2015 Y L R 1051

2015 Y L R 1051

[Sindh]

Before Syed Saeeduddin Nasir, J

PROVINCE OF SINDH through Secretary Ministry of Transport---Applicant

versus

MUHAMMAD RAFIQUE and 3 others---Respondents

J.M. No.31 of 2014, decided on 30th October, 2014.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Application for setting aside of judgment/decree---Ingredients---Fraud, misrepresentation and want of jurisdiction, grounds of---Scope---Limitation---Condo-nation of delay---Auction of plot---Vested right of highest bidder---Scope---Respondent was declared as successful bidder in the auction on the "fall of hammer" in the terms and conditions of auction and was called upon to deposit 25% of the total bid money of the plot/property in question who paid the same---Right of seller of plot would be forfeited to reduce the size of said plot and/or withdraw the same from auction upon "fall of hammer" which had declared the respondent as the highest bidder and successful purchaser of the plots/property in question---If such rights were conferred upon the seller by virtue of the terms and conditions of auction, the same were available to him before putting up the plots in question for auction and not after completion of sale---Present application under S.12(2), C.P.C. had been filed after a lapse of 5 years and 3 months and 14 days which was time barred---Time prescribed for filing such application by Art.181 of Limitation Act, 1908 was three years from date of decree when the right to apply had accrued---Neither any explanation was given nor applicant had filed any application for condonation of delay---Ingredients of S.12(2), C.P.C. were misrepresentation, fraud and want of jurisdiction of court which were lacking in the present case---Grounds of fraud, misrepresentation and want of jurisdiction were to be taken and alleged with regard to proceedings of the court which had passed the judgment and decree and not the action performed by any department---Present application was liable to be dismissed on the sole ground that it did not qualify under S.12(2), C.P.C.---Vested right had been created in favour of respondent once he was declared as the successful bidder and was called upon to deposit 25% of the total sale consideration and further when pay order was encashed---Appeal filed against the validity of impugned judgment and decree had been dismissed for non-prosecution and execution application had been allowed---Application filed under S.12(2), C.P.C. was dismissed in circumstances.

            AIR 1997 Patna 179 and Bell v. Lever 1931 All ER Report 1 ref.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Application for setting aside of judgment/decree on the grounds of fraud and misrepresentation under S.12(2), C.P.C.---Limitation---Time prescribed for filing application under S.12(2), C.P.C. was three years from date of decree when the right to apply had accrued.

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

----S. 12(2)---Application for setting aside of judgment/decree on the grounds of fraud and misrepresentation under S.12(2), C.P.C.---Ingredients---Ingredients of S.12(2), C.P.C. were misrepresentation, fraud and want of jurisdiction of court.

(d) Contract Act (IX of 1872)---

----S. 2---Contract of sale---Ingredients---Ingredients for contract of sale were "offer", "acceptance" and "consideration".

(e) Interpretation of statutes---

----No statute could be given a retrospective effect so that it could take away a vested right accrued in favour of an individual.

            Ziauddin Junejo, A.A.-G. Sindh for Applicant.

            Mansoor-ul-Arfeen for Respondent No.1.

            Date of hearing: 30th October, 2014.

ORDER

 SYED SAEEDUDDIN NASIR, J.---This order will dispose of J.M. No. 31 of 2014, which is an application under section 12(2) of the Code of Civil Procedure 1908. Through this application the Intervener/applicant seeks an order from this Court for setting aside the Judgment and decree dated 21st of February, 2009 in Suit No. 584 of 1999 passed by a Single Judge of this Court, decreeing the suit of the plaintiff/ respondent No. 1 for specific performance.

            The brief facts of the case are that in the year 1998, the defendant No.3 in the aforesaid suit the respondent No.4 herein the Chairman, Sindh Privatization Committee, Government of Sindh caused advertisement to be published in newspaper for the sale of land, Commercial and residential flat site situated in and around Karachi, Hyderabad, Sukkar, Larkana and Mirpurkhas Divisions, on the terms and conditions mentioned in the said advertisements. The plaintiff, after payment of registration fee of Rs.5000 participated in the auction, offered Rs.3100 per square yard for Plot No. ST-4A and ST-4/6, Paposhnagar Bus Terminal, Nazimabad, Karachi, which being the highest bid, was accepted. The reserved price for the aforesaid two plots of land was 3000 per square yard. The plaintiff at the direction of the Chairman Sindh Privatization Committee deposited an amount of Rs.17,67,775 being the 25% of the bid amount, through cash and pay orders, which according to the plaintiff/respondent No.1 were encashed by the defendants i.e. the Government of Sindh and the Sindh Privatization Committee etc.

            Thereafter, the plaintiff/respondent No.1 on several dates approached the defendants in suit for the issuance of acceptance letter for the payment of second instalment equivalent to 20% of the total sale consideration within fifteen days as required by the terms and conditions of the auction, however, the aforesaid defendants/ respondents 2, 3 and 4 in Suit, violated the terms and conditions of the auction and failed to issue the acceptance letter to the plaintiff/respondent. Subsequently, Section Officer P-1 Government of Sindh, Transport Department, respondent No.4 vide letter dated 7-12-1998, informed the plaintiff/respondents that the Cabinet Committee, of Sindh Privatization Committee has rejected the plaintiff/ respondent No.1's bid for the aforesaid plots of land. However, the reasons for rejection of the plaintiff's/respondent's No.1's highest bid were not assigned in the said letter. The respondent after receipt of the aforesaid letter served a legal notice Jolted 10-2-1999, calling upon the Government of Sindh as well as Chairman Privatization Committee Sindh to perform their part of contract that had been agreed upon, but the said notice was not replied by anyone of the aforesaid Government functionaries, respondents Nos. 3 and 4, and thereafter the respondent No.1 filed Suit No. 584 of 1999 before this Court for specific performance which was decreed by the learned Single Judge of this Court on 21-2-2009 before. The respondent No.1 after obtaining the decree in above noted suit filed the Execution Application No. 77 of 2011 on 22-9-2011 which was also allowed vide order dated 23-1-2014 as prayed and the Nazir was directed to execute the sale deed in respect of the aforesaid plots of land, in favour of the respondent No.1 who executed the same on 27-2-2014 in favour of the respondent No.1.

            The applicant/Intervener filed the instant application under section 12(2) of the Code of Civil Procedure, 1908 on 5-6-2014. The learned counsel Mr. Ziauddin Junejo apparing for the applicant/ intervener inter alia contended that the appellant/Intervener as not made a necessary party to Suit No.584 of 1999 with mala fide and fraudulent intent, in order to obtain judgment and decree behind the back of the applicant/Intervener. It is further contended that the applicant/ Intervener became owner of Plot in question as successor in interest of Karachi Road Transport Corporation (KRTC) which went into liquidation in the year 1996, and which was originally allotted to it by the Karachi Development Authority (K.D.A.). After the liquidation (KRTC) it was decided by the Cabinet Division of the Government of Sindh to dispose of some of the immoveable properties of the same, for the payment of dues to its former employees. Pursuant to this decision the respondent No.4, the Privatization Committee was assigned the task to sell the aforesaid two plots of land. The subject property was sold by auction on 14-5-1998 subject, however, to the terms and conditions mentioned in the auction notice, in favour of the respondent No.1, as he offered the highest bid for the aforesaid plots of land. However, since the seller had reserved the right to reduce the size of the plot, or to withdraw any plot from the auction, as per terms and conditions of the advertisement for auction, it was decided to cancel the auction in as much as the cabinet Division, Government of Sindh had decided to procure funds for the settlement of dues of employees of (KRTC) through other sources i.e. loan was obtained from the World Bank. Thereafter, the respondent No.1 was informed by the Section Officer of the Transport Department, Government of Sindh that the Cabinet Committee of the Government of Sindh had rejected the bid of the Auction Purchaser, the respondent No.1, the sale had been cancelled and that he could take back his money. The learned counsel while addressing the Court on legal arguments has contended that the impugned judgment is per incuriam in as much as it has disregarded the law of contract as applicable to tender contracts viz reactions of and section 38 of the Contract Act. The auction should be done in accordance with the terms and conditions of the auction sale. The learned counsel next contended that the acceptance was never communicated to the respondent No.1, who was informed that his bid had been rejected. The learned counsel for the applicant/Intervener, in order to substantiate his arguments, has placed reliance upon AIR 1997 Patna 179, wherein it was held that "if the parties to a contract proceed on a faulty and fundamentally wrong assumption, contract shall be void. The learned counsel next contended that in view of the judgment pronounced by Division Bench of this Court in C.P. No. D-157/2000, it was held that sale of amenity commercial and residential plots is against the fundamental rights of the Citizens of Pakistan, in terms of City Planning Act, 1913, therefore, if at all the sale of the aforesaid two plots has been effected through auction as aforesaid, the same has been done under a fundamentally wrong assumption that the respondents Nos. 2 to 3 were legally authorized to do so and that due to the principle of "Restrictive Covenant" as declared in the famous case of TULK v. Moxhay which was upheld in the aforesaid D.B. Judgment and, therefore, the land use cannot be changed. The next case-law relied upon by the learned counsel for the applicant is "Bell v. Lever" (1931) ALL ER Report 1. House of Lords wherein it is held that the contract entered into by mistake of the parties thereto in respect of the subject matter thereof then the same is unenforceable. The learned counsel next contended that since the plots in question are allocated for the bus terminal, which is of public amenity, the same could not be sold and were put up for auction sale by the respondents Nos. 2 and 3 by mistake.

            Turning now to the arguments extended by the learned counsel for the respondent No.1, Mr. Mansoor-ul-Arfeen, who submitted that it is to be noted that the respondent No.1 in his counter-affidavit has totally denied the allegations in the application under section 12(2), C.P.C. filed by the Intervener. The learned counsel for the respondent No.1 further submitted that in pursuance of the order passed by this Court dated 23-1-2014 in Execution Application No. 77 of 2011, the Nazir of this Court has also executed sale deed on 27-2-2014 in favour of the respondent No.1 after due notice to the Judgment Debtors, who are respondents Nos. 2 to 4 herein, the application is not maintainable as the property of the Karachi Road Transport Corporation is vested in the Government of Sindh who was very much a party in the suit through Housing and Town Planning, Sindh Secretariat, Karachi and that various Departments of the Government of Sindh have no separate legal entity. In any case, the Transport Department fully knew about the pendency of Suit No. 584/1999 and H.C.A. 230/2002 before this Court. The Privatization Commission was assigned the task of selling the property, which also included as member of Minister Transport Government of Sindh as per Notification dated 24-6-1992. The Government of Sindh was made defendant No.1 in the suit, but did not file its written statement and was declared as party. Only the Chairman Sindh Privatization Committee and Additional Secretary Sindh Privatization Committee, who were defendants Nos. 2 and 3 respectively in the aforesaid suit, filed their written statements. Thereafter, issues were framed and evidence was led by the respondent No.1, the respondent No.1 was cross-examined by the learned Additional Advocate-General appearing on behalf of the Government of Sindh who was the defendant No.1 in the aforesaid suit. The respondent No.1 was also cross examined by the counsel for the defendants Nos. 2 and 3. The learned counsel for respondent No.1 next submitted that the Secretary Sindh Privatization Commission, Mr. Zulfiqar Ali Shah, examined himself on behalf of defendants Nos.2 and 3 and Cross-examined by the Additional Advocate General on behalf of the Government of Sindh, and was partly cross-examined by the counsel for the respondent No. 1 on 30-11-2007, after which the said witness never appeared and nobody else appeared on behalf of the defendants in the aforesaid suit. Thereafter, the arguments were heard by the Court and the suit was decreed on the basis of a reasoned judgment.

            It is further contended by the learned counsel for respondent No.1 that the instant application is time barred inasmuch as the same has been filed after three years which is the prescribed period of limitation for filing such an application under section 12(2) of the Code of Civil Procedure, 1908, which is governed by Article 181 of the Limitation Act, 1908 i.e. when the right to apply accrues.

            The learned counsel for the respondent No.1 next contended that the pleas taken by the applicant in the instant application are not in consonance with the ingredients of section 12(2) of the Code of Civil Procedure, 1908, i.e., plea of fraud, misrepresentation and want of jurisdiction which are lacking in the same, and as such it is liable to be dismissed on that sole ground alone. It is further submitted by the learned counsel for the respondent No.1 that the defendants Nos.3 and 4 in the suit filed High Court Appeal against the judgment and decree being H.C.A. No. 206/2009 which was also dismissed for non-prosecution and the restoration application filed for the restoration of the same is also time barred. The learned counsel next contended that it is wrong to suggest that the aforesaid plot in question are amenity plots on the contrary there are commercial plots, there are many shops constructed by the respondents Nos.2 to 4 thereon and huge amount of rent is being collected from the tenants in respect thereof by them every month. The Sindh Land Disposal Ordinance, 2002 is not applicable in the present case, inasmuch as the respondent entered into the contract for the purchase of the plots of land in question in 1998.

            I have heard the learned counsel for the parties at quite some length, appreciated the case-law, examined the material available on the record of the instant case as well as Suit No. 584 of 1999 and Execution Application No. 77 of 2001 and, moreover, given anxious consideration to the above. I am of the considered view that the instant application is utterly misconceived and is liable to be dismissed for the following reasons.

            The important terms and conditions and mode of payment of the auction, which are available as Annexures B/2 at page 21 of the record of the case, which is the document filed by the applicant/Intervener itself, contemplates that "successful bidders shall be required to deposit on the fall of hammer 25% of the total bid money of the plot/property. In paragraph 10 of the application, the applicant/Intervener Admits that the respondent No.1 gave bid for Rs.3100 per square yard, which was declared as the highest, which means that the respondent No.1 was declared as the successful bidder, thereafter, as per the aforesaid terms and conditions of the Auction, the respondent No.1 was asked to deposit a sum of Rs.17,67,775, which was 25% of the total sale consideration and which was paid by the respondent No.1 to the respondents Nos. 2 to 4, which was not only accepted by them but the pay order of the said amount was also encashed by them. I am in total agreement with the learned counsel for respondent No.1 that the exercise undertaken by the parties to the contract as aforesaid, which is also candidly admitted by the counsel for the applicant/ Intervener, is complete transaction of the Contract of Sale as contemplated by the Contract Act, 1872 in as much all the ingredients of a contract of sale i.e. offer, acceptance and consideration are present therein. The respondent No.1 was declared as the successful bidder "on the fall of hammer in the aforesaid terms and conditions of the auction, and in accordance with the same the respondent No.1 was called upon to deposit 25% of the total bid money of the plots/property in question who paid the same as aforesaid property which was devoured also by the respondents Nos. 2 to 4 by encashing the pay order.

            The argument extended by the learned counsel for the Applicant/ Intervenor that it was not made a party to Suit No. 584 of 1999 is totally devoid of force inasmuch as admittedly, the Chairman Sindh Privatization Committee, Government of Sindh and the Additional Secretary (Secretary Sindh Privatization Committee Government of Sindh were arrayed as defendants in the said suit. The notification of Government of Sindh dated 24-6-1992, which is available as annexure "D" with the Counter-Affidavit filed by the respondent No.1 in response to the main application under section 12(2), C.P.C., clearly contemplates at Sr. No.3 that the Minister for Transport shall be the Member of the Privatization Commission of Sindh. Therefore, it is a mis-statement that the present applicant/Intervenor was not a party to the said suit.

            The next contention of the learned counsel for the applicant/Intervenor that since the seller reserved the right to reduce the size of the plot and/or to withdraw the plots altogether from the auction, it was decided to cancel the auction, is totally devoid of reasoning and legal force inasmuch as the seller forfeited the right to reduce the size of the plot and/or withdraw the same from the auction upon "fall of hammer" which declared the respondent No.1 as the highest bidder and successful purchaser of the plots/property in question. If at all such rights were conferred upon the seller by virtue of the terms and conditions of the auction, the same were available to the seller before putting up the plots in question for auction, and not after completion of sale by auction in favour of the respondent No.1 which according to the same terms and conditions was to be completed on the fall of hammer."

            The learned counsel for the applicant/Intervenor has also placed reliance on the judgment in C.P. No. D-157/ 2000 passed by the learned Division Bench of this Court wherein it is held that sale of amenity plots and land in contravention of City Planning Act 1915 was against the fundamental rights of the Citizens of Karachi and in order to substantiate his contention that the plots in question were amenity plots and the same were put up for auction by the Government of Sindh and other official respondents by mistake of fact, he has placed reliance on a letters dated 12-5-2014 of Karachi Metropolitan Corporation and Master Plan Department and site plan of the Karachi Development Authority dated 13-8-1980 which are available in the file of Execution No. 779 of 2011. In the aforesaid two letters there is verification to the effect that the plots in question are amenity plots and that the same stand allotted in favour of Bus Terminal. These two letters are admittedly concocted on 12-8-2014, inasmuch as the site plan dated 13-8-1980 clearly states that the plots are of Residential/Commercial/ Industrial plot. Therefore, I see no relevance of the aforesaid case-law cited by the learned counsel for the Applicant/ Intervenor inasmuch as the plots in question are reflected as otherwise than amenity in its own document filed by the applicant/ Intervenor, when the law officer of the applicant/Intervenor and its counsel were confronted with a question by the Court as to whether they could produce the allotment letter in order to prove that the plots in question were allotted for the purpose of Bus terminal and for amenity purpose, they candidly admitted that they could not produce the same and also admitted that shops have been constructed by the Government of Sindh in and around the said plots, the tenants of which are tendering rent to the Government of Sindh. In view of these admissions, the arguments of learned counsel for the applicant/Intervenor is repelled that the plots in question are amenity plots.

            The Suit No. 584 of 1999 was admittedly decreed on 21-2-2009 and the instant application under section 12(2) of the Code of Civil Procedure, 1908 was filed on 5-6-2014 i.e. after a lapse of 5 years 3 months and 14 days, whereas ,the time prescribed for filing such application by Article 181 of the Limitation Act, 1908 is three years from date of decree when the right to apply occurs. No explanation is given by the applicant/intervenor in the application nor did the applicant file any application for condonation of such inordinate delay in this case. Therefore, in view of the above I am of considered opinion that the instant application is hopelessly time barred too.

            I further hold that the ingredients of section 12(2) of the Code of Civil Procedure 1908 i.e. misrepresentation, fraud and want of jurisdiction are also lacking in the instant application. Mr. Zia Junejo has argued novel proposition that it is a fraud and misrepresentation both on the part of the applicant/Intervenor and the respondent No.1 inasmuch as the property was put up for auction sale, which should not have been so sold. This argument is not understandable at all. The grounds of fraud, misrepresentation and want of jurisdiction are to be taken and alleged under section 12(2), C.P.C. in respect of proceedings of the Court which passed the judgment and decree and not the action of the bureaucratic hierarchy which gave rise to the litigation between the parties. I am of the considered view that the instant application is liable to be dismissed on the sole ground that it does not qualify under section 12(2), C.P.C. and is totally misconceived.

            With regard to the plea taken by the learned counsel for the applicant/ intervenor that sale of land in question is going to be in contravention of "Sindh Urban Land Disposal Ordinance, 2002," suffice it to say that the said Ordinance cannot be made relevant to the case in hand inasmuch as the contract of auction sale came into being in 1998 and the Ordinance was promulgated in 2002. It is settled law that no statute can be given a retrospective effect so that is could take away a vested right accrued in favour of the Individual of the State.

            It is pertinent to mention here that a vested right has been created in favour of the respondent No.1 once he was declared as the successful bidder, and so also when the respondent No.1 was called upon to deposit the 25% of the total sale consideration, and further when the pay order of the same was encashed by the respondents Nos. 2 to 4 of which the present applicant/Intervenor is a part and parcel by virtue of Notification of Sindh Government dated 24-6-1992.

            The High Court Appeal filed by the respondents Nos. 2 to 4 impugning the validity of judgment and decree in Suit No. 584/1999 has already been dismissed for non-prosecution. The Execution Application No. 77 of 2011 filed by the respondent No.7 for the evacuation of the aforesaid judgment and decree stands allowed by order dated 23-1-2014, pursuant to which Nazir of this Court has evacuated the sale deed dated 27-2-2014 in favour of the respondent No.1, Therefore, the application filed under section 12(2) of the C.P.C. by the applicant/Intervenor is hereby dismissed along with all the listed applications, however with no order as to cast.

            Above are the reasons for the short order that I pronounced in the open Court on 30-10-2014.

AG/P-31/Sindh                                                                        Application dismissed.