' SYED HASAN AZHAR RIZVI, J.---Through this petition, the petitioner has impugned the order dated 14-10-2008 passed by learned Banking Court-III, Karachi in Ex. No,121 of 2005 arising out of Suit No,59 of 1996, whereby the application under section 151, C.P.C. (wrongly mentioned as Article 151 of Constitution of Islamic Republic of Pakistan) filed by the petitioner was dismissed.
2. We have heard the petitioner, Mirza Adil Baig, learned counsel for the respondent No,1 and perused the material available on record.
3. It was urged by the petitioner that she is the sole proprietor of Messrs Super Traders and by profession a contractor. She stated that in response to an advertisement published by the respondent No,2 in the print media for auction of Shop's Nos.14 and 15 situated on Ground floor, Sub-Plot No,SF/16/5-6, Portion of Plot No,SF-16, Block-B, North Nazimabad, Karachi, she participated through her husband on 16-1-2007 with one pay order No,0311505 in the name of Nazir Banking Court No,III through the Account No,2616 of Saudi Pak Bank, Hyderi Branch of Messrs Super Traders amounting to Rs,150,000 as 25% amount of estimated cost for purchasing of one shop. She further stated that apart from her husband, two others bidders took part in the auction i,e, respondent No,1 and Naeem Ahmed Khan. She categorically stated that on the advice of Nazir of Banking Court No,III her husband and respondent No,1 took part in, the auction proceedings with the clear understanding to give offer for both the shops jointly and get one shop each, therefore, the highest bid of Rs,14,00,000 was given by respondent No,1 of the above-noted two shops and both of them had deposited 25% earnest money and later on both of them had deposited remaining amount of Rs,5,50,000 each. She further stated that on account of dispute of lease, the auction purchaser could not be put in physical possession of the shops. She stated that petitioner and respondent No,1 filed applications for setting aside the sale and for return of auction amount, but the learned Banking Court dismissed the application of the petitioner, while the application of the respondent No, 1 was allowed and ordered for return of entire auction money to respondent No,1 vide order dated 14-10-2008. The petitioner has impugned the said order by filing this petition and submitted that it was based on mis-appreciation of material and record of the Court. She submitted that her husband was defrauded by respondent No, 1 in collusion with the Nazir of Banking Court, as her husband was assured by the Nazir that it was a joint bid and both the petitioner and respondent No,1 will get one shop.
4. Conversely, the learned counsel for the respondent No,1 has argued that the petition is not maintainable as the petitioner has no locus standi in the matter. He urged that husband of the petitioner was in fact in close contact with the respondent No,1 and there was monetary dealings and business transaction between them, He urged that the respondent No,1 had requested the husband of the petitioner to repay the amount due against him that he has taken from him and as such the husband of the petitioner agreed to deposit a sum of Rs,1,50,000 initially before the Nazir of the learned Banking Court and subsequently deposited Rs,5,50,000. He further urged that respondent No,1 was the sole and exclusive auction purchaser and the petitioner has nothing to do either with the amount or with the prope'rty purchased. He urged that amount cannot be segregated as it was not a joint bid. He vehemently urged that neither the petitioner nor her husband participated in the bid. He also urged that respondent No,1 had never been in contact with the petitioner nor he knew her before nor the pay order was handed over by her as he had the dealings with her husband who owed a substantial amount to the respondent No,1 and he is till date liable to pay the same amount to him. He submitted that the entire amount was refunded due to some legal lacunae in the auction purchased property and the respondent No,1 has the right to retain the amount till accounts are settled with petitioner's husband. He further submitted that the Banking Court had no power to have distributed, or refunded the amount to the petitioner or her husband as the sole auction purchaser was the respondent No,1 and the amount deposited in the Banking Court was rightly refunded to the respondent No,1, which cannot be claimed by the petitioner in the present petition. He, therefore, prayed for dismissal of the petition with heavy cost.
Learned counsel in support of his submissions has placed reliance upon the cases of ADAMJEE INSURANCE COMPANY LTD. v. GOVERNMENT OF PAKISTAN AND 5 OTHERS (1993 SCM R 1798), STATE LIFE INSURANCE CORPORATION OF PAKISTAN v. MESSRS PAKISTAN TOBACCO COMPANY LTD. (PLD 1983 SC 280) and SECRETARY TO THE GOVERNMENT OF PUNJAB, FOREST ' DEPARTMENT v. GHULAM NABI AND 3 OTHERS (PLD 2001 SC 415).
11(sic.) We have given due consideration to the arguments advanced by the petitioner, learned counsel for the respondent No,1, the material available on record and the case law cited at the bar.
12(sic.) It is a matter of record that a Suit No,59 of 1996 was filed by United Bank Ltd. Against one Abdullah mar in Banking Court No,111, Karachi, which was decreed on 16-6-1996 and in Ex. No,121 of 2005 the shops in question of the judgment-debtor was put to auction. The auction was held on 16- 1-2007, wherein the following bidders participated:-
(1) Muhammad Iqbal Rs, 12,00,000
(2) Naeem Ahmed Khan Rs, 13,50,000
(3) Abdul Haleem Rs, 14,00,000 ' The highest bid of Rs,14,00,000 was given by respondent No,1 against shops in question and deposited Rs,3,00,000 through two pay-orders No,2568177 and 0311505 of Rs,150,000 each. It is noteworthy to mention here that the Pay-Order bearing No,0311505 dated 16-1-2007 was issued by Pak-Saudi Bank, which was debited from account of Messrs Super Traders and the Nazir of Banking Court returned the counterfoil duly signed and stamped by him to the petitioner's husband Muhammad Iqbal. Thereafter the petitioner's husband had deposited 75% of his share amounting to Rs,5,50,000 from the account of the petitioner through Pay-Order of Pak-Saudi before the Nazir, who again returned the counterfoil duly signed and stamped by him to the petitioner's husband. If it is assumed that the respondent No, 1 is exclusive purchaser of the shops in question then why the Nazir of Banking Court accepted Pay-Orders issued by the petitioner from petitioner's husband and returned the counterfoil to him. Moreover, the petitioner has placed on record affidavit of her husband Muhammad Iqbal, wherein he stated on oath that ate Nazir has informed him that respondent No,1 is his (Nazir) friend and regularly participated in the auction proceedings. He further stated that Nazir has decided that one shop is of Aleem Khawaja and one of petitioner. He also stated that he did not know Aleem Khawaja and met him for the first time in Banking Court on 16-1-2007. He stated that Nazir Ashfaq Ali Khokhar has received pay-orders of Rs,7,00,000 from him.
13(sic.) Indeed, the respondent No,1 has not denied the fact of depositing two pay-orders by the petitioner's husband before the Nazir Banking Court No,III Karachi, but took the plea that he has business dealing with the husband of the petitioner and some amount is due against him and on demand he has deposited two pay-orders in the Banking Court and till date some amount is also outstanding against him. The respondent No,1 in support of his plea of business relation has failed to point out what kind of business he is/was doing with the petitioner's husband and how much amount is due against him nor has placed on record any documentary evidence in order to prove his submission. The record reveals that respondent No,1 has not filed any counter-affidavit to application filed by the petitioner in the Banking Court for return of auction money. One Muhammad Roshan Kamal the attorney of the plaintiffs bank/decree holder has filed counter- affidavit to such application wherein the Assistant Vice President of .The plaintiff/Decree holder bank in Paragraph No,4 has submitted "that the auction purchasers namely Muhammad Iqbat and Aleem Khawaja has purchased the mortgaged property through auction held on 16-1-2007 and thereafter sale has been confirmed by this Hon'ble Court by issuing sale certificate in favour of the auction purchasers". It is also portrays from the record that the learned Judge Banking Court No,III, Karachi while deciding the application of the petitioner has not even bothered to call report from the Nazir in order to ascertain the truth and dismissed the application of the petitioner in one stroke thereby depriving the petitioner from substantial amount, which was deposited by her husband Muhammad Iqbal before the Nazir of Banking Court, who is acting as A "AMEEN" of public property.
14(sic.) In view of the facts and circumstances discussed above, we are inclined to set aside the impugned order dated 14-10-2008 only to the extent of dismissal of petitioner's application under section 151, C.P.C. And remand the case with directions to the respondent No,2 to decide the application of the petitioner afresh after calling the report from the Nazir within a period of two months from the date of receipt of this order. Since there is serious allegation against the Nazir, the respondent No,2 is also directed to initiate discreet enquiry against the Nazir Banking Court No,III Karachi and, submit report to learned MIT.
' The petition stands disposed of in the above terms.