PLJ 2023 Lahore 207
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVII--Constitution of Pakistan, 1973, Art. 199--Suit for recovery--Decreed--Execution proceedings--Submission of list of inventory--Appointment of local commission for auction--Submission of report--Transfer of decree to District Ghotki on application of petitioner--Application for incorporation of names of legal heirs by petitioner was allowed--Incorporation of names as owners--Refusal to issuance of NDC by DHA--Caution was marked against subject plot--Bounden responsibility of DHA authorities--At time of filing of execution petition, judgment-debtor had no concern with subject plot rather Court ordered its auction just due to mentioning same in list of inventory by decree-holder--There was no justification for DHA to continue with Caution marked pursuant to order passed by Executing Court as after transfer of decree out of province of Punjab, no Caution could continue--Once a Caution or injunctive order is incorporated in record of a statutory body, like DHA, same is not removed despite knowing fact that said Caution or order has already lost its efficacy and present case is classical example of such practice--DHA authority were under bounden responsibility to remove Caution and issue NDC to petitioner upon fulfillment of other codal formalities but lingering on matter till date--Continuation of Caution marked by respondents pursuant to an order passed by Executing Court after transfer of decree to province of Sindh is not justified--Request of petitioner for issuance of NDC could not be declined--Petition accepteds.
[Pp. 210, 211 & 212] A, B, C, D & E
Rana Tahir Mahmood, Advocate for Petitioner.
Mr. Ahmad Parvez Advocate assisted by Ms. Scheherezade Shaharyar, Advocate for Respondents.
Date of hearing: 14.11.2022.
PLJ 2023 Lahore 207
Present: Shujaat Ali Khan, J.
MUSTAFA MASOOD--Petitioner
versus
DEFENCE HOUSING AUTHORITY, LAHORE, etc.--Respondents
W.P. No. 45771 of 2022, heard on 14.11.2022.
Judgment
Briefly put, plot bearing No. 121, measuring 1-Kanal, Sector D, Phase-V, Defence Housing Authority (“DHA”), Lahore was originally owned by one Jam Naveed Ahmad Dahir who transferred the same to one Allah Ditta, who further alienated the same in the name of Brigadier Masood Salam. One Sheikh Tariq Mahmood filed suit for recovery of Rs. 1,10,000/- against Jam Naveed Ahmed Dahir which was decreed through judgment and decree dated 20.03.2004. During execution proceedings, the decree-holder submitted list of inventory by mentioning the subject plot as ownership of the judgment-debtor. As a result, auction plan was carved out by the Executing Court but the local commission, appointed for the said purpose, submitted report dated 28.03.2006 inter alia with the averments that the plot mentioned in the list of inventory, being not in the name of the judgment-debtor, could not be auctioned towards satisfaction of the decree. Further, on 08.02.2011 an employee of the DHA appeared before the Executing Court and clarified that the subject plot was in the name of father of the petitioner since 20.05.2003. In view of the said clarification, on 28.06.2012 the decree-holder submitted an application to the Executing Court for transfer of decree to District Ghotki, Province Sindh for its satisfaction as the judgment-debtor had some landed property there which was allowed and the decree was transferred to the District & Sessions Judge, Ghotki, Province Sindh for its onward marking to the Court of competent jurisdiction. After death of Brigadier Masood Salam, father of the petitioner, the petitioner and other legal heirs moved an application for incorporation their names as owners, which was allowed and the names of the petitioner and other legal heirs of late Brigadier Masood Salam were incorporated as owners on 30.09.2021. After incorporation of his name alongwith other legal heirs as owners, the petitioner filed an application before the Secretary, DHA for issuance of No Demand Certificate (“NDC”) which was refused on the ground that since Court Caution was marked against the subject plot, the requisite NDC could not be issued during pendency of litigation. Again the petitioner filed an application before the Director (Legal), DHA clarifying that the judgment-debtor had nothing to do with the subject plot and request for NDC could not be refused but said prayer of the petitioner was also declined and factum thereof was conveyed to him through letter dated 23.06.2022 issued by the Deputy Director (Legal), DHA, Lahore (Respondent No. 3). Being aggrieved of non-issuance of NDC by the DHA authorities, the petitioner has filed instant petition.
2. Learned counsel for the petitioner submits that when it was established from the report of Local Commission, appointed for auction of the subject plot towards satisfaction of the decree passed in favour of one Sheikh Tariq Mehmood, that judgment-debtor had nothing to do with it, the DHA authorities were bound to remove Caution if any; that when the employee of DHA appeared before the executing Court and clarified that subject plot was in the name of father of the petitioner since 20.05.2003 it was incumbent upon the DHA authorities to remove lien marked pursuant to any order passed by the Executing Court; that when the decree passed against Jam Naveed Ahmad Dahir was transferred to District Ghotki, Province Sindh, the DHA authorities were not justified to refuse issuance of NDC to the petitioner and other legal heirs and that though in the report and parawise comments the respondents have admitted the ownership of the petitioner and other legal heirs of late Brigadier Masood Salam but non-issuance of NDC speaks volume about their incompetence and indifferent attitude.
3. Learned counsel appearing on behalf of respondent-DHA, while admitting that the DHA has no qualm about the fact that the petitioner alongwith other legal heirs of Brigadier Masood Salam are recorded owners but when all the legal heirs have not been arrayed as party in this petition the same is not maintainable. Adds that Courts orders are strictly adhered to by the DHA authorities just to avoid any legal complication and to safeguard the rights of the parties to the litigation. When confronted with the fact as to how request of the petitioner for issuance of NDC could be declined especially when no Court proceedings regarding the subject plot were in field, learned counsel for respondent-DHA has no persuasive answer.
4. I have heard learned counsel for the parties and have also gone through the documents appended with this petition as well those forming part of report and parawise comments submitted on behalf of the respondents.
5. Admittedly, Caution was marked by the DHA against the subject plot pursuant to order passed by the Executing Court due to the fact that the decree-holder mentioned subject plot in the list of inventory for satisfaction of decree. It has also not been denied by the DHA that Local Commission appointed by the Executing Court for auction of the subject plot reported that since it did not belong to judgment-debtor, the auction could not be held. Moreover, one Abdul Shakoor, Lower Division Clerk (bearing employee No. 2088) DHA appeared before the Executing Court on 08.02.2011 and clarified that the subject plot was transferred in the name of father of the petitioner on 20.05.2003 and thereafter judgment-debtor had nothing to do with the said plot. The foregoing chain of facts leaves no doubt that at the time of filing of execution petition, the judgment-debtor had no concern with the subject plot rather the Court ordered its auction just due to mentioning the same in the list of inventory by the decree-holder.
6. It is important to observe over here that admittedly on the request of the decree-holder, the decree passed against Jam Naveed Ahmed Dahir was transferred to District Ghotki, Province Sindh for its satisfaction as judgment-debtor had some landed property there. There was no justification for DHA to continue with the Caution marked pursuant to order passed by the Executing Court as after transfer of the decree out of the province of Punjab, no Caution could continue which was marked on the basis of order passed by the Executing Court towards satisfaction of the decree.
7. It is of common knowledge that once a Caution or injunctive order is incorporated in the record of a statutory body, like DHA, the same is not removed despite knowing the fact that said Caution or order has already lost its efficacy and the present case is classical example of such practice. It is very ironical that on the one hand above named official of the DHA appeared before the Executing Court and apprised it that the judgment-debtor had nothing to do with the subject plot which fact was earlier vouched by the Local Commission
in its report submitted on 28.03.2006 but DHA authorities did
not bother to remove the Caution despite the fact that the entire episode was narrated by the petitioner in his applications for issuance of NDC.
8. Another important facet of the instant case is that when the Local Commission submitted its report on 28.03.2006 with the averments that subject plot had nothing to do with the judgment-debtor so its auction was not possible towards satisfaction of decree passed against a person, who was not recorded as owner in the DHA, but the DHA took more than five years to depute its employee to affirm the said fact before the Executing Court.
9. There is no cavil with the fact that efforts of DHA authorities to protect the rights of allottees/residents should be lauded but undue restrictions/impediments against issuance of requisite documents on the basis of untenable grounds cannot be approved of rather deserves to be deprecated. When it was brought to the notice of DHA that after transfer of decree out of province of Punjab, the execution proceedings became redundant and requisite order of transfer of decree was also placed before the DHA authorities, they were under bounden responsibility to remove Caution and issue NDC to the petitioner upon fulfillment of other codal formalities but lingering on the matter till date speaks volume about the fact that DHA authorities, instead of facilitating its residents, are creating hurdles in their way to deal with their property according to their own whims.
10. It is not out of place to mention here that DHA being statutory body is bound to fulfill its obligation as per its mandate and when it fails to do so it exposes itself to the Court proceedings. A cursory glance over letter issued by Respondent No. 3, refusing request of the petitioner regarding issuance of NDC, shows that instead of declining the request of the petitioner on the basis of tangible grounds they dealt with the matter in a casual manner which cannot be approved of rather deserves to be deprecated with full vigor. It goes without saying that in case of any ambiguity, the DHA authorities can require the party concerned to provide order(s) of the Court justifying the removal of caution marked in the DHA record. In the alternative, DHA authorities can directly verify from the Court concerned as to whether the Court proceedings on the basis of which caution was marked in the DHA record are still live or not but DHA authorities cannot be allowed to continue a caution marked on the basis of a Court order which otherwise was no more operative.
11. As a necessary corollary to the above discussion, I have no hesitation to hold that continuation of Caution marked by the respondents pursuant to an order passed by the Executing Court at Lahore even after transfer of decree to the province of Sindh is not justified. Likewise, the request of the petitioner for issuance of NDC could not be declined. Consequently, this petition is accepted and the impugned letter issued by Respondent No. 3 is declared illegal and is accordingly set aside. Further Respondent No. 1 is directed to ensure issuance of NDC in favour of the petitioner and other legal heirs of Brigadier Masood Salam upon fulfillment of requisite formalities. There shall be no order as to costs.
(Y.A.) Petition accepted
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