MAHMOOD A. KHAN, J.---This appeal impugns the order dated 23.12.2013 as passed by the learned single Judge in Suit No.514/2003 Re. Anjum Rehmat and another v. Sqdn. Leader (R) Shaikh Ghulam Sadiq and others, on CMA No. 8818/2009, an application under section 144, C.P.C. for restoration of possession filed by the defendant Official Assignee. The application requires the possession of the subject property to be delivered to the official assignee as the decree based upon which the same was acquired has been set-aside along with a payment of Rs.100,000/- per month for use and occupation from the date of possession. Learned trial Court after hearing of the parties was pleased to order that the possession of the subject property be taken over by the Nazir of this Court and it is further directed that mesne profits with effect from 03.02.1993 to 01.02.2014 be ascertained.
2. Learned counsel for the appellants had contended that the exercise of restitution as provided under section 144, C.P.C. was not available, being limited to the person entitled whereas in the present case the Nazir was given a direction to take over the possession. It was further contended that whole of the order as passed by the Hon'ble Supreme Court has not been considered and that the order of remand as passed while setting-aside the decree cannot be treated as reversal of the decree as although the decree has been set-aside the same has not been reversed. Learned counsel has relied upon the judgment reported at 2004 YLR 122, Aquil Usman Dhaduk and another v. Jamil Akhtar Kiyani and 5 others, contending that the three required ingredients as mentioned therein are not present.
3. Learned counsel for respondent No. 4 while not opposing the taking over of the possession from the appellant, however opposed the same to be handed over to the Nazir. Learned counsel has further contended that the proceedings of plaintiff as present are not available being effected by Section 310 of the Companies Act, 2017 (Section 316, of the earlier Companies Ordinance, 1984), requiring leave to be acquired by the Company Court as the matter of the subject property is being investigated in. Judicial Misc. Application No. 31/1991. Learned counsel in this regard has relied upon orders passed under the said companies' jurisdiction.
He had further contended that the appellant has not deposited the amount at the time of filing of the suit to establish his bona fide as such specific performance cannot be claimed. It is also requested that the cross- objections to this appeal as filed may be entertained whereby the possession be provided to the Official Liquidator/Official Assignee. Learned counsel for respondents Nos.2 and 3 supported and relied upon arguments of learned counsel for respondent No.4.
4. The required facts of the matter bearing from the record are that the appellant had filed suit for specific performance in respect of property bearing No. 150-J, situated in Block-2, PECHS, Karachi, by way of Suit No. 514/2003 (old Suit No. 879/1979) wherein it was contended that the appellant had entered into an agreement of sale with the owner of the subject property Sqdn. Leader (R) Shaikh Ghulam Sadiq in the total sum of Rs.
11,50,000/- against partial payment received of Rs.100,000/- by way of two cheques of Rs.50,000/- each. The appellant obtained a favourable decree in the said suit and the same was maintained in appeal also: On the approach to the. Hon'ble Supreme Court by respondent No. 3 the matter was remanded. In the meanwhile however the appellant obtained the possession of the subject property through execution proceedings by depositing the unpaid consideration and also a registered conveyance deed executed by the Nazir of this Court.
The said order of the Hon'ble Supreme Court being very relevant reads as under:- "In this appeal through leave of the Court order for grant of leave to appeal is as follows: "The petitioner/ lessee- owner of a Bungalow (No.150-J/ 2, Block-2, P.E.C.H.S. Limited, entered into an agreement to sell the Bungalow within two months of the execution of the agreement to sell, on 22.5.1979 in favour of Shaikh Muhammad Rafique Akhtar-plaintiff in Suit No. 651 / 1980 still pending in the High Court on the original side. Feeling that Shaikh Muhammad Rafique Akhtar had backed out of the agreement to purchase, he entered into another agreement to sell for the same property on 29.7.1979 in favour of the respondents. Shaikh Muhammad Rafique Akhtar instituted the Civil Suit in the Civil Court on 22-8-1979 (Suit No. 3241/ 79) but then did not pursue it and instead instituted another suit on the original side in the High Court which was numbered as 651/ 1980, in the interregna the respondents instituted their suit in the High Court on the original side (Suit No.879/ 1979) on 17- 10-1979, in none of the suits the other prospective vendee was impleaded as a party. It is stated by the learned counsel for the petitioner that the suits were ordered to proceed together but at the stage of argument the civil suit filed by the respondents was heard and disposed of separately granting them a decree without examining the merits of the other case and the comparative entitlement of the first purchaser under the agreement to sell.
The Infra Court Appeal filed by the petitioner; also filed in the High Court.
"Leave to appeal is granted to examine whether the two matters could be separately decided without impairing the fairness of the trial and in the absence of the other party. We hope and expect that by the time this appeal is ready for hearing, the decision of the High Court in the other suit (Suit No. 651/80) on the original side shall also be available for examination---question in its true perspective".
None has appeared to oppose the appeal. Learned counsel for the appellant has further informed that the property in question was in the meanwhile also sold to one Siraj. About this fact he is certain but he thought that perhaps Siraj has also further sold it to another party but he was not certain in this behalf.
Be that as it may, the fact remains that the two alleged purchasers who have been mentioned in the leave grant order and the 3rd alleged purchaser now mentioned by the learned counsel, are undoubtedly vitally interested in the result of the present litigation. As further stated by the learned counsel one suit is still pending in the High Court. Any decision in this appeal can come in conflict with the verdict that might be rendered in the said pending suit. Accordingly, it is fair and just that this appeal be allowed and the case remanded to the High Court on its original side to be consolidated with the pending suit as well as in other suit which may or might have been filed regarding the same property. In addition to others, Siraj alleged third purchaser, shall also be impleaded in both the suits. Earlier two purchasers undoubtedly shall also be arraigned as parties in each other suit. This appeal with the above order, accordingly; is allowed. There shall be no order as to costs.
Sd/- Sd/- Sd/- (For the missing word/ s a line has been put up, however the same is not found effecting the readability)
5. It seems that the Hon'ble Supreme Court (apparently without the matter of liquidation proceedings being brought up) has although set-aside the decree standing in favour of the appellant, the same has neither, been varied nor reversed. The claims of parties having been found still disputed and un-adjudicated / determined properly, the matter was remanded / sent back for a determination as directed. As such it may be possible that the appellant may again be found entitled, however at the same time it may not be so, in which case the subject property shall be available for the ultimate beneficiary found entitled along with the amount as is said to have been deposited by the appellant as balance consideration including any profit occurred thereon.
6. The subject property presently is also being claimed by the Official Assignee as part of liquidation assets of Samad Housing Development Corporation and its partners in respect of which liquidation proceedings being J.M No. 31/1991 is present wherein the winding up order also stands granted which includes taking over of possession of their properties on a petition for winding up under section 43-F read with subsections (1) and (2) of the Banking Companies Ordinance, 1962 on the charge of transacting banking business. The subject property discovered later on, required permission stands obtained to become party to the suits for and respect to the subject property. It is however claimed by the counsel for the appellant that despite having become a party since long, written statement has not been filed to which learned counsel for the Official Assignee claims that his pending applications in the suit is liable to be heard first, in respect of which an appeal has also been preferred.
7. Having heard the learned counsel and perused the record following dates in chronological order and the text of section 144,. C.P.C. for a ready reference is found relevant; i. Date of filing of the suit by appellant17-10-1987 ii. Official Assignee claiming registry favoring the official of the concerned in liquidation1987 iii. Date of obtaining of decree23-01-1989 iv. Date of obtaining of possession24-04-1989 v. Date of winding up order passed in J.M No. 31/199113-05-1991 vi. Date of order of the Hon'ble Supreme Court 02-02-1993 "144. Application for restitution:-- (1) Where and in so far as a decree is varied or reversed the Court of first instance shall on the application of any party entitled to any benefit by way of restitution or otherwise cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree of such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of cost and for the payment of interested damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (Underlining made for emphasis only)
It may be, observed that section 144, C.P.C. provides the procedure for restitution / restoration of possession / occupation / benefit wrongly acquired by virtue of unavailable decree being made available for the person who is found entitled to the same. It therefore naturally arises that the exercise of powers under this section mandates as primary / pre-requisite requirements in precedence being;
(i) Variation or reversal of the decree
(ii) Determination of parties (as the case may be) entitled which is to be acquired from judicial determination resulting in the earlier decree being varied/rescind as such annulled, as such where the said required judicial determination is not present the powers under section 144, C.P.C. cannot be exercised being pre-mature and it is so held.
During the proceedings in response to a specific question put to the learned counsel present, as to any determination after the remand for the entitlement to the subject property between the parties? The learned counsel were not able to reply in positive. The record as present / brought up before us also indicates that the required is still undetermined in the proceedings of JM No. 31/1991 as well as in the suits on the original side.
8. For the subject property as such three parties are present, none having a determined status. We have intentionally preferred not to address the matter of rights available inter se between them as we are sitting in appeal from an interim order and said elements are yet to acquire any finality thereof at the original side, fearing the same may prejudice their claims.
9. Irrespectively it is clear that there are present the missing elements of variation or reversal along with any determination of the entitled party, in absence thereof the exercise of powers under section 144, C.P.C. is not found available and warranted, even to the extent of handing over the same to the Nazir of this Court as neither the disentitlement of the appellant stands established nor is there found any element of wastage of the subject property. The impugned order stands set-aside at the present stage on account of not being available accordingly being without the required determination of entitlement and it was so ordered. The above are the reasons for setting-aside the impugned order passed on 27.02.2020 whereby the appeal stands accepted accordingly with no order as to costs.