-Second constitutional petition filed after withdrawal of first one without the permission stipulated in O. XXIII, R. 1 of Civil Procedure Code, 1908---Maintainability---Concealment of material facts--

 2023 MLD 1611

Art. 199 ---Civil Procedure Code (V of 1908), O. XXIII, R. 1 & Preamble---Constitutional petition, withdrawal of---Scope---Second constitutional petition filed after withdrawal of first one without the permission stipulated in O. XXIII, R. 1 of Civil Procedure Code, 1908---Maintainability---Concealment of material facts---Scope and effect---Petitioners invoked constitutional jurisdiction of the High Court at one of its benches whereas their earlier constitutional petition filed before the principal seat of the same High Court was withdrawn by them---Record revealed that initially the petitioners filed constitutional petition at the principal seat of the High Court with regard to same cause and, although the petitioners had withdrawn said constitutional petition, however, the observations recorded in the said order were relevant---Said observations manifested that the first constitutional petition was not withdrawn in ordinary course, rather after being confronted with certain legal infirmities---Thus, petitioners having no other option, sought permission to withdraw the constitutional petition and as such the same was dismissed--- Proceedings in a constitutional petition were to be regulated by the Civil Procedure Code, 1908, so O. XXIII was mutatis mutandis applicable to such proceedings---Order XXIII, R. 1(3) of the Civil Procedure Code, 1908, stipulated that if the plaintiff had not been allowed permission by the Court to institute fresh suit in terms of O. XXIII, R. 1(2), he would be precluded from instituting any fresh suit in respect of such subject-matter or such part of claim ---Since the previous constitutional petition on the same cause was dismissed as withdrawn so the petitioners were precluded to file the present constitutional petition in terms of O. XXII, R. 1(3) of the Civil Procedure Code, 1908---Constitutional petition , being frivolous and vexatious, was dismissed in limine with costs of Rs. 100,000/-, in circumstances.

Constitutional jurisdiction of the High Court, invoking of---Competent Court/forum, non-approaching of---Concealment of facts---Scope and effect---Petitioners invoked constitutional jurisdiction of the High Court at one of its benches in short span of time after their earlier constitutional petition, filed before the principal seat of the same High Court had been withdrawn by them; and they also concealed pendency of litigation between the parties on the same cause before the Civil Court---Held, that Constitutional jurisdiction of the High Court though could not be abridged by a subservient legislation but exercise of said jurisdiction was always dependant upon the facts and circumstances of each case---High Court was cognizant of the fact that such a tendency on the part of litigants was increasing day by day that they, instead of prosecuting their cause before the competent forum, were opting to invoke the constitutional jurisdiction of the High Court without any justifiable reason, which on the one hand resulted in burdening the Court with unnecessary work and on the other hand absolved the respective functionaries/authorities from their statutory duty---Constitutional jurisdiction was always discretionary with the High Court and the person approaching for the said purpose had to establish the negation of his vested rights---Said mandate was not unbridled and the High Court was precluded to exercise its constitutional jurisdiction in an omnibus fashion---High Court deprecated that the petitioners had, while concealing material facts, picked the forum of their own choice---Constitutional petition, being frivolous and vexatious, was dismissed in limine with costs of Rs. 100,000/-, in circumstances.

Constitutional jurisdiction of the High Court---Concealment of facts---Scope and effect---Petitioners invoked constitutional jurisdiction of the High Court at one of its benches in short span of time after their earlier constitutional petition, filed before the principal seat of the same High Court had been withdrawn by them; and they also concealed pendency of litigation between the parties on the same cause before the Civil Court---Held, that person seeking indulgence of the High Court in constitutional jurisdiction was supposed to approach the Court with clean hands---It was expected from such person that on the basis of principle of equity, he would not conceal any material fact from the Court---Petitioners had approached the High Court in a very dubious manner, in short span of time after withdrawal of previous constitutional petition from the High Court at its principal seat and without appending the copy of said(previous) order---Petitioners had also purposely concealed the pendency of a civil suit between the parties on the same subject---Concealment of material facts from the Court not only tantamount to thwart but to hoodwink the process of law---Constitutional jurisdiction was a discretionary relief, which depended upon the satisfaction of the Court---Petitioners had not come with true facts and instead had withheld necessary information on extraneous reasons, and non-disclosure of material facts being a sole circumstance was sufficient to disentitle the petitioners from claiming the discretionary relief in terms of Art. 199 of the Constitution---High Court deprecated that the petitioners had picked the forum of their own choice while concealing material facts--- Constitutional petition, being frivolous and vexatious, was dismissed in limine with costs of Rs. 100,000/-, in circumstances

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Transaction recorded in Roznamcha and mutation are required to be independently proved....

Significance, contours and sanctity of a transaction recorded in Roznamcha including its mode of proof and evidentiary value......

The provisions of Section 42 of the Punjab Land Revenue Act, 1967 (the “Act”) (as it existed on the date of the impugned mutation) deal with the process of making that part of periodic records which relates to land owners. Sub-Section (1) thereof provides that any person acquiring any right in an estate as a landowner, or a tenant by inheritance, purchase, mortgage, gift or otherwise for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate. The Patwari is required to record such report in Roznamcha in the prescribed manner, provide copies thereof to the person making the report and send a copy of the report to the office of the concerned Union Administration. Reports in Roznamcha are recorded in accordance with procedure stipulated in the Punjab Land Revenue Rules, 1968. The Patwari in terms of Section 42(3) of the Act is obligated to enter reports recorded in Roznamcha in the register of mutations. However, if no such report has been made to the Patwari, he is required to himself make an entry in Roznamcha and register of mutations respecting the acquisition of any such right which he has reason to believe to have taken place. It is also necessary for the Patwari to display the report recorded by him in the prescribed manner as ordained by Section 42(4) of the Act. If the Patwari fails to perform his duty, the Revenue Officer upon the report of the concerned person is required to cause such report to be recorded in the register of mutations in terms of Section 42(5) of the Act. The Revenue Officer is obliged from time to time to inquire into veracity of all entries incorporated in the register of mutations including such reports which ought to have been recorded by the Patwari and in turn, is competent in each case to make such order as he thinks fit with respect to any entry in the periodical record of the rights acquired as per the command of Section 42(6) of the Act. Importantly, Section 42(7) postulates that except in cases of inheritance or where the acquisition of the right is by a registered deed or under an order or decree of a Court, the Revenue Officer shall make the order under Section 42(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned whose signatures or thumb impressions shall be obtained by the Revenue Officer on the register of mutations. Further, such inquiry is required to be made in the common assembly in the estate to which the subject matter mutation relates as required by Section 42( of the Act. After compliance of the aforesaid procedure, an entry with respect to an order of the Revenue Officer made under Section 42(6) of the Act is incorporated in the periodical record as ordained by Section 42(9) of the Act through which right of the acquirer is recognized by the omission from such record of any entry in any record previously prepared, which by reason of the acquisition, has ceased to be correct. The Revenue Officer is required within three months to make an order under Section 42(6) of the Act after incorporation of an entry in Roznamcha or register of mutations, failing which he is obligated to report the reason of delay to the Collector in the prescribed manner as per the mandate of Section 42(10) of the Act. The Revenue Officer is also required to transmit the gist of an order made by him under Section 42(6) of the Act to the person whose right has been acquired and to the concerned Union Administration in the prescribed manner in terms of Section 42(11) of the Act.

It follows from the above analysis that Section 42 of the Act has prescribed a complete code for transfer of rights of land owners in order to ensure transparency and avoid chances of fraud and manipulation. The recording of report in Roznamcha regarding change in rights of a land owner is a first step to trigger the process of transfer of right. However, mutation is sanctioned by an order of the Revenue Officer made in presence of the person whose right is acquired once he has been identified by two respectable persons and an inquiry in this behalf is conducted in common assembly of the concerned estate. Thus, an entry recorded in Roznamcha is merely a ministerial act performed by the Patwari which is incorporated in the register of mutations culminating into an order of passing of mutation under Section 42(6) of the Act by the Revenue Officer.

It is now well settled that in case of a challenge to the transaction and the mutation, both the transaction and the mutation would be required to be independently proved. As the mutation itself is not an instrument of title, therefore, a mutation in the light of specific denial by the owner does not have probative value as the presumption stands rebutted. Similarly, entries recorded in Roznamcha if not proved to have been made at the instance of the vendor or to have been signed by him carry no evidentiary value.

C. R. No. 174 / 2017
Nazeer Ahmad VERSUS Muhammad Sadiq (deceased) through L.Rs. and 2 others
15-09-2023

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The proceedings before a Consumer Court may be civil or criminal. The said proceedings determine the nature of an appeal......

 The proceedings before a Consumer Court may be civil or criminal. The said proceedings determine the nature of an appeal against a decision. If the proceeding is based on section 32(1) of the Punjab Act, the nature of the appeal will be criminal, while in the rest of the cases, it will be civil.

Criminal Appeal No. 559/2023
Shaista Jamil Vs. Daraz and another
Date of hearing: 23.06.2023

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A conjoint reading of the various provisions of the PEEDA suggests that a show cause notice is not an accusation made or information given.........

A conjoint reading of the various provisions of the PEEDA suggests that a show cause notice is not an accusation made or information given in abstract but an accusation made against an employee in respect of an act committed or omitted, cognizable thereunder. As such, the law intends that a show cause notice must conform to at least seven essential elements, and these include:

(a) it should be in writing and should be worded appropriately

(b) it should clearly state the nature of the charge(s), date, and place of the commission or omission of acts, along with apportionment of responsibility;

(c) it should clearly quote the clause of the PEEDA under which the delinquent is liable to be punished;

(d) it should also indicate the proposed penalty in case the charge is proved;

(e) it should specify the time and date within which the employee should submit his explanation in writing. It is also preferable to add in the show cause notice that if no written explanation is received from the accused within the prescribed date, the enquiry will be conducted ex-parte;

(f) it should be issued under the signature of the competent authority and

(g) it should contain the time, date and place of the inquiry and the name of the inquiry officer.

It must be mentioned here that strict compliance of the above conditions is vital so that the principle of natural justice is not violated. It is thus emphasised that the charges made in the show cause notice should not be vague. All the acts of commission or omission constituting the charge, and also forming the ground for proceeding against the employee, should be clearly specified because otherwise, it will be difficult for an employee, even by projecting his imagination, to discover all the facts and circumstances that may be in the contemplation of the competent authority to be established against him, and thus, it will not only frustrate the requirement of giving him a reasonable opportunity to put up a defence but also amount to a violation of his fundamental right to a fair trial.

C.P.1276/2020 Sanaullah Sani v. Secretary Education Schools, Government of Punjab, School Education Department, Lahore & another
Mr. Justice Shahid Waheed
17-08-2023

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--O.XXXVII--Suit for recovery--Decreed--Loan facility--Issuance of pronote in favour of respondent--Denial of transaction and issuance of pronote by appellant--Refusal to payment of loan-

 PLJ 2023 Lahore (Note) 143
[Lahore High Court, Multan Bench]
Present: Ch. Muhammad Iqbal, J.
MAZHAR-UL-HAQ--Appellant
versus
MUHAMMAD IFTIKHAR KHAN--Respondent
R.F.A. No. 59 of 2021, decided on 20.6.2023.

Civil Procedure Code, 1908 (V of 1908)--

----O.XXXVII--Suit for recovery--Decreed--Loan facility--Issuance of pronote in favour of respondent--Denial of transaction and issuance of pronote by appellant--Refusal to payment of loan--Sole statement of appellant without any corroborative evidence--Lengthy cross examination was Conducted by appellant but stance of respondent could not be shattered--No categorical version was taken by appellant in his written statement--Appellant has not established his version through any other independent oral and documentary evidence--Mere sole statement of appellant without any corroborative evidence is not sufficient to shatter case of respondent who has established his assertion through oral and documentary evidence by producing marginal witnesses of receipts and pronotes in his evidence--Appellant has miserably failed to prove defensive assertion--Respondent through corroborative and trustworthy oral as well as documentary evidence proved his claim, as such trial Court rightly decreed suit in his favour which just findings do not require any indulgence from this Court--Counsel for appellant has neither pointed out any illegality, material irregularity or misreading of evidence in impugned judgment & decree of trial Court, which does not call for any Interference by this Court in its appellate jurisdiction.

                                                   [Para 4, 5, 6, 7 & 8] A, B, C, D, E & F

Ref. 2006 SCMR 1347, 2007 SCMR 1820, 2020 SCMR 1621,
2021 SCMR 1890.

Malik Muhammad Usman Bhatti, Advocate for Appellant.

Malik Shafqat Raza Thaheem, Advocate for Respondent.

Date of hearing: 20.6.2023.

Judgment

This first appeal under Section 96 CPC is directed against the judgment & decree dated 26.01.2020 passed by the Additional District Judge, Mailsi who decreed the suit for recovery of Rs. 6,40,000/-under Order XXXVII CPC filed by the respondent on the basis of pronotes and receipts.

2. Brief facts of this appeal are that the respondent/plaintiff filed a suit for recovery of Rs. 6,40,000/-under Order XXXVII CPC against the appellant/defendant on the basis of pronotes and receipts contending therein that he does business of sale and purchase of motorcycles. That appellant came to him on 10.04.2012 and asked for loan of Rs. 7,00,000/-in order to fulfill his need of money. Respondent could not arrange the amount in cash whereupon the appellant asked to lend him motorcycles in lieu of money so that after selling the same he could fulfill his monetary needs. As per request of the appellant, the respondent handed over 10 motorcycles, CD-70 against consideration of Rs. 6,40,000/-to the appellant in the Presence of witnesses and in lieu thereof the appellant executed two pronotes alongwith receipts in favour of the respondent. Thereafter the appellant refused to pay the lent amount. The appellant filed contesting written statement denying the transaction and issuance of pronote as well as receipts. The learned trial Court framed issues, recorded evidence of both parties and vide judgment & decree dated 26.01.2020 decreed the suit for recovery filed by the respondent. Hence, this appeal.

3. I have heard the arguments advanced by the learned counsels for the parties at full length and gone through the record with their able assistance.

4. The pivotal issue in this case is issue No. 1 which is reproduced as under:

“Whether the defendant being trust worthy and familiar of plaintiff asked for loan of Rs. 7,00,000/-. The plaintiff could not arrange for Rs. 7,00,000/-whereupon the defendant asked for giving ten (10) motorcycles CD-70 valuing of Rs. 6,40,000/-and the said motorcycles were given by the plaintiff to defendant. Then in order to ensure returned of said loan the defendant has executed pronotes & receipts in favour of plaintiff against the defendant? OPP”

The initial onus of the above issue was upon the respondent who in order to prove his claim as well as to dislodge onus of the above issue himself appeared as PW1 who stated that he is doing a business of sale and purchase of motorcycles in Mailsi City. Defendant Mazhar ul Haq on 10.04.2012 came to him and made a request to lend him a sum of Rs. 7,00,000/-. That as the amount was not available then defendant made a request that he gave him Motorcycles, so by selling the same he could fulfill his need of money. That in the presence of witnesses Dil Faraz and Jehangir the PW handed over ten motorcycles to the defendant valuing of Rs. 6,40,000/-with the term to return the amount within one year till 10.04.2013. For the assurance of repayment of the amount, defendant executed pronotes and receipts as Exh.P1 to Exh.P4 while putting his signatures and imposing the thumb impression alongwith writing of identity card number as well as handed over an affidavit with the promise to return the amount within one year but on the target date he refused to return the said amount. In cross examination, he deposed that he has not paid amount in cash to the defendant Mazhar. Ul Haq. It is correct that he has not written the name of Show room and the motorcycles Honda CD-70 as the motorcycles were zero meters. He purchased the said motorcycles a few days ago from Muhammadi Autos Showroom Honda Agency. He obtained receipt from Muhammadi Autos. He has not appended said receipts with the suit. He gave receipts and letter to the defendant. He purchased motorcycles from the Agency of Hafiz Muhammad Ameen. Defendant came at his shop on his car and he executed two pronotes valuing Rs. 3,20,000/-each with the date of return. Dil Faraz, Muhammad Jehangir and Muhammad Iqbal appeared as PW2, PW3 and PW4 respectively and supported the version of the respondent/ plaintiff. Lengthy cross examination was Conducted by the appellant but the stance of the respondent could not be shattered.

Conversely appellant/defendant as a sole witness appeared as DW1 who stated that he has no relationship with the plaintiff. He neither received any amount nor motorcycles or executed any pronotes bearing his signatures nor issued any receipts. In cross examination, he deposed that:-

مدعی کو نہ جاننے اور محلہ داری وغیرہ کا تعلق نہ ہونے والی بات میں نے جواب دعوی میں لکھوائی تھی۔۔۔۔ نقد موٹر سائیکل یا پیسہ نہ لینے والی بات بھی جواب دعوی میں لکھوائی تھی۔۔۔۔۔ ہر دو پر ونوٹ ہائے و ر سیدات کے ساتھ جو شناختی کارڈ کی کاپی ہیں وہ میرے شناختی کارڈ کی کاپی ہیں۔ درست ہے کہ میرا شناختی کارڈ نمبر 9-5079975-36602 ہے۔ درست ھے کہ ہر دو پرونوٹ ہائے پر شناختی کارڈ نمبر کے کالم میرا شناختی کارڈ نمبر ہی درج ہے۔۔۔ درست ہے کہ میرے خلاف تھانہ سٹی وہاڑی میں مقدمہ نمبر17/ 223بجرمF-489 ت پ درج ہوا تھا۔۔۔۔ درست ہے کہ اس میں میرے اوپر جیپ گاڑی لینے کا الزام تھا۔۔۔۔۔ آج میرے ساتھ کوئی گواہ نہ آیا ھے۔ میں کوئی گواہ پیش نہ کرنا چاھتا ہوں۔

5. The appellant while filing written statement has made evasive denial of the transaction between the parties as well as execution of any pronotes and receipts thereof in favour of the respondent. No categorical version was taken by the appellant in his written statement. Appellant during cross examination admitted the copies of CNIC with the pronotes and receipts Exh.P1 to Exh.P4. The appellant has not established his version through any other independent oral and documentary evidence. Mere sole statement of the appellant without any corroborative evidence is not sufficient to shatter the case of the respondent who has established his assertion through oral and documentary evidence by producing marginal witnesses of the receipts and pronotes in his evidence.

6. Even otherwise, under Section 118 of the Negotiable Instruments Act, 1881 a strong legal presumption of issuance of negotiable instrument (promissory note) against consideration is attached to said document and the appellant was placed under heavier obligation to dislodge said presumption by producing trustworthy corroborative evidence but no defence evidence was available on the record, as such the appellant has miserably failed to prove the defensive assertion. Reliance in this regard is placed on the case titled as Muhammad Arshad and another vs. Citibank N.A., Lahore (2006 SCMR 1347), Muhammad Azizur Rehman vs. Liaquat Ali (2007 SCMR 1820), Najaf Iqbal vs. Shahzad Rafique (2020 SCMR 1621) & Rab Nawaz Khan vs. Javed Khan Swati (2021 SCMR 1890).

7. Respondent/plaintiff through corroborative and trustworthy oral as well as documentary evidence proved his claim, as such the learned trial Court rightly decreed the suit in his favour which just findings do not require any indulgence from this Court.

8. Learned counsel for the appellant has neither pointed out any illegality, material irregularity or misreading of evidence in the impugned judgment & decree of the learned trial Court, which does not call for any Interference by this Court in its appellate jurisdiction.

9. For what has been discussed above, this appeal is hereby dismissed being devoid of any merits with no order as to costs.

(Y.A.)                                                                                                   

 

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Under the Islamic law of inheritance, as soon as an owner dies, succession to his property opens.

 Law is well settled that wrong mutation confers no right in property as revenue record is maintained only for fiscal purposes .

Heir in possession has to be considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters in favour of brothers and in order to relinquish or transfer her interest in the property, there has to be a positive and affirmative act.

Civil Appeal No.130 of 2016
Noor Din deceased through LRs VERSUS Peruaiz Akhtar & others
01-08-2023

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-Suit for administration, partition and permanent injunction--Legal heirs--Partition of property--Appointment of Nazir--Private sale--Public auction—Raising of objections--Valuation of property-

 PLJ 2023 Karachi 124 (DB)
Present: Irfan Saadat Khan, and Zulfiqar Ahmed Khan, JJ.
SEHRISH HANIF and others --Appellants
versus
MUHAMMAD AZIZ and others--Respondents
HCA No. 58 of 2023, decided on 21.8.2023.

Civil Procedure Code, 1908 (V of 1908)--

----O.XX R. 13--Punjab Partition of Immovable Property Act, 2012,
S. 4--Specific Relief Act, (I of 1877), S. 54--Suit for administration, partition and permanent injunction--Legal heirs--Partition of property--Appointment of Nazir--Private sale--Public auction—Raising of objections--Valuation of property--Potential buyer--Sale offer--Opportunity to bring prospective buyer--Failed to--Since there were a number of legal heirs left by of late Mst. Ghulam Fatima, it was impossible to partition subject property, which comprises of 235 Sq.Yds only--It is also an admitted fact that a number of legal heirs of Late Muhammad Hanif, other than appellants, have already withdrawn amounts of their respective share from Nazir--It is also an admitted fact that several opportunities were provided by Single Judge, while hearing matter to appellants on their request to bring any prospective buyer interested in purchasing property for an amount Rs. 03 crores or to match price themselves but appellants have utterly failed to do so--Neither any amount was deposited by appellants with Nazir as required under rules nor have matched sale price offered by Respondent No. 1 or have brought any prospective buyer to purchase property, price offered by Respondent No. 1 was accepted and confirmed--Order of Single Judge, impugned in instant HCA does not warrant any interference and is found to be in accordance with law--The instant HCA is found to be bereft of any merit--Petition dismissed.     [Pp. 128 & 129] A, B & C

Mr. Fateh Muhammad, for Appellants.

Kh. Saiful Islam, Advocate Respondent No. 1.

Nemo for Respondents No. 2 to 9.

Date of hearing: 15.8.2023.

Judgment

Irfan Saadat Khan, J.--This High Court Appeal (HCA) has been filed impugning the order dated 15.02.2023 passed by the learned Single Judge in Suit No. 1080/2014.

2. Briefly stated the facts of the case are that the Respondent No. 1 filed a suit for administration, partition and permanent injunction in respect of the property bearing House No. A-462, Block-8, Karachi Administration Employee’s Cooperative Housing Society, measuring 235 sq.yds. The said property was in the name of Mst. Ghulam Fatima w/o Muhammad Suleman, who had expired on 29.01.1993. Mst. Ghulam Fatima left the present Respondent No. 1 and Muhammad Hanif, her two sons as her legal heirs at the time of her death. The present Appellants and the Respondents No. 2 to 9 are the legal heirs of Muhammad Hanif (son of late Ghulam Fatima) who also has expired on 27.12.2013. Due to difference amongst the present Respondent No. 1 and the legal heirs of Muhammad Hanif, the above referred suit Bearing No. 1080/2014, was filed. The matter proceeded before the learned Single Judge who vide order dated 22.12.2016 appointed Nazir as Administrator of the property and was also directed to make an attempt for private sale amongst the parties and if not, then sell out the same through public auction. Objections were raised time and again by the parties with regard to the valuation of the property. The Nazir in his report dated 16.09.2021 pointed out that the Respondent No. 1 has agreed to purchase the property at Rs. 3 crore however the appellants have objected to the same. The appellants before the learned Single Judge submitted that the property is worth Rs. 4,25,00,000/-. The learned Single Judge then vide order dated 11.08.2022 directed the Appellant No. 1, (who was Defendant No. 12 in the suit) to prepare a pay-order of Rs. 4,25,00,000/- in the name of the Nazir of this Court to show her keenness to purchase the property and to bring the same on the next date of hearing. Thereafter a number of opportunities were given to the appellants to either deposit the amount of Rs. 4,25,00,000/- or to bring some potential buyer, if they were of the view that the property was worth
Rs. 4,25,00,000/- or more, so that the suit with regard to partition could be disposed of and proper and respective share of each legal heir, in accordance with law and shariah, may be distributed accordingly. It is an admitted position that inspite of giving several chances, the present appellants have failed to either abide by the instructions of the Court or to bring any prospective buyer of the suit property in respect of the amount, which according to them would fetch if sold in open market. It is under these circumstances that the learned Single Judge vide impugned order confirmed the sale offer as given by the Respondent No. 1 and dismissed all the listed and pending applications, as having become infructuous, by confirming the sale at Rs. 3 crore offered by the Respondent No. 1.

3. Mr. Fateh Muhammad, attorney of all the Appellants, has appeared and stated that as per Nazir’s report dated 19.5.2022 the property was considered to be between Rs. 3,75,00,000/- to
Rs. 4,25,00,000/-, hence confirmation of the sale at Rs. 3 crore by the learned Single Judge was not in accordance with law. He stated that the order may be set aside and the Nazir may be directed to cancel the sale certificate as the value of the property is more than Rs. 3 crore, which was incorrectly accepted by the learned Single Judge and some time may be given to the appellants to bring some prospective buyer for purchase of the property at a higher figure then that of Rs. 3 crore.

4. He next stated that serious monetary prejudice would be caused to the appellants, if respective share of each legal heirs is worked out at Rs. 3 crore. He stated that no doubt the appellants have failed to bring any prospective buyer for above Rs. 3 crore and have not complied with the order dated 11.8.2022, passed by the learned Single Judge, but if some time is granted to them they are willing to bring some prospective buyer of the property, which according to him is worth approximately Rs. 5 crore. He therefore, request that the order of the learned Single Judge may be set aside and some time may be given to the appellants in respect of the prayer made by them in the interest of justice.

5. Khawaja Saif-ul-Islam, Advocate has appeared on behalf of the Respondent No. 1 and vehemently opposed the present appeal. He stated that several opportunities were provided to the appellants to bring a purchaser, who is ready and willing to purchase the property above Rs. 3 crore, but the appellants have miserably failed to do so. He stated that though it has been averred time and again by the appellants that the property is more than Rs. 3 crore and at one stage has shown their willingness either to purchase the same or to match the price but have failed to do so despite the fact that a number of opportunities were given to them by the learned Single Judge, which clearly proves that the appellants were only interested in delaying the process and to linger on the same unnecessarily. Whereas, according to him, the Respondent No. 1 has duly deposited Rs. 83,00,000/- with the Nazir, which has been acknowledged by the Nazir in his report dated 22.10.2022 and a substantial amount deposited by the Respondent
No. 1 has already been distributed among a number of legal heirs of late Muhammad Hanif, who are either brothers or sisters of the present appellants.

6. He stated that from the record, it would be seen that despite given several chances to the appellants they have not deposited any amount with the Nazir in respect of the value, which according to them is the true market price of the said property. He stated that it was under these circumstances that the learned Single Judge quite rightly passed the order by confirming the sale in favour of the Respondent No. 1 on the amount offered by him. He therefore, finally prayed that in view of the above facts the instant HCA, alongwith the listed applications, may be dismissed by imposing cost upon the present appellants.

7. Nobody has appeared on behalf of the Respondents No. 2
to 9.

8. We have heard the Attorney of the appellants as well as the learned counsel for Respondent No. 1 at some length and have also perused the record.

9. Perusal of the record reveals that since there were a number of legal heirs left by of late Mst. Ghulam Fatima, it was impossible to partition the subject property, which comprises of 235 Sq.Yds only. When the matter filed by the present Respondent No. 1 proceeded before the learned Single Judge in respect of partition it was agreed between all the contesting parties before the Court that let the property be sold out to a prospective buyer, be that any one of the parties, and to distribute the shares out of the sale proceeds of the property amongst all the legal heirs as per sharia. Though a compromise application was also filed by the parties with the understanding that the property would be sold out and thereafter respective shares would be distributed amongst the legal heirs; however it is an admitted position that since the rates, which were as per the legal heirs would fetch in the open market if the property is sold, could not be obtained in spite of several attempts, the plaintiff as well as the defendants in the suit were given the chance either to purchase the property by themselves, or to bring some prospective buyer in this regard. Record also reveals that the Nazir in his report has also opined that the value of the property ranges between the
Rs. 3,75,00,000/- to Rs. 4,25,00,000/-. It is also submitted in the report that despite making hectic efforts and giving advertisement in the newspapers no one approached the Nazir of this Court to show interest in purchasing the said property. Under these circumstances the Respondent No. 1 offered to purchase the property at Rupees 03 crores and to show his bona fides substantial amount was also deposited by him with the Nazir.

10. It may be noted that the present appellants have miserably failed to either purchase the property by themselves or to bring any prospective buyer who could purchase the property for an amount above Rs. 03 crores offered by the Respondent No. 1. It is also an admitted fact that a number of legal heirs of Late Muhammad Hanif, other than the appellants, have already withdrawn the amounts of their respective share from the Nazir. It is also an admitted fact that several opportunities were provided by the learned Single Judge, while hearing the matter to the appellants on their request to bring any prospective buyer interested in purchasing the property for an amount above Rs. 03 crores or to match the price themselves but the appellants have utterly failed to do so.

11. It is in this background that the learned Single Judge came to the conclusion that since neither any amount was deposited by the appellants with the Nazir as required under the rules nor have matched the sale price offered by the Respondent No. 1 or have brought any prospective buyer to purchase the property, the price offered by the Respondent No. 1 was accepted and confirmed. Hence under these facts and circumstances, we are of the view that the order of the learned Single Judge, impugned in the instant HCA does not warrant any interference and is found to be in accordance with law. The instant HCA is found to be bereft of any merit which stands dismissed along with the listed and pending application. No order as to cost.

(J.K.)   Petition dismissed

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