' ZIA PERWAZ, J.---The applicant is aggrieved by the order, dated 15-11-2002, whereby Suits Nos.I696 of 2001 and 1697 of 2001 were disposed of by consent of the parties, and the subsequent order, dated 23-4-2003, whereby the earlier order, dated 15-11-2002 was slightly modified, again by the consent of the parties. Through this application under section 12(2), C.P.C., the applicant seeks recall of both the above mentioned orders.
2. Facts of the case are that the father of the applicant was allotted a piece of land measuring about 607 sq. Yards on Nallah at Preedy Quarters, between Sir Abdullah Haroon Road and Garden Road (now Agha Khan Road) in the year, 1954 for a period of 10 years. On expiry of the lease period in 1965, the lessee filed a suit, bearing Suit No,249 of 1965, which was disposed of by compromise and the lease of the said piece of land was extended by 30 years; ending in October, 1985. However, it was agreed that after expiry of the lease period of 30 years the entire structure on the said piece of land shall revert to KMC (now City District Government Karachi-Respondent No,1) without any compensation. In the year, 1984, another portion of the same piece of land, measuring 16 X 36 sq.
Feet was allotted to the applicant for aperiod of 10 years through open public auction. After expiry of the extended lease period in respect of the piece of land leased to the father of the applicant as well as of the piece of land allotted to the applicant himself, some disputes arose and the applicant filed two suits, being suits Nos. 1696 of 2001 and 1997 of 2001 with respect to the two premises. The Prayer clause in Suit No,1696 of 2001 reads as under:-- "The plaintiff, therefore, prays for judgment and decree as under:--
(a) For declaration that the plaintiff having paid a sum of Rs,7,15,000 towards occupancy value of the shop premises covering the space over Nullah measuring 64 sq. Yards, having been inducted into possession as the highest bidder of the said shop premises and entitled to continue in occupancy/possession of the abovesaid shop premises and the lease of the said shop was not liable to be terminated by arbitrary demand of enhanced rent at the rate of Rs,25,000 per sq. Ft. In variation to the terms and conditions attached to the Lease Agreement, dated 20-10-1984 by way of sealing the premises and taking further action for dispossession of the plaintiff and putting the shop premises to public auction.
(b) For declaration that the plaintiff as tenant holding over is not liable to be evicted from the suit premises, otherwise than in due course of law by resorting to the provision of the Transfer of Property Act.
(c) For Perpetual Injunction restraining the defendants above named from taking any coercive action by way of cancellation of lease, eviction of plaintiff from the suit premises and thereafter putting the same to public auction or in any other manner as may be deemed fit by the defendants.
(d) Any other relief, which under the circumstances of the case, this Hon'ble Court may deem fit and proper.
(e) Cost of the suit be also awarded to the plaintiff."
3. The reliefs claimed in Suit No,1697 of 2001 are identical to the reliefs claimed in Suit No,1696 of 2001, except for prayer (a), which is different and reads as under:-- "(a) For declaration that the Plaintiff as tenant and having been inducted into possession over the space on nallah measuring 639 sq. Yds. Under a decree in Suit No,249 of 1965 of this Hon'ble Court, and payment of lease money and after the expiry of the period, the defendants are neither taking any rent nor intimatingany action for ejectment, the same amounted to assenting that the Plaintiff was a tenant holding over and was also entitled to continue in possession thereof on terms and conditions of lease as may be varied keeping in view the present prevailing market rates for such premises over the nallah in Karachi and/or on such terms as may be agreed to by the defendants."
4. Both the above suits came up for hearing when the learnedcounsel agreed to an amicable settlement of the two suits and the following statement was filed:- "Statement on behalf of Defendant, KMC/SDGK.
' That the above said case was fixed on 13-11-2002 before this Hon'ble Court. The Plaintiff has agreed that he is ready to deposit the amount of Rs,25000 per Sq. Ft. As security which was offered by the KMC (Defunct)/CDGK in respect of application submitted by the Plaintiff regarding property in question.
' The Hon'ble High Court has also enquired from the counsel of the CDGK/Distt. Officer (ESTATE), CDGK, that how the CDGK will dispose of the property in question. Mr. Mukhtar Hussain, Distt. Officer (Estate), CDGK as well as the undersigned has asked the competent authorities regarding view point of the Court as well as the Plaintiff. The competent authorities are agreed with the above said proposal that property may be put into open public auction after completing all the codal formalities of the CDGK.
' Therefore, on behalf of CDGK/Defendant I make statement that the property in question will be disposed of through open public auction for 99 years lease holdright basis.
(Sd.)
DISTT. OFFICER (ESTATE) REV. CITY DISTRICT GOVERNMENT KARACHI'',
5. On the above quoted statement filed by the respondent No,1, following endorsement was made on behalf of the applicant and was signed by both the counsel for the plaintiff as well as the plaintiff:- "As per order passed by this Hon'ble Court on 14-11-2002 the plaintiff agrees that suit be disposed of in terms that the premises be desealed on furnishing security at the rate of Rs,25,000 per sq. Ft. And that after furnishing the detailed terms and conditions, the plaintiff be allowed to participate in the ' auction for 99 years lease hold rights, whenever it is held. (Emphasis supplied).
(Sd.) (Sd.)
' Advocate for the Plaintiff. Plaintiff"
6. On the basis of the above statement, the suits were finally disposed of by a consent order, dated 15-11-2002 which reads as under:-- "In pursuance of the orders dated 14-11-2002 the defendants have filed their statement accepting the proposed terms. The statement is signed by the District Officer (Estate) Revenue, City District Government, Karachi, as well as learned advocate and the plaintiff has also accepted his willingness to the terms. Accordingly the suit is disposed in terms of the orders, dated 14-11-2002 as admitted by the parties subject to the following terms:--
(i) That the shop premises over the Nallah facing Abdullah Haroon Road bearing No, PR S-2/30/B-3, Karachi shall be put to auction for 99 years lease subject to the condition applicable to such auctions of the City District Government. The auction shall by conducted according to the KMC rules applicable to such property. (Emphasis supplied)
(ii) That in view of the fact that security is being furnished by the plaintiff, the plaintiff shall be entitled to participate in auction without furnishing any security or deposit as well as to submit matching offers as against the highest bids. The amount payable at the fall of the hammer, if any, would be paid along with the subsequent instalment.
(iii) That the plaintiff shall furnish security calculated at the rate of Rs,25,000 per sq. Feet of the area of the premises respectively worked out at the rate of Rs,10,000 per sq. Feet in the shape of security to the satisfaction of the Nazir of this Court and the balance of Rs,15,000 per sq. Feet in the form of indemnity bond to be submitted by the plaintiff thus making a total sum of Rs,25,000 per sq. Feet.
(iv) That the plaintiff is allowed 60 days time for furnishing security and during this period the plaintiff may operate his business on the basis of the amount already deposited in terms of the order, dated 15-3-2002 which shall cease to operate after expiry of 60 days.
(v) That Mr. Manzoor Ahmed is present today along with MukhtarHussain, District Officer, (Estate Revenue), City District Government, accept to de-seal the premises during the course of the day.
(vi) That from the date of the order the plaintiff will be liable to make payment of rent at present rates till the date of finalization of the auction.
' The suit stands disposed of in above terms along with listed application with no order as to costs."
7. The above consent order was slightly modified by another consent order, dated 23-4-2003, which reads as under:- "By consent of all concern there shall be a slight modification of the order passed on 15-11-2002.
Both sides agreed as follows:-- ' The key of the shop is being handed over to the Plaintiff. The plaintiff shall use this key to open the shop and get his goods/machinery etc. Removed/emptied. This exercise is to be completed by him within three weeks maximum. In any case the plaintiff shall vacate the same on or before 16th May, 2003.
(ii) On or before 16th May, 2003 he shall hand over the keys to the Nazir of this Court.
(iii) Both sides agree that the date of auction shall be fixed as 22nd May, 2003. This date may alter maximum by one week. Since a date is being fixed therefore, necessary adds., shall be placed in the relevant news papers.
(iv) It is also agreed that as the plaintiff is enjoying the goodwill of the name Americano since the last five decades, therefore, it would be appropriate not to spoil the 'goodwill of the name of this party and, therefore, the City Government agree to advertise the auction by way of the land rather than the name of the party.
(v) The shop shall be put to auction for a period of 99 years lease subject to the conditions applicable to such auction of the City District Government. It shall be conducted according to rules applicable and the plaintiff shall be allowed to participate in the auction subject to all conditions that are applicable to any participant of the auction.
(vi) The rent for the period during which the plaintiff is using the shop for removing his machinery shall be deducted from the amount which is lying with the Nazir of this Court and shall be paid to the City District Government. In case if the plaintiff so wants he may make direct payment of rent to the City DistrictGovernment, obtain a receipt and show it to the Nazir so that entire amount deposited may be returned to him.
(vii) The Plaintiff undertakes not to create any third party interest or make any attempt to dispose of suit property."
8. In pursuance of the consent order and the statement filed by the parties, auction was held on 22-5-2003 and the auction price fetched was Rs,94,500 per sq. Yard, offered by the highest bidder respondent No,7.
9. The applicant filed a constitutional petition bearing C.P. No,D1236 of 2003, questioning the auction held in pursuance to the consent order, which was dismissed vide order, dated 22-10-2003 on the ground that since efficacious remedy by way of appeal is available to the petitioner the petitioner was misconceived.
10. High Court Appeals, bearing Nos.205 of 2003 and 206 of 2003, were also filed challenging the compromise decree passed in Suits Nos.1696 of 2001 and 1697 of 2001. On coming up for hearing, these appeals were withdrawn with permission to file a fresh suit. Subsequently, a suit was filed and registered as Suit No,1229 of 2003 along with an application under Order XXXIX, Rules, 1 and 2, C.P.C., seeking an order restraining the defendants from creating third party interest in the suit properties or handing over its possession to any one else, till final decision of the suit. The application under Order XXXIX, rules 1 and 2, C.P.C. Was dismissed vide order, dated 11-12-2003. The order, dated 11-12- 2003 was called into question by way of High Court Appeal No,1 of 2004 which was dismissed in limine vide order, dated 20-8-2004.
11. In the above background these two applications under section 12(2), C.P.0 have been filed questioning the validity of a consent order.
12. 1 have heard Mr. Mahmood Ahmed Khan, advocate for the applicant, Mr. Manzoor Ahmed, advocate for City District Government, Karachi and Mr. K.A. Wahab, advocate for Respondent No,7, the auction-purchaser.
13. Mr. Mehmood Ahmed Khan, learned counsel for the applicant, vehemently contended that the order, dated 15-11-2002 was obtained by misrepresentation inasmuch as the City District Government, by virtue of bar imposed by section 124 of the Sindh Local Government Ordinance, 2001 ("SLGO"). That under section 124 of the SLGO, the officers of the CDGK were competent to lease a property for not more than five years and, therefore, the order, dated 15-11-2002 was violative of the express provisions of law. That the consent order being violative of the law is liable to be set aside. That since no order on merits has been passed inany of the aforementioned proceedings on this aspect of the case, this Court is competent to decide the same in these proceedings.
14. On the other hand, Mr. Manzoor Ahmed, learned counsel for CDGK argued that the impugned order is a consent order and cannot be challenged in any proceedings. He states that neither any fraud was played nor any misrepresentation was made and therefore the provisions of section 12(2), C.P.C. Are not attracted. He also raised objections as to the maintainability of the applications on the ground the officers of the CDGK have been made party which is not allowed under the SLGO.
However, such even if sustained can be of no avail as admittedly, the application is competent against Respondent No,l. He submitted that the proceedings were taken under section 45 of the SLGO, 1979, and not under SLGO, and therefore, the CDGK was competent to auction the suit plots for a period of 99 years lease as held in the order, dated 11-12-2003 in Suit No,1229 of 2003 and upheld in H.C.A. No,1 of 2004.
15. Mr. K.A. Wahab, learned counsel for respondent No,7, the auction-purchaser, adopted the arguments of Mr. Marizoor Ahmed, on the point of applicability of provisions of section 12(2), C.P.C.
To the present case. In addition, he submitted that Respondent No,7 was not a party to any of the proceedings which culminated in the consent order, dated 15-11-2002. That respondent No,7 has participated in open auction and acquired interest against valuable consideration, therefore, he cannot be held liable for making any misrepresentation to the Court. He relied on the cases of (i)
Karim Bakhsh and others v. Riaz Hussain and another (1993 SCM R 1667) and (ii) Muhammad Khan and another v. Massan and other (1999 SCM R 2464).
16. It may also be mentioned that the order impugned herein was also challenged by way of an application under section 12(2), C.P.C. By the Govermnent of Sindh through the Advocate General Sindh. However, on 25-5-2006, Mr. Ahmed Prizada, A.A.-G., requested for time to file a proper statement for withdrawal of the applications filed on behalf of the Government. Today, Mr. Anwar Mansoor Khan, learned AG.; filed a statement in J.M. No,52 of 2004 as Well as in J.M. No,53 of 2004, seeking permission to withdraw the said J.Ms. In view of the amendment in section 124 of the SLGO through Sindh Local Government (Amendment) Ordinance-V of 2005, whereby the words "for period not exceeding 5 years at a time" have been omitted. The learned AG clarified that it was due to defective drafting that the provision restricting the period of lease to a maximum of five years was inserted in section 124 of the SLGO. This effectively brought the working of the Respondent. No,1 stand still as no one was prepared to take a property on lease for five years only. This defect has now been rectified by the above amending Ordinance. Accordingly, by separate orders, the same have been dismissed as withdrawn.
17. The order, dated 15-11-2002 passed by consent and in presence of counsel of both the parties and was modified by a subsequent consent order, dated 23-4-2003. Against the impugned order, dated 15-11-2002, appeals were filed which were subsequently withdrawn with permission to file fresh suit. It was stated by the learned counsel for the applicant that Suit No,1229 of 2003 was withdrawn with permission to file applications under section 12(2), C.P.C. However, perusal of the record shows that the suit was disposed of by an order, dated 10-9-2004, which reads as under:-- "Learned counsel for the plaintiff wants to withdraw this suit in view of the fact that an application under section 12(2), C.P.C. Has already been filed by him. Suit is dismissed as withdrawn." (Emphasis supplied) (sic).
18. In fact the order reflects that the suit was withdrawn because applications under section 12(2), C.P.C. Had already been filed by the applicant. The learned counsel for the applicant was unable to show that any permission was obtained from the Court to file an application under section 12(2), C.P.C. In view of the orders of the Division Bench, dated 20-8-2004 in High Court Appeal No,1 of 2001 wherein the following observation has been made:-- "In the appeal he had alleged that the compromise was entered into by fraud and/or mis- representation. If it was so, then the compromise decree in the two suits ought to have been assailed by way of applications under section 12(2), C.P.0 as a compromise decree is non- appealable in view of the provisions of section 96(3) of the Civil Procedure Code. The parties to a suit by seeking a settlement to the controversy involved therein give up their right of appeal by virtue of such agreement and a consent decree operates as an estoppel.... The appellant instead of filing the appeal should have filed applications under section 12(2), C.P.C. In both the suits bearing No,1696 of 2001 and 1697 of 2001 for setting aside the decree on the ground that they were obtained by fraud and/or mis-representation. Even while applying to withdraw the said two appeals he sought permission to file fresh suit instead of filing applications under section 12(2) of the Civil Procedure Code. An order of the Court which is not in accordance with law cannot clothe a party with the right to file or institute proceedings which he is not legally entitled to do. By the impugned order allowing withdrawal of the two appeals and permitting the Appellant tofile fresh suit the appellant did not acquire the right to file fresh suit. And moved the above miscellaneous application."
' The above observations have not been challenged in appeal and have now attained finality which are attracted to the present applications.
19. Even on merits, the applicant has failed to make out a case. It is evident from the impugned order that both the applicant as well as Respondent No,1 consented to holding of an auction for leasing the suit shops for 99 years. The applicant himself was to participate in the said auction. In view of the fact that the applicant was sitting tenant in respect of the suit shops all possible concessions were extended to him to enable him to participate in the auction. However, he chose not to take part in the auction. The applicant was also permitted to match the highest bid but the learned counsel for the applicant has not been able to show that any such matching bid was given within time. Therefore, it was the choice of the applicant himself that he did not take part in the auction nor did he file a matching bid within time in spite of the fact that he had the advantage to participate in the auction without any payment. Mr. M.A. Khan, learned counsel for the applicant, candidly admitted that the respondents were competent to 'conduct the auction and lease out the property at that time for five years, his only objection pertains to the tenure of lease.
20. On the other hand, respondent No,7 was not a party to any of the proceedings. It appears that Only after reading the notice published in newspaper about the auction in respect of the said shops he participated in auction. His bid, which was the highest, was accepted. He deposited the entire bid amount and it is stated that even lease has been executed in his favor. At no point of time he made, any representation to the Court or was instrumental in passing of any of the compromise orders/decrees. Neither the learned counsel for the applicant nor the applicant himself raised any objection to the conduct of auction for leasehold rights in respect of the said shops for 99 years. Neither the applicant can be allowed to blow hot and cold at the same time nor he can be permitted to take advantage of his own mistake. If any misrepresentation was made to the Court, which is not admitted by the learned counsel for the respondent No,1, it was made by the applicant himself when he consented to auction for leasehold rights in the said shops for 99 years.
Once he consented to the Order, dated 15-11-2002, he gave up his right of appeal and was estopped from filing any other proceedings. No doubt, there are exceptions and in appropriate cases an appeal/application under section 12(2), C.P.C. May be entertained against a consent decree, however, the learned counsel for the applicant/plaintiff has not been able to show that the present applications attract any such exception.
21. In the case of Muhammad Khan (supra) it was held as under:-- "A void order is not always to be struck down regardless of the consequence of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to struck down the void order. This question is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation.
' There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if it has been guilty of laches."
22. In the present case, the applicant is estopped by his conduct from challenging the order dated 15-11-2002 as it was passed with his express consent.
23. The upshot of the above discussion is that the applications haveno merits and the same are accordingly dismissed. The interim order passed earlier is recalled. All the listed applications also stand disposed of.