MIAN SAQIB NISAR, J. --- Through this regular first appeal, the appellants have challenged the final judgment and decree dated 25.4.2005 passed in the suit for partition and also the order of even date through which the objection petition filed by them challenging the sale through auction of the suit property in favour of respondent No. 25 (the auctioneer purchaser), has been dismissed and sale has been confirmed.
2. Briefly stated the facts of the case are:- That on 19.9.1997 respondents Nos'. 1 to 4 filed a suit for the partition of the property bearing S-19-R- 25 situated near E-Plomer Building The Mall Road, Lahore; the said property comprises of approximately 5 Kanals of land including covered area consisting of one Bungalow and out- houses; respondents Nos. 5 to 9 were defendants Nos. 1 to 5, the appellants and respondents Nos.
23 and 24 defendants 6 to 16 and respondents Nos. 10 to 22 defendants Nos. 17 to 29. Agha Shorash Kashmiri, the predecessor-in-interest of the appellants admittedly was the co-owner of the said property alongwith the others, (the parties to the suit, subject to the question of will and surrender deed raised in C.R. No. 708 of 2000) to the extent of 1/4th share; a preliminary decree for partition was passed in the matter on 23.5.2002 (it was ex parte decree against the appellants) and the local commission was appointed to determine the divisibility or otherwise of the property; on 22.6.2002, the appellants moved an ,application under Order 9, Rule 13, C.P.C. For the setting aside of the said decree, whereupon the plaintiffs/decree-holders made a conceding statement on 1.7.2002, however, due to lapse on part of the Court, the formal order for setting aside was not passed, rather on account of the death of defendant No. 14 of the case, an amended plaint was sought from the plaintiffs. Be that as it may, as the appellants had not filed the written statement after the amended plaint, on 22.9.2003 their defence was struck of under Order 8, Rule 10, C.P.C. And it is glaringly noticed that such order is not signed by the Presiding Officer. Anyhow a second preliminary decree was passed on 5.1.2005 (the appellants' defence remaining struck of) but as mentioned above, without setting aside the earlier decree.
3. Pursuant to the above, Mr. Munawar Iqbal Gonda!, Advocate was appointed as local commission with the mandate- to report whether the property is divisible and if not its market value; he filed his report dated 18.2.2085 in which though he has not explained why the property cannot be divided and how he inspected the site, etc., yet strangely held it to be indivisible and stated that the market value of the same is approximately Rs. 16,00,000/- to Rs. 17,00,000/- per Marla (Rs. 3,20,00,000 to Rs.
3,40,00,000 Per Kanal).
It may be pertinent to mention here that prior thereto pursuant to the first preliminary decree, the Court had appointed Mr. Tahir Amin Chaudhry, as the local commission with the same assignment, who filed his report on 24.6.2002 and mentioned the value as Rs. 15,000,00/- per Marla (i.e. Rs.
3,00,00,000 per Kenai).
4. After the report of Mr. Munawar Iqbal Gondal, the Court passed the order dated 25.2.2005, appointing Mr. Fakhar-uz-Zaman Akhtar Tarrar, Advocate as the Court auctioneer for the sale of the property through public auction; the relevant part of the order reads as below:- {{URDU TEXT}} The Court auctioneer vide his report dated 19.3.2005 submitted to the Court on 24.3.2005, apprised that on account of the auction held on 19.3.2005, the property has been auctioned in favour of Sohail Hussain (respondent No. 25) for a consideration of Rs. 11,50,000,00/-.
5. The appellants on 22.3.3005 filed a review petition challenging the judgment and decree and almost all the proceedings prior thereto; this was followed by the objections dated 29.3.2005 to the auction; the Court below while rejecting the above through the order dated 25.4.2005 has confirmed the sale in favour of respondent No. 25 and has passed the final decree. Hence, this appeal in which the challenge has been thrown to the judgment and decree and the order refusing to set aside the auction, confirming the sale, etc.
6. Mr. Najam-ul-Hassan Kazmi learned counsel for the appellants, has argued that wrong particulars of the property were given in the sale proclamation; the property is in the neighbourhood of E-Plomer Building, while it is described to be E-Plomer; the area of the property is not mentioned; it is not stated as to what is the share of the appellants judgment-debtors) in the property; on 19.3.2005 no auction was conducted at the site as reported by the local commission, the report does not accompany any attendance sheet or the sheet of the proceedings; the pay orders mentioned in the report allegedly deposited with the Court auctioneer by those who (allegedly) participated in the auction are not particularized in the report (number of pay orders, bank's name, etc. Are lacking); two out of four alleged participants have come from Rawalpindi and it is inconceivable as to how they came to know of the auction, when it was not advertised in the newspaper and only two persons from Lahore having a population of around 75 lac at that time, only turned up; thirty days period has been mentioned in the proclamation as being the time for the payment of the balance amount of 3/4th which is in the breach of the provisions of Order 21, Rule 85, C.P.C. In this regard , he has made reference to the judgment reported as Afzal Masood Butt v. Banking Court No. 2, Lahore and 8 others (PLD 2005 SC 470), Ajksun International Manufacturers & Exporters through President and Chief Manager and others (2005 CLD 1) and Messrs Karishma Fashion Boutique through Sole Proprietor and another v. Habib Bank Limited through Authorized Attorneys/Manager and another (2006 CLD 954); no terms of the sale were specified in the order dated 25.2.2005; the notice under Order 21, Rule 66, C.P.C. Was not issued; the reserved price was mechanically fixed without seeking the assessment in this behalf from any surveyor and even considering two reports of the local commission according to which Rs. 15 crore and 17 crore was the value of the property; no order was made for the advertisement of the sale through any publication in the newspaper; the Court auctioneer also did not give any notice to the appellants; an exorbitant amount of Rs. 23,000,00/- lacs has been paid to the Court auctioneer as the fee for the sale, which was not even conducted by him; the entire process and the alleged auction proceedings are result of fraud and bogus; the appellants on 22.3.2005 moved a review application under Section 114, C.P.C. And Order 47, Rule 1 through Mr. Ljaz Feroze, Advocate, challenging the preliminary decree, which application was directed by the Court to be taken up on 24.3.2005, they also filed objections to the alleged sale primarily on the basis that no auction was conducted on the site on 19.3.2905 and the proceedings and auction report in this behalf are fake; about 10 people including Mr. Ljaz Feroze, Advocate, Mr. Muhammad Sabir Kafi and Rana Abdul Ghaffar, Ex-District & Sessions Judge/Accountability Court had given affidavits about the fact that none came to the site for the auction on 19.3.2005; however, through the impugned order dated 25.4.2005, the review as also the objections have been dismissed in a summary manner without framing an issue and recording of evidence.
Mr. Kazmi has pointed out some more relevant facts of the case, such as that during the pendency of the noted appeal one application C.M. No. 7-C of 2005 was filed by the auction purchaser in this R.F.A. For the withdrawal of the auction money deposited, upon which the following order dated 16.1.2006 was passed:--- "This petition by the auction purchaser seeks permission to withdraw his bid amount lying with the Trial Court. All the parties concurred to the request of the auction purchaser, hence this petition is allowed and Sohail Hussain, respondent No. 25 is permitted to withdraw his amount of Rs.
11,50,00,000/- from the Trial Court and his rights will be regulated by the final judgment of this Court in the main appeal."
Besides, the Court auctioneer also filed C.M. No. 19-C of 2006 in which he asked for the withdrawal of Rs. 25,00,000/-as his commission fee including the adjustment of auction expenses and the Court on 19.1.2006 passed the order as below:--- "This petition by the Court-auctioneer prayed for payment of remuneration in terms of Chapter 12-L Vol. Of High Court Rules and Orders for the auction already concluded and confirmed by the Trial Court. The learned counsel for the auction purchaser who was the highest . Bidder had deposited an amount of Rs. 11,50,00,000/- with the Trial Court. And was granted permission with the concurrence of all the learned counsel for the parties to withdraw his entire amount subject to decision of appeal, appeared and expressed his willingness to leave an amount of Rs. 25 lacs for adjustment of auction expenses including the honorarium of the Court auctioneer with the condition that in case the auction is set aside on the basis of any material irregularity in conduct of the same, the Court auctioneer will deposit back the remuneration given to him by the Trial Court.
The Court-auctioneer who was present in Court, accepted offer of the auction purchaser and understood to re-deposit his honorarium which shall be ultimately decided by the Trial Court, on requisitioned by the Trial Court. In view of this, the Trial Court is directed to.Retain an amount of Rs.
25 lac out of sale price of Rs. 11,50,00,000/- ordered to be refunded to Suhail Hussain, respondent No. 25 vide order dated 16.1.2006 and to refund the remaining amount to him. With these observations, this, C.M. Is disposed of"
It may be mentioned that the above order was passed without service of any notice upon the appellants or any other party and as per the attendance only the Court auctioneer was present in person, while respondent No. 25, the, auction purchaser was represented by Mr. Ghani, Advocate on the day when the order was passed. In the above situation, the appellants, however, filed C.M. No. 21c12006 and in paragraph No. 5 thereof, it has been mentioned::---- "That the alleged auction, under challenge, was claimed to have been made on 19.3.2005. In fact, 1/4th of auction price in the sum of Rs. 2,87,50,000/- should have been deposited on 19.3.2005 while the balance 3/4th in the sum of Rs. 86,250,000/- should have been deposited within 15 days, as per Order 21, Rule 85, C.P.C. Even if it is claimed that under the so-called terms, the balance was to be deposited within 30 days (which under the law is not permissible as the Court auctioneer had no jurisdiction to. Change the Rule) still 3/4th price should have been deposited by or before 18.4.2005.
In this case, as appears from the order sheet as also the bank challan, the amount of Rs.
11,27,00,000/- was deposited through Pay Order No. 0408-000D72, dated 20.4,2005 and Rs.
23,00,000/- is claimed to have been deposited by the Court auctioneer on 21.1.2005 through cheque. If 1/4th auction price i.e. Rs. 2,87,00,000/- was given Court auctioneer (as it is falsely claimed in the report) then this amount could have been deposited by him and that too immediately with the report submitted in Court but he claims to have deposited only Rs.
23,00,000/-. This being so, not only the entire sale price was not deposited within the statutory period, which frustrated the collusive, fictitious and concocted sale but also it proved beyond doubt that the whole proceedings are fake and fraudulent. Certified copies of the order sheet and challan are enclosed."
Alongwith the application, the order of the learned Trial Court dated 30.1.2006 has been filed which was passed by the Court below on the application of Sohail Hussain auction purchaser, seeking the withdrawal of 'the amount pursuant to the order dated 19.1.2006 of this Court. In the order an amount of Rs. 23,00.000/- is stated to have been deposited by the Court auctioneer in the Government Treasury on 21.5.2005 while the balance of Rs. 11,27,00,000/- (out of Rs. 11,50,000,00) on 23.4.2005. Through this order the Court had also released the amount of Rs. 23,000,00/- as the fee of the Court auctioneer. It is also mentioned that alongwith this application the appellants filed challan envisaging the deposit of Rs. 11,27,00,000/- by the Court auctioneer in the treasury on 23.4.2005 which he had illegally and un-authorizedly received from respondent No. 25, as the said amount included the amount payable in the Court as per Order 21, Rule 85, C.P.C., besides, the amount of Rs. 1/4th earlier received by the Court auction was withheld for quite a long, thus the balance payment is beyond the period of 15 days as required by, the afore-mentioned law; without prejudice to the above it is argued that considering this payment could be made within 30 days from the date of the auction, yet it is not within that time. It is also stated that out of the total consideration, an amount of Rs. 23,00,000/- has been deposited by the Court auctioneer on 21.5.2005, which is much after even a month, and in case a plea is taken that the amount was retained as his fee, it could riot be so done, under the law and especially when there was no such order of the Court to that effect, rather the Court while passing the impugned order dated 25.4.2005 for the first time determined his fee and directed that such amount could be withdrawn by him; reply to this application was given by the Court auctioneer alongwith which the copy of pay order amounting to Rse 1 Million dated 18.3.2005; the copy of the cheque No 082369, dated 19.3.2005 amounting to Rs. 27,750,000/- has been placed, this pay order and cheque has been deposited in the account of the Court auctioneer on 22.3.2005 and in the ordinary banking process the amount should have been received in the account of the Court auctioneer within a week or so day, but the amount was deposited on '24.4.2005; it is stated that all these payments have neither been received nor deposited in accordance with the law. It is further stated that the amount of balance consideration of Rs. 86,250,000/-was to be deposited in the Court by the auction purchaser, but unauthorizedly it was given to the Court auctioneer, which is absolutely invalid and in any case, whosoever made the deposit it was beyond 30 days attracting the consequences of law; he has thus argued that when the amount of Rs. 86,250,000/- was received by the Court auctioneer, the period of 15 days and when deposited in the Court, 30 days have lapsed; he also submitted that this amount could not be deposited by the Court auctioneer in his personal account. It is also argued that Mr. Munawar Ahmad Gondal local commission reported that the property is indivisible, is perfunctory as he never ever entered the premises; the said report to this extent could not be relied upon, therefore, the order dated 25,2.2005 based thereupon directing the sale is mechanical in nature and without application of the mind; the provisions of Order 21, Rule 66, C.P.C. Have been seriously offended, learned counsel has relied upon the judgments reported as Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. Through Branch Manager and 3 others (2003 CLD 1693), Mirza Munawar Baig and 5 others v. Bank Alfalah Limited and 2 others (2007 YLR 126), Brig. Retd. Mazhar-ul-Haq and another v. M/s. Muslim Commercial Bank Limited, Islamabad and another '(PLD 1993 LAHORE 706), Mrs. Shahida Saleem and another v. Habib Credit and Exchange Bank Ltd., etc. (2001 CLC 126), Messrs Piple Jewellers (Pvt.) Ltd. Through Chief Executive and another v. First Woman Bank through Officers/General Attorney/Principal Officers and 6 others (2003 CLD 1318) and Mst. Zainab Bibi v.
Allied Bank of Pakistan Ltd. And others (2003 YLR 3274). It is also submitted that as per the judgment reported as Mst. Ilahi Noor and 4 others v. Muhammad Din (PLD 1977 SC 635) the provisions of Order 21, Ruie 66, C.P.C. Are equally applicable to the partition decree and the sale made thereunder.
On the question that if the money is not deposited within the requisite period as prescribed by Order 21, Rule 84 or Rule 85, C.P.0 , the sale cannot be confirmed; reliance is placed on 2005 CLD 571, Afzal Masood Butt V. Banking Court No..2, Lahore and 8 others (PLD 2005 SC 470), Ajksun International Manufacturers and Exporters through Partners and 2 others v. Habib Bank Ltd. Through Attroneys Vice-President and Chief Manager and others (2005 CLD 1), and Messrs Karishma Fashion Boutique through Sole Proprietor and another v. Habib Bank Ltd. Through Authorized Attorneys/Manager and another (2006 CLD 954). Mr. Kazmi has also argued that the objections petition of the appellants could not be dismissed on the ground that 20% has not been deposited because the order to deposit the amount should not precede, rather succeeds the filing of the objection. However, in this case when the Court on 24.3.2005 received the report of the Court auctioneer, at that time the review application of the appellants was pending before it, still the Court illegally directed without any reason and justification that the objection shall not be entertained if it does not accompany 20% amount. The law has given the discretion to the Court either to accept the security or deposit upto the extent of 20% and this discretion should be exercised only after the objections have been filed, considering, assessing and evaluating the worth of thereof, as to what should be the quantum (as the expression of the Rule 90 only prescribes a upper limit of 20%) of the depositor if it should be the security alone. Reliance is placed on Sultan Mahmood v. House Building Finance Corporation through District Manager and 3 others (2006 YLR 2776) and Messrs Dawood Flour Mills and others v. National Bank of Pakistan (1999 MLD 3205); it is also argued that despite number of affidavits which were filed by the appellants alongwith objections petition, including those of Barrister ljaz Feroze, Advocate, Mr. Ghulam Sabir, Advocate and Rana Abdul. Ghaffar Khan, Ex-District & Sessions Judge, who deposed that no sale was conducted on 19.3.2005 as they remained present throughout the relevant period, yet no issue was framed and the objections were summarily dismissed without 'recording of the evidence or even asking for a counter-affidavit of the opposite side. The Court had 25% of the share of the appellants in the nature of the sale proceed on account of, the alleged sale, which was more than 20% and this could always be appropriated towards 20% as required by Order 21, Rule 90, C.P.C. And therefore, in such a situation to non-suit the appellants for the lack .Of deposit is absolutely illegal.
The Court despite rejection of the objection on the technical count itself should had seen whether the sale could be confirmed on account of the various lapses, material irregularities and illegalities in the conduct of sale which floated on the surface of the record. But the Court has failed to discharge its duty.
On the submission that illegal and exorbitant fee has been paid to the Court auction, reliance has been placedby Mr. Kazmi on the judgments reported. As United Bank Limited v. C.M. Sarwar, Advocate and others (PLD 2004 SC 240) and High Courts Rules and Orders, Volume 1, Chapter 12, Part-L, Rules 21 & 22, it is argued that such amount' could, not succeed Rs. 5,000/-.
7. Mr. Sohail Dar learned counsel for respondents Nos. 1 to 4 has stated that the decree should be kept intact; he has also argued that as the appellants are in possession of the property and on account of the above, have deprived the others from the fruits thereof; they had the full knowledge of the proceedings and deliberately absented therefOre, are disentitled to file this appeal and claim any relief.
8. Mr. S.M. Nasim, learned counsel for respondent No. 9 (defendant No. 5) as also Mr. Ahmad Awais, learned counsel for respondents Nos. 1 to 3 (plaintiffs Nos. 1 to 3) and Mr. Umer Khan, learned counsel for respondent Nos. 5 to 9 (defendants Nos. 1 to 5) have also argued that the preliminary decree should be kept intact, but they have no objectiOn if the final decree and the sale in question is set aside. Mr. Muhammad Ghani, learned counsel for the respondent No. 25, has argued that the preliminary decree dated 5.1.2005 has attained finality as none including the appellants have.Filed an appeal within the prescribed period of limitation; that the report dated 18.2.2005 of the local, commission (Mr. Munawar Iqbal Gondal, Advocate) regarding the divisibility of the property has not been. Challenged by either of the parties and thus it too has attained finality; that 75% of the share-holders in the suit, property have. Not challenged the sale in favour of respondent No. 25 and the objections of the appellants to be sale are tainted with mala fide on account of their previous conduct, these cannot be given much weight; it is also argued that this client still wants to have the property at the auction price and if it is re-sold and fetch more price, his interest must be protected and in the eventually 5% (as per Order 21, Rule 89, C.P.C.) should be awarded to him. In support of his contention, reliance has been placed on the cases reported as Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan, etc. And others (PLD 1g87 SC 512) and Pakistan Industrial Credit and Investment Corporation Limited v. Shandin Limited (2001 CLC 1267); it is further argued that on account of inadequacy of .The sale consideration, when there is no proof of any fraud or material irregularity in the conduct of the sale, it should be preserved and protected.
9. Mr. Fakhar-uz-Laman Akhtar Tarrar, Advocate/Court auctioneer submitted that there is plea about the inadequacy of price; 75% of the share-holders have not filed any objections to the sale, rather while replying to the objection of the appellants, they supported the sale; the sale in question is not pursuant to the money decree or the decree under mortgaged, but is regulated on the touchstone of Section 2 of the Partition Act, 1893 and in such cases Order 21, Rule 66, C.P.C. Is not attracted. It is submitted that the payment through the cheque could always be received by the Court auctioneer. Support is drawn from 2000 CLD 1071. On the question that the Coull auctioneer should be entitled to 2 and half 'percent. Reliance in this behalf is placed upon Muhammad Naazar Khan, Evaluator/Auctioneer v. Express Commercial Finance Company, etc. (NLR: 1995 CLJ 534), United Bank Ltd. v. C.M. Sarwar, Advocate, etc. (PLD 2004 SC 240) and UBL v. Messrs Farrukh Hayat Tiwana and others (1995 MLD 1895). He has defended his position about the conduct of the sale and states that the allegations of fraud and material irregularity are malicious and baseless.
10. Heard. It is glaringly noticed that without passing a formal order setting aside first preliminary decree dated 23.5.2002 against the appellants, their defence has been illegally and erroneously struck of under Order 8, Rule 10, C.P.C., for non-filing of the written statement, when they were not suppose to or even required to do so under Order 1., Rule 8, C.P.C. It is also noticed with concern that the order in this behalf dated 22.2.2003 (striking of their defence) has not been signed by the Presiding Officer, yet we are not inclined to interfere for setting aside of the second preliminary decree passed on 5.1.2005 for the reasons that throughout this period the appellants have never come forward to either join the proceedings, or even to inquire about the fate of the matter, so as to avoid adverse proceedings and the final decision against them. When particularly confronted in this behalf, Mr. Najam-ul-Hassan Kazmi, learned counsel for the, appellants has not been able to justify their conduct. Thus the rule of past and closed transaction can be safely applied in this behalf.
11. As regards the report of Mr. Munawar Iqbal Gondal, Advocate is concerned, it is quite significant to note that in his report dated 18.2.2005 he has mentioned that "On 12.2.2005 the undersigned again reached at the spot at 3 p.m. And inspected the disputed property in presence of the above-mentioned persons who were present at the spot and concluded that the suit property is not divisible according to the respective shares of the parties. The parties who were present at the spot also agreed with the suggestions of the undersigned." It may be pertinent to mention here that the appellants were not present; from the report it is not established if the local commission inspected the property from inside and what is the basis of his conclusion, because some portion of the property is in possession of the appellants (self) or their tenants and they never allowed his entry; no dimension, measurement or site plan has been prepared by the local Commission to arrive at the so-called conclusion, if the property is divisible or otherwise; though he has mentioned that the site plan is attached with the case file, however, it is not established from the record if the file was available with him on the given date or was provided to him by the Court. Be that as it may, he in categorical terms mentioned that "At present the market value of the suit property is approximately Rs. 16,00,000/- to Rs. 17,00,000/- Per Marla." It may also be relevant to state here that before the above report, Mr. Tahir Amin Chaudhry, Advocate, the first local commission had submitted his reported dated 24.6.2002, in which he stated that he could not inspect the site for the difficulties expressed in paragraph No. 4 thereof but stated "The parties who were present suggested the market value of the property at Rs. 15,00,000/- (Rupees Fifteen Lacs) per Marla". Both these reports were available with the Court when the order dated 25.2.2005 putting the property to auction was passed and it .
Is specifically mentioned in the said order that:--- {{URDU TEXT}} It is un-understandable that when according to both the reports, e.g. In the first made three years ago (dated 24.6.2002), the value of the property was given as Rs. 15,00,000/- per Marla and in the latest, it was Rs. 16,00,000/-to Rs. 17,00,000/- Per Marla, which means that the value of the property was Rs. 3,20,00,0001- to Rs. 3,40,00,000/- per anal having total value of Rs. 16 Crores to Rs. 17 Crores, as the area is approximately five Kanals and this (second) deport find mentioned in the order, how and on what basis, criteria or judicial prudence the reserve price was fixed at Ten Crores Rupees, which is far below then even the value assessed in 2002. It is mind boggling and a very conspicuous illegality and error which has been committed by the Court, none was even consulted from the parties, who were contesting the matter in fixing of this price; no surveyor expert evaluation was sought; Mr. Muhammad Dawood. Sahi, Civil Judge 1st Class was the learned Judge who passed both the orders directing the sale of the property and fixation of the reserve price, but he seems to be totally oblivious and bereft of the law and judicial acumen; he arbitrarily and capriciously reduced the price, even when the report before him and ' has been referred to in the order as well. We cannot say more on the subject except to refer the maxim Res ipsa locator, that things speak for itself. No notice under Order 21, Rule 66, C.P.C. Was at all issued which is mandatory in law; he even did not draw the terms and conditions of the sale as required under the law (See 2003 CLD 1693), after prior notice to the parties and left every thing to be done by the Court auctioneer, which power could not be so delegated. The property has not been specified with exactitude in the proclamation lacking a plan thereto; it has not been insufficiently, vaguely and indefinitely described (See 2003 CLD 704, AIR 1956 Ajmer 33, AIR 1943 Lahore 129); the share of the judgment-debtor has also not been mentioned in the proclamation; its value is wrongly estimated (See AIR 1940 Lahore 394); all these aspects were required to be determined by the Court, with a direction that those must form part of the proclamation, but all' in vain. It may be relevant to point out that the property in the proclamation has erroneously been mentioned to be near E-Plomer, whereas it is E-Plomer. In plethora of judgments, it has been held that non-issuance of the notice and non-compliance of the provision of Order 21, Rule 66, C.P.C., which is mandatory, shall vitiate the sale on account of the material irregularity and this seems to be a classic case of that nature, attractii Order 21, Rule 90, C.P.C., therefore, in view of th judgments, which have been quoted above, the sale is liabl to be set aside.
It may not be out of place to mention here that the property in question is situate just opposite to this Court and is one of the best location of the city; in such circumstances, to fetch corresponding price, it was important that advertisement should have been directed to be made in the newspapers, which would have even otherwise eliminated the doubt whether proclamation has been affixed at the site, the Court house and other important places of the city or not; however, this has not been so done by the Court though it had the power under the law and it is a serious failure and lapse of the Court in performance of its duty for the sale of such a valuable property.
12. The Court auctioneer without there being any power available to him under the law, which even otherwise could not be delegated by the Court to him, of his on (accept the reserve price, the date of sale and affixation of the proclamation) has settled the terms and conditions of the sale; he in the proclamation has miserably failed to describe .The property, rather erred as has been highlighted by Mr. Kazmi; the share of the judgment-debtor is not mentioned therein and even the area of the property is not given; he against the mandate of law (Order 21, Rule 85, C.P.C.) has mentioned that the period for the deposit of 3/4 shall be one month.
The plea of the appellants that the sale was not conducted at the site and the entire proceedings and the report in this behalf is bogus suffice it to say, the attendance sheet is not part of the Court auctioneer's report; it is not specified as to who out of the parties were present on that date, their presence has not been marked; the pay orders, which according to the Court auctioneer, of the four persons who finally participated in the auction have not been particularized in the report, the same is the lapse about the ational Identity Card's numbers; he has not specified as to , hat was the first offer received and from whom and whether here was any contest or not, otherwise the sale could be eld to be hit by the general rules of cartel and may amount o be sham; what, specific offers were made by each of the participants is not mentioned at all; he simply has stated that the offer by Sohail Hussain (respondent No 25) is the highest as compared to the other (boly dahindagan) but has failed to mention as to what was the bid made by them (the others). It is- quite strange and striking, that out of the city of millions only two allegedly turned up to participate in the auction of the property, which is situated at the prime location, and is a commercial area i.e. The Mall Road, which is the main artery, the hub and heart of Lahore, where business tycoons (of the city), the big banks, insurance companies, multinationals and other organizations would yearn and dream of acquiring and having a property, but strangely none came forward, even no body from the vicinity, while two gentlemen including Sohail Hussain (respondent No. 25) came all the way from Rawalpindi and he carried the chunk, for a price far less than, it was suggested by the local commissions in their respective reports.
13. Mr. Kazmi in connection that no auction was conducted on 19.3.2005 has pointed out that the objections of the appellants were accompanied by the affidavits of considerable persons who either work or live in close neighbourhood and have deposed that neither the Court auctioneer visited the site nor any auction was conducted; according to him, these included the affidavits of Mr. Ljaz Feroze, Advocate, Ghulam Sabir, Advocate and Rana Abdul Ghaffar, Advocate (Ex-District &.
Sessions Judge) yet the Court below was not intrigued to ask for any counter-affidavit from the other party and to record evidence and simply on a hyper technical ground (which he otherwise stated was not applicable in the present case) knocked out the appellants.
It may not be out of place to mention that though the are number of affidavits on the record and in some of those is mentioned that Mr. Ljaz Feroze etc. Remained present o the site, but of those named above could not be found on th original record; we thus have summoned these gentleme who have appeared before us in our chamber and stated tha they were present at the site on the relevant date and time and no auction was conducted. Mr. Ljaz Feroze, Advocate stated that he was the counsel for the appellants, he himself had filed these affidavits alongwith the objections petition and is very perturb that those are not now the part of the record: It is also stated by them that they still are ready/prepared to give affidavits to the above effect; all the three are known for their nobility and dignity in the Bar; this seems to be a very unfortunate aspect of the matter, but we have decided not to go further in this behalf, otherwise the option of recording their statements and seeking the affidavits was even now available. Anyhow, no counter-affidavit to those admittedly on the record have been filed by the other party; it is quite noticeable that the Court auctioneer had filed a reply to. The objections and also an affidavit therefore, in such a situation, it was incumbent upon the Court to have enabled these persons to appear in support of the objections and in rebuttal and to have permitted the other parties and the Court auctioneer to be cross-examined, but this was not done, which again .Shows how imprudently, indiscreetly and unlawfully the case was conducted by the Presiding Officer.
14. There is another very important and glaring violation of the law, which also renders the sale as vitiated. In the proclamation of sale, the Court auctioneer without any authority, rather against the law (Order 21, Rule 85, C.P.C.) of his on has fixed 30 days' time for the payment of the balance consideration, which otherwise is required to be paid in terms of the above provision within a period of fifteen days; who has authorized him to change the law is the mystery and the Court below strangely and without any logical reason has overlooked the same. Moreover, Order 21, Rule 85, C.P.C. rovides (And this is also provided in the proclamation that e balance payment should be made in the Court):- "The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property: Provided that in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-of to which he may be entitled under Rule 72."
Thus, it is in the Court alone, before close of 15th day that the law commands the deposit, but here the payment was received illegally by the Court auctioneer after that and ultimately deposited in the Court on 23.4.2005 and by the time even 30 days had lapsed. After 19.3.2005, the Court auctioneer had. Became "functus officio" and was debarred in law to receive any money, resultantly, the. Consequences of Order 21, Rule 86, has to follow. There is another important feature of the case that the Court auctioneer has deposited in the Court Rs. 11,27,00,000/- on 23:4.2005 and till this date, the Court has not yet disposed of the objections of the appellants and he also was not permitted him by any specific order (of the Court) to defray any commission fee on account of , the sale, rather there has been no order till then even about the quantum of commission, he may be entitled to; the order in this behalf for the first time was passed .On 25.4 2005, when by turning down the objections petition, the fee of the commission was fixed in the following terms:--- "The fee of learned Court auctioneer is assessed at the rate of 2.5% of the sale price out of which 20% will go to the state under paragraph 21, Chapter 12.L Vol-, I, High Court Rules and Orders, and he may withdraw the same after deducting the remaining sale price Rs. 11,21,25,000/- is to be distributed among the respective share-holders in accordance with their shares as detailed in preliminary decree."
However, without any authority, the Court auctioneer eve prior to this order had withheld and deducted the amount Rs. 23,00,000/- as his commission because this amount wa deposited by him on 21.5.2005 when the operation of th judgment and decree and the impugned order was suspended by this Court on 3.5.2005 in the noted appeal. -Even otherwise, from the order dated 25:4.2005 the Court auctioneer was not permitted to retain any amount, rather he could withdraw, which means after depositing the entire sale consideration in the Court, but this as mentioned above was otherwise.
15. While dictating this judgment another very material and conspicuous aspect of the matter has attracted our attention; all the orders passed in this case by Mr. Muhammad Daud Sahi, learned Civil Judge, are either in his hand writing or typed on an ordinary typewriter, but the impugned order dated 25.4.2005 is a immaculate computer print. We have inquired from the Registrar of this Court if the computer printing facility was then available to the Civil Courts at Lahore, the response is in the negative; to whom he has dictated the impugned judgment/order who has typed the same on the computer and printed, it is a question mark, though he has appended a certificate thereupon that it is dictated, read over, corrected and signed by him.
16. Now coming to the question, if the objection petitio of the appellants could be dismissed for non-deposit of 20%. In this regard, it may be mentioned that the appellants had brought review application on 24.3.2005, which was fixed for 24th March, 2005 and on this date. Learned Presiding Officer after receiving the report of the local commission passed the following order:--- "The report of auction has been submitted by the learned Court auctioneer by virtue of which suit property has been auctioned to one Suhail Hussain s/o Akhlaq Hussain, in a public auction against consideration of Rs. 11 and half crores. Therefore, in these circumstances, any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale, may apply to this Court within 30 days from the date of auction to set aside the sale on the ground of material irregularities or fraud in publishing or conducting it, subject to deposit of 20% of the sum realized at the sale/auction price.
On behalf of the defendants Nos. 6 to 16, an application under Order 47, Section 114 read with Section 151, C.P.C. Has been filed on 22.3.3005, the same be made part of the main file; Copy of the said application has been given to the rest of the parties. A notice of said petition may also be given to the auction purchaser as he has got interest in the suit property through the process of the Court and it would be in the interest of justice. That he should be kept aware of the proceedings.
(for emphasis the underline is mine) Now to come up for the written reply of the said petition on 1.4.2005."
From the above, two important aspects emerge; the Court was conscious that the appellants are aggrieved of the proceedings/orders/judgment and decree and have filed the review petition; they shall thus be independently challenging the sale on account of material irregularity etc. It seems that anticipating the above, a notice was issued to the auction purchaser as well, otherwise till 24.4.2005, the appellants had not challenged the sale as according to their case in the objection petition which was subsequently filed, they till 24.5.2005 were not even aware if any sale was conducted. However, in the order to forestall any such challenge, though it was not required at that time, the Court imposed the condition of 20% deposit for the entertainment of the objections to the sale. Mr. Kazmi is right in arguing that the order for the deposit of 20% should not have preceded, rather succeeded the objections. The logic and wisdom behind the proviso to Order 21, Rule 90, C.P.C. Obviously is to curtail and circumvent frivolous and baseless objection and it is only after .Examining the same, the Court could assess the quality and nature thereof and to decide whether security should be required or the deposit and what shoul be the quantum, if the deposit is directed; obviously it is ony after considering the worth and strength of the objections, th ,law has conferred a discretion upon the Court to pas appropriate order and not before that, but from the tenor of the above order, the Court virtually before even examining the objections has shunned and stultified the appellants' remedy of filing those and such order can aptly be termed as Placing . a horse before the cart, which is absolutely impermissible and against the spirit of law. Even- otherwise, as mentioned above, the object of the deposit, etc. Is to check the bona fides of the claims and to preclude that frivolous pleas should not impede the process of execution and also the confirmation of the sale in favour of the auction purchaser, who has bought the property from the Court, which embodies an element of sanctity and guarantee, but in this case on account of the sale proceed, the appellants had much more to their share as against 20% (maximum); this amount could always be appropriated and taken to be akin to the deposit.
17. The argument of learned counsel for respondent No. 25 in defending the impugned order have been quite lukewarm; he ha's withdrawn the money and does not seem to be much interested to have property back, except a submission has been made that his interest should be protected under Order 21, Rule 89, C.P.C. By granting him 5%, suffice it to say that in the instant case, such provision has no application; besides, the argument of his counsel that 75% share-holders have not objected to the auction and the price, therefore, the claim of the appellants should a:so be discarded. We are not convinced, if the inaction on part of the others has any reflection upon the appellants, when a clear case about the material irregularity and fraud in the conduct of sale, is floating on the face of the record. It also is not a case simply about the inadequacy of the consideration, rather is a matter where the law has been flouted (as mentioned above) in a glaring and unparallel manner, and we cannot overlook and allow the subordinate judiciary to decide the rights of the parties in breach of Jaw and on the basis of their whims and caprices and in any arbitrary way, as justice- and arbitrariness are sworn enemies and cannot co-exist.
18. On account of the judgment reported as Mst. Ilahi Noor and 4 others v. Muhammad Din (PLD 1997 SC 634), we hold that the sales in partition suit are to be conducted according to the provisions of Order 21, Rule 66, C.P.C. And in fact this has been so followed in the present case as well (subject to the violation highlighted above), because neither there is any different procedure for sale of the joint properties in partition decrees nor any other mode was resorted to by the Court.
Therefore, the objection of the Court auctioneer that the sale in such litigation is governed and regulated by the Partition Act is over-ruled.
19. About the question raised by the Court auctioneer that the payment of 1/4 amount on the date of the auction could be received by him through cheque,though this has not been controverted by Mr. Kazmi, however, it may be held according to Order 21, Rule 84, C.P.C. "On every sale of immovable property the, person declared to be the purchaser shall pay immediately after. Such declaration a deposit of twenty-five percent. On the amount of his purchase-money to the officer or other person conducting the sale and in default of such deposit, the property shall forthwith be re-sold. Thus, it is mandatory provision that 1/4th should be deposited with the Court auctioneer and if spirit of the law that quite a steps and legal formalities are Undertaken before the auction is conducted and if the successful bidder runs away and the auction remain's unsuccessful on that account, again all the which shall be an abuse of the process of law and the chance of re-sale there and then 'shall be gone and frustrated; it is in the above context that the law envisages a cash payment and even otherwise when the law (the Code of Civil Procedure, 1908) was enforced, the banking system as it is today , Was not in place, therefore, the Payment through cheque could not be conceived, however, because of the, changed circumstances, now-a-days it is a real risk and peril to carry huge money, thus the payment through cheques can be read into the provision as this shall not militate against the spirit of Order 21, Rule 84, C.P.C., but the successful bidder alongwith the cheque should also establish by providing the latest bank statement to the Court auctioneer that he has the requisite funds in the account from where the cheque is issued and if it is otherwise, the Court auctioneer in the light of the command of law should re-sell the property forthwith, otherwise; the law for the resale shall be infringed; besides the consequences of Order 21, Rule 71, C.P.C. Shall got waste and frustrated.
PLD 2004 SC 240, is bound to return the entire fee which he has received within a period of one month from today. We have formed a moderate view of not imposing upon him any mark up for the period he has utilized the amount. However, in case the. Amount is not so paid, this shall be deemed to be a decree against him and the amount shall he recovered accordingly, and in such a situation, the mark-up at the rate of 7% shall be also recoverable from .Him from the date he received money till realization of the entire amount. The amount so received shall be forfeited to the Government and the Court shall deposit it in the Prime Minister's fund for I D.Ps. Swat.
Before parting it may be observed that the new Court auctioneers shall be entitled to the fee corresponding to their efforts for the sale, but subject to the maximum of 21/2% of the sale price as determined by the Court below. Furthermore on account of glaring act of omission, and ccommission on part of Mr. Muhammad Daud Sahi, learned Civil Judge, as has been highlighted in this judgment, let the copy,of 'the judgment be placed before the Honourable ,Chief Justice .For appropriate action.
Appellate allowed.