' MUSHIR ALAM, J.---Appellant through instant appeal has impugned orders, dated 30-5-2006 whereby applications under section 12(2) in J.M. No, 43 of 2004 and 44/2004 respectively were dismissed.
2. Both the appeals arise out of same facts. To appreciate the rival contentions of the parties same are recapitulated; it appears that the father of the appellant was allotted a piece of land measuring 607 square yards on Nallah at Preedy Quarters, Agha Khan Road in the year, 1954 on 10 years lease, whereupon drycleaners business was established. Lease on expiry followed by litigation was renewed for another term of 30 years in October, 1985. It was agreed between the parties that on expiry of the lease entire land will revert back to KMC now CDGK without any compensation. In the year, 1984 appellant in open auction acquired another piece of land in continuity of earlier lease for 10 years, It seems that applicant continued to hold over lease after expiry of the two leases referred to above.
3. Respondent-CDGK initiated proceeding to resume the lease and initiated process to put it to auction, which was resisted by the appellant herein in Suit No, 1696 of 2009 and 1697 of 2001 seeking declaration as to his entitlement to continue the lease and rights as tenant holding over. Appellant also challenged cancellation and termination of lease. Suits proceeded and ultimately the CDGK proposed to put the subject property to open public auction for 99 years lease hold right and on the basis of such statement a settlement was arrived at between the parties and a consent judgment and decree, dated 15-11-2002 was passed in both the suits. Fundamental condition of the consent judgment relevant for the purpose of instant proceedings reads as follows:--"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 be conducted according to the KMC rules applicable to such property."
' Other terms and conditions as modified on 15-11-2002 related to appellant's option to match the highest bid and mode of payment.
4. Consequently the auction was held on 22-5-2003 appellant chose not to participate and respondents Nos. 6 and 7 made the highest bid of Rs,94,500 per Square feet. Appellant challenged the auction through C. P. No, D-1236/2003, which was dismissed on 22-10-2003.
5. Against the consent judgment and decree petitioner filed H.C.A. No,2005/2003 and H.C.A. No, 2006 of 2003 respectively, which were withdrawn later on.
6. The appellant filed Suit No, 1229 of 2003 challenged the auction on the ground that section 124 of the Sindh Local Government Ordinance, 2001, was violated, and the CDGK had no authority to auction lease for more than 5 years and in the instant case auction held for 99 years lease.
Injunction application filed therein was dismissed on 11-12-2003, holding that the subject property was auctioned under SLGO 1979 and not under SLGO 2001, therefore, appellant had no case.
Against which order the appellant herein filed HCA No,1 of 2004 the appeal was dismissed on 20-8- 2004 and the order passed by the learned Single Judge was maintained.
7. Appellant instead of agitating the matter further before the Supreme Court or pursuing the suit on merit chose to withdraw the suit with permission to file an application under section 12(2), C.P.C.
In Suit No,1696 of 2001 and 1967 of 2001, which as stated above were disposed of through a consent judgment and decree, dated 15-11-2002 as modified on 23-4-2003.
8. The applications under section 12(2), C.P.C. In the above referred suits were registered as J.M. No, 43 of 2004 and 44 of 2004 respectively. It may not be out of place to mention that the Government of Sindh also filed J.M. No,52 of 2004 and J.M. No,53 of 2004 however, Government of Sindh withdrew the same on the ground that section 124 SLGO 2001 has been amended and restriction to lease for a term of five years lease since been deleted, now the CDGK is competent to lease out the property for 99 years lease.
9. The appellant however continued to pursue JM No,43 and 44 of 2004, which were eventually dismissed through impugned order, dated 30-5-2006.
10. Mr. M.A. Khan learned counsel for the appellant vehemently relied on section 124 of SLGO 2001 to assert that consent decree, dated 15-11-2002 as modified on 23-4-2003 was obtained by mis- representation of law. According to him on the relevant date i.e, on the date judgment and decree was passed SLGO 2001 was applicable and not SLGO 1979, which restricted the authority of CDGK to lease out any property for a period not more than 5 years at a time and in the instant case it was leased out for 99 years,
11. Mr. Marizoor Ahmed learned counsel for the respondent No,1 CDGK, questioned the very maintainability of application under section 12(2), C.P.C., according to him, appellant himself was privy to the auction proceedings throughout, terms and condition for the auction were settled by consent and he was given maximum concession and accommodation, he chose not to participate in the auction proceedings. He is to blame himself for his conduct, third party right has been created and over 50 leases have been created, appellant cannot be allowed to throttle entire exercise at his whims and fancies.
12. Mr. K.A. Wahab, learned counsel of the respondent No,5, contended that, the respondent No,5 was party to the Suit No,1696 of 2001 and 1697 of 2001, wherein consent order for auctioning the subject property for 99 years lease was passed. On failure of the appellant to match the highest bid made by him auction was confirmed in his favour. Auction was also challenged in C.P. No,1236 of 2003, which was dismissed on merits on 22-10-2003. Appellant initiated 2nd round of challenging auction in Suit No, 1229 of 2003, injunction application wherein was also dismissed on 11-12-2003 which order was maintained in HCA No,1 of 2004. It was urged that on confirmation of auction in above proceedings. Respondent No,5 has executed 50 sub-leases to different persons who are running their business. He urged dismissal of appeals.
13. Mr.. Faisal Siddiqui learned counsel appearing for the respondents Nos. 7, 10, 15, 18, 26, 28 and 31 led the arguments, Mr. Sohail Abbas for respondents Nos. 9, 21, 22, 23 and 38 and Salahuddin Ahmed Advocate for respondents Nos. 10, 15, 18, 26, 28, 31, 34, 35, 40, 41, 42 and 48 adopted the arguments of Mr. Faisal Siddiqui.
14. Mr. Faisal Siddiqui learned counsel leading the arguments questioned the very maintainability of the petition. According to him section 43 of Transfer of Property Act as well as section 18 of the Specific Relief Act, clearly provides that where the vendor/lessor subsequent to the sale or lease acquire any interest in the property the purchaser or lessee may compel him to make good the contract out of such interest. It was, therefore, urged if the title of the respondents represented by him was imperfect at the relevant time, it was perfected subsequently. Without prejudice, it was further stated that the question whether the property was leased under SLGO 2001 or SLGO 1979 was clearly decided by this Court in series of litigation in which the appellant has engaged himself and dragged the respondent unnecessarily. He has drawn our attention to the orders, dated 11-12- 2003 passed on an application under Order XXXIX, Rules 1 and 2 C.P.C. In Suit No, 1229 of 2003, which reads as follows:-- ' I have considered the above submissions of learned counsel for parties and examined the pleadings. I came across number of orders passed in earlier suits, which have attained finality by now, Merits of those orders cannot be reconsidered in the instant proceedings. The only point for determination at hand is whether auction which took place on 22-5-2002 was under the repealed Ordinance, 1979 or Ordinance, 2001. It is noted that the decree was passed with consent of parties for holding auction for 99 years, which clearly shows that all the parties in Court were well aware that the auction proceedings were to be taken up in view of Ordinance, 1979 and not under Ordinance, 2001. The decree further shows that no exception was made available to the present plaintiff except that he was allowed to participate in the auction to match the highest bid. By no stretch of imagination, it can be inferred that he was given any preference over the other bidders,".
(underlined to add emphasis).
' Said order was also challenged in HCA No,1 of 1994, which was dismissed on merits vide order, dated 20-8-2004.
15. Mr. Faisal Siddiqui urged that on dismissal of the HCA, the appellant withdrew the Suit No,1229 of 2003 and started another round of litigation which has landed up before this Court in instant appeals in hand. He further urged that instant proceedings are also hit by principle of constructive res judicata.
16. Without going to the intricacy of the argument advanced, fact remains that the contention urged to impugned the action was dealt with on merits by the learned Single ...Judge through order reproduced above, which was also maintained in HCA. A decision rendered in a proceeding, which was affirmed in appeal cannot be annulled in a collateral proceeding by way of application under section 12(2), C.P.C. Needless to say that misrepresentation within the contemplation of section 12(2), C.P.C. Is of fact and not of law and in case any order is based on erroneous assumption or interpretation of law could always be challenged in appeal, unfortunately since the order impugned was obtained by consent, appellant himself has bargained his right to appeal in view of section 96(3), C.P.C. Even otherwise the appellant has already obtained the affirmation of the finding recorded by the learned single Judge on the issue in appeal.
17. We have carefully examined the consent judgment and decree, dated 15-11-2002 recorded in Suits Nos. 1969 of 2001 and Suit No,1697 of 2001 available at pages 69 to 79 in HCA 257 of 2006. Very first condition of consent order provides "auction for 99 years lease subject to the condition applicable to such auction of COOK. The Auction shall be conducted according to the KMC rules applicable to such property". On 15-11.2002 by consent order was modified and condition (v) whereof provided "the shop shall be put to auction for a period of 99 years lease subject to the conditions applicable to such auction of 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." The impugned consent orders do not reveal any misrepresentation of the legal position as urged before us. Appellant was fully cognizant of his rights while consenting to "holding auction for 99 years, which clearly shows that all the parties in Court were well aware that the auction proceedings were to be taken up in view of Ordinance, 1979 and not under Order, 2001" as observed by the learned Single Judge vide order, dated 11-12-2003 passed on an application under Order XXXIX, Rules 1 and 2, C.P.C.A in Suit No, 1229 of 2003 and extensively referred to above. Instant proceedings are nothing but sheer abuse of process of law.
18. Finding no merits in the appeals same were dismissed with cost throughout, vide short order, dated 31-3-2009 and above are the reasons for the same.