1. ' MRS. QAISER IQBAL, J.--- The appellants have impugned the order, dated 26-4-2007 passed by learned Banking Court-II, Karachi, dismissing the application under section 12(2) read with Order XXI, rule 58, C.P.C. Read with section 19(7) of the Financial Institutions (Recovery of Finances)
2. Ordinance, 2001, filed by the appellant in Execution No,50 of 2001 arising out of Suit No,214 of 2007.
3. ' Succinctly, the facts to the appeal are that the appellants are lawful owners of industrial Plot Nos.ID-203 and ID-175, Korangi Industrial Area, Karachi. The appellant No,1 is running a factory over the Plot No,ID-203 while the adjoining plot is vacant in front of which plot there is a 200 feet wide road commonly known as (10000 Road) available in the Master Plan and Layout Plan approved by the former K.D.A. Now City District Government, Karachi. The dispute herein pertains to the 200 feet wide road which provide ingress and outgress to the factories of the appellants as well as to the other plots. The appellants have invested a huge amount in raising construction of the garment factory. It is alleged that the respondents Nos.2 to 6 in connivance with the officials of respondent No,1 managed to obtain a huge amount of loan after depositing forged and fabricated title documents showing ownership of the 200 feet wide road in collaboration with the bank officials, in violation of the State Bank of Pakistan prudential regulation procedure and instructions as well as in violation of Transfer of Property Act read with sections 121 and 136 of the Companies Ordinance, 1984. Without making inquiry and obtaining permission to mortgage from the Board of Revenue a huge financial facility on the basis of forged and fictitious documents were extended to a non- existent entity viz. Respondent No,2 as well as to the main beneficiaries respondents Nos.3 to 6. The appellants and other neighbouring factory owners, it is alleged, have been affected from the illegal mortgage of 200 feet wide road, which is common property and is an amenity provided to the citizens.
4. ' Respondent No,1 has filed the suit for recovery of a substantial sum against the respondents Nos.2 to 6, which was decreed on 4-6-2001, whereafter execution application was filed by the respondent No,1 and the disputed road by wrongly mentioned as Plot B/2 Naclass-24 Deh Dih, Tapo Ibrahim Hydri, Taluka Karachi, was put to auction which was purchased by one Rizwan Muhammad Qasim in auction proceedings, the appellant approached the Executing Court and moved an application suggesting inspection of the record and proceedings whereafter it transpired that the mortgaged property pertaining to be Plot 13/1 or B/2 were actually the K.D.A. Sanctioned 200 feet wide road prior to the auction proceedings. On account of interference by certain persons the owner of the adjoining factory filed Suit No,387 of 1995, indicating that the disputed road was auctioned to Rizwan Muhammad Qasim, and interim injunction was granted and later on the suit was transferred to the Court of the Senior Civil Judge on the basis of jurisdiction. Rizwan Muhammad Qasim, the auction purchaser, 'realizing the position submitted an application for return of the sale amount and the respondent No,7 offered a bid before the Executing Court. During this span of time the appellant moved an application seeking time to file an application under section 12(2), C.P.C. , which was declined, therefore, he preferred First Appeal bearing No,43 of 2004, which case was remanded back to the Banking Court for factual probe after affording reasonable opportunities to the parties.
5. ' We have heard, the learned counsel appearing for the parties.
6. ' Mr. Khawaja Shamsul Islam, learned counsel for the appellant has contended that the impugned order is based on fictitious and fake documents that the exact location of the plot number could not be ascertained as Naclass No,24 consists of 100 acres of land and that the learned Banking Court, without taking into consideration the genuineness of the title documents decreed the suit, that the schedule of the mortgaged property surprisingly changed to industrial plot measuring 1 acre out of 2 acres from Naclass No,24 and, therefore, the decree was not in consonance with the judgment or the facts embodied in the plaint. The mortgaged Naclass No,24 indicated in the judgment was altogether changed in the final decree which tantamounts to perpetuation of fraud by the respondents Nos.1 and 2 collusively. It is urged next that the conveyance deed dated 29-9- 1997, was valued at Rs,14,680 whereas bank had extended financial facility to the tune of Rs,2,30,04,132 without taking judicial notice of the conduct of the respondents Nos.1 to 6, which speaks in volumes as one of the female member of the family of the respondent No,3, who had sold the plot to the respondent No,2 through his partner respondent No,4 which act, prima facie, appears to be a transaction between mother and son aimed at perpetuating the fraud, in connivance with the bank officials in order to usurp the road.
7. ' During the course of inquiry the learned Judge had failed to bring on record various reports submitted by the Mukhtiarkar, C.D.G. Karachi and the Board of Revenue, indicating that a public road was sold in auction by illegally terming it an industrial plot bearing so-called No,B/2 of Naclass No,24.
8. ' Ms. Sofia Saeed Shah, learned counsel for respondent No,7, contended that no fraud on statute was perpetuated and that the mortgaged decree was passed after inquiry and verification of title documents of the mortgaged property. The appellants and other factory owners she contends were using mortgaged property, which in fact is not a 200 feet wide road.
9. ' It is, next urged, that in First Appeal No,43 of 2004, the case was remanded to the Banking Court with the direction that the appellant was at liberty to submit an application under section 12(2), C.P.C. Before the Banking Court, subsequently the Banking Court conducted inquires from all the concerned departments and after two years and eight months dismissed the application under section 12(2), C.P.C. Read with Order XXI, rule 58, C.P.C. And section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, without looking to the official record moved belated application under section 12(2), C.P.C., which was not maintainable in law being barred by laches.
10. Therefore, the respondent No,7 was justified in acquiring subject property in the auction proceedings.
11. ' Mr. Abbas Ali, learned A.A.-G. And Mr. Muhammad Mujahid, learned counsel for respondent No,1 had adopted the same line of arguments. During the pendency of appeal Nazir has carried out inspection in presence of all concerned. His report dated 30-7-2007, reflects that Plot No,175 is an open plot and on the said Plot No,203 the appellant runs factory. Built in front of the factory area, the appellants and other owners of the factory, are using a green belt, for parking of trawlers, long vehicles and containers.
12. ' We have considered the arguments advanced at bar.
13. ' It seems that the Nazir accompanied by the D.O. Korangi, carried out inspection on 11-7-2007 and in his report positions "A" and "B" were marked. As per position "A", according to K.D.A. Master Plan, 200 feet wide road was shown, but physically at site, the said road is not seen/built. At site, the road and various spaces on the plot have been encroached upon through parking of small and big/long vehicles, whereas on position "B", the plot is cut-off on the said land of the demarcation plan issued by the Survey Office on 24-6-2004. This fact stands confirmed from the letter dated 17- 7-2007 issued by the Additional District Officer, Korangi Division-I, (W&SC.D.G.K.) addressed to the Nazir of this Court, which suggests that Plot No,B/1 does not exist, and that the carved out plot is in fact part of the 200 feet wide road lying between sectors 22 and 30. It was also indicated that per policy and rules of Government of Sindh, no amenity land can be converted to be utilized for any other purpose other than that of its sanction, and that the road could not be auctioned to anyone.
14. 'It is a settled principle of law that an amenity reserved for general public cannot be utilized for the purpose of habitation and or commercial use.
15. 'In any view of the matter, the appellant have succeeded to make out a case warranting interference in the impugned judgment as the respondents Nos.2 to 6 have no right or interest in the subject property. Therefore, the property which was not owned by the borrower/respondent No,2 and mortgage from the respondent No,1 could not be sold in the auction proceedings.
16. Resultantly, impugned judgment is set aside and the concerned functionaries are directed to take over the possession of the subject plot whereas learned Banking Court is directed to return the auction price to the purchaser/respondent No,7.
17. ' In above terms First Appeal No,34 of 2007 hereby stands allowed.