1. ' SAJJAD ALI SHAH, J.---The appellant through instant appeal which was presented on 30-8-2012 had initially impugned Order dated 17-8-2012 passed by the Banking Court-V, Karachi in Execution No, 257 of 2010 whereby his bid to purchase property viz. Bungalow bearing No,91-B/III admeasuring 600 square yards situated at 24th Street, Phase-VI, D.H.A. Karachi in the sum of Rs,225,00,000 was rejected.
2. ' The appellant on 31-8-2012 through an urgent application got this appeal and an application under Order XLI, Rule 5, C.P.C. (C.M.A. No,1557 of 2012 seeking suspension of impugned order and restriction on re-auction) fixed in Court, however, on the said date when this matter was taken up the appellant filed in Court another application under Order XLI, Rule 5, C.P.C. (C.M.A. No,1561 of 2012) seeking suspension of second order dated 29-8-2012 whereby the Banking Court while accepting the offer of another bidder i,e, Mst. Ghulam Sakina in the same breath confirmed the same and directed the Nazir to issue sale certificate and to arrange the handing over the original title documents to the "Heard the advocate of bidder and the learned counsel bidder and also directed the occupant to vacate the property within three days, failing which, the same was to be got vacated through police aid by breaking open the locks.
3. ' Mr. Khawaja pleaded before us that since the new bidder is the mother of Provincial Law Minister, therefore, undue favour was shown by the Presiding Officer by passing such order discreetly, while keeping the file in the chambers, we consequently while entertaining such application suspended the Order dated 29-8-2012 and directed that "R&Ps be called during the course of the dau" and further recorded the .Request of the Appellant for filing amended title of appeal so that the new bidder/auction purchaser be arrayed as respondent.. On 1-9-2012 i,e, next day an application under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 was moved against the Presiding Officer of the Banking Court alleging disobedience of Order dated 31-8-2012 on the ground that despite the fact that the restraint order was conveyed to the Presiding Officer title documents were summoned from the bank on 31-8-2012 and were handed over to the auction purchaser, we also found that despite our directions to submit R&P during the course of the day it was not submitted, consequently we directed the Registrar to find out why the R&Ps has not been supplied. The Registrar reported that the presiding officer did not responded to the call of Registrar and thereafter Registrar of Banking Court was called on the same day but even he could not get the R&Ps (The report in writing was submitted by the Registrar of this Court on 5-9-2012 which has been taken on record), consequently, show cause notice was issued and the Nazir of the Banking Court was directed to appear in person with reply of both the alleged contemnoRs, ' On 5-9-2012 reply of the Presiding Officer as well as Nazir was considered since it was alleged by Mr. Khawaja Shamsul Islam that record has been manipulated by making additions in the impugned order after issuance of certified copy only in order to entertain bid of the new bidder, therefore, we minutely examined the record and found that the certified copy of order dated 17-8- 2012 does not carry the full order, therefore, we summoned the concerned Clerks and obtained their statements in writing. It was noticed that the appellant had impugned before us Order dated 17-8-2012, the certified copy whereof is on record, which reads as under:-- for the D/H. The bid in question being even much less than the forced value of the property in question cannot be accepted and thus the above bid for Rs,2,25,00,000 is rejected at this stage".
4. However, the record reflected that after signing the above order which ran till the end of the page, by marking arrow just above the signature, following was added on the same page but at a different place and with a different pen which was also signed:- "However, the bidder is at liberty to enhance/raise the offer, if he so desires but on or before the next date of hearing viz. 27-8-2012. Likewise, the D.H. May also, if so, desiring may bring a better offer in this regard to proceed further".
5. ' We further noticed that the corresponding diary to Order dated 17-8-2012 covered both portions of the order, therefore, we asked LDC Irshad in whose handwriting diary dated 17-8-2012 was recorded. He stated that he had recorded diary dated 17-8-2012 on 27-8-2012 as was dictated by the Reader, and the Reader stated before us that on 27-8-2012 he was called by the presiding officer in the chamber and he was told what diary he has to write and consequently he dictated diary dated 17-8-2012 to LDC Irshad who recorded the same on 27-8-2012. They further stated that they have issued certified copy of first portion of order dated 17-8-2012 on 24-8-2012 on which date only that order was available in the file.
6. ' Since Mr. Zayyed Abbas, associate of Mr. Kamal Azfar Advocate had effected appearance on behalf of new auction purchaser i,e, respondent No,3 consequently, we directed the said respondent to deposit the entire title documents of the subject property and thereafter on 11-9- 2012 Messrs Zameer Ghumro and Naeem Iqbal Advocates filed their vakalatnama on behalf of newly joined respondent No,3 and since a short point was involved the appeal with this background was fixed for final hearing on 25-9-2012.
7. ' Mr. Kh. Shams-ul-Islam, learned counsel appearing on behalf of the appellant, contended that the property subject matter of this appeal was repeatedly put to sale and lastly public auction was held on 18-7-2012 on which date the appellant offered to purchase property for Rs,22,500,000 and after depositing 25% of the bid amount in the sum of Rs,5,625,000 was declared sole highest bidder and the Nazir placed such report before the Court. The matter thereafter was taken up by the Court on 23-7-2012 and while adjourning the case to 2-8-2012 the appellant was directed to deposit remaining 75% of the bid amount which was duly deposited well before the date of hearing. On 2- 8-2012 the matter was adjourned to 17-8-2012 for consideration of auction report. Per counsel, on 17-8-2012 Presiding Officer of the Banking Court by passing the impugned order rejected the bid of the appellant, but did not fix the next date for re-auction. Per counsel, while the appellant was busy in filing appeal before this Court the Presiding Officer on 27-8-2012 by manipulating second portion of the order dated 17-8-2012 showing the absence of appellant without putting the property for re- auction discretely and while keeping the file in his chamber accepted the bid of respondent No,3 (Ghulam Sakina) for Rs,23,800,000 and directed the deposit of balance sale price on 29-8-2012. Per counsel, instead of taking up the case on 29-8-2012 it was taken up on 28-8-2012 and No, objection from the Bank/decree-holder was placed on record and, thereafter, on 29-8-2012 not only the bid was accepted but it was confirmed. Nazir was directed to handover original title documents, occupant was directed to vacate the property within three-days and on his failure police aid was also directed. It .Is contended that the haste shown by the Presiding Officer was mala fide as the pay order for the remaining price was given by the auction purchaser on 30-8-2012 and accordingly was deposited in the Bank on 30-8-2012 and even before encashment not only sale was confirmed title documents were handed over and direction for handing over the possession was also issued and on failure order for breaking open the lock was passed which is totally mala fide and in order to accommodate the Provincial Law Minister, who infact had purchased the property in the name of her mother. On facts it was lastly pleaded that Order dated 27-8-2012 reflects that the offer of respondent No,3/new auction purchaser was brought through the Decree- Holder bank, whereas it can be verified from the bank that her offer was never brought through the bank and even the record reflect that on the written offer of the respondent No,3 dated 27-8-2012 notice was directed to Decree Holder bank which reflect that Presiding Officer did not act impartially.
8. ' On legal premises, it is contended that once the Banking Court had directed the auction purchaser vide its order dated 23-7-2012 for depositing balance sate consideration his offer stood accepted and on deposit of the entire sale consideration it automatically stood confirmed, therefore, there was nothing with the Banking Court to sell on 27-8-2012. It was next contended that the offer to purchase the property was made by the respondent No,3 on 27-8-2012 and the sale was confirmed on 29-8-2012 whereas record would reflect that pay order was deposited in the account of Nazir on 30-8-2012 which was not only mala fide but in violatibn of Order XXI, Rule 192, C.P.C. Which requires the confirmation of sale after at least 30 days i,e, after the expiry of period within which objections could be filed. It was, therefore, prayed that the orders dated 17-8-2012, 27- 8-2012, 28-8-2012 and 29-8-2012 be set aside and the sale in favour of the appellant be confirmed.
9. ' On the other hand, Mr. Zamir Ghumro, learned counsel appearing for the respondent No,4 (new auction purchaser), contended that the respondent No, 4 on 27-8-2012 after having come to know that the subject property is under sale appeared in the Banking Court and offered to buy out the said property for Rs,23,800.000 i,e, reserved price. The Banking Court after receiving her offer which was accompanied with pay order of Rs,59,50,000 i,e, 25% earnest money, adjourned the case to 29-8-2012 for deposit of balance sale price. In the meanwhile on 28-8-2012 the representative of the Bank filed no objection to the acceptance of respondent offer and consequently on 29-8-2012 on deposit of balance sale price the sale was confirmed.
10. ' It was contended that merely because the Banking Court has on the same day accepted and confirmed bid of the respondent, the process cannot be declared unlawful as no provision of law or procedure was violated. Per counsel, in the entire episode there was no fault on the part of auction purchaser as she has deposited the entire sale price, where after the sale was confirmed and it is settled law that once sale is confirmed there is no provision allowing its setting aside. In order to support his contention counsel has placed reliance on the judgment of the apex court in the case of Afzal Masood Butt v. Banking Court No,2. Lahore (2005 CLD 967).
11. ' In response to the contention of Mr. Shams-ul-Islam that entire sale price was deposited by the appellant in consequent to the directions of the Court, therefore, sale stood confirmed once the balance sale price was deposited First of all we would like to examine as to whether the and there was nothing with the Banking Court to offer for sale, Mr. Zamir Ghumro while placing reliance on the judgment of the Hon'ble Supreme Court in the case of Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993) contended that highest bidder in the auction proceeding is just like a person who makes an offer and since the Court sale or auction is normally conducted by the Nazir who has no power to accept bid, therefore, his declaring the appellant as highest bidder or deposit of balance price is of no consequence unless the bid is accepted by the court and then confirmed.
12. In order to rebut the contention of Mr. Shams-ulIslam that since the offer of respondent No,4 was without any auction process, therefore, was illegal. Mr. Zamir Ghumro while placing reliance on the judgment of the Supreme Court in the case of Mst. Asma Zafarul Hassan v. Messrs United Bank Limited (1981 SCM R 108) contended that the provisions of law do not prohibit any other mode than by public auction and the Court, can under its inherent powers, adopts a different mode to advance cause of justice. Lastly it was, contended that even inadequacy of sale price in court sale is not a valid ground for setting aside a sale moreso when every effort was made to fetch the price and in support of his contention reliance was placed on the judgment of the Division Bench of Lahore High Court in the case of Messrs Ashraf Agro and others v. HBL (2008 CLD 449).
13. ' Mr. Suleman Hudda, counsel appearing for the respondent No,2/decree holder contends that the decree holder bank first had issued no-objection for the acceptance of offer of the appellant in the sum of Rs,2,25,00,000 and thereafter on 28-7-2012 the bank gave its no objection for the acceptance of bid of the respondent No,4 in the sum of Rs,2,38,00,000. However, denied that the bid of the respondent new auction purchaser was placed in Court through decree holder bank. As to deposit of original title documents it was stated that on 31-8-2012 message was received from the Banking Court for deposit of original title documents and in compliance to such directions original title documents were deposited in Court on 31-8-2012 and on the same dated were handed over to new auction purchaser.
14. ' We have heard the learned counsel for the respective parties, examined the record with their able assistance and perused the case-law cited at Bar.
15. ' Order dated 23-7-2012 whereby the appellant was directed to deposit the balance sale price amounts to acceptance of his bid and on deposit of the balance sale price the Court had no option but to confirm it.
16. ' The record reflect that after settling term of sale, the subject property for the first time was directed to be put on auction by issuance of sale proclamation vide Order dated 16-11-2011 and consequently sale proclamations were issued in daily Jang and Dawn dated 12-1-2012 setting the date of auction of the said property as 15-2-2012, however, since no bid was received in consequent to first sale proclamation therefore, sale proclamation for the second time was redirected and the property for the second time was advertised for sale in daily Jang and Dawn dated 9-3-2012 setting the date of auction as 12-4-2012. The record reflect that even in the second auction the subject property could not fetch any offer, however, after the submission of report by the Nazir two bids were received in Court but both were rejected by the Court on the ground that the matter was ripe for re-auction and directed the resell of the property and consequently the subject property for the third time was advertised for sale in daily Jang and Dawn dated 5-6-2012 by giving the date of auction as 18-7-2012 at 12.00 noon. On 18-7-2012 the appellant was the only bidder who offered to purchase the property for Rs,2,25,00,000 and deposited 25% of the bid amount i,e, Rs,56,25.000 through pay order No,00430644 drawn at Soneri Bank Ltd. Nazir submitted his report declaring the appellant as sole highest bidder and such report came up before the Court on 23-7-2012 for its consideration when following order was recorded in the diary sheet:-- "Case called. Learned counsel for D/H is present. Auction bidder Mr. Yawer Qadri present in person.
17. In this matter auction was fixed on 18-7-2012. Higher bidder Mr. Yawer Qadir gave bid Rs,2,25,00,000 and deposited 25% Rs, 56,25,000. Case is adjourned to 2-8-2012 for deposit of remaining 75%."
18. ' On 2-8-2012 .The case was adjourned to 17-8-2012 for consideration of Nazir report and on 17-8- 2012 the Bknking Court after hearing the appellant as well as counsel for the decree holder observed that the bid of the appellant in the sum of Rs,22,500.000 is even less than the forced value of the property i,e, Rs,23,800,000, rejected the bid through impugned order. There is nothing on record even to suggest that prior to 17-8-2012 when the bid of appellant was rejected, the Court ever applied its judicial mind as to the appropriateness of the bid amount/sale nor it recorded a single word showing that the report of Nazir was accepted or taken on record. The order for deposit of balance sale price was passed in a very casual manner without conferring any right upon the appellant.
19. Though strictly speaking the procedure prescribed for public sale under the Code of Civil Procedure in the circumstances is that the bidder after having been declared purchaser by the officer conducting sale under Order XXI, Rule 84, C.P.C. Has to deposit 25% of the offered amount and thereafter in the same breath he is granted, under Rule 85, fifteen-days' time for deposit of balance sale price. However, the Court sales are normally conducted by the Nazir or Commissioner appointed by the Court, who has no authority whatsoever to either accept or reject any bid, his function is only to place the list of the bidders, the amount offered by such bidder before the Court by pointing out the highest bidder. Once the sale report is placed before the Court then in terms of Order XXI, Rule 84, C.P.C. The Court declares the highest bidder and directs for payment of balance sale price and for this reason time for deposit of balance sale price does not commence from the day. Nazir declares a bidder highest in order but such time commences once the Court accepts any of the bids. Admittedly on 23-7-2012 the appellant was not declared purchaser of the subject property, though the Court adjourned the case to 2-8-2012 for deposit of balance sale price which per Nazir report was already deposited on 18-7-2012, therefore, the order itself was superfluous and of no consequence, the other important fact which negates the case of the appellant that by directing deposit of balance sale price his bid was accepted on 23-7-2012 appears to be that on 2- 8-2012 the case was again adjourned to 27-8-2012 for considering Nazir report i,e, accepting or rejecting appellant's bid and not for confirmation of sale which order admittedly was never impugned, therefore, we are of the considered view that in fact and circumstances the Order dated 23-7-2012 whereby the Court adjourned the case to 2-8-2012 for deposit of balance sale price cannot be termed as acceptance of bid. The order accepting the bid or declaring a bidder "purchaser" must be unequivocal and specific leaving no doubt as to the status of highest bidder and of course should reflect application of mind.
20. ' Coming to the case of new bidder i,e, respondent No,4, the record reflects that respondent No,4 on 27-8-2012 moved an application before the Banking Court to accept/confirm her bid for the subject property in the sum of Rs,23,800,000 and enclosed 25% earnest money and the learned Judge on that very application passed following order:-- "Notice to D.H.
21. Sd/ 27-8-2012 I/c Judge"
22. ' However, the record reflect that on 27-8-2012 the subject property was not put to sale and therefore, in order to justify the appearance of new bidder and receiving of his bid the new bidder was shown to have been brought by the Decree Holder Bank by passing the following order by ignoring the fact that on her application notice to Decree Holder has already been directed:- "27-8-2012 ' Case called. The bidder namely Mr. Yawer Qadir, who previously offered bid of the property in question and was put at liberty to enhance the offer is called out absent without any intimation nor cared to improve the amount of bid. The learned counsel for the decree holder's bank, however, brought an offer of Rs,23,800,000 for the property in question in the name of one Mst. Ghulam Sakina wife of Khuda Bux Soomro, who submitted 25% of the said offer, vide a pay order for Rs,5,950,000 dated 27-8-2012. The decree holder intends to give no objection to such offer/bid. The new bidder has submitted a statement praying to allow her to deposit remaining 75% amount after two days. The request is reasonable accordingly the bidder is given two days' time to deposit the remaining 75% amount of the sale proceedings on or before 29-8-2012 as prayed by her.
23. (Underlined by us)Sd/- I/C Judge"
24. ' However, the record contradicts the order, as the counsel for decree holder as well as the officer of Bank has denied that bid of respondent No,4 was brought through decree holder's bank and even the Presiding Officer has directed issuance of notice to the decree holder, there is no explanation on record or offered by respondent No,4 that how her bid was taken on record on 27-8-2012 as her bid was neither through decree holder bank nor the property was put to open auction on 27-8-2012 and for this reason we are of considered view that second portion of Order dated 17-8-2012 was added to the original order only to accommodate the bid of respondent No,4 without realizing that certified copy of said order was already issued, secondly the order says that new bidder has submitted a statement praying to allow her to deposit remaining 75% amount after two days, whereas no such statement is on record except a statement from respondent No,4 regarding deposit of pay order of Rs,17,850,000 and such statement was placed in Court on 29-8-2012. Thirdly the order records that decree holder intend to give no objection whereas on that date neither decree holder nor their counsel was in attendance.
25. ' The other very interesting and important aspect of the case appears to be that the bid of respondent No,4 was placed on record on 27th August, 2012 and the matter was adjourned to 29th August, 2012 for consideration of the bid, however, in the meanwhile on 28th August, 2012 the matter was taken up without any date or request for antedating and the bank officer appeared and gave his no objection. The record further reflect that the pay order of the balance price were submitted on 29-8-2012 and the Presiding Officer without ensuring as to whether Pay Order for the balance amount have either been deposited in the bank or encased not only accepted the bid but in the same breath confirmed the sale and directed Nazir to issue sale certificate, handover original title documents to the new bidder and further directed occupant of the property to vacate the property within three days failing same would be got vacated through police aid. The record further reflects that Pay Orders submitted by the auction purchaser on 29-8-2012 were deposited in the bank on 30th August, 2012 and that too in the second half. Notwithstanding, the title documents were called from the bank and were handed over to the respondent No,4 on 31st August, 2012 (Friday) though on the said date order dated 29-8-2012 was suspended.
26. ' The indecent haste shown by the Presiding Officer by accepting the bid and confirming the sale simultaneously with direction to hand over title documents, vacation of property with police aid within three-days even without depositing the Pay Orders for the balance sale price in the In the last we would like to observe that notwithstanding the maintainability of the instant appeal or ank not only supports the contention of Mr. Khwaja Shamsul-Islam that unlawful favour was shown to the respondent No, 4 on account of her relation with the provincial Law Minister but to deprive the appellant to compete and to render the available remedies infructuous. The entire exercise not only appears to be mala fide, under inducement but against well-established principles of transparency, fair play and to render the remedies of those who might have claimed an interest in the property subject matter of sale including the appellant as infructuous.
27. We may observe here that notwithstanding the procedure adopted by the Court for the public sale of a property unless an application under Order XXI, Rules 89, 90 and 91, C.P.C. Is dismissed earlier the confirmation of sale before the expiry of period provided by law to challenge such sale, gives inference that the sale was confirmed and made absolute in order to render the Court functus officio and to prevent relief(s) under Order XXI, Rules 89, 90 and 91 of the Code of Civil Procedure.
28. It has been held in number of cases that confirmation of sale on the very day when the bid of the highest bidder is accepted or even before expiry of the period provided for preferring an application to set aside the sale, gives an inference that the sale was confirmed and made absolute in order to render the Court focus officio and to prevent relief(s) under Order XXI, Rule 89, 90 of the Code of Civil Procedure. In the case of Gauri Ram u. Jaishi Ram [A.L R. (37) 1950 Himachal Pardesh it was held that once it was established that the sale was confirmed on the very date the inference was that the sale was confirmed and made absolute in order to prevent relief(s) under Order XXI, Rule 89 or 90 C.P.C. In the case of L. Rajan v. Muthusami In the right of the appellant to challenge the confirmation of sale, this Court while exercising supervisory jurisdiction has ample power to correct the misuse of judicial power and to set the record straight and since in the instant case we have already held that the Presiding Officer has misconducted the proceedings and have recommended departmental proceedings, therefore, would not let the order remain on record.
29. ' In view of what has been discussed above, we while declaring the sale as nullity direct the Banking Court to provide opportunity of competition to the appellant as well as respondents or to advertise the property for sale afresh in accordance with law. SAK/Y-8/K .