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Petitioner: ZAHID JAVED VS Respondent: Haji ABDUL SATTARthrough Legal heirs and others
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: ZAHID JAVED vs Haji ABDUL SATTARthrough Legal heirs and others Case No.: Civil Revisions Nos 978 and 1655 of 2002 Date of Judgment:2013-05-24 Reported As: 2013 YLR 2457 Result: Revision accepted
JUDGMENT
JUDGMENT ' SHUJAAT ALI KHAN, J.---Through this revision petition I intend to dispose of this petition (Civil Revision No,978 of 2002) as well as Civil Revision No,1655 of 2002, having commonality of facts inasmuch as in both these petitions the judgment dated 11-4-2002 passed by the learned Additional District Judge, Faisalabad, has been challenged. 2. Concisely, respondents Nos.2, 7, 8, 9 and 11 filed a suit for partition against respondents Nos.3, 4, 5, 6, 10, 12 and 13 regarding Property No,P5, Ward No,8, Karkhana Bazar, Faisalabad before the learned Civil Judge, Faisalabad. The learned trial Court, on 22-6-1986, passed a preliminary decree and ordered for appointment of local commission to report as to whether the suit property is divisible or not and to suggest alternative mode. The Local Commission reported that the property is not divisible. Respondent No,12 filed a petition (Writ Petition No,13439 of 1994) before this Court which was disposed of on the basis of the compromise (Mark-C) arrived at between the parties with the observation that parties would make a joint effort to sell the property and if the sale price is acceptable to both the parties they would be entitled to buy out the share of each other but in the event the arrangement is not finalized or concluded the sale of property shall be made through process of Court. As the parties failed to sell the property by their own the learned Civil Judge vide order dated 24-2-1997 directed for auction of property. As a result, the property was auctioned on 18-5-1998 which was purchased by the petitioner being highest bidder. Consequently, the petitioner filed an application for issuance of Sale Certificate in his favour. On 21-5-1998 respondent No,1 filed a suit for specific performance against respondents Nos.2 to 11 on the basis of an agreement to sell dated 8-5-1997. He also filed objection petition with the prayer that auction be cancelled as respondents Nos.2 to 11 had concealed factum of agreement to sell in his favour.
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Along with the said suit, respondent No,1 also filed an application under Order XXXIX rules 1 and 2, C.P.C. For grant of temporary injunction. The learned Civil Judge, vide two separate orders dated 12-9-1998, while accepting the said application as well as the objection petition, dismissed that of the petitioner for issuance of Sale Certificate in his favour. The petitioner preferred an appeal against orders dated 12-9-1998. However, subsequently on 1-4-1999 the objector/ respondent No,1 made a statement that he had no objection on acceptance of the appeal. Consequently appeal of the petitioner was accepted and orders dated 12-9-1998 passed by the learned Civil Judge, Faisalabad were set aside. Thereafter the petitioner filed an application before the learned Civil Judge for confirmation of sale in his favour by issuance of Sale Certificate. Respondents Nos.4, 12 and 13 filed an application before the trial Court for setting aside auction proceedings on the ground that the same have been conducted in violation of order dated 3-7-1996. The learned Civil Judge, vide order dated 13-5-1996, dismissed the said application and orders qua confirmation of sale in favour of the petitioner and subsequent issuance of Sale Certificate were affirmed. Respondents Nos.12, 13 and 4 filed revision petition against order dated 13-5-1996 which was dismissed by the revisional Court vide order dated 24-5-1999. The petitioner filed an application before the learned Civil Judge under Order XXI Rule 95, C.P.C. For handing over possession of the disputed property which was accepted vide order dated 27-5-1999 and possession was handed over to the petitioner accordingly. Against order dated 27-5-1999 respondents Nos.12 and 13 filed an appeal which was disposed of vide order dated 12-6-1999 with a direction to the trial Court to obtain appropriate stamp duty from auction purchaser/petitioner, which order was complied with by the petitioner. Thereafter, respondents No,12 and 13 filed an application under section 12(2), C.P.C. In the court of learned Additional District Judge, Faisalabad challenging order dated 1-4- 1999, which was dismissed vide order dated 29-5-1999 against which they filed a revision petition (Civil Revision No,1145 of 1999) before this Court which was accepted vide judgment dated 4-6-2001 and order dated 29-5-1999 was set aside. As a result, the learned Additional District Judge, Faisalabad, was directed to decide the application afresh. The learned Additional District Judge, Faisalabad, vide order dated 20-11-2001, accepted the application filed under section 12(2), C.P.C. And set aside order dated 1-4-1999 and directed the petitioner to file amended. Appeal after arraying respondents Nos.12 and 13 as party. The review application filed against order dated 20-11- 2001 was also dismissed. Finally the appellate court, vide judgment dated 11-4-2002 dismissed the appeal filed by petitioner and ordered for fresh auction; hence this petition. 3. Learned counsel for the petitioner (Zahid Javed), while opening his arguments, contends that the lower Appellate Court did not appreciate that application under section 12(2), C.P.C. Was not maintainable; that though the auction was held on 18-5-1997 but nobody challenged the same let alone the suit filed by Haji Abdul Sattar (respondent No,1) who was not a party in the suit for partition; that as order dated 18-5-1997 was not challenged by any of the co-sharers, therefore, the said order became absolute to their extent; that after auction of the property respondents Nos.2 to 13 have nothing to do with it; that respondents Nos.12 and 13 had no locus standi to file application under section 12(2), C.P.C. As their objection petition was dismissed by the Executing Court on 13-5- 1999; that order of confirmation of sale in favour of the petitioner and subsequent issuance' of sale certificate was challenged by respondents Nos.4, 12 and 13, however not only their application was dismissed but their revision petition was also dismissed by virtue of order dated 24-5-1999; that the application filed by the petitioner under Order XXI Rule 95, C.P.C. Having been accepted and possession has been handed over to him, respondents had no cheeks to challenge the sale in favour of the petitioner; that when the possession was handed over to the petitioner, the Court had become functus officio as no application under Order XXI Rule 94, C.P.C. Was filed and that the impugned judgment is result of misreading and non-reading of evidence in addition to non- application of the relevant law. In addition to his oral submissions, learned counsel has relied upon
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the cases reported as Province of Punjab through Collector Sargodha v. Muhammad Bakhsh and another (2012 SCMR 664), Malik Shahid Mehmood v. Malik Afzal Mehmood and others (2011 SCMR 551), Muhammad Saleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339), Sahib Dad v. Province of Punjab and others (2009 SCMR 385), S.M. Sohail v.. Mst. Sitara Kabir ud Din and others (PLD 2009 SC 397), Mst. Sabiran Bibi and others v. Ahmed Khan and others (2008 SCMR 226), Moulana Atta-ur-Rehman v. Al-Haj Sardar Umar Farooq and others (PLD 2008 SC 663), Monazah Parveen v. Bashir Ahmad and 6 others (2003 SCMR 1300), Naseer ud Din and others v. Ch. Ali Muhammad and others (2002 SCMR 1115), Mst. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCMR 296), Muhammad Ramzan and others v. Member (Rev.)/CSS and others (1997 SCMR 1635), Allah Wasaya and 5 others v. Irshad Ahmad and 4 others (1992 SCMR 2184), Ghulam Sarwar v. Muhammad Hussain and others (1987 SCMR 1440), Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others (PLD 1987 Supreme Court 512), Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1985 Supreme Court (Pak.) 104), Syed Ameer Hussain Shah v. Syed Dilbar Hussain Shah (2011 MLD 1956), Haji Imam Din v. Mst. Siftan Bibi (2010 YLR 2825), Mrs. Azra Shabbir v. Mrs. Rehana Khatoon (2010 CLC 1578), Province of Sindh through Secretary Forest Department Karachi and another v. Haji Gul Muhammad Hingoro through L.Rs and 7 others (2010 YLR 659), Nasir Rasheed Chaudhry v. Habib Bank Ltd. And 2 others (2009 CLD 1490), Mst. Mumtaz Begum and 6 others v. Additional Custodian of Enemy Property for Pakistan and 6 others (PLD 2009 Lahore 63), Miss Shazia Ashraf v. Muncipal Committeee, Sahiwal through Administrator and another (2006 CLC 1018), Abdul Hameed and 3 others v. Mst. Nasiban Bibi and 4 others (2004 MLD 1677), Office Incharge Market Committee and others v. Arsalah Khan Brothers and others (2004 CLC 1427), National Bank of Pakistan v. Zarak Textile Mills Ltd. (2004 CLC 97), Pakistan Employees' Cooperative Housing Society v. Messrs Awami Constructions Co. Ltd. And another (2003 CLC 607), Mir Taj Muhammad Khan Jamali v. Regional Development Finance Corporation and 3 others (1999 CLC 350), Karim Charania v. Nabi Bux Bhurgari (1998 MLD 812), Messrs Capital Farms, Islamabad v. National Development Finance Corporation (PLD 1996 Lahore 99), Miss Faryal Wali and others v. District Magistrate and others (1993 CLC 60), Mst. Hajira Begum v. Abdul Aziz PLD 1973 Note 104 at page 158, Bejoy Krishna Paik and another v. Montajuddi Shaikh and others (PLD 1961 Dacca 177), Muhammad Mohsin and others v. Haji Abdul Momin Khan and others (PLD 1961 Dacca 99) and Jnanada Sundari Nandi v. Narayan Chandra Sardar and others (PLO 1957 Dacca 198). 4; Conversely, learned counsel for the respondents Nos.2 to 13, while defending the impugned judgment, submits that as the respondents were party in the objection petition filed by Haji Abdul Sattar, therefore, they were necessary party before the Appellate Court in the appeal filed by the petitioner (Zahid Javed), therefore, any order passed in their absence was nothing but nullity in the eye of law; that when fraud or concealment of facts was apparent on the face of record, provisions of section 12(2), C.P.C. Were fully attracted; that the revision petition is not competent; that as the auction was conducted in violation of the compromise arrived at between the parties during pendency of proceedings before this Court, therefore, the same could not be allowed to hold the field; that order regarding dismissal of their application under section 12(2), C.P.C. Was challenged by Muhammad Younas etc. Before this Court by filing Civil Revision No,1145 of 1999 which was accepted vide order dated 4-6-2001, hence, orders dated 13-5-1999 regarding confirmation of sale, order dated 27-5-1999 regarding handing over of possession to the petitioner are of no consequence; that Haji Abdul Sattar (respondent No,1) had already filed Civil Revision No,565 of 2002 which was subsequently dismissed as withdrawn on 22-3-2002, therefore, to the extent of the claim involved in the said revision petition the civil revision filed by Abdul Sattar (C.R. No,1655 of 2002) is not competent and that the impugned judgment is based on true appreciation of facts and the application of relevant law. In support of his submissions, learned counsel has relied upon
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the cases reported as Allah Ditta v. Ahmed Ali Shah and others (2003 SCMR 1202), Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others (1994 SCMR 782), Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710), Mst. Maqbool Begum and others v. Gullan and others (PLD 1982 SC 46), Mst. Ilahi Noor and 4 others v. Muhammad Din (PLD 1977 SC 634), The- Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others (PLD 1975 SC 331), Mst. Murad Begum and others v. Muhammad Rafiq and others (PLD 1974 SC 322), Javadan Cement Ltd. v. Government of Sindh through Secretary Land Utilization Department, Karachi and 3 others (2000 CLC 1119), Muhammad Yousaf and 3 others v. Mst. Zubeda Begum and another (1993 MLD 2138), Mst. Kausar Bibi v. Muhammad Mushtaq and 6 others (1990 CLC 1205), Mercantile Fire & General Insurance Co. Of Pakistan Ltd. v. Messrs Imam and Imam Ltd. (1989 CLC 2117), Abdullah v. Maqbool Ahmad (1988 CLC 1633), Muhammad Suleman v. Abdul Rashid and 13 others (PLD 1987 Lahore 387), Muhammad Sultan v. Molidino and others (NLR 1980 UC 122), Muhammad Abul Kashem v. Sabdar Mallik and others. (PLD 1961 Dacca 129) and Ismail and another v. Hakim Khan and others (PLD 1954 Peshawar 53). 5. Learned counsel appearing on behalf of respondents No,1-A to 1-M, in this petition and for the petitioner in Civil Revision No,1655 of 2002 supports contention of learned counsel for the petitioner (Malik Abdul Wahid, Advocate) and prays for acceptance of both these petitions. 6. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case-law cited at the bar. 7. One of the most pivotal questions involved in this matter is as to whether the appeal filed by Zahid Javed, petitioner, could be accepted on the statement of Haji Abdul Sattar or not. According to Order XXIII rule 1, C.P.C. The plaintiff of a suit has the option to withdraw his claim as a whole or to relinquish any part thereof at any stage, including appellate stage. The condition precedent for such withdrawal is the satisfaction of the Court as to whether such withdrawal would not prejudice any right accrued in favour of any party during proceedings in the said suit. In the instant case admittedly the parties arrived at a compromise to dispose of the property by way of sale as the same was not divisible as per report of the local commission. Pursuant to order of this Court, passed in Writ Petition No,13439 of 1994 the parties failed to sell the property by themselves within the stipulated period, the trial Court ordered for sale of the same through open auction by virtue of order dated 24-2-1997 which was conducted on 18-5-1998 and the etitioner being highest bidder was declared as successful. It is admitted fact that order dated 24-2-1997 was not challenged by any co-sharer. Haji Abdul Sattar (deceased) filed suit for specific performance of agreement to sell dated 8-5-1997 executed by respondents Nos.2 to 11 herein. In addition thereto he also filed an objection petition for cancellation of auction. While accepting objection petition and application for temporary injunction the learned trial Court vide separate orders dated 12-9-1998 set aside the auction and restrained further alienation of suit-land. Aggrieved by the said orders passed by the learned Civil Judge the present petitioner preferred an appeal during pendency whereof Haji Abdul Sattar (objector/plaintiff) made a conceding statement that he has no objection if the orders impugned in the appeal are set aside and his objection petition as well as suit along with application for grant of temporary injunction are dismissed as withdrawn. It is admitted fact that no co-sharer including respondents Nos.12 and 13 challenged order dated 18-5-1997, whereby property was auctioned, thus, in fact they acquiesced with the order and to their extent the same had attained finality. As the appeal had arisen out of objection petition and application for temporary injunction filed by Haji Abdul Sattar, deceased, therefore, status of rest of the respondents in appeal was just a pro forma as no relief was claimed against them. In the above scenario, the order of the Appellate Court declining request of respondent No,1 to withdraw his suit as well as objection petition being violative of the powers conferred upon the Appellate Court under section 107 read with Order XLI, Rule 33, C.P.C. Is not sustainable.
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8. A perusal of impugned judgment brings it to limelight that the Appellate Court, while dismissing the appeal, treated the appeal filed by Abdul Sattar against order dated 18-5-1997 whereby the property was put to auction but as a matter of fact the appeal had arisen out of acceptance of objection petition filed by Haji Abdul Sattar and acceptance of his application filed under Order XXXIX, Rules 1 and 2, C.P.C. For grant of temporary injunction, therefore, observation of the Appellate Court that Haji Abdul Sattar was not obliged to withdraw his suit as well as objection petition on account of being detrimental to the rights of respondents Nos.12 and 13, is misconceived. If respondents Nos.12 and 13 had any grudge against auction proceedings they were at liberty to challenge the same within the stipulated period but they having acquiesced to the auction were debarred to challenge the same at any subsequent stage. It is very astonishing to note that while dismissing appeal filed by the petitioner the learned Appellate Court instead of giving any valid reasoning, observed in concluding paragraph as under:- "After considering the whole gamut of the case, and the ratiocination adopted by the learned trial Court in its order dated 12-9-1998, I feel that the findings recorded by it could be arrived at without framing issues as those were based on either admitted facts or on hard facts proved on record. The appellant and the vendee Abdul Sattar (objector) are wing the line of each other even now. It would, therefore, be in the interest of justice if the property in question is put to auction again to allow the owners to take part in its purchase in preference to others so that maximum consideration is obtained as per market value. The learned trial Court is directed to put the property to re-auction after completing meticulously all the legal/codal formalities. The aforementioned two applications moved today are rejected to the extent of any detriment to the added respondents who were held as necessary party by the honourable High Court. The suit being for partition, they were also decree-holders. As the matter is pretty old, the learned lower court would try to finalize the auction proceedings within three months. The appeal stands dismissed in the above terms without any order as to costs. ' A perusal of afore-quoted judgment of the Appellate Court shows that the same is bereft of any reasoning. Mere fact that Haji Abdul Sattar (deceased) was allegedly supporting the present petitioner during proceedings pending as a result of filing of his suit as well as objection petition cannot be said that the same amounts to fraud or collusiveness. There is no cavil with the preposition that auction proceedings can be set at naught by the court of competent jurisdiction, however, the same power is subject to the condition that the same were challenged by the property owners within the stipulated time and the glaring illegalities and irregularities were observed during the auction. Insofar as case in hand is concerned, neither any co-sharer came forward to object order dated 18-5-1997 nor they filed independent objection petition to the sale in favour of the petitioner. Moreover all the efforts of respondents to challenge the subsequent events , viz. Confirmation of sale in favour of the petitioner and issuance of sale certificate as well as handing over of possession, went abortive even upto the level of rev isional/appellate Court and the orders passed by the revisional/appellate Court having not been challenged any further attained finality, thus, the respondents were estopped to challenge sale in favour of the petitioner during the course of proceedings on the appeal filed by the petitioner against acceptance of objection petition of Haji Abdul \Sattar and the application for temporary injunction filed by him along with his suit for specific performance. The logic weighed with both the courts below was that as due to acceptance of objection petition filed by respondent No,1 certain rights accrued in favour of respondents Nos.12 and 13, therefore, the appeal filed by the petitioner could not be accepted even despite relinquishment of claim by respondent No,1 . The observation of the appellate court that the participation of co-sharers in the auction would bring higher price stands nullified from the fact that the learned trial Court resorted to sell the property through public auction in view of the
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fact that parties themselves failed to sell the property as per observation of this court in the above mentioned writ petition. Thus the impugned judgment is not sustainable. 9. It is trite, law that rights of the property owners and other affectees have been protected by the legislator by way of enacting different provisions under Order XXI, C.P.C. In particular Rule 90 thereof and they are at liberty to challenge any order detrimental to their rights in the shape of application and then in revision or appeal but no provision has been catered for them to challenge the same in an appeal filed by a person who was alien not only to the partition proceedings but to the auction proceedings as well. According to section 107, C.P.C. The Appellate Court has been vested with the power of a trial Court. As proceedings in the appeal are continuity of original suit, nobody can be debarred either to withdraw from his claim or to make a statement conceding claim of the opponent party. As far as the case in hand is concerned, it is observed at the cost of repetition that the main grievance agitated by the petitioner in his appeal was against respondent No,1, therefore, after his statement conceding the appeal filed by the petitioner the Appellate Court was left with no option but to allow him to withdraw from his suit as well as the objection petition. The tenor of the judgment of the Appellate Court shows that perhaps the learned Additional District Judge was under the impression that objection petition was filed by any of the co-sharers but the said approach being contrary to the factual background cannot be allowed to hold the field. 10. It is important to mention over here that auction proceedings were conducted pursuant to a Court order wherein not only petitioner and other persons participated but some of the co-sharers were also very much present there. The said fact is sufficient to prove that the objections raised by respondents Nos.12 and 13, while supporting the objection petition filed by respondent No,1 were not only worthless but also were aimed at just to undo a valid sale in favour of the petitioner. If respondents Nos.12 and 13 had any grievance either they could challenge the order regarding sale of the property or to file independent objection petitions. As the said respondents did not voice their grievance firstly against the order passed by this Court and then against the order whereby the property was ordered to be disposed of through open auction had no cheeks to grouse against the sale in favour of the petitioner which after handing over possession to the petitioner became absolute. 11. It is worth mentioning that both the courts below while setting aside sale in favour of the petitioner pursuant to public auction did not bother to consider that claim of respondent No,1 was based on mere agreement to sell. There is no doubt that besides judgment debtor and decree- holder any other person whose title has been adversely affected due to said decree can object to the said decree but a person whose claim is based on simple agreement to sell cannot put a challenge to a sale in favour of auction purchaser until and unless the validity of such agreement has been determined by a court of competent jurisdiction. Reliance in this regard is placed on the cases reported as Mst. Mah Rukh Batool v. Judge Banking Court No,III and 5 others (2013 CLD 598), Ahmad Nawaz v. Province of Punjab and others (2007 CLC 710), Vita Pakistan (Pvt.) Ltd. Through Director v. Trust Investment Bank Ltd. Through Branch Manager and 6 others (2007 CLD 365), Mst. Ghulam Fatima v. Muhammad Shari and another (2006 YLR 1280) and Shaukat Ali Mian v. Trust Leasing Corporation Ltd. Through Chief Executive and 4 others (2002 CLD 1071). In the case of Mst. Mah Rukh Batool (Supra) it has inter alia been held as under:-- "*****Even otherwise, an agreement to sell does not defeat the right of the decree-holder and does not equip a person with any legal right. The decree-holder has not been impleaded as one of the defendants in the suit for specific performance of the contract instituted by the appellant. " ' Likewise in the matter of Ahmad Nawaz. (Supra) this Court has held as under:- "6. Above all, the petitioner simply claimed an agreement to sell from the respondents Nos.4 to 10 which does not create any right, title or interest in the suit property. His suit for specific performance has already been dismissed by the trial Court on 22-11-2006 and the…
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