreement dated 7-8-2004 was invalid documents and no further action could have been taken thereto and the same was brought on record by the parties in Suit No,2227 of 1996. In support of the application under Order 12(2) affidavit of applicant No,9 Major (R) Jaffar Saddiq Nizam has been filed. ' Respondent No,1 has filed his counter-affidavit to the application under section 12(2) C.P.C. Respondent stated in his counter-affidavit that the sale transaction of two properties bearing Plots
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Nos.23/1 and 23/2, Mahmoodabad Road, Phase-I, DHA, Karachi was executed between him and respondent No,2 with complete blessings of the applicants as the applicant No,9 who is also holder of registered General Power of Attorney from all the other applicants had signed the sale agreement dated 7-8-2004 as an attesting witness in token of his assent whereas respondent No,2 had signed the said agreement as vendor. Respondent No,1 in his counter-affidavit has referred Annexure A/5 where applicant No,9 on behalf of applicants filed an application under Order I, Rule 10, C.P.C. In Suit No,2227 of 1996 or Suit No,426 of 1987 and along with that application affidavit of applicant No,9 has been filed. In paragraph No,3 of that application applicant No,9 stated, which has been reproduced in the counter affidavit of respondent No,1. For the ready reference the same contents are being reproduced hereinbelow:-- "That I say that the defendant, MRs, Badar Reheem is the wife of the plaintiff's maternal uncle Syed Abdul Raheem, therefore, for a long time there had been negotiations between the parties for a outside the court compromise, which was recently finalized, whereby it was settled that the suit property, comprising of two separate Plots Nos.23/I and 23/II, measuring 1600 Sq. Yards (approx.), Mehmoodabad Road, Phase-I, DHA, Karachi, be disposed of at highest possible price and after deducting the expenses, payment of dues and other charges, the consideration amount would be shared at 55% by the defendant and 45% by the plaintiffs. Thereafter, by mutual consent a sale agreement dated 7-8-2004 was signed by the defendant and the proposed defendant No,2, Mr. Hammad Asif Doslani, also signed by me as its one of the attesting witnesses. The sale consideration was fixed at the rate of Rs,19300 per Sq. Yards, out of which the said proposed defendant No,2 made advance payment of Rs,35,00,000 and the balance payment was to be made after hundred days of the date of sale agreement, on or before 17-11-2004 . " ' It is further deposed in the counter-affidavit by the respondent No,1 that the Attorney of the applicants had also confirmed-preparation of an application for compromise in Suit No,2227 of 1996 before VI Senior Civil Judge, Karachi (South), which had been duly signed by him as well as Mr. Badar Alam learned counsel for the applicants (who is also appearing for the applicants). The sale of the two properties in his favour and thus, the applicants as well as respondent No,2 was with full understanding and the judgment and decree in Suit No,642 of 2006 passed by this Court on 6-3- 2009 in consonance with the terms of compromise reached between applicants and respondent No,2 and Mr. Badar Alam Advocate had drafted the said compromise application and incorporated therein all the terms of compromise. Respondent No,1 further submits in his counter affidavit that as admitted by the applicants the respondent No,1 was not party to the proceeding in Suit No,426 of 1987 (renumbered as Suit No,2227 of 1996) and he was informed that respondent No,2 was owner of Plots Nos.23/I and 23/11, Mahmoodabad Road, Phase-I, DHA, Karachi and by agreement dated 7-8- 2004 Respondent No,2 had agreed to sell the said properties to him at the rate of Rs,19,300 per square yard. It is further stated that the agreement referred to above contained recital to the effect that respondent No,2 was seized, possessed and entitled to the two plots and had agreed to sell and transfer the same in favour of respondent No,1. The attorney of the applicants namely Major (R) Syed Jafar Saddiq Nizam applicant No,9. Had signed the said sale agreement as well as receipt of payment of Rs,35,00,000 as an attesting witness leading to an inference that the respondent No,2 was exclusive owner of the above described property. ' Respondent No,1 further stated in the counter-affidavit that assuming without conceding that the applicants have any right in respect of the two plots, they cannot setup hostile title after making respondent No,1 believe that the respondent No,2 is lawful owner of the two plots. Respondent No,1 lawfully acted with the belief that the two plots were owned by the respondent No,2. It is further stated that the other Plot No,23/I, Mahmoodabad Road, Phase-I, DHA, Karachi had also been transferred in favour of respondent No,1 against receipt of balance sale consideration of Rs,16,450,800 but the respondent No,1 and the applicants collusively denied the right in terms of
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agreement dated 7-8-2004. Respondent No,1 has also stated that the Suit No,2227 of 1996 was dismissed on 9-10-2000 and restored on 18-12-2004 whereas the sale agreement was executed on 7-8-2004 before restoration of Suit No,426 of 1987 which was renumbered as Suit No,2227 of 1996 and there was no interim injunction operating at the relevant time. Respondent No,1 further stated that the applicants have tried to mislead this Court while stating in para-5 of the application that the respondent No,1 suppressed the factum about filing of the proceedings before subordinate court regarding pendency of Suit No,2227 of 1996 before the VI Senior Civil Jude, Karachi (South). Respondent No,1 stated that on perusal of the order dated 6-3-2009 passed by this Court in Suit No,642 of 2006 that the pendency of the Suit No,426 of 1987 which was renumbered as Suit No,2227 of 1996 has been mentioned in Para-4 of the judgment and decree of Suit No,642 of 2006 dated 6- 3-2009 with complete details. Thus respondent No,1 denied that he has suppressed any material from this Court in Suit No,642 of 2006. Respondent No,1 further submits that he has not suppressed or concealed any detail or committed any fraud or misrepresentation with the applicants or to this Court. Respondent No,1 further denied any collusion between him and respondent No,2. He further stated in counter affidavit that respondent No,2 and applicants are related inter se and had acted collusively to deprive him from his rights in respect of the two plots of land. He further stated in counter affidavit that the terms of compromise dated 6-3-2009 in Suit No,642 of 2006 provided for adequate safeguard and protect the interest of the applicants made it subservient to proceedings in Suit No,2227 of 1996. It is further stated by the respondent No,1 that the observations to the effect that the learned Civil Judge cannot dare to pass any order contrary to and in conflict with the decree dated 6-3-2009 passed in Suit No,642 of 2006 by this Court is contemptuous and malicious. Respondent No,1 further submits in counter-affidavit that the application under section 12(2), C.P.C. Lacks merit and is liable to be dismissed. ' The respondent No,2 also filed counter-affidavit to the said application whereby he denied the contents of the application under section 12(2) of C.P.C. And affidavit in support thereof. The respondent No,2 took preliminary objections to the maintainability of the application filed under section 12(2) of the C.P.C. And submits that the same is not competent, filed with mala fide, applicants have not come with clean hands before this Court and they have suppressed and misrepresented the important and crucial facts from this Court. The respondent No,2 submits that she is exclusive owner of the suit property and was fully entitled to enter into agreement of sale dated 7-8-2004 with respondent No,l. Respondent No,2 further stated in her counter affidavit that applicant No,9 who is attorney of all the other applicants signed the sale agreement of the subject property as one of the attesting witness. In the said agreement respondent No,1 was shown as exclusive owner of the suit property, therefore, contention of the applicants that respondent No,2 is benami owner is patently false. Respondent No,2 specifically denied having executed affidavits dated 10-12-1977 and 12-2-1985 in favour of predecessor in interest of the applicants. She further submits that the predecessor in interest of the applicants with and mala fide had filed Suit No,426 of 1987 before this court, which had been subsequently transferred and renumbered as Suit No,2227 of 1996. Respondent No,2 further deposed in her counter affidavit that on 9-10- 2000 Suit No,2227 of 1996 was dismissed by the order of VI Senior Civil Judge, Karachi (South) for non- prosecution and ad interim order dated 19-8-1990 was vacated till the suit was restored in its original position on 18-12-2004. Respondent No,2 further stated in her counter-affidavit that she entered into an agreement to sell dated 7-8-2004 with the respondent when there was no interim order in the field. Respondent No,2 further stated that on 21-12-2004 an application under Order I, Rule 10, C.P.C. Was filed on 21-12-2004 by the applicant No,9 in Suit No,2227 of 1996 and the counsel for proposed defendant(i)/present respondent No,1 endorsed his no objection for joining present respondent No,1 on that application the said application is enclosed as Annexure A/5 with present petition. Respondent No,2 further stated that the instant pplication filed by the applicants with and
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mala fide intention in order to extract unlawful monetary benefits. Respondent No,2 further stated that the applicants had full knowledge and information about transaction/sale agreement dated 7-8-2004 as the applicant No,9 who is also the Attorney of all the remaining applicants had signed the sale agreement as attesting witness therefore, no fraud or misrepresentation has been done by the respondents Nos.1 and 2. Respondent No,2 further submits that she had not suppressed the fact regarding pendency of Suit No,2227 of 1996 in the compromise application filed in Suit No,642 of 2006 and stated that the order dated 6-3-2009 passed by this Court in Suit No,642 of 2006 is self-explanatory. Respondent No,2 further stated that she never dared to play a fraud and misrepresentation to this Court as she is law abiding citizen and commission of fraud is beyond her imagination. Respondent No,2 denied that the compromise decree in Suit No,642 of 2006 has been obtained from this Court by concealment of facts regarding pendency of Suit No,2227 of 1996 before VI Senior Civil Judge, Karachi (South). Respondent No,2 strongly denied that she had ever concealed any material facts from this Court in Suit No,642 of 2006. Respondent No,2 further stated that she had been advised by her counsel that the compromise decree in Suit No,642 of 2006 is not hit by doctrine of lis pendens. ' Applicant No,9 Major (R) Syed Jafar Saddiq Nizam has filed affidavit in rejoinder. In the affidavit in rejoinder applicant No,9 has denied the averments of the counter affidavits filed by the respondents Nos.1 and 2, however admitted his signature on the sale agreement dated 7-8-2004 and receipt and submits that the same has been signed as an attesting witness in his personal capacity and not as Attorney of the applicants. In the affidavit in rejoinder applicant No,9 has stated that the respondent No,1 has avoided to reproduce para-4 of the affidavit in support of Annexure A/5 annexed with the application under section 12(2), C.P.C. By the applicants, for ready reference the said is reproduced as under, which is essential for disposal of the present application:- "That I say that in view of aforesaid oral compromise agreement between the plaintiff and the present defendant it was mutually decided that in order to get remove injunction dated 10-6-1987, confirmed by order dated 18-10-1987 and further restraining order dated 19-8-1990, passed by the honourable High Court, a joint application for the compromise will be filed in the instant suit before execution of registered sale deed by the present defendant in favour of proposed defendant No,2. Consequently in the middle of August 2004 the counsel for plaintiffs Mr. Badar Alam Advocate drafted a compromise application incorporating therein all the terms of aforesaid compromise, copy of which was supplied by me to the present defendant. Thereafter on Monday, 25-10-2004 at about 10-30 a.m. The younger son of the present defendant, namely Mr. Faisal Raheem and the learned counsel for defendant No,1 Mr. Nasir J.R. Shaikh, Advocate, also held a meeting with plaintiffs' said counsel and suggested him to simply withdraw the suit and let the said compromise be completed outside the Court. After some discussions it was decided that the caption of said compromise application under Order XXIII, Rules (1) and (3), C.P.C. Would be corrected by Order XXIII, Rule 3 C.P.C. And within a couple of days the present defendant shall visit D-1 Branch of the High Court and shall put her signature on the said compromise application. Accordingly on 29-10- 2004 at about 10-00 a.m. The present defendant along with her younger son namely Faisal Raheem, her counsel Mr. Nasir J.R. Shaikh, Advocate visited D-1 Branch of the honourable High Court and signed the said compromise application before the Assistant Registrar (D-1) Branch Mr. Mumtaz. At that time the counsel for present defendant also signed the said compromise application. I myself, being duly constituted General Attorney of other plaintiffs had already signed the said compromise application with my counsel Mr. Badar Alam, Advocate. I had also filed an application for urgent hearing under rule 110 of Chief Court Rules (OS) and sworn my affidavits to both the said applications before the said Assistant Registrar D-1 Branch. Thereafter the said Assistant Registrar informed to the Assistant of our counsel Mr. Shabbir Ahmed, that the said Suit
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No,426 of 1987 had already been transferred to the learned District Judge, Karachi, South after change of pecuniary jurisdiction of Civil Courts and after cancelling the presentation seal thereon returned the said two applications to the said Assistant of our said counsel for their presentation before the transferee Court. Thereafter Mr. Nasir J.R. Shaikh the learned counsel for the present defendant had taken back the said signed compromise application and urgent hearing application from Mr. Shabbir Ahmed for keeping the same in trust with him for filing the same before the transferee Court. Therefore computer copies of said compromise application under Order XXIII, Rule (3), C.P,C. Read with section 151, C.P.C. And another application under Rule 110 of Chief Court Rules (OS) with their respective supporting affidavits by me." ' Mr. Badar Alam learned counsel for the applicants contended that the respondents have obtained the order and compromise decree in Suit No,642 of 2006 by playing fraud, misrepresentation, concealment and suppression of material facts in collusion with each other. He further submits that impleading the present applicant in Suit No,642 of 2006 was necessary and without impleading the applicant, respondents Nos.1 and 2 have obtained compromise decree in Suit No,642 of 2006 on 6-3-2009 by misleading the Court and by concealment of facts. Learned counsel further submits that in the compromise decree in Suit No,642 of 2006 has been obtained during pendency of Suit No,2227 of 1996 (old No,426 of 1987) without disclosure of its nature. He further stated that compromise decree in Suit No,642 of 2006 has been obtained by the respondents Nos.1 and 2 to circumvent the facts in Suit No,2227 of 1996. It was further argued by the learned counsel that para-5 of the order and decree in Suit No,642 of 2006 have been misrepresented. Learned Counsel further argued that under section 10 of the C.P.C. During pendency of Suit No,2227 of 1996 no decree can be passed in Suit No,642 of 2006. He further stated that under Order XLI, Rule 43 subsequent Suit No,642 of 2006 was not maintainable as the subject plot and parties were same. He further submits that respondent No,1 was not party in Suit No,2227 of 1996. He has referred General Power of Attorneys executed by all the applicants annexed as Annexures A-14 to A-21 along with application where no power has been given to sell the property to any third party. He has further referred to Rule of Lis Pendence and section 52 of the Transfer of property Act. He has also urged the fact of passing compromise decree in Suit No,642 of 2006 and thereby except sale transaction the applicants have been deprived from their valuable rights in subject property. He further argued that the decree in suit No,642 of 2006 dated 6-3-2009 was a conditional decree and as according to para 6-A of the order and decree dated 6-3-2009:--- "The defendant No,1 present respondent No,2 shall execute transfer documents in respect of Plot No,23/1, Mehmoodabad Road, Defence Housing Authority, Phase-1, Karachi in favour of plaintiff (respondent No,1) in terms of requirements of Defendant No,2 Defence Housing Authority after obtaining appropriate orders in Suit No,2227 of 1996 pending before the VI Senior Civil Judge, Karachi (South) within three months from the grant of this application and shall thereupon received the balance in the sum of Rs,16,485,800.00 from Nazir of this honourable Court without any further order or reference. ' That upon receipt of certified copy of order in Suit No,2227 of 1996, passed by the learned Vlth Senior Civil Judge, Karachi South and transfer of subject plot in favour of plaintiff (respondent No,1), the Nazir of this court may encash the defence saving certificates of the above face value deposited by the plaintiff duly pledged in his favour." ' Learned counsel for the applicants has submitted that no such application in accordance with paragraph No,6-A of the order and decree passed in Suit No,642 of 2006 dated 6-3-2009 has been filed by the respondents in the Court of VI Senior Civil Judge, Karachi (South) in Suit No,2227 of 1996 for obtaining appropriate order. However, learned counsel for the plaintiff submits that a statement was filed on 30-4-2009 by the Advocate for the defendant, respondent No,2 in present petition, whereby certified copies of the order and decree dated 6-3-2009 passed in Suit No,642 of 2006 by
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this Court and Application under Order XXIII, Rule 3, C.P.C. Were placed on record. He further contended that non-compliance of the terms and conditions of para 6-A of the decree, the decree in Suit No,642 of 2006 has become…
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