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Petitioner: SHAFT MUHAMMAD . And Another VS Respondent: WASEEM AHMED KHAN And 11 Others
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Muhammad Ather Saeed Title: SHAFT MUHAMMAD . And Another vs WASEEM AHMED KHAN And 11 Others Case No.: High Court Appeal No.8 of 2008 Date of Judgment:2011-06-13 Reported As: 2011 YLR 2576 Result: Appeal disposed of
JUDGMENT
JUDGMENT IRFAN SAADAT KHAN, J.---This High Court Appeal has been filed against the decision given in J.M. No.52 of 2005, dated 11-10-2007. 2. Briefly stated the facts of the case are that an application under section 12(2) Civil Procedure Code, 1908 (C.P.C.) dated 13-6-2005 was filed by respondents Nos.1 and 2, before the learned Single Judge by requesting to become interveners on the ground that they were also legal heirs of late Abdul Saeed Khan and were not impleaded as a party in the administration suit filed by Mst. Saeeda Begum who was their step-mother. It was pleaded by the interveners that they were neither given any notice by the Court nor any intimation was received by them and the Property bearing No.88/10, 5-D, Landhi, Karachi, was sold out to Rais Ahmed and Shafi Muhammad, the present appellants, through Nazir of this Court at a sum of Rs.25,00,000. It was submitted by the interveners that even at the stage of preliminary decree no intimation was given either by the plaintiff or the defendant in the administration suit and they were seriously prejudiced in this regard and the administration suit filed by the plaintiff was hit by non-joinder of the parties. 3. The interveners filed the J.M which came up for hearing before the learned Single Judge who after going through the facts of the case and the relevant record allowed the same by _ observing as under:-- "The applicant besides payment of Rs.3,500,000 towards value of the house are also ready to pay 10% of the amount. The auction purchaser has deposited with the Nazir. Therefore, his offer seems
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to he justified and they are allowed to deposit Rs.3,500,000 (Rupees Thirty-five lac) towards sale of house plus Rs.250,000 (Rupees Two lac fifty thousand) for auction purchaser within a period of two months as requested by them. The amount of Rs. 3,500,000 (Rupees Thirty Five Lac) is to be distributed by the Nazir amongst the legal heirs while Rs.250,000 (Rupees Two Lac fifty Thousand) is to be returned to the auction purchaser along with his deposited amount of Rs.2,500,000. The Request of the applicants that they may be permitted to deduct their share from the total amount of Rs.3,500,000 is also reasonable and is allowed but before doing so, they should ascertain their share from the Nazir. "In the circumstances, this J. Misc. Is disposed of in the above terms. A copy of this judgment should also be placed in Suit File of Suit No.359 of 1998. As far as other properties are concerned, they are to be taken-up afterwards, while the plaintiffs' are directed to file amended title in the suit, pleading therein the applicants as defendants along with their brothers Shakil Ahmed and sister Mst. Nusrat". It is against this order that the present High Court Appeal has been filed. 4. Mr. Yousuf Ali Sayeed, learned counsel appeared on behalf of the appellants and submitted that a suit was filed by Mst. Saeeda Begum in her capacity as second were of the deceased Abdul Saeed Khan son of late Abdul Hafeez Khan as attorney of other legal heirs namely Mst. Sarwat, Salman Ahmed Khan, Noman Ahmed Khan, Zeeshan Ahmed Khan, Imran Ghazali and Adnan Ahmed Khan against Sohail Ahmed Khan and Mst. Nuzhat being son and daughter and Mst. Saleema Akhter being third were of the deceased. He further submitted that a preliminary decree was' passed on 3-11-1999 and the Nazir of this" Court was appointed as Commissioner to enquire into the assets of the deceased and submit his report thereon. On 12-9-2000 the report of the Nazir dated 27-3-2000 in pursuance of the forsaid order was taken on record and it was of &red that Nazir may sell the movable and immovable propertirs & the deceased in compliance with the preliminary decree. He further submitted that the suit property was clearly mentioned in the said report of the Nazir dated 27-3-2000. On 31-1-2005 it was observed that sale proclamation in respect of the property be issued and the said proclamation was thereafter issued in daily "Jang" on 4-4-2005. He submitted that the present appellants thereafter tendered their offer for the purchase of the suit property for Rs.25,00,000 on 16-4-2005 which was referred by the Nazir for consideration and appropriate order vide his report dated 23-4-2005. On 16-5-2005 the Nazir's report was taken on record and offer of the appellants was accepted by the Court in their favour. On 9-8-2005 the sale deed was executed between the Nazir of this Court and the appellants in respect of the suit property before the Sub-Registrar T. Div. XIII Karachi. 5. The learned Counsel submitted that it was only thereafter that Waseem Ahmed Khan and Abdul Naeem Khan, the present respondents Nos.1 and 2, filed an application under section 12(2), C.P.C. On 13-6-2005 and obtained interim order dated 15-6-2005 whereby the operation of the preliminary decree was stayed. The learned counsel submitted that it is impossible to accept that respondents Nos.1 and 2 were unaware of the proceedings and they with a preconceived notion deliberately did not become part of the suit properties and with mala fide intention filed an application when the sale proceedings were almost concluded. He submitted that as the appellants have purchased the said property in a legal and lawful manner, the suit property may be handed over to them as they have paid the entire sale consideration amount and are not interested in receiving their amount back but are only interested in the property which they have purchased by fulfilling all the formalities and the same may be handed over to them. He submitted
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that mala fide on the part of respondents Nos.1 and 2 is evident from the fact that an application under section 12(2), C.P.C. Was filed by them at a belated stage just to hamper the deal entered between the appellants and the Nazir of the Court. He submitted that the learned Single Judge was not justified to take cognizance as the application under section 12(2), C.P.C. Filed in this regard by respondents Nos.1 and 2 was barred by limitation and the learned Single Judge has failed to appreciate that the appellants were the bona fide purchasers of the property and the sale-deed in this regard had already been executed. 6. As per the learned counsel how could the appellants be deprived from taking possession of the property which they had legally purchased. He further submitted that the learned Single Judge allowed the said. J.M. Without appreciating the facts of the case and the order passed for payment of adequate compensation was wholly illegal, specially in view of the fact that a right of the appellants on the said property had been created and if that right is not granted, they will be' seriously prejudiced. It was further submitted that the loss of the appellant could not partake compensation granted in this regard by the learned Single Judge. The learned counsel further submitted that assertion of the respondents Nos. 1 and 2 that they were not made a party in the administration suit filed by the plaintiff is also incorrect as in the said suit their existence was very much disclosed in the Para 3 of the said plaint and was even mentioned in the preliminary decree hence the contention of the respondents Nos. 1 and 2 that they have been condemn unheard and were the victim of non-joinder is also incorrect. In support of his contentions the learned counsel relied upon the following decisions: -- (i) Hassan Din v. Hafiz Abdus. Salam and others (PLD 1991 Supreme Court 65). (ii) Raja Muhammad Akbar v. Iftikhar Jillani (PLD 1991 Supreme Court 71). (i.e) Chinnamal and others v. Arumugham and another (AIR 1990 Supreme Court 1828). (iv) Mumtaz-ud-Din Feroze v. Sheikh Iftikhar Adil and others (PLD 2009 Supreme Court 207). (v) Mani Lal v. Ganga Prasad and another (AIR 1951 Allahabad 832). (vi) Janak Raj v. Gurdial Singh and another (AIR 1967 Supreme Court 608). 7. Mr. Muhammad Ramzan, learned counsel appeared on behalf of respondents Nos.1 and 2 submitted that the application was filed as and when respondents Nos.1 and 2 came to know that the property was being sold which belonged to their late father and they have been deprived of their legal due share available to them as per shariah and injunctions of Islam. He further submitted that the learned counsel for the appellants has nowhere submitted that respondents Nos.1 and 2 were not the legal heirs of the deceased and were not entitled to receive their shares out of the properties left by the deceased as per shariah but his only grievance is that the property which they had purchased be handed over to them without realizing the fact that how could a property in which the due share of the respondents Nos. 1 and 2 was not determined, be handed over to a party. He submitted that before the learned Single Judge the respondents Nos. 1 and 2 made an offer to purchase the property for a sum of Rs.35,00,000 whereas the appellants had offered a sum of Rs.25,00,000 only and the learned Judge was right in holding that the sum deposited by the appellants before the Nazir may be returned to them along with due compensation. He further submitted that there is nothing wrong in the order passed by the learned
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Single Judge as he has rightly granted respondents Nos.1 and 2 their due share, which previously was usurped by respondents Nos.3 to 12. The learned counsel further submitted that how could a property be sold or handed over to any person without their approval when admittedly they were the legal heirs of the properties left by the deceased. He also submitted that the appellants have come to the Court with unclean hands and their appeal may be dismissed-In support of his contentions he relied upon the following judgments:-- (i) Shaikh Shajar Hussain v. Haji Abdul Majeed (2006 SCMR 913) (ii) Sheikh Spinning Mills Ltd. v. Government of Punjab and others (PLD 2006 Lahore 603) 8. We have heard both the learned counsel at some length and have also perused the record and the decisions relied upon by them. 9. In order to appreciate the facts of the case in the proper manner in our opinion it would be in fitness of things if proper facts of the case be first ascertained. In this regard the file of Suit No. 359 of 1998 and the file of J.M. 52 of 2005 was also requisitioned from the office and was thoroughly examined. It is seen from the record that the administration Suit bearing No. 359 of 1998 was filed on 30-3-1998 by the following parties:-- (1) Mst. Saeeda Begum, widow of Late Abdul Saeed Khan, (2) Mst. Serwat daughter of Late Abdul Saeed Khan, (3) Salman Ahmed Khan son of Late Abdul Saeed Khan, (4) Noman Ahmed Khan son of Late Abdul Saeed Khan Zeeshan Ahmed Khan son of Late Abdul Saeed Khan, All Muslim, adult, resident of 88/10, 5-D, Lodhi, Karachi. (6) Imran Ghazali son of Late Abdul Saeed Khan, Muslim, adult Resident of F-45/2, F-C Area, Liaquatabad, Karachi. (7) Adnan Ahmed Khan son of Late Abdul Saeed Khan, Muslim, Adult Resident of 88/10, 5-D, Landhi, Karachi, presently resided at D.N.P., Serba Pakistan, SDA, BHD, Lot No. 1132, Jejawi, Industrial Estate 02600, Arwa Parlis, Malaysia. All the plaintiffs from Nos. 2 to 7 through their duly constituted Attorney Mst. Saeeda Begum willow of Late Abdul Saeed Khan, (The plaintiff No. 1), Muslim Adult, resident of 88/10, 5-D, Landhi, Karachi................. Plaintiffs versus (1) Sohail Ahmed Khan son of Late Abdul Saeed Khan, Muslim, Adult, Resident of 88/10, 5-D, Landhi, Karachi. (2) Mst. Nuzhat daughter of. Late Abdul Saeed Khan, Muslim, Adult, resident of T-7/14, Officers Block, Steel Town, Karachi.
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(3) Mst. Saleema Akhtar widow of Late Abdul Saeed Khan, Muslim, Adult resident of 88/10, 5-D, Landhi Karachi, presently resided at House No. 2992, Street No. 2, Tench Bhata, Allama Iqbal Colony, Rawalpindi.Defendants 10. It is evident that the respondents Nos. 1 and 2 were not made the parties in the said suit, however in the para 3 of the said plaint the name of respondents Nos. 1 and 2 are appearing at Serial Nos. 10 and 11. The main grievance in the said administration suit of the plaintiff was that as the properties left by the deceased were in the possession of the defendants, except the Property bearing No.88/10, 5-D, Landhi, Karachi (disputed property), it was prayed that the assets left by the deceased may be divided amongst all legal heirs after the sale of whole properties as per their legal shares. It is seen that in the addresses only Abdul Sohail Ahmed Khan, Mst. Nizrat and Mst. Saleema were mentioned. The said administration suit was heard for the first time on 30-3-1998 when a learned Single Judge of this court issued notices to the defendants, they were also restrained from ejecting the plaintiff and creating any third party interest in respect of properties left by the deceased. The defendants were also instructed to file their counter affidavits if any in the office within 14 days from the date of issuance of notice. Thereafter the proceedings were carried out and vide order dated 30-11-1999, Nazir of this court was appointed as Commissioner to enquire into the assets left by the deceased by calling the parties to produce evidences. The Nazir thereafter filed his report dated 27-3-2000, which was taken on record vide order dated 12-9-2000, and he was directed to sell all the movable and immovable properties of the deceased in accordance with the preliminary decree passed on 3-11-1999. On 31-1-2005 the learned Single Judge ordered issuance of proclamation of sale of the said property. Thereafter the Nazir carried out all the legal formalities, however he received only one sealed offer in sum of Rs. 25 lac from the present appellants. This offer appeared to be reasonable to the learned Judge who vide order dated 16-5-2005 observed that the counsel for the plaintiff has no objection for approval and confirmation of the offer. Thereafter the learned Single Judge took the Nazir's report 23-4-2005 on record and accepted the offer and confirmed the sale and instructed that as only 10% of the offer amount has been deposited, the remaining amount be deposited by the appellants to the Nazir. The Nazir was also directed to hand over the possession of property to the auction-purchaser. The appellants then deposited two pay orders one amounting to Rs.625,000 and the other amounting to Rs.1,875,000 to Nazir on 13-6-2005 and 26-8-2005 respectively. It was only thereafter that the present respondents Nos. 1 and 2 filed an application under section 12(2), C.P.C. Dated 13-6-2005. This application came up for hearing before the learned Single Judge on 15-6-2005 and the learned Judge was pleased to issue notices to the concerned parties and till the next date suspended the operation of the impugned judgment and decree. The learned Judge also instructed the plaintiff to file amendment title and thereafter amendment title was filed on 5-1- 2008' and 14-2-2008 by including the respondents Nos. 1 and 2. The matter then came up for hearing before the learned Single Judge who vide order dated 11-1-2007, which is impugned in the present High Court Appeal, passed the order in the manner reproduced above. 11. It is an admitted position that the respondents Nos. 1 and 2 were not the parties in the administration suit, there is no denial to the fact that they were the legal heirs of late Abdul Saeed Khan. There is also no denial to the fact that while the said case proceeded they were neither heard nor any notice could be served upon them due to the fact they were not the party to the suit meaning thereby that firstly they were condemned unheard and secondly they were kept away from the administration suit to which they were the necessary party. It is a trite proposition of law that nobody should be condemned unheard. Reference in this regard may be made to the
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decision given by the Hon'ble Supreme court of Pakistan in the case of Anisa Rehman's v. PIA Corporation reported as 1994 SCMR 2232. 12. It is also an admitted position that the respondents Nos. 1 and 2 have been deprived from their legal due share and when they came to know about the same that they have been deprived of their share by way of miss under they filed an application under section 12(2) of the C.P.C. For the ease of reference the provisions of section 12(2), C.P.C. Are reproduced herein below:- Section 12(2), C.P.C. "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit". 13. Reading of above section would reveal that in the case of misrepresentation, this section helps the litigant to obtain the benefit in the regard. This provision is to provide substantial justice to a party who has been deprived of his legal rights by way of the conditions prescribed in the said section. It authorizes an aggrieved person who challenges the validity of a judgment or decree obtained on the basis of fraud, misrepresentation or for want of jurisdiction. There is no cavil to the proposition that there has been no denial on behalf of the pellants that the respondents Nos. 1 and 2 were not the legal heirs of the deceased but the only 'anxiety of the appellant was that as they have purchased the property in auction they should not be, at this belated stage, be deprived of from the same. It is seen that the plaintiffs while filing the administration suit have concealed the fact by not making the respondents Nos. 1 and 2 a party to the suit. Though they were mentioned in para 3 of the plaint but this also proves mala fide on their part that though they have mentioned the names of the respondents Nos. 1 and 2 in para 3 but have failed to mention their names in the title of the suit, which action surely amounts to misrepresentation. The first case relied upon by the learned counsel for the appellant in the case Hassan Din v. Hafiz Abdus Salam in which case the Hon'ble Supreme Court of Pakistan has observed as under:-- "The upshot of the above discussion of law on the subject is that in setting aside of an ex parte decree, notice to the decree-holder as on record is sufficient. Such setting aside of the decree does not affect the auction/sale of the property in execution of the ex parte decree, nor does it affect the auction-purchaser". The second decision relied upon by the learned counsel for the appellant in case of Anjum Rashid and others v. Shehzad and others in which the Hon'ble Supreme Court of Pakistan has observed as under:- "It is an admitted position that the ex parte decree and judgment in pursuance whereof the property in question was sold, has been set aside vide order dated 20-2-2001 passed on respondent No. 2's application under section 12(2), C.P.C. (J.M No. 7 of 2000). However, we find ourselves unable to uphold the contention that such would result in nullifying the impugned sale, in view of the explicit pronouncement of the Hon'ble Supreme Court in Hassan Din v. Hafiz Abdus Salam and others. "Section 144 embodies a well-established rule of equity that on the reversal of a decree the party against whom the wrong decree is passed should as far as possible, be placed in the same position which he would have occupied but for such decree, because it is the duty of the court to
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act rightly and fairly according to the circumstances towards all the parties involved and to remove as far as possible the consequence of a wrong or unjust decree. Thus rule may be relaxed in those cases where it conflicts with another rule of equity, namely, that a bona fide purchaser for value should not be allowed to suffer on account of the mistakes or irregularities committed by a Court of law, but it should not be relaxed in favour of a party who had due notice of the fact that the decree in execution of which he was proceeding to purchase the property was liable to challenge and had been challenged because he cannot be deemed to have acted with due care and caution if in spite of such notice he proceeded to purchase the property. The purchaser is however entitled to claim a refund of the sale proceeds withdrawn by the decree holder with interest from the date of his dispossession. It is true that a stranger to the decree is not bound to inquire into the merits of the decree holder's claim or into the validity of the decree." In the third judgment relied upon by the learned counsel in case of Chinnammal v. P.Arumugham on the following passage of the judgment:-- "There is thus a distinction maintained between the decree holder who purchases the property in execution of his on decree which is afterwards modified or reversed, and an auction-purchaser who is not party to the decree. Where the purchaser is the decree holder, he is bound to restore the property to the judgment-debtor by way of restitution but not a stranger auction-purchaser. The latter remains unaffected and does not lose title to the property by subsequent reversal or modification of the decree. The Courts have held that he could retain the property since he is a bona fide purchaser. This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed." In the fourth judgment relied upon by the learned Counsel in case of Mumtaz ud Din Feroze v. Iftikhar Adil on the following passage of the judgment:- "Further, a distinction has to be drawn between the decree-holder who came into purchase' under his on decree And a bona fide purchaser who came in and got the sale in execution of a decree to which he was not a party. In a ease Where this party is a bona fide auction-purchaser, his interest in sale of auction has to be protected". AIR 1951 Allahabad 832 In Bacon'S Abridgment, it was laid, down, citing still older authorities, that: "If a man recovers damages and bath executed by fieri Facias, and upon the fieri Facias the sheriff sells to a stranger a term for years, and after the judgment is reversed the party shall be restored only to the money for which the term was sold, and not to the term itself. Because the sheriff bad sold it by the command in the writ of fieri faelas." The principle was applied by the Privy Council to Indian cases in Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan, 10 ALL. 166. The Privy counsil after quoting from Bacon's Abridgment observed that bona fide purchasers who were no parties to the decree had nothing to do further than to look to the decree and to the order of sale. Their Lordships pointed out the distinction between a case in which the decree- holder was the auction-purchaser, who was not protected when the decree was set aside or modified, and the case of a stranger auction-purchaser. If the stranger auction purchaser was a bona fide purchaser, he was entitled to be protected". AIR 1967 Supreme Court 608 In Ambujammal v. Thangavelu Ghettiar, AIR 1941 Mad 399, it was
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observed: "There is no provision in the Code for the cancellation of a sale merely because of the cancellation of the decree and though it is in accordance with justice that aperson who has succeeded in appeal should get from the opposite, party such restitution as is possible, there is no principle of justice whereby an innocent third party who has purchased in a valid auction. Held by the Court should be deprived of his ' property, merely because the decree under which the sale was held has been cancelled in appeal. On general principles the judgment-debtor can look to the decree- holder to give restitution when the decree has been set aside in appeal, but there is no general principle which would give him a similar right to look to a third party who has for good consideration purchased the property sold through the Court." In S. Chokalingam v. N. S. Krishna, AIR 1964 Mad 404, there was a Letters Patent Appeal out of restitution proceedings in the Sub-Court. At Madurai. The first respondent was the judgment- debtor, the second respondent was the decree-holder-purchaser and the appellant was a purchaser from the decree-holder-purchaser. Division Bench of the Madras High Court observed. If the purchaser were to lose the benefit or his purchase on the contingency of the subsequent reversal of the decree, there will be no inducement to the intending purchasers to by at execution sale and consequently the property would not fetch its proper price at such sales, and the net result would be that the judgment-debtor would be the ultimate sufferer. This were policy of protecting the title of the stranger purchaser,…
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