IN THE
HIGH COURT OF SINDH AT KARACHI
SUIT NO.1114/2011
Plaintiff : Imtiaz Ali Effendi,
through
M/s. Ziaul-Haq Makhdoom
&
Azhar Mehmood, advocates.
Defendants : Ali Muhammad Effendi and others,
through M/s. Khawaja
Saiful-Islam and Irfan Hassan advocates for defendants.
M/s. Sofia Saeed Shah and Sohail
Abbas, advocates for auction purchaser.
Date of hearing : 01.12.2015.
Date of announcement : 26.02.2016.
……………
2. Heard
learned counsel for respective parties and perused the record.
3. To
understand the back-ground of the instant application, it would be proper to
have a glance over the history of matter. The record shows that plaintiff
Imtiaz Ali Effendi filed instant suit for Administration, Partition ,
injunction Mesne profit against his own sisters. The preliminary decree was
passed.
4. A
reference to earlier orders, passed in the matter shall make position clear
hence are referred hereunder:-
“Order
dated 9.7.2013.
I have heard….. The plaintiff and
defendants’ counsel shall cooperate and assist the Nazir in coming up to a just
and proper valuation. After this exercise with regard to the shop in question
both the properties be put to auction and the proceeds thereof be distributed
amongst the legal heirs of the deceased since the parties at present have not
shown their desire to buyout shares of other legal heirs in terms of valuation
of the Bungalow at least. However before the properties are auctioned, first
the plaintiff and defendants shall have a right of refusal and / or to buyout
shares of others….”
“07.02.2014
Today in the court the plaintiff has
raised his bid from Rs.46,00,000 to Rs.55,00,000/- (Rupees Fifty Five lacs
only) and the defendants in response are not ready and willing to purchase the
subject shop at the highest bid of Rs.55,00,000/- rather a categorical
statement is made on behalf of the defendants that let
the plaintiff purchase the subject shop at Rs.55,00,000/-,….”
“07.11.2014.
The Nazir report is taken on
record…. The defendants No.2 and 4 are present in court along with their
counsel and informed that they have already deposited title documents of above
mentioned shop with the Nazir of this court. They are directed to deposit
original title documents of House No.18/1, 21st Street
Khayaban-e-Tanzeem, Phase V, D.H.A. Karachi within seven days and the Nazir
should complete the process of sale of the above mentioned shop and house in
accordance with law without any delay.”
“19.12.2014.
On the last date of hearing, the
plaintiff has matched the offer of Rs.325,00,000/- offered by bidder Amir Ahmed
who initially deposited 25% at the time of auction when his highest bid was for
Rs.250,00,000/-. Today defendant no.3 present in Court has offered to
purchase the property in question and was offered Rs.440,00,000/-. However,
in reply the plaintiff has further enhanced his offer upto Rs.450,00,000/-. The
defendants have conceded that the property may be sold to the
plaintiff and may be directed to deposit their share within 30
days from today.
In view of the above sale of the
property i.e House No.18/1, 21st Street, khayaban-e-Tanzeem, Phase V
DHA, Karachi is confirmed and plaintiff’s bid of
Rs.4,50,00,000/- is accepted by consent of all concerned subject to
deposit of share of other co-sharers within 30 days …..”
However,
the record further shows that the parties did not settle at above hence on
12.8.2015 it was ordered as:
‘By consent, matter is referred to nazir of
this Court and fixed on tomorrow at 11.00 a.m. All the parties including
interested bidders are directed to appear before the Nazir and submit their
bids alongwith pay order of 25% of their bids. If any auction purchaser has
already deposited any pay order, he needs not to deposit fresh one. The parties
in suit shall be given opportunity to meet with highest bid given by the
auction purchaser.’
In
consequence to above order, the auction proceedings were held and lastly an
order dated 07.10.2015 was passed. The operative part thereof reads as:
‘Keeping in view the above position
and consent order dated 22.8.2015, the highest offer of Mr. Abdul Majeed in the
sum of Rs.435,00,000/- (Rupees Four Crore and Thirty Five lac only) is accepted
with direction to him to deposit balance bid amount / offered amount within 15
days.
Nazir is directed to return pay
order of Mr. Tarique Dilawar to him, however, after proper identification and
verification.’
From
above series of the order, it appears that the defendants first stuck
with plea of purchase of the subject property by the plaintiff himself but
failure resulted in putting the property into auction again.
5. It is not a matter of
dispute that the property in question is the ancestral house (property) of
plaintiff and defendants and even some of the defendants have been residing
therein who are unmarried. From very beginning the interest of the
plaintiff was confined in receiving his share in the subject matter
he (plaintiff), hence, cannot legally object to the offer of the present
defendants that they are ready to pay up the share amount of the plaintiff as
he (plaintiff) never thought more than that nor is legally entitled to
more than his share in property.
6. Now, the question remains
to be addressed is that of auction purchaser who participated in the auction
proceedings and deposited directed advance money. However, it would suffice to
say that mere participating in auction proceedings and depositing some part of
the highest bid would not be sufficient to succeed because its confirmation by
the court is something different. There can be no denial to the legal position
that one offering highest bid in auction proceedings earns a right but
still the discretion remains with authority to approve or disapprove the same.
7. It needs to be kept in
view that auction proceedings in the instant matter were / are not within
meaning of the Order XXI of the Civil Procedure Code, 1908 but it was a case
within meaning of Order XX Rule 13 of the Civil Procedure Code, 1908 where the
object was settlement of claims and distribution of share inter se between
parties (legally entitled person in property) hence the provisions referred in
Order XXI of the Civil Procedure Code, 1908 cannot be pressed hard because in
such like proceedings no auction of property can be legally held
without wide publicity which , in the instant matter, lacks. The
operative part of case of Muhammad Attique v. Jami Limited (2015 SCMR 148) is
made hereunder:-
‘5.
…. It is, however, discretionary with the Court to execute the decree in
accordance with the provisions of the Code, it cannot depart therefrom.
Proclamation cannot be an exception to that. The relevant provisions need to be
read once again for the sake of clarify which read as under:-
’65. Mode of making proclamation: ………….
54. Attachment of immovable property.---
6. A careful reading of the above quoted
provisions would reveal that the purpose behind their enactment, as for as it
can be gathered from the words used therein, was to give wide publicity to the
sale of the property so that maximum number of people may turn up to
participate in it and give bids that match the price the property deserves.……..
But where it is otherwise, failure to comply with the provisions cannot be
brushed aside without due application of mind. The Court has to undo a sale if
failure to comply with the provisions causes injustice. Needless to reiterate
that these provisions have been enacted to advance and not to impede the cause
of justice.
9……The
argument that the word ‘sale’ means fall of hammer and not its confirmation by
the Court, too, is correct, as was held in the cases of ‘Diwan Ghulam
Rasul v. Ghulam Qutab-ud-din’ (supra) and Mst. Asma Zafarul Hassan v. Messrs
United Bank Ltd. and another’ (supra). ..
(Emphasis supplied)
If
the auction proceedings are taken as one within meaning of Order XXI of the Civil
Procedure Code, 1908 then above failure is sufficient for holding the sale
proceedings as not sustainable. Further, it is also a matter of record that confirmation
of sale in favour of the auction purchaser has not been ordered earlier
therefore, return of the deposited amount shall cause no prejudice to him as
was done with earlier auction purchaser.
8. Since,
the defendants intend to keep the property with them which the Order XX Rule
13 of the Civil Procedure Code, 1908 nowhere restricts hence instant
application of the defendants is accepted particularly keeping in view :
i)
property is ancestral property;
ii)
dispute was in-fact
between legal heirs to extent of share distribution only;
iii)
the defendants are women who
pleaded to have not been in position to settle in a proper place even after
receipt of their individual shares;
iv)
payment of share by defendants to
plaintiff shall serve purpose of suit;
The
defendants are directed to deposit the share amount of the plaintiff within a
period of six months failing which the auction proceedings in favour of auction
purchaser shall stand restored. The auction purchaser is at liberty to withdraw/collect
his amount from Nazir or to wait till said period. The withdrawal of amount however
shall be subject to proper identification and verification.