2008 PLP 201 (MLD)

MUSHIR ALAM, J.

Mr. Shafi Muhamamdi requests further time to assist the Court as to whether non-Muslim legal heirs would succeed to a Muslim intestate or not.

2. Listed application C.M.A. No. 1652 of 2003 under section 12(2), C.P.C. filed by applicant Muhammad Ayub Sarwar Malik on the ground that, Property bearing No.9-F Commercial Area Muhammad Ali Memorial Co-operative Society Karachi (subject property) is the property of the applicant having purchased from its original allottee lessee, Mrs. Nazli Rabbani, conveyance deed was duly executed and registered on 28-8-1998. It was urged that the subject property was never owned or transferred in favour of Ilyas Amin. It is though admitted that he was appointed as an attorney in respect of the subject property through registered Power of Attorney, dated 12-4-1998 coupled with agreement of sale, dated 21-2-1998. It is urged that on the strength of statement of Ilyas Amin, declaration was given by this Court vide order, dated 28-6-2002 to the effect that the property is an asset of Alliance Motors and Tee Jay Ibrahim and Company, said Ilyas Amin has no right, title or interest in the property. His power of attorney was revoked through registered revocation. It was urged that such declaration was obtained by Ilyas Amin who played fraud upon the Court and by misrepresentation obtained such order. It appears that this Court while hearing C.M.A. No. 1352 of 2003 under section 12(2), C.P.C. directed the liquidators to hold inquiry and applicant was also directed to appear before liquidator. It appears that inquiry has been conducted and report is available. It is regrettably noted that despite prolonged enquiry nothing substantial turned out. No conclusion could be drawn from the result of the inquiry as has been placed in Court. Learned counsel for the applicant points out that the power of attorney given to Ilyas Amin was cancelled through registered revocation, dated 16-2-1990 available at page 44 part `C' of the inquiry report. Agreement- of sale, dated 21-2-1998 executed by Mrs. Nazli in favour of Ilyas Amin is available at page 10 of part `D' of the inquiry. From the perusal of the agreement, it appears total sum of Rs.6 lac was paid in advance, balance amount was to be paid on 11-4-1998. Nothing was brought on record to show that balance amount was ever paid. Agreement also contained forfeiture clause. It has also come on record that on failure of Ilyas Amin to comply with the terms and condition of the agreement, his Power of Attorney was revoked followed by a legal notice, dated 13-3-1990 (available at page 46 part `C'). It seems that after revocation of sale agreement and power of attorney of Ilyas Amin, the owner Mrs. Nazli entered and executed registered conveyance, dated 28-8-1998 in favour of applicant Muhammad Ayub Sarwar, there is nothing on record to controvert the claim of the applicant. It is noted that, no notice to Mrs. Nazli the original owner was given nor she was examined by the Official Assignee before making reference through C.M.A. No. 1195 of 2002 under section 351 of the. Companies Ordinance, therefore in my opinion the order, dated 28-6-2002 to the extent of declaring that the property is assets of company under liquidation on the bald statement of Ilyas Amin cannot be sustained and is liable to be recalled. It is established that Ilyas Amin misrepresented before this .Court, that he is owner of subject property on the strength of Power of Attorney. He suppressed that fact, that his Power of Attorney was revoked much before his statement in Court was recorded. Application in view of the foregoing is allowed subject property is excluded from the assets of Alliance Motors and "Tee Jays Ibrahim, order, dated 28-6-2001 to the extent of declaration against the subject property is set aside. It appears that notice on C.M.A. No. 2621 of 2003 and C.M.A. No.1356 of 2002 could not be issued as cost has not been paid. Mr. Umrani Learned Official Assignee states that same has been deposited, in case cost is not paid, let same be paid and notice be issued to all the concerned. H.B.T./A-131/K Application allowed.