AZIZ-UR-REHMAN, J.----By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner upon feeling 'aggrieved' and 'dis- satisfied' with order dated 09.01.2016, passed by the learned IVth Additional District and Session Judge, Karachi Central whereby, the Civil Revision Application No.1 9 of 2014 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], was allowed and order dated 30.01.2014, passed by the IIIrd Senior Civil Judge, Karachi Central whereby, the auction 'confirmed' in favour of the Petitioner-auction purchaser was declared/set aside as not substainable in the eyes of law and consequently, the 'auction proceedings' held on 29.05.2013, in Civil Suit No.220 of 2011 [Mst.
Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], were set-aside by declaring the same as not 'confirmed' the Petitioner 'inter alia' is seeking setting aside of the 'Impugned Order' dated 09.01.2016, by allowing the instant Petition with the following prayers:- "It is, therefore, prayed that this Hon'ble Court may be pleased to set-aside the impugned Order dated 09-01-2016 passed by the IVth Additional District and Sessions Judge (Central), Karachi, in Civil Revision Application No, 19 of 2014, and call the R&PS of the entire proceedings from the concerned Courts below and also dismissed the Civil Revision Application No. 19 of 2014, filled by the respondents Nos. 1 to 9, in the interest of justice. [Emphasis supplied] Cost of the proceedings may also be awarded.
Any other better relief(s) this Hon'ble Court may deemed fit and proper in the circumstances of the case."
2. Precisely, the facts essential for 'disposal' of the case in hand are as follows:-
3. Per assertions made in the Memo. of Petition [In short MoP], the Respondents Nos. 1 to 9, filed a Suit No.220 of 2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], in the Court of IIIrd Senior Civil Judge, Karachi Central, against the Respondents Nos.10 to 12 for 'administration' and 'permanent injunction' regarding a residential Plot No.27, Row No.1, Block-4, Sub-Block-G, Nazimabad, Karachi Central; admeasuring 486 'sq. yds., [hereinafter referred to as the 'suit property'. According to the assertions made in the plain, one [Late] Syed Sharafat Hussain son of Mehdi Hassan had acquired the 'suit property' in the year, 1954-55 and, thereafter, he had given the same 'suit property' to his wife Syeda Khursheed Begum [Respondent No.1 herein], by executing an 'Iqrarnama' dated 25.08.1959, Respondent No.1, as claimed, thereafter, raised construction over the 'suit property' by selling her ornaments and borrowing loan from her relatives.
The construction raised on the 'suit property', stated to be consisting of a ground plus one floor. The 'suit property', however, was never transferred in the name of Respondent No.1 viz. Syeda Khursheed Begum and admittedly the same still stands in the name of [Late] Syed Sharafat Hussain.
4. It appears, that, Syed Sharafat Hussain passed away on 11.02.1986, at Karachi, at the age of 65 years. The deceased, it is not disputed, had two wives viz. [i] Syeda Nusrat Jehan Begum and [ii] Syeda Khursheed Begum. From the first wife viz. Mst. Syeda Nusrat Jehan Begum, who expired during the life time of deceased Syed Sharafat Hussain, there are three [3] children i.e. Respondents Nos.10, 11 and 12. From the wedlock of second wife, namely, Mst. Syeda Khursheed Begum [Respondent No.1 herein], the Respondents Nos.2 to 9 herein, were born. The Respondents Nos.2 to 12, are thus brothers and sisters.
5. Per Respondents Nos.1 to 9 who were Plaintiffs Nos. 1 to 9 in Suit No.220/2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], though the 'original documents' and 'all other related papers' of the 'suit property' are lying with Respondents Nos.10 to 12, but they, despite of time and again demand; are not inclined to handover the 'title documents' of the 'suit property' to Respondents Nos.1 to 9. The Respondents Nos.1 to 9, as asserted in the plaint, were/are in need of 'title documents', as they intend to transfer the 'suit property' left behind by [Late] Syed Sharafat Hussain, in the names of all legal heirs of deceased. Respondents Nos.10 of 12, however, in their own wisdom did create hindrance in completion of the transfer of 'suit property' in the names of all legal heirs, hence, Suit No.220/2011 [Mst. Syeda Khurshid Begum and others v. Sued Hifazat Hussain and others], was filed against the respondents Nos.10 to 12, for 'ADMINISTRATION' and 'PERMANENT INJUNCTION' on 2-3-2011, in the Court of IIIrd Senior Civil Judge, Karachi. Central.
6. Being a suit for 'ADMINISTRATION' and 'PERMANENT INJUNCTION' on 23-02-2012, a 'Preliminary Decree', as required under Order XX Rule 13, C.P.C., Form 17 Appendix 'D' to the 1st Schedule of the Civil Procedure Code (V of 1908), was passed and consequently, the Nazir of District Court was appointed as Commissioner to put the 'suit property' for sale through 'public auction'. From the record, it reflects that the 'suit property' was put to auction pursuant to the order dated 06-07-2012.
The 'auction process' was conducted on 16-04-2012, but the offer received was not accepted, as the bid/offer was found less than the 'RESERVED PRICE'. Resultantly, the earnest bid money of 25% was returned to the highest bidder viz Syed Saleem Zaidi [Respondent No.9 herein] vide order, dated 18-3-2013. Besides, the Nazir was directed to re-advertise the 'suit property' for 'auction'/'sale afresh'.
7. In the 2nd process of auction, again Syed Saleem Zaidi was the highest bidder, but his offer/bid was not accepted, as the same was below than the 'RESERVED PRICE' i.e. Rs.1,20,00,000/-. The process of 3rd time auction, after publication of notices in 'Daily Jang' and 'Daily Dawn' of 02.05.2013, was held on 29.05.2013, wherein, the Petitioner viz. Rehmat Nawaz Khan was held as 'successful bidder'. The offer submitted by him was in the sum of Rs.1,34,00,000/-. The 2nd highest bidder, as per Nazir report dated 17.06.2013, was Syed Saleem Zaidi whose offer was in the sum of Rs.1,33,00,000/-. The Nazir report dated 17.06.2013 being relevant in this regard is reproduced hereinbelow:-- "In compliance of Hon'ble Court order in connection with auction of Suit Property bearing House No.27, Row No. 01, Block-IV, Sub-Block-G, Nazimabad, Karachi, It is respectfully submitted that the Publication for auction the Property was made in daily "JANG" dated: 02-05-2013 and in daily "DAWN dated 03-05-2013." that on 29-05-2013 at about 03:00 P.M the Advocate for the Plaintiff and other two persons came in my office for participating in auction and the said two persons filed auction bid form along with photocopies of their CNICs which are placed on record and marked annexures. "A" and "B" respectively One Mr. Rehmat Nawaz Khan son of Fasahat Ali Khan was the highest bidder as he contested the auction bid up to Rs.1,34,00,000/= (Rs. One Crore thirty four lacs only) the second highest bidder was Mr. Syed Saleem Zaidi son of Syed Sharafat Hussain who came up to Rs.1,33,00,000/- (Rs: One Crore thirty three lacs only) as such Mr. Rehmat Nawaz Khan son of Mr. Fasahat Ali Khan was held to be the highest bidder and he paid 1/4 of auction money comes to Rs.33,50,000/- in the shape of two pay orders issued from Bank Al-Habib Limited Stock Exchange Branch dated 29-05-2013 and 31-05-2013 the said pay orders are lying in safe custody of this Nazarat Branch at Sr. No. 16990/13, Dt: 17-06-2013. [Emphasis supplied] The auction report is hereby submitted in your honour's for kind perusal and for further necessary orders."
8. From the record, it transpires that Respondents Nos.1 to 9 herein i.e. Plaintiffs in Suit No.220/2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], feeling 'dis-satisfied' with the aforesaid 'auction proceedings' constrained to file an Application under Order XXI Rules, 66, 67, 88, 89 and 90 read with section 151, C.P.C. through their duly constituted attorney viz: Syed Muhammad Tufaiqe son of Syed Muhammad Siddique with a prayer for setting aside/distording the 'auction proceedings' held on 29.05.2013, however, after 'notice' and 'hearing of the parties'. The prayers sought in the afore-mentioned application read as follows:-- "...It is respectfully prayed on behalf of the Plaintiff's above named, who are co-sharer and have preference rights, that this Hon'ble Court may be pleased to discard and set aside auction proceedings held on 29-05-2013, under the law Payment Order of 20% of the offer price i.e. Rs.1,34,00.000/- is being submitting with this application, as according to the information of the Plaintiff the said offer amount is still low side, as under the present situation the current market value of the Suit Property is between Rs.1,38,00,000/- to Rs.1,42,00,000/- therefore further, auction proceeding this respect will be beneficial for the Plaintiffs and the Defendants. [Underlining is ours] The prayer is made in the interest of justice."
9. The learned trial Court, upon service while, dismissing the aforesaid application filed by Plaintiffs [Respondents Nos.1 to 9 herein], on 30.01.2014 also 'CONFIRMED' the 'auction proceeding' held on 29.05.2013 i.e. after about passing of 8 months with further direction to the 'auction-purchaser'
[Petitioner herein], to deposit the remaining amount within 15 days w.e.f. 30.01.2014. The Petitioner, thereafter, did deposit the balance part of 25% i.e. Rs.6,50,000/- on 31.05.2013 and the remaining 75% of auction money amounting to Rs.1,00,50,000/- on 08.02.2014. For properly understanding the issue involved, the Nazit's Report dated 26.05.2015, is reproduced herein below:- "In compliance of order dt:09-05-2015 passed by this Honourable Court. It is respectedly submitted that auction Proceeding in respect of Suit Property bearing House No.27, Row No.01, Block-IV Sub-Block-G, Nazimabad, Karachi was held on 29-05-2013 and two participated in the said auction Proceeding One Mr. Rehmat Nawaz Khan son of Fasahat Ali Khan was the highest bidder as he contested the auction bid up to Rs. 1,34,00,000/= the second highest bidder was Mr. Saleem Zaidi son of Syed Sharafat Hussain (Plaintiff No.09) in the noted matter who came up to Rs.1,33,00 000/-, as such, Mr. Rehmat Nawaz Khan S/o Fasahat All Khan was held to be the Highest bidder and he s said 1/4 of auction money comes to Rs.33,50,000/- out of which the bidder deposited Pay order No. 3234557 dt: 29-05-2013 of Rs.28,00.000/- instead of total amount Rs.33,50,000/- and the bidder again deposited remaining 1/4 amount through Pay order No.3234563, dated 31-05-2013 with the undersigned on 31-05-2013, the said auction Proceeding has confirmed by this Hon'ble Court on 30-01-2014 and the said bidder deposited the remaining amount Rs.1,00,50,000/- through h P.O. No.3235520 on 08-02-2014." [Underlining is ours]
10. Later on, when the above application under Order XXI Rules 66, 67, 88, 89 and 90 read with section 151, C.P.C., filed by the Plaintiffs [Respondents Nos. 1 to 9 herein], came-up before the Court of IlIrd Senior Civil Judge Karachi Central, on 30.01.2014 then, the same was dismissed and the 'auction' held on 29.05.2013 was confirmed. For ready reference and convenience purpose, order dated 30.01.2014 is reproduced herein below:- "By this order I hereby disposed off an application under Order XXI rules 66, 67, 88, 89 and 90 read with 5.151, C.P. C. filed by the counsel of plaintiffs wherein prayed to set-aside auction proceedings held on 29.05.2013. Notice was given to the other side, defendants have been debarred from filing of objections on the said application, as they failed to do inspite of several opportunities have been given, while bidder namely Rehman Nawaz khan filed counter affidavit wherein prayed to dismiss the prayer of applicant.
Heard learned counsel for the plaintiff and purchaser in person and also documents available in judicial file.
Record reveals that in instant matter 3 times auction proceedings had been conducted by the Nazis of this District, in the first auction one of the plaintiff's Syed Saleem Zaidi held to be the highest bidder, but the same has not been confirmed as the bid was less than the reserve price.
In second one, Syed Saleem Zaidi held to he the highest bidder, but subsequently re-auction order has been passed by this Court vide order dated 19.03.2013 due to law bid than reserved Price. Then another auction has held and present auction bidder held to be the highest bidder who submitted 25% bid money before the Nazis of this district in which plaintiff has also participated in auction proceedings and he was 2nd highest bidder.
Plaintiffs by filing instant application sought prayer that the market value has been increased after auction and it is between Rs.1,38,00,000/- to Rs. 1,42,00,000/-, therefore, re-auction may kindly be ordered as it will be beneficial for the plaintiffs and the defendants.
It is a matter of record that Nazir has submitted his report wherein he assessed the market value of the property in question is near about Rs.1,10,00,000/- to Rs.1 20,00,000/-.
It is pertinent to mention here that the present bidder Rehman Nawaz has given the bid more than the bid of the plaintiff himself as well as reserve price also, thus in my humble opinion the prayer sought by the plaintiffs is not maintainable as if the market value has been increased it would be the right of the auction purchaser to avail that opportunity therefore, the application of plaintiffs in hand is hereby dismissed with no order as to cost. Auction dated 29.05.2013 is hereby confirmed and auction purchaser is directed to deposit remaining amount within 15 days time of this order with the Nazir of this District." [Underlining is mine].
11. The Respondents Nos. 1 to 9 herein, thus feeling seriously 'aggrieved' and 'dis-satisfied' with the order dated 30.01.2014, passed by the IIIrd Senior Civil Judge, Karachi Central, filed a Civil Revision No.19 of 2014 [Mst. Syeda Khursheed Begum and others v. Sved Hifazat Hussain and others], before the IVth Additional District Sessions Judge, Karachi Central, with a prayer for setting aside the 'impugned order' dated 30.01.2014. It appears, that the Petitioner as being an action-purchaser, was initially not joined as a party to the Civil Revision Application No.19 of 2014 [Mst. Syeda Khursheed Begum and others v. Syed Hifazat Hussain and others], however. later on, the Court while granting the application under Order I Rule 10 read with section 151, C.P.C. the 'Petitioner'-'auction purchaser' was impleaded in the 'array of Respondents' as Respondent No.4 in the Civil Revision Application No.19/2014 [Mst. Syeda Khursheed Begum and others v. Syed Hifazat Hussain and others].
This position is quite clear from the 'amended title' filed in the said Civil Revision Application No.19 of 2014. Upon joining the 'auction-purchaser' [Petitioner herein], the said Civil Revision Application No. 19 of 2014 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], was heard, but the same was found meritless, as such, the same was dismissed by the 'impugned order' dated 09.01.2016 herein, passed by learned IVth Additional District and Sessions Judge, Karachi Central.
The operative part of the 'impugned order' dated 09.01.2016 reads as follows:- "I am of the humble opinion that the order dated 30.01.2014 passed by the learned trial Court confirming the auction proceedings is not sustainable in the eyes of law and requires interference of this court.
Consequently the order dated 29.05.2013 is hereby set aside and the auction proceedings are not confirmed. It is further ordered that fresh auction proceedings in respect of suit property be held by the Nazir in accordance with law and the auction purchaser as well as any other interested person would be at liberty to participate in the auction proceedings. In the above terms the instant civil revision application is allowed. The parties are left to bear their own costs."
[Underlining is ours]
12. The Petitioner herein [Auction-purchaser], feeling 'aggrieved' and 'dis-satisfied' with the 'impugned order' dated 09.01.2016, passed by the learned IVth Additional District and Sessions Judge, Karachi Central. has approached this Court through instant 'Writ Petition' inter alia, with a prayer for setting-aside the impugned order dated 09.01.2016, as according to the Petitioner's stand said order besides, being bad in law/erroneous, is suffering from mis-reading and non-reading of the materials available on record. Further, the learned IVth Additional District and Sessions Judge, Karachi Central, has failed to properly understand the case of the Petitioner in its' true perspective i.e. in view of the law and materials available on record.
13. Upon filing the instant 'writ petition' under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, on 12.12.2016, when the same came-up before this Court on 16.02.2016, then while, granting the Urgent hearing, notices were issued to the Respondents for 26.02.2017. On service, out of the Respondents only Respondents Nos. 1 to 9, filed their objections. In response thereto, the Petitioner also filed 'counter-objections'. The 'Petitioner [Auction Purchaser] and. Respondents Nos.1 to 9 herein, specifically denied/controverted the each other's 'pro' and 'contra' stand. Record shows that during the pendency of the instant 'writ petition', Respondents Nos.1 and 6, have been passed away and their legal heirs, as per order dated 28.02.2017, have already been brought on record, by way of filing an 'Amended Title' on 03.03.2017.
14. On 24.11.2017, when the above petition came-up before us, then we heard Mr. Muhammad Ikram Siddiqui, learned counsel for the Petitioner, Mr. Kamran Arshad, learned counsel for Respondents Nos.1 to 9 and Raja Qasit Nawaz Khan, learned counsel for Respondents No.10 to 12 and with their assistance also gone through the record minutely.
15. Mr. Muhammad Ikram Siddiqui, learned counsel for the Petitioner, forcefully contended that the 'impugned order' dated 09.01.2016, passed by the IVth Additional District and Sessions Judge, Karachi Central, besides, bad in law, and on facts, is erroneous as the learned IVth Additional District and Sessions Judge, Karachi Central has not only failed to correctly appreciate the materials on record, but also failed to interpret the law properly. Per Mr. Muhammad Ikram Siddiqui, learned IVth Additional District and Sessions Judge, Karachi Central, did exercise the jurisdiction, which under law was/is not vested in him. Apart from the above, learned Revisional Court has also failed to exercise the discretion, vested in him, equitably. Learned counsel for the Petitioner while, arguing the case next contended that the learned IVth Additional District and Sessions Judge, Karachi Central, by the 'impugned order' dated 09.01.2016, has erred in interpreting that 25% of bid money, in first instance, was not made at the fall of hammer; as such, the 'auction/sale' of the 'suit property' remained short of completion for lack of the mandatory legal requirements in terms of Order XXI Rule 84, C.P.C. Per learned counsel, the Revisional Court, has also failed to consider that the 25% of bid money was deposited before 'confirmation of the sale' of 'suit properly' on 30.01.2014, as evident from the Nazir Report dated 17.06.2013.
16. According to Mr. Ikram Siddiqui, learned counsel for the Auction Purchaser [Petitioner herein], the auction proceedings held on 29.05.2013 have been conducted in accordance with law.
Moreover, the learned IVth Additional District and Sessions Judge, Karachi Central, has failed to properly consider that the entire 'sale consideration'/`bid' amount was paid within the time limit as provided under Order XXI Rule 85, C.P.C. The entire 'bid money' in the sum of Rs.1,34,00,000/-, is lying with the Nazir of the District Court w.e.f. 08.02.2014, as per Nazir reports dated 17.6.2013 and 26.5.2015.
Mr. Muhammad Ikram Siddiqui, learned counsel for the Petitioner, forcefully argued that the learned IVth Additional District and Sessions Judge, Karachi Central, has not only mis-understood and mis- interpreted the Rule 84 of Order XXI, but has also given a wrong finding i.e. to the effect and extent that the Petitioner, at the fall of harmmer, has failed to deposit 25 % of bid money. Per learned counsel, the Revisional Court has badly failed to apply its' judicial mind properly at the time of passing the 'impugned order' dated 09.01.2016. Since, the learned Revisional Court, as urged, has failed to consider the true, genuine, and cogent pleas raised by the auction purchaser [Petitioner herein], in its' true perspective, as such, the 'impugned order' of 09.01.2016, is liable, to be set-aside.
17. Lastly, Mr. Muhammad Ikram Siddiqui, learned counsel for the Petitioner, contended in vehemence that since, the 'impugned order' dated 09.01.2016 passed by the learned IVth Additional District and Sessions Judge, Karachi Central, besides bad in law, unjust is based on an erroneous presumption, as such, the same is liable to be set aside, otherwise, the auction purchaser [Petitioner herein], shall be seriously prejudiced. In support of his contentions reliance was placed on the cases of:-
[i] A.R. Davar v. Jhinda Ram and another [AIR 1938 Lahore 198],
[ii] Manual Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and another [AIR 1954 SC 349 Vol. 41, C.N. 84]
18. The relevant portions from the aforesaid cases respectively are reproduced herein-below:- [i]. AIR 1938 Lahore 198 "The contention raised on behalf of the auction purchaser is that the failure to deposit 75 per cent of the sale price within a fortnight, as required by O. XXI, R. 85, amounts to a material irregularity in publishing or conducting a sale and such irregularity is covered by O. XXI, R. 90, Civil P. C. In my opinion this contention is devoid of all force. The "publishing" of the sale has reference to all proceedings that take place till the sale is actually held. The sale is held or conducted on a particular day or days appointed by the Courts. As soon as the sale is concluded the highest bidder is declared, under O.XXI, R. 84 to be the purchaser. He is to pay immediately after this declaration a deposit of 25 per cent of the purchase price to the officer or other person conducting the sale. [Emphasis supplied]
[ii] AIR 1954 SC 349 Vol. 41, CN 84 "(11) Having examined the language of the relevant rules and the judicial decisions bearing upon the subject we are of the opinion that the provisions of the rules requiring the deposit of 25 per cent of the purchase money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity.
The very fact that the court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eyes of law. We hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired no rights at all. [Emphasis supplied] 19.Conversely, Mr. Kamran Arshad, learned counsel for the Respondents Nos. 1 to 9, strenuously contended, the instant writ petition as 'framed' and 'filed' is not only mis-conceived, but also mis- leading. Per learned counsel, the 'impugned order' dated 09.01.2016, is not only proper but also has been validly passed, as such, the same needs to be uphold by this Hon'ble Court. According to Mr. Kamran Arshad, in the Civil Suit No.220 of 2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others], filed before the IIIrd Senior Civil Judge, Karachi Central, by Respondents Nos .1 to 9, herein for 'Administration' and 'Permanent Injunction' against Respondents Nos. 10 to 12 regarding the 'suit property' vide order dated 23.02.2012, admittedly permission was granted to all the legal heirs to participate in the 'auction' of the 'suit property'. It is needless to say, on 23.02.2012, besides, passing a Preliminary decree, Nazir of the District Central, was appointed as Commissioner to sell the 'suit property' through 'public auction'.
20. Mr. Kamran Arshad, learned counsel for the Respondents Nos.1 to 9, next contended that initially 'auction' was conducted on 16.4.2012, in which the Respondent No.9 [Syed Saleem Zaidi], was declared, as the highest bidder but the 'auction proceedings' could not be confirmed, as his bid/offer was below the 'Reserved Price' i.e. Rs.1,20,00 000/-. Resultantly, the 're-auction was ordered on 06.07.2012 by the learned trial Court. The 'second auction', thereafter, was held on 05.01.2013, in which Respondent No.9 [Syed Saleem Zaidi], was again stood the highest bidder but this time as well, the auction in favour of the said highest bidder was not confirmed, as it was below the 'RESERVED PRICE'. The learned trial Court vide order dated 18.3.2013, once again directed the Nazir to put the 'suit property' to auction afresh.
21. The above position is quite evident from order dated 18.3.2016 passed by the learned trial Court in Civil Suit No.220 of 2011 [Mst. Syeda Khurshid Begum and others v. Syed Hifazat Hussain and others]. Being relevant order dated 18.03.2016 is reproduced herein-below: "Case called, both the counsel of the parties are present, today matter is fixed for order's on auction report which has been conducted by the Nazir of this District vide order dated 29.02.2012 and subsequently order dated 06.07.2012 for re-auction.
In compliance of the order of this court, the Nazir of this District conducted the auction proceeding on 05.01.2013. As per Nazir report dated 15.01.2013 on the date of auction i.e. 05.01.2013 only five persons have come for participation in open auction and out of five, three persons participated in auction, and one Syed Saleem Zaidi son of Syed Sharafat Hussain held to be the highest bidder as he bid upto Rs.1,00,18,000/-, then he paid 1/4 of auction money in the shape of two pay orders and the same are lying in the safe custody of the Nazarat Branch of this District.
It is pertinent to mention here that Nazir submit his report about valuation of suit property on 14.04.2012 which was based on the report of the Estate Agencies and assessed the present market value near about Rs.1,10,00,000/- to Rs.1,20,00,000/-.
It is pertinent to mention here that the previous auction has been set-aside on 06.7.2012 and the Nazir was directed to start the bid from reserved price which he failed to do so in present auction also due to which auction is of no value in the eyes of law, reliance is placed on 2008 CLD 313, 2001 CLC 126.
It has been held by the Honourable High Court that Bidding -procedure---bidder has always to start from reserve price and court auctioneer has nothing to do except the permission of the court.
Thus keeping in view of the above circumstances, the auction proceeding has been conducted by the Nazir of this District is of no value in the eyes of law, therefore, in the larger interest of justice the Nazir of this district is directed re-auction the suit property with fresh procedure and Nazir is directed to start the auction proceeding from reserved price. With regard to the bidder namely Syed Saleem Zaidi his 1/4th bid Money be returned to him after due verification and identification, the auction is not confirmed and it stands set aside. The plaintiff and the defendant will pay Rs.5000/- each for Nazir fees to conduct the auction again." [Underlining is ours]
22. According to Mr. Kamran Arshad, learned counsel for the Respondents Nos.1 to 9, the 'suit property' was put to 'public auction' for 3rd time, however, after publishing of 'auction notices' in 'Daily Jang' and 'Daily Dawn' of 02.05.2013. The process of auction of the 'suit property' was held on 29.05.2013, in which only the Respondent No.9 and the Petitioner herein, participated. In the auction, the Petitioner [Rehmat Nawaz Khan], was declared as the highest bidder/offeror in the sum of Rs.1,34,00,000/-. The Respondent No.9 [Syed Saleem Zaidi], however, was stood the 2nd highest bidder whose offer/bid was in the sum of Rs.1,33,00 000/-. The Petitioner though was the highest bidder but he failed to Pay/deposit 25% of the bid amount of Rs.134,00,000/-, which comes to Rs.33,50,000/- immediately, as required under Order XXI Rules 84, C.P.C. Per learned counsel, as far as the Respondent No.9, is concerned, he deposited the amount immediately at the time of auction. The Respondent No.9, however, did not opt to increase his bid amount. The Petitioner/auction purchaser, nonetheless, failed and/or avoided to deposit 25% of his bid amount of Rs.1,34,00,000/- which comes to Rs.33,50,000/- immediately. Per learned counsel, on account of not fulfilling the requisite mandatory condition as provided under Order XXI Rule 84, C.P.C., the 'suit property', thus is liable to be put for re-sale through 'public auction'.
23.Raja Qasir Nawaz Khan, learned counsel for Respondents Nos.10 to 12, while, defending the 'impugned order' dated 09.01.2016 contended that the 'impugned order' besides being valid and proper, needs no interference much-less, under the constitutional jurisdiction of this Court. Per learned counsel, the Petitioner herein [Auction Purchaser], has badly failed to pin-point any illegality and/or material irregularity in the 'impugned order' dated 09.01.2016, passed by IVth Additional District and Sessions Judge, Karachi Central, as such, the instant 'writ petition' being devoid of any merits, is liable to be dismissed with cost.
24. Heard and perused the record.
25. Per NAZIR REPORT [available at page 97 as annexure 'A to the MoP]; the Petitioner. [Auction Purchaser], had paid only Rs.27,00,000/- immediately at the time of 'auction' held on 29.05.2013, which it seems is 25% of Rs.1,18,00,000/- and not 25% of the bid amount of Rs.1,34,00,000/-. It is significant to note, 25% of the Petitioner's bid amount comes to Rs.33,50,000/-. This position, can also be seen and 'confirmed' from the 'auction report', submitted on 17.06.2013, wherein, the date of the 2nd Pay Order pertaining to the remaining part of 25% i.e. Rs,6,50,000/- has been shown/given as 31.5.2013. The auction purchaser [Petitioner herein], even failed to deposit 25% of the 'RESERVED PRICE' of Rs.1,20,00,000/- as mentioned in the auction notices.
26. If, order dated 30.01.2014, is read and seen in juxta-position of NAZIR REPORT dated 17.05.2013, then it would become quite clear that 1/4th [25%], of bid money in the sum of Rs.1,34,00,000/- was not deposited/paid by the Petitioner [Auction Purchase] on the date of auction i.e. 29.05.2013 as mandatorily required under Order XXI Rule 84, C.P.C., In view of this position as well, the direction given to the Petitioner [Auction Purchaser] by the trial Court for deposit of the remaining i.e. 75% of the bid amount within 15 days from the date of order is illegal in view of non-deposit of entire 25% i.e. Rs.33,50,000/- on the date of auction i.e. 29.05 2013. For this reason the 'confirmation' of sale vide order dated 30.01.2014 besides, pre-mature is against the settled principal of law. Needless to say, remaining 75% of the bid amount in the case in hand was deposited on 08.02.2014 and the auction held on 29.05.2013, was CONFIRMED much earlier i.e. on 30.01,2014. On this aspect of the matter, reference can be made to the case of Messrs S. P.R.L. Rehman Brothers and another v.
Judge Banking Court No.II, Lahore and another [2000 M LD 1957], where it was observed as follows: - Under Order XXI Rule 84 the auction/purchaser is bound to deosit1/4th of the purchase money with the Court auctioneer immediately on the fall of the hammer failing which the property is liable to be resolved. Similarly Rule 85 has also laid down that the remaining 3/4th amount is too be deposited with the Court within 15 days from the date of the sale. In this case 1/4th amount was not deposited as required under the law. A cheque was given and its particulars even were not given at all by the' auctioneer in his report. A reference is made to the case of Brig. (Retd.)
Mazhar-ul-Haq and another v. Messrs. Muslim Commercial Bank Ltd. Islamabad and another (PLD 1993 Lahore 706), wherein the learned Division Bench while discussing the requirements laid down under Order XXI, Rule 85 of C.P.C. held as under:-- "All these factors need to be noticed as there are serious allegations against the Court auctioneer, and thus, his conduct is under gaze. In law 3/4th of the sale price should have been deposited auction/purchaser in the Court within 15 days of the sale. It is well-settled that in such deposit is not made in the Court within the time limit of 1-5 days, the Court is bound to set aside the sale as it is rendered void. It was held so by Saeeduzzaman Siddiqui, J. (now Judge of the Supreme Court) in National Bank of Pakistan v. Nasir Industries 1982 CLC 388. The Supreme Court of India in Manilal Mohanlal Shah v. Sardar Sayed Ahmad AIR 1954 SC 349 has maintained that Rules 84 and 85 of Order XXI are mandatory. If the auction-purchaser fails to depost the amount as per time limit fixed therein, there would be no sale at all. The aspects of the case were completely ignored by the Special Court 'and not pointed out to it by the court auctioneer. (Underline in mine)
27. The provisions of Order XXI, Rules 84 and 85, C.P.C. are mandatory in nature and in case of non- compliance, as the case in hand A is, the 'suit property' was liable to be re-sold forthwith. Reliance in this regard can be placed on the decision of the Division Bench in the case of M/s. Dawood Flour Mills v. National Bank of Pakistan [1999 M LD 3205] wherein, on account of non-deposit of 25% of bid amount in terms of Order XXI Rule 84, C.P.C., the sale was set aside. The relevant portion therefrom, read as under:- "The auction-purchaser was required to pay immediately after he was declared to be the purchaser, 25% of the bid money to the Court auctioneer and in default of such deposit the Property shall be resold. Learned counsel for the alleged auction-purchaser admits that such a deposit was not made and instead a cheque in the sum Rs. 1 ,200,000 was handed over to the officer conducting the auction. It is not clear from the record as to when the cheque was cashed.
However, this fact is certain that the requisite amount was not deposited or handed over to the officer conducting the sale. The consequence of this default is that the property was to be sold.
Thus, no sale took place in favour of the alleged auction-purchaser on 12-9-1998 as because of the failure of the purchaser to make the required deposit, sale stood nullified by operation of law.
Needless to say that no resale took place. The manner and mode in which payment was to be made is prescribed by law and the consequence also laid down in law in clear terms. Over and above, this the matters were made clear in terms of proclamation itself. A cheque can in no circumstances be held to be a substituted for the deposit required to be made under the law. The learned Banking Court has dealt with this objection in a very callous manner. This lapse on the part of the Court auctioneer, as seen in the light of patent - fact that property worth fifty million had been managed to be sold for less than five millions also supports the contention of the learned counsel for the appellants that there was fraud in the conduct of sale. Even if we were to hold that there was no intentional fraud, the said lapse on the part of the executing court, constituted a material irregularity within the meanings of Order XXI, Rule 90, C.P.C. It was held in Manilal Mohanlal v. Sayed Ahmed (AIR 1954 SC 349) that the provisions of Order XXIX, Rules 84 to 86 are mandatory and upon noncompliance with this provision there is no sale at all and the sale proceedings were completely a nullity. It was further observed that the very fact that the Court was bound to re-sell the property in the event of default shows that the previous proceedings for sale were completely wiped out as they do not exist in the eye of law."
[Underlining is our]
28. Being relevant, at this juncture, we would like to refer to the provision of Order XXI Rules 84 and 85, C.P.C. and reproduced the respectively hereinbelow:-- a. "84. Deposit by purchaser and re-sale on default. (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty five per cent, 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.
(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72 the Court may dispense with the requirements of this rule." b. "85. Time for payment in full of purchase money.---The full amount of purchase money payable shall be paid by the purchaser into court before the court closes of 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 off to which he may be entitled under rule 72.
29. Manifestly, where, 25% [1/4th], deposit of the bid/offer money is not made immediately by the person, declared as purchaser and if such person being not a decree-holder then there would be no sale at all. In the 'process of auction', the payment ought to be made in accordance with the provisions of Rules 84 and 85 of Order XXI, C.P.C., otherwise, the sale would be a nullity in the eyes of law. Upon non-deposit of the bid amount in terms of Order XXI Rules 84 and 85, C.P.C. the property, thereafter, is to be re-sold forthwith. From perusal of the 'auction notices' published in the Newspapers of 02.05.2013, it appear, that 'RESERVED PRICE', mentioned therein, was Rs. 1,20,00,000/- .
30. In the case in hand, it is significant to note, that the Petitioner on being declared as an 'auction- purchaser' did not deposit 25% of the bid money at spot, as required under Order XXI Rule 84, C.P.C.
Order XXI Rule 84, C.P.C. pertains to a stage prior to acceptance of the bid while, Order XXI Rule 85, C.P.C., covers the post acceptance situation. Per Order XXI Rule 84, C.P.C. within person is declared an 'auction-purchaser' then such person, is required to deposit I/4th [25%] of his offer immediately.
In case, he immediately deposits/fulfills the pre-requisite condition of law, then, the offer given by such bidder is to be placed before the Court for acceptance, if the auctioneer is not competent/authorized to accept the offer/bid. Upon acceptance of the bid/offer, the 'auction- purchaser', thereafter, is required under Order XXI Rule 85, C.P.C. to deposit the remaining 75% of the bid amount within 15 days. Upon 'Confirmation' the property, sold in auction, vests in the auction- purchase from the date of sale.
31. Merely, submission of the bid at an auction does not mature into a contract unless, the bid which in fact is in the nature of an offer, is accepted. The auctioneer, is the agent of the seller and if, he is not vested with the power to accept or refuse the offers received by him then, it is placed before the court/competent authority for acceptance purposes. The word 'sale' has been defined in the Black's Law Dictionary [Seventh Edition] as under: "(1) The transfer of property or title for a price.
(2) The agreement by which such a transfer takes place. The four elements are (1) parties competent to contract, (2) mutual assent, (3) a thing capable of being transferred, and (4) a price in money paid or promised."
32. Besides, the term 'sale' has been defined in section 54 of the Transfer of Property Act, 1882 [IV of 1882], as the transfer of ownership of immovable property for a price paid or promised. In an auction proceedings, it is needless to say, title in the property is not deemed to be transferred in favour of the highest bidder, at the time when auction is held and/or the offer is forwarded to the Court for acceptance. Once the sale is 'confirmed', then as provided in section 65, C.P.C., the 'ownership right' in the auctioned immovable property deemed to be vested in the 'successful bidder' from the date when action was held, however, subject to objections/proceedings, if any, under Order XXI Rules 89, 90 and 91, C.P.C.
33. Inter alia, with regard to Order XXI Rules 84 and 85, C.P.C., reference can be made to the case of Muhammad Ali Ashgar Sabir Raja v. Mst. Sajida Bashir and others [2006 SCM R 8011, wherein it was observed as follows:-- "3. In terms of Order XI, Rule 84 of the Code of Civil Procedure, 1908, he was required to deposit twenty-five per cent of the purchase money immediately on fall of hammer. In law, such amount is required to be paid to the officer of the Court or other person conducting the sale. However, in case of default of such deposit the property shall forthwith be resold. Rule 85 of the Order (ibid) stipulates that full amount of purchase money payable shall be paid by the purchaser into Court before the court closes on fifteenth day from the sale of the property provided that purchaser shall have the advantage of any set off in calculating the mount so payable, to which he may be entitled under Rule 72 of the Order (ibid) in calculating the amount. Rule 86 being most pertinent and relevant may also be noted here which mandates that in default of payment within the period as mentioned above, the deposit may if the Court thinks fit after the defraying the expenses of the sale, be forfeited to the Government and the property shall be resold, and the defaulting purchase shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold. Rule 87 provides that every resale of immovable property, in default of payment purchase money within the period allowed for such payment, shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore prescribed for the sale." [Emphasis supplied]
34. In the case in hand, even the two [2] reports submitted by the Nazir of District Court seem contradictory of each other. In the REPORT dated 26.05.2015, Nazir has stated the auction purchase viz. Rehmat Nawaz Khan, out of 25% of Rs.33,50,000 of his offer in the sum of Rs.1,34,00,000 deposited only Rs. 27,00,000 on 29-5-2013 while, as per other Report viz-a-viz, 'auction proceedings' held on 29-5-2013, the amount of 25% of bid money which comes to Rs. 33,50.000/- was deposited on 29.05.2013 and 31.05.2013. Significantly, learned trial Court, without full payment of the total bid amount of Rs. 1,34,00,000/-, merely upon payment of 25% of Rs.27,00,000/- paid on the date of auction i.e. 29.05.2013 and Rs. 6,50,000/- subsequently on 31.05.2013, without any lawful justification confirmed the bid of the auction-purchaser [Petitioner herein] on 30.01.2014 and that too without deposit of the remaining 75% of the bid amount of Rs.1,00,50,000/- [deposited on 08.02.2014], in our view, was also illegal, as such, was rightly set-aside by the 'impugned order' dated 09.01.2016, passed by learned IVth Additional District and Sessions Judge, Karachi Central.
35. Under Order XXI Rule 84, C.P.C., the 'auction purchases' is bound to deposit 25% of the bid money with the Court auctioneer immediately on fall of the hammer. In case of failure, as the case in hand is, the 'suit property' was liable to be re-auctioned. Likewise, the remaining amount 75% of the purchase money, as required under Order XXI Rule 85, C.P.C., needs, to be deposited with the Court within 15 days from the date of acceptance of bid. The Court only, thereafter, under law, is to confirm the sale. In the case in, hand the trial Court manifestly, confirmed the sate pre-maturely.
The 'impugned order' dated 09.01.2016 besides, well reasoned, validly passed is not suffering from any mis-reading; non-reading or otherwise, it is erroneous on facts and/or law, as alleged by auction purchaser, who is Petitioner herein.
36. As far as, the case laws cited by Mr. Muhammad Ikram Siddiqui, learned counsel for the Petitioner are concerned, the same besides, being distinguishable, do not support the case of the Petitioner. Rather under the given facts and circumstances of the case in hand, the same support the case of Respondents Nos. 1 to 12.
37.For and in view of the above discussion, we are of the considered opinion that the impugned order dated 09,01.2016, passed by the learned IVth Additional District and Sessions Judge, Karachi Central, has not only been validly passed but also the same is in accordance with law, as such, needs no interference of this Court under the 'writ jurisdiction'. Resultantly, the instant 'writ petition' which merits no consideration, is dismissed at Katcha Peshi stage along with the pending application[s], however, with no order as to costs.