IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. NO. 233 OF 2014

Present :-

Mr. Justice Aqeel Ahmed Abbassi,

Mr. Justice Muhammad Junaid Ghaffar

Azhar Rashid Khan & another ------------------------------------ Appellants

versus

Mujeeb Salman Khan & others ---------------------------------- Respondents

Date of hearing: 09-09-2014

Appellants: Through Mr. Islamuddin Ayubi, Advocate

Respondent No 11: Through Mr. Mohammad Khushhal Khan,

Advocate.

O R D E R

Muhammad Junaid Ghaffar, J:- Through instant appeal, the appellants have impugned the order dated 21.08.2014 passed by a learned Single Judge of this Court, whereby, the objections raised on behalf of the appellants with regard to the sale of immovable property bearing No.D.144, Block-5, F.B.Area, Karachi have been dismissed and the earlier order passed on 17.07.2014 has been confirmed and the Nazir of this Court has been directed to take all necessary steps and complete the formalities with regard to the sale of the said property.

2. The precise facts are that the appellants and the respondents have some dispute as legal heirs in respect of two properties, out of which, one bearing No.D-144, Block-5, F.B.Area, Karachi is the bone of contention in the present appeal. The appellants have raised objections with regard to the manner and mechanism in which the said property is being sold through the Nazir of this Court, as according to the appellants certain formalities required under the law, as well as orders of this Court have not been followed, hence, the impugned order, whereby the sale of the property is being finalized is liable to be set-aside.

3. Mr. Islamuddin Ayubi, learned Counsel appearing on behalf of the appellants has contended that the sale of the property was required to be carried out by publication of advertisement in two newspapers and further that it was required to be sold through open bidding. Per learned Counsel, the learned Single Judge while passing the impugned order dated 21.08.2014, has failed to appreciate the objections raised on behalf of the appellants, hence, has erred in passing the impugned order, which may be set-aside and the learned Single Judge, as well as the Nazir of this Court may be directed to proceed with the auction of the said property, after considering the legal objections raised on behalf of the appellants.

4. On the other hand, Mr. Malik Khushhal Khan, learned Counsel for the auction purchaser has contended that the auction purchaser/Respondent No.11, has deposited the entire amount of Rs.2.5 Crores (Two Crores and Fifty Lacs Only) with the Nazir of this Court, whereas, the appellants are raising frivolous objections and are creating hindrance and delay in finalization of the auction proceedings and in handing over the physical vacant possession of the property in question to the auction purchaser/respondent No.11.

5. We have heard both the learned Counsel and perused the record. Since a short controversy is involved, by consent of both the learned Counsel instant appeal is being decided at Katcha Peshi Stage. It appears that there is a dispute between the appellants and the respondents in respect of two inherited properties bearing No.1-A-11/4, Nazimabad No.1 and House No.D-144, Block No.5, Federal “A” Area, Karachi and a Suit for Partition bearing No.47/2011 has been filed by the respondents against the present appellants, who are also in part possession and are residing in the property in dispute in the instant appeal. It further appears that vide order dated 15.11.2011, it was agreed upon between the parties that since the property in question could not be bifurcated by metes and bounds, which had been inherited by six brothers and five sisters, hence, the only option for resolution of the dispute amongst the parties was to sell the property in question and distribute the share amongst all the legal heirs in accordance with Mohammadan Law. It was also agreed upon between the parties, that if any of the legal heir is interested in buying the property, so evaluated by the Nazir of this Court, they will have the option to purchase the same, and if not, then the property would be sold through open auction. Thereafter, on 29.11.2011, it was ordered by this Court that since no one is willing to buy the properties, therefore, the properties were put to open auction, allowing parties the option to match the highest bid. It further appears from the record that on 04.02.2014, notice for auction was published in one newspaper in respect of the property in dispute i.e. House No.D-144, measuring 1000 sq. yds Block-5, F.B.Area, Karachi and the auction purchaser/respondent No.11 submitted her offer for purchase of the aforesaid property in the sum of Rs.2.5 Crore [Two Crore and Fifty Lacs only] and also deposited 25% of the bid amount of Rs.62,50,000/- on or about 22.04.2014. On 15.05.2014, the respondent No.2, who was present in Court had stated that he had a buyer, who had offered to buy the said property for Rs.3. Crores [Three Crores only] and had further stated that he is also ready to deposit 25% of the said amount within 7 days before the Nazir of this Court. Since all the other parties present in Court had recorded their no objection on such higher offer of respondent No.2, accordingly, respondent No.2 was directed to deposit 25% amount of the offer with the Nazir of this Court within one week positively. Thereafter, respondent No.2 failed to deposit such amount and this Court vide order dated 30.05.2014 accepted the bid of Auction Purchaser/respondent No.11 with directions to deposit the balance amount which was accordingly done by the Auction Purchaser. Thereafter, appellants filed objections dated 17.07.2014 as well as Additional objections on 05.08.2014 before this Court and the Nazir respectively, which have been dismissed through the impugned order. The precise objections raised on behalf of the appellants is that the auction notice was required to be published in two newspapers, whereas, it was published only in one newspaper, and further the auction was to be carried out through open bidding, hence, the proceedings of auction are liable to be set aside.

6. We have gone through the impugned order and perused the entire material available on record and are of the view that the contention raised on behalf of the appellants is entirely misconceived. We have noted that though the publication was made in one newspaper instead of two, but such non-publication of advertisement in two newspapers, has no material bearing on the auction proceedings, as one auction purchaser/respondent No.11 had appeared before the Court and offered the bid which was accepted, whereas, the contesting parties including the appellants had the option to match the bid or offers, which they failed to do so, despite having sufficient time. In view of such position, the objection in this regard has been correctly overruled by the learned Single Judge. Insofar as the other objection raised on behalf of the appellants that the matter should have been put to open auction is concerned, in our opinion is also not tenable and is misconceived, as the matter was put to open bid amongst the parties and in fact the same has been recorded in the order dated 30.05.2014, whereby, respondent No.2 had offered to buy the property at Rs.3 Crores [Three Crores only] for which sufficient time was also given, however, subsequently, he failed to do the needful and did not deposit 25% of the said amount, whereafter, the offer of the auction purchaser was accepted by this Court. In view of such position the second objection raised by the appellants in respect of open bidding has also been correctly disregarded by the learned Single Judge. Learned Counsel for the appellant has not been able to point out any error or omission in the impugned order passed by the learned Single Judge of this Court, whereas no substantial ground has been raised through instant appeal which may require any interference by this Court.

7. Before parting with the order, we may observe that the appellants are also in possession of the properties in dispute jointly with some of the legal heirs, and it appears that the entire exercise is being carried out by the appellants to delay the auction of the property, whereby, they are required to vacate the property in question. We may observe that such conduct on the part of the appellants cannot be appreciated by this Court as by such conduct the lawful share of other legal heirs, which is to be paid to them after the auction proceedings are completed, is being denied due to delay in completion of the auction. The Suit is pending between the parties since 2011, whereas, preliminary decree was passed on 27.05.2011 and the auction of the property has still not been finally concluded. A party in a beneficial position in such proceedings must not be allowed to thwart or delay the finalization of the proceedings to the detriment to other legal heirs / Co-sharers who are not enjoying the possession of such property.

8. In view of hereinabove facts and circumstances of this case, instant appeal was dismissed along with listed application in limine vide short order dated 09.09.2014 and these are the reasons in support thereof.

JUDGE

Talib