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Petitioner: REHMAT NAWAZ KHAN VS Respondent: Mst. Syeda KHURSHID BEGUM through Legal Heirs JUDGMENT
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Aziz-ur-Rehman Title:REHMAT NAWAZ KHAN vs Mst. Syeda KHURSHID BEGUM through Legal Heirs
JUDGMENT
Reported As: 2019 CLC 52 Result: Petition dismissed Judgment JUDGMENT AZIZ-UR-REHMAN, J.----By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner upon feeling 'aggrieved' and 'dis- satisfied' with order dated 09.01.2016, passed by the learned IVth Additional District and Session Judge, Karachi Central whereby, the Civil Revision Application No.1 9 of 2014 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], was allowed and order dated 30.01.2014, passed by the IIIrd Senior Civil Judge, Karachi Central whereby, the auction 'confirmed' in favour of the Petitioner-auction purchaser was declared/set aside as not substainable in the eyes of law and consequently, the 'auction proceedings' held on 29.05.2013, in Civil Suit No.220 of 2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], were set-aside by declaring the same as not 'confirmed' the Petitioner 'inter alia' is seeking setting aside of the 'Impugned Order' dated 09.01.2016, by allowing the instant Petition with the following prayers:- "It is, therefore, prayed that this Hon'ble Court may be pleased to set-aside the impugned Order dated 09-01-2016 passed by the IVth Additional District and Sessions Judge (Central), Karachi, in Civil Revision Application No, 19 of 2014, and call the R&PS of the entire proceedings from the concerned Courts below and also dismissed the Civil Revision Application No. 19 of 2014, filled by the respondents Nos. 1 to 9, in the interest of justice. [Emphasis supplied] Cost of the proceedings may also be awarded. Any other better relief(s) this Hon'ble Court may deemed fit and proper in the circumstances of the case." 2. Precisely, the facts essential for 'disposal' of the case in hand are as follows:-
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3. Per assertions made in the Memo. of Petition [In short MoP], the Respondents Nos. 1 to 9, filed a Suit No.220 of 2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], in the Court of IIIrd Senior Civil Judge, Karachi Central, against the Respondents Nos.10 to 12 for 'administration' and 'permanent injunction' regarding a residential Plot No.27, Row No.1, Block-4, Sub-Block-G, Nazimabad, Karachi Central; admeasuring 486 'sq. yds., [hereinafter referred to as the 'suit property'. According to the assertions made in the plain, one [Late] Syed Sharafat Hussain son of Mehdi Hassan had acquired the 'suit property' in the year, 1954-55 and, thereafter, he had given the same 'suit property' to his wife Syeda Khursheed Begum [Respondent No.1 herein], by executing an 'Iqrarnama' dated 25.08.1959, Respondent No.1, as claimed, thereafter, raised construction over the 'suit property' by selling her ornaments and borrowing loan from her relatives. The construction raised on the 'suit property', stated to be consisting of a ground plus one floor. The 'suit property', however, was never transferred in the name of Respondent No.1 viz. Syeda Khursheed Begum and admittedly the same still stands in the name of [Late] Syed Sharafat Hussain. 4. It appears, that, Syed Sharafat Hussain passed away on 11.02.1986, at Karachi, at the age of 65 years. The deceased, it is not disputed, had two wives viz. [i] Syeda Nusrat Jehan Begum and [ii] Syeda Khursheed Begum. From the first wife viz. Mst. Syeda Nusrat Jehan Begum, who expired during the life time of deceased Syed Sharafat Hussain, there are three [3] children i.e. Respondents Nos.10, 11 and 12. From the wedlock of second wife, namely, Mst. Syeda Khursheed Begum [Respondent No.1 herein], the Respondents Nos.2 to 9 herein, were born. The Respondents Nos.2 to 12, are thus brothers and sisters. 5. Per Respondents Nos.1 to 9 who were Plaintiffs Nos. 1 to 9 in Suit No.220/2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], though the 'original documents' and 'all other related papers' of the 'suit property' are lying with Respondents Nos.10 to 12, but they, despite of time and again demand; are not inclined to handover the 'title documents' of the 'suit property' to Respondents Nos.1 to 9. The Respondents Nos.1 to 9, as asserted in the plaint, were/are in need of 'title documents', as they intend to transfer the 'suit property' left behind by [Late] Syed Sharafat Hussain, in the names of all legal heirs of deceased. Respondents Nos.10 of 12, however, in their own wisdom did create hindrance in completion of the transfer of 'suit property' in the names of all legal heirs, hence, Suit No.220/2011 [Mst. Syeda Khurshid Begum and others v. Sued Hifazat Hussain and others], was filed against the respondents Nos.10 to 12, for 'ADMINISTRATION' and 'PERMANENT INJUNCTION' on 2-3-2011, in the Court of IIIrd Senior Civil Judge, Karachi. Central. 6. Being a suit for 'ADMINISTRATION' and 'PERMANENT INJUNCTION' on 23-02-2012, a 'Preliminary Decree', as required under Order XX Rule 13, C.P.C., Form 17 Appendix 'D' to the 1st Schedule of the Civil Procedure Code (V of 1908), was passed and consequently, the Nazir of District Court was appointed as Commissioner to put the 'suit property' for sale through 'public auction'. From the record, it reflects that the 'suit property' was put to auction pursuant to the order dated 06-07-2012. The 'auction process' was conducted on 16-04-2012, but the offer received was not accepted, as the bid/offer was found less than the 'RESERVED PRICE'. Resultantly, the earnest bid money of 25% was returned to the highest bidder viz Syed Saleem Zaidi [Respondent No.9 herein] vide order, dated 18-3-2013. Besides, the Nazir was directed to re-advertise the 'suit property' for 'auction'/'sale afresh'. 7. In the 2nd process of auction, again Syed Saleem Zaidi was the highest bidder, but his offer/bid was not accepted, as the same was below than the 'RESERVED PRICE' i.e. Rs.1,20,00,000/-. The process of 3rd time auction, after publication of notices in 'Daily Jang' and 'Daily Dawn' of 02.05.2013, was held on 29.05.2013, wherein, the Petitioner viz. Rehmat Nawaz Khan was held as 'successful bidder'. The offer submitted by him was in the sum of Rs.1,34,00,000/-. The 2nd highest bidder, as per Nazir report dated 17.06.2013, was Syed Saleem Zaidi whose offer was in the sum of Rs.1,33,00,000/-. The Nazir report dated 17.06.2013 being relevant in this regard is reproduced
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hereinbelow:-- "In compliance of Hon'ble Court order in connection with auction of Suit Property bearing House No.27, Row No. 01, Block-IV, Sub-Block-G, Nazimabad, Karachi, It is respectfully submitted that the Publication for auction the Property was made in daily "JANG" dated: 02-05-2013 and in daily "DAWN dated 03-05-2013." that on 29-05-2013 at about 03:00 P.M the Advocate for the Plaintiff and other two persons came in my office for participating in auction and the said two persons filed auction bid form along with photocopies of their CNICs which are placed on record and marked annexures. "A" and "B" respectively One Mr. Rehmat Nawaz Khan son of Fasahat Ali Khan was the highest bidder as he contested the auction bid up to Rs.1,34,00,000/= (Rs. One Crore thirty four lacs only) the second highest bidder was Mr. Syed Saleem Zaidi son of Syed Sharafat Hussain who came up to Rs.1,33,00,000/- (Rs: One Crore thirty three lacs only) as such Mr. Rehmat Nawaz Khan son of Mr. Fasahat Ali Khan was held to be the highest bidder and he paid 1/4 of auction money comes to Rs.33,50,000/- in the shape of two pay orders issued from Bank Al-Habib Limited Stock Exchange Branch dated 29-05-2013 and 31-05-2013 the said pay orders are lying in safe custody of this Nazarat Branch at Sr. No. 16990/13, Dt: 17-06-2013. [Emphasis supplied] The auction report is hereby submitted in your honour's for kind perusal and for further necessary orders." 8. From the record, it transpires that Respondents Nos.1 to 9 herein i.e. Plaintiffs in Suit No.220/2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], feeling 'dis-satisfied' with the aforesaid 'auction proceedings' constrained to file an Application under Order XXI Rules, 66, 67, 88, 89 and 90 read with section 151, C.P.C. through their duly constituted attorney viz: Syed Muhammad Tufaiqe son of Syed Muhammad Siddique with a prayer for setting aside/distording the 'auction proceedings' held on 29.05.2013, however, after 'notice' and 'hearing of the parties'. The prayers sought in the afore-mentioned application read as follows:-- "...It is respectfully prayed on behalf of the Plaintiff's above named, who are co-sharer and have preference rights, that this Hon'ble Court may be pleased to discard and set aside auction proceedings held on 29-05-2013, under the law Payment Order of 20% of the offer price i.e. Rs.1,34,00.000/- is being submitting with this application, as according to the information of the Plaintiff the said offer amount is still low side, as under the present situation the current market value of the Suit Property is between Rs.1,38,00,000/- to Rs.1,42,00,000/- therefore further, auction proceeding this respect will be beneficial for the Plaintiffs and the Defendants. [Underlining is ours] The prayer is made in the interest of justice." 9. The learned trial Court, upon service while, dismissing the aforesaid application filed by Plaintiffs [Respondents Nos.1 to 9 herein], on 30.01.2014 also 'CONFIRMED' the 'auction proceeding' held on 29.05.2013 i.e. after about passing of 8 months with further direction to the 'auction-purchaser' [Petitioner herein], to deposit the remaining amount within 15 days w.e.f. 30.01.2014. The Petitioner, thereafter, did deposit the balance part of 25% i.e. Rs.6,50,000/- on 31.05.2013 and the remaining 75% of auction money amounting to Rs.1,00,50,000/- on 08.02.2014. For properly understanding the issue involved, the Nazit's Report dated 26.05.2015, is reproduced herein below:- "In compliance of order dt:09-05-2015 passed by this Honourable Court. It is respectedly submitted that auction Proceeding in respect of Suit Property bearing House No.27, Row No.01, Block-IV Sub-Block-G, Nazimabad, Karachi was held on 29-05-2013 and two participated in the said auction Proceeding One Mr. Rehmat Nawaz Khan son of Fasahat Ali Khan was the highest bidder as he contested the auction bid up to Rs. 1,34,00,000/= the second highest bidder was Mr. Saleem Zaidi son of Syed Sharafat Hussain (Plaintiff No.09) in the noted matter who came up to Rs.1,33,00 000/-, as such, Mr. Rehmat Nawaz Khan S/o Fasahat All Khan was held to be the Highest
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bidder and he s said 1/4 of auction money comes to Rs.33,50,000/- out of which the bidder deposited Pay order No. 3234557 dt: 29-05-2013 of Rs.28,00.000/- instead of total amount Rs.33,50,000/- and the bidder again deposited remaining 1/4 amount through Pay order No.3234563, dated 31-05-2013 with the undersigned on 31-05-2013, the said auction Proceeding has confirmed by this Hon'ble Court on 30-01-2014 and the said bidder deposited the remaining amount Rs.1,00,50,000/- through h P.O. No.3235520 on 08-02-2014." [Underlining is ours] 10. Later on, when the above application under Order XXI Rules 66, 67, 88, 89 and 90 read with section 151, C.P.C., filed by the Plaintiffs [Respondents Nos. 1 to 9 herein], came-up before the Court of IlIrd Senior Civil Judge Karachi Central, on 30.01.2014 then, the same was dismissed and the 'auction' held on 29.05.2013 was confirmed. For ready reference and convenience purpose, order dated 30.01.2014 is reproduced herein below:- "By this order I hereby disposed off an application under Order XXI rules 66, 67, 88, 89 and 90 read with 5.151, C.P. C. filed by the counsel of plaintiffs wherein prayed to set-aside auction proceedings held on 29.05.2013. Notice was given to the other side, defendants have been debarred from filing of objections on the said application, as they failed to do inspite of several opportunities have been given, while bidder namely Rehman Nawaz khan filed counter affidavit wherein prayed to dismiss the prayer of applicant. Heard learned counsel for the plaintiff and purchaser in person and also documents available in judicial file. Record reveals that in instant matter 3 times auction proceedings had been conducted by the Nazis of this District, in the first auction one of the plaintiff's Syed Saleem Zaidi held to be the highest bidder, but the same has not been confirmed as the bid was less than the reserve price. In second one, Syed Saleem Zaidi held to he the highest bidder, but subsequently re-auction order has been passed by this Court vide order dated 19.03.2013 due to law bid than reserved Price. Then another auction has held and present auction bidder held to be the highest bidder who submitted 25% bid money before the Nazis of this district in which plaintiff has also participated in auction proceedings and he was 2nd highest bidder. Plaintiffs by filing instant application sought prayer that the market value has been increased after auction and it is between Rs.1,38,00,000/- to Rs. 1,42,00,000/-, therefore, re-auction may kindly be ordered as it will be beneficial for the plaintiffs and the defendants. It is a matter of record that Nazir has submitted his report wherein he assessed the market value of the property in question is near about Rs.1,10,00,000/- to Rs.1 20,00,000/-. It is pertinent to mention here that the present bidder Rehman Nawaz has given the bid more than the bid of the plaintiff himself as well as reserve price also, thus in my humble opinion the prayer sought by the plaintiffs is not maintainable as if the market value has been increased it would be the right of the auction purchaser to avail that opportunity therefore, the application of plaintiffs in hand is hereby dismissed with no order as to cost. Auction dated 29.05.2013 is hereby confirmed and auction purchaser is directed to deposit remaining amount within 15 days time of this order with the Nazir of this District." [Underlining is mine]. 11. The Respondents Nos. 1 to 9 herein, thus feeling seriously 'aggrieved' and 'dis-satisfied' with the order dated 30.01.2014, passed by the IIIrd Senior Civil Judge, Karachi Central, filed a Civil Revision No.19 of 2014 [Mst. Syeda Khursheed Begum and others v. Sved Hifazat Hussain and others], before the IVth Additional District Sessions Judge, Karachi Central, with a prayer for setting aside the 'impugned order' dated 30.01.2014. It appears, that the Petitioner as being an action-purchaser, was initially not joined as a party to the Civil Revision Application No.19 of 2014 [Mst. Syeda Khursheed Begum and others v. Syed Hifazat Hussain and others], however. later on, the Court while granting the application under Order I Rule 10 read with section 151, C.P.C. the 'Petitioner'-'auction purchaser' was impleaded in the 'array of Respondents' as Respondent No.4 in the Civil Revision Application
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No.19/2014 [Mst. Syeda Khursheed Begum and others v. Syed Hifazat Hussain and others]. This position is quite clear from the 'amended title' filed in the said Civil Revision Application No.19 of 2014. Upon joining the 'auction-purchaser' [Petitioner herein], the said Civil Revision Application No. 19 of 2014 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], was heard, but the same was found meritless, as such, the same was dismissed by the 'impugned order' dated 09.01.2016 herein, passed by learned IVth Additional District and Sessions Judge, Karachi Central. The operative part of the 'impugned order' dated 09.01.2016 reads as follows:- "I am of the humble opinion that the order dated 30.01.2014 passed by the learned trial Court confirming the auction proceedings is not sustainable in the eyes of law and requires interference of this court. Consequently the order dated 29.05.2013 is hereby set aside and the auction proceedings are not confirmed. It is further ordered that fresh auction proceedings in respect of suit property be held by the Nazir in accordance with law and the auction purchaser as well as any other interested person would be at liberty to participate in the auction proceedings. In the above terms the instant civil revision application is allowed. The parties are left to bear their own costs." [Underlining is ours] 12. The Petitioner herein [Auction-purchaser], feeling 'aggrieved' and 'dis-satisfied' with the 'impugned order' dated 09.01.2016, passed by the learned IVth Additional District and Sessions Judge, Karachi Central. has approached this Court through instant 'Writ Petition' inter alia, with a prayer for setting-aside the impugned order dated 09.01.2016, as according to the Petitioner's stand said order besides, being bad in law/erroneous, is suffering from mis-reading and non-reading of the materials available on record. Further, the learned IVth Additional District and Sessions Judge, Karachi Central, has failed to properly understand the case of the Petitioner in its' true perspective i.e. in view of the law and materials available on record. 13. Upon filing the instant 'writ petition' under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, on 12.12.2016, when the same came-up before this Court on 16.02.2016, then while, granting the Urgent hearing, notices were issued to the Respondents for 26.02.2017. On service, out of the Respondents only Respondents Nos. 1 to 9, filed their objections. In response thereto, the Petitioner also filed 'counter-objections'. The 'Petitioner [Auction Purchaser] and. Respondents Nos.1 to 9 herein, specifically denied/controverted the each other's 'pro' and 'contra' stand. Record shows that during the pendency of the instant 'writ petition', Respondents Nos.1 and 6, have been passed away and their legal heirs, as per order dated 28.02.2017, have already been brought on record, by way of filing an 'Amended Title' on 03.03.2017. 14. On 24.11.2017, when the above petition came-up before us, then we heard Mr. Muhammad Ikram Siddiqui, learned counsel for the Petitioner, Mr. Kamran Arshad, learned counsel for Respondents Nos.1 to 9 and Raja Qasit Nawaz Khan, learned counsel for Respondents No.10 to 12 and with their assistance also gone through the record minutely. 15. Mr. Muhammad Ikram Siddiqui, learned counsel for the Petitioner, forcefully contended that the 'impugned order' dated 09.01.2016, passed by the IVth Additional District and Sessions Judge, Karachi Central, besides, bad in law, and on facts, is erroneous as the learned IVth Additional District and Sessions Judge, Karachi Central has not only failed to correctly appreciate the materials on record, but also failed to interpret the law properly. Per Mr. Muhammad Ikram Siddiqui, learned IVth Additional District and Sessions Judge, Karachi Central, did exercise the jurisdiction, which under law was/is not vested in him. Apart from the above, learned Revisional Court has also failed to exercise the discretion, vested in him, equitably. Learned counsel for the Petitioner while, arguing the case next contended that the learned IVth Additional District and Sessions Judge, Karachi Central, by the 'impugned order' dated 09.01.2016, has erred in interpreting that 25% of bid money, in first instance, was not made at the fall of hammer; as such, the 'auction/sale' of the 'suit
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property' remained short of completion for lack of the mandatory legal requirements in terms of Order XXI Rule 84, C.P.C. Per learned counsel, the Revisional Court, has also failed to consider that the 25% of bid money was deposited before 'confirmation of the sale' of 'suit properly' on 30.01.2014, as evident from the Nazir Report dated 17.06.2013. 16. According to Mr. Ikram Siddiqui, learned counsel for the Auction Purchaser [Petitioner herein], the auction proceedings held on 29.05.2013 have been conducted in accordance with law. Moreover, the learned IVth Additional District and Sessions Judge, Karachi Central, has failed to properly consider that the entire 'sale consideration'/`bid' amount was paid within the time limit as provided under Order XXI Rule 85, C.P.C. The entire 'bid money' in the sum of Rs.1,34,00,000/-, is lying with the Nazir of the District Court w.e.f. 08.02.2014, as per Nazir reports dated 17.6.2013 and 26.5.2015. Mr. Muhammad Ikram Siddiqui, learned counsel for the Petitioner, forcefully argued that the learned IVth Additional District and Sessions Judge, Karachi Central, has not only mis-understood and mis- interpreted the Rule 84 of Order XXI, but has also given a wrong finding i.e. to the effect and extent that the Petitioner, at the fall of harmmer, has failed to deposit 25 % of bid money. Per learned counsel, the Revisional Court has badly failed to apply its' judicial mind properly at the time of passing the 'impugned order' dated 09.01.2016. Since, the learned Revisional Court, as urged, has failed to consider the true, genuine, and cogent pleas raised by the auction purchaser [Petitioner herein], in its' true perspective, as such, the 'impugned order' of 09.01.2016, is liable, to be set-aside. 17. Lastly, Mr. Muhammad Ikram Siddiqui, learned counsel for the Petitioner, contended in vehemence that since, the 'impugned order' dated 09.01.2016 passed by the learned IVth Additional District and Sessions Judge, Karachi Central, besides bad in law, unjust is based on an erroneous presumption, as such, the same is liable to be set aside, otherwise, the auction purchaser [Petitioner herein], shall be seriously prejudiced. In support of his contentions reliance was placed on the cases of:- [i] A.R. Davar v. Jhinda Ram and another [AIR 1938 Lahore 198], [ii] Manual Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and another [AIR 1954 SC 349 Vol. 41, C.N. 84] 18. The relevant portions from the aforesaid cases respectively are reproduced herein-below:- [i]. AIR 1938 Lahore 198 "The contention raised on behalf of the auction purchaser is that the failure to deposit 75 per cent of the sale price within a fortnight, as required by O. XXI, R. 85, amounts to a material irregularity in publishing or conducting a sale and such irregularity is covered by O. XXI, R. 90, Civil P. C. In my opinion this contention is devoid of all force. The "publishing" of the sale has reference to all proceedings that take place till the sale is actually held. The sale is held or conducted on a particular day or days appointed by the Courts. As soon as the sale is concluded the highest bidder is declared, under O.XXI, R. 84 to be the purchaser. He is to pay immediately after this declaration a deposit of 25 per cent of the purchase price to the officer or other person conducting the sale. [Emphasis supplied] [ii] AIR 1954 SC 349 Vol. 41, CN 84 "(11) Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of the opinion that the provisions of the rules requiring the deposit of 25 per cent of the purchase money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity.
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The very fact that the court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eyes of law. We hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired no rights at all. [Emphasis supplied] 19.Conversely, Mr. Kamran Arshad, learned counsel for the Respondents Nos. 1 to 9, strenuously contended, the instant writ petition as 'framed' and 'filed' is not only mis-conceived, but also mis- leading. Per learned counsel, the 'impugned order' dated 09.01.2016, is not only proper but also has been validly passed, as such, the same needs to be uphold by this Hon'ble Court. According to Mr. Kamran Arshad, in the Civil Suit No.220 of 2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], filed before the IIIrd Senior Civil Judge, Karachi Central, by Respondents Nos .1 to 9, herein for 'Administration' and 'Permanent Injunction' against Respondents Nos. 10 to 12 regarding the 'suit property' vide order dated 23.02.2012, admittedly permission was granted to all…
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