2012 PLP 629 (CLC)

MAZHAR ALAM KHAN MIANKHEL, J.

Through this single judgment, we intend to dispose of Writ Petition No.72 of 2004 and Writ Petition No.73 of 2004, whereby the petitioners have questioned the judgments rendered by the Additional District Peshawar in two separate revision petitions whereby the order impugned before him dated 5-6-2003 of the trial Court allowing the petitioner to withdraw his two suits with the permission to file fresh one was set aside by directing the trial Court to consolidate the two suits filed by the plaintiff/petitioners and to frame consolidated issues arising out of the pleadings of both the parties. Learned counsel for the petitioners submitted that he had inadvertently filed two separate suits regarding two separate properties owned by the common predecessor of the parties, namely Syed Habibullah Shah, so their said suits were barred by the provisions of Rule 2 of Order-II of C.P.C., hence he accordingly sought permission from the trial court to withdraw both the suits with a permission to file a fresh one by including both the properties in one suit. He next contended that the order of the trial Court was in accordance with law and the respondents had also accepted the order of the trial Court by receiving the costs, so imposed by the trial court. The respondents then were legally estopped to challenge the said order in higher forum so their very filing of revision petitions was against the law and the impugned judgment of the revisional Court is also not maintainable in the circumstances of the case. Placed reliance on Pehlawan and others v. Haji Muhammad Murad and others 2005 SCMR 1405, Ismail v. (1) Fida Ali and (2) Syed Iqbal Shabbir (PLD 1965 SC 634), Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab (PLD 2003 SC 979), Qamar Zaman and others v. Musammir Shah (2000 SCMR 1730) and Ali Hussain v. Ali Ahmad Khan Warsi (Represented by legal heirs) (1982 CLC 2616). As against that, learned counsel for the respondents while supporting the findings of revisional Court submitted that the decision of revisional Court was in accordance with law as in the circumstances the same purpose could have been achieved by the petitioners through consolidation of two suits and requested for dismissal of writ petitions. Learned counsel for the parties were heard and record of the case was perused. Perusal of the record would reveal that both the parties seek partition of two separate properties originally owned by their common predecessor. The plaintiff/petitioners for this purpose filed two separate suits for getting their share in the legacy of their propositus. According to law, both the two independent suits regarding two separate properties were maintainable as entire claim of partition for each separate property was being sought in both the suits and as such filing of two separate suits was not a matter to be hit by the provisions of Rule-2 ibid. But for fair dispensation of justice and to avoid further legal complications both the suits could have been consolidated. Yet another possibility of said claims was in the shape of a single suit by referring to both the properties. Either of the way was permissible under the law and legal but it is very unfortunate to observe that for such a short matter, the parties to the suit have suffered so much. During this period, their claims of partition would have been decided by the Courts. Perusal of the record would further reveal that the trial Court had directed the petitioners to withdraw their both suits with the permission to file a fresh suit on payment of costs of Rs.2000/-. Accordingly, both the suits were withdrawn and fresh suit was also filed much prior to the decision of the revisional Court. Besides the filing of fresh suit by the present petitioners, the defendant/respondents also received the above said costs. As far as receiving of costs by the other party is concerned that would be an act of acquiescence with the act/order for which it received costs. Now its said act, under the law, would bar said party to question the said order in higher forum under the law of estoppel. Reliance in this regard can also be placed on the case of Ali Hussain v. Ali Ahmad Khan Warsi (Represented by legal heirs) (1982 CLC 2616). So, filing of revision petition after receiving costs was also an act not permissible under the law and jurisdiction thus exercised becomes nullity in law. It is once again strange enough to observe that the compliance of the trial Court order was made much prior to the decision of revisional court as the fresh suit was filed on 30-6-2003 and the revisional court passed the impugned order on 6-11-2003. Such important matters should not be taken lightly. Circumstances of the case as discussed above would justify and we are also of the same opinion that parties to the litigation should continue with the already filed fresh suit, which will prejudice none of them. So, in this view of the matter, the decision given by the revisional Court appears to be useless, which is hereby set aside. The trial Court is directed to decide the main case as early as possible, but not later than four months. Both the writ petitions are disposed of accordingly. H.B.T./350/P Order accordingly. 2012 C L C 633 [Lahore] Before Muhammad Khalid Mehmood Khan, J BAKHT FRAZ CONSTRUCTION COMPANY, MULTAN through Chief Executive

Petitioner versus FEDERATION OF PAKISTAN through Chairman Pakistan Railways, Islamabad and 6 others

Respondents Writ Petition No.1186 of 2011, decided on 31st March, 2011. Constitution of Pakistan

Art. 199

Constitutional petition

Lease of property for 99 years

Rejection of proposal

Petitioner, in response to advertisement issued by Ministry of Railways for commercial development of Railways property on joint venture basis, submitted the bid document and was the sole bidder

Petitioner had prayed that Railways which had failed to execute the agreement in terms of the bid document be directed to perform their part of agreement

Petitioner while submitting the bid documents, had annexed a certificate from a Commercial Bank for establishing his financial stability, which was the necessary document for participating in the bid as it was a joint venture and the petitioner was to invest the money for raising commercial building on the land of Railways

Issuing Bank of the financial stability certificate confirmed that no such certificate had been issued by the Bank

Bid money deposited by the petitioner was refunded to him

Petitioner having submitted false document, proposal and bid of the petitioner, were rightly rejected by Railways

Constitutional petition was dismissed. Tahir Mehmood for Petitioner. Rao Muhammad Iqbal for Respondents along with Muhammad Abu Tahir, Assistant Director for Respondents. ORDER MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this constitutional petition the petitioner has prayed as under:

"In view of above submissions, it is prayed that respondents be directed to execute the formal agreement in light of clause-23 of Bid documents as the matter has already been finalized. It is also prayed that respondents be restrained from resuming possession of subject-property from petitioner till decision of W.P."

2. Briefly stated the facts of case are that petitioner in response to advertisement issued by the Ministry of Railway for commercial development of Railway property bearing Bungalow No.11 measuring 8040 Square feet at old Bahawalpur Road, Multan on joint venture basis. The petitioner submitted the bid document and he was sole bidder. The petitioner asserts that the property offered for joint venture was declared surplus by Pakistan Railway. The possession of the same was handed over to the petitioner on fulfilment of certain conditions along with approved site plan. Under Clause-20 of the Bid document the lease will be agreed for 99 years and regular agreement has to be executed after due diligence. The respondent-Pakistan Railway has failed to execute the agreement in terms of bid document and as such they be directed to perform their part of agreement.

3. Notices were issued to respondents. They filed report and parawise comments and stated that no doubt the proposals were called from the interested parties for a commercial development of Railway's property at Old Bahawalpur Road, Multan on joint venture basis for 99 years lease on 18-12-2009. It was denied that possession of property was ever delivered to the petitioner. It was further stated that confirmation of bid was subject to approval by the Executive Committee of Railway Board and after that a letter of interest (L.O.I.) was to be issued. In the present case the proposal of petitioner was rejected on initial stage when the documents submitted by the petitioner were scrutinized. The petitioner submitted fake document and as such the proposal was rightly rejected. It was further asserted that pay order amounting to Rs.1 Million was issued to petitioner on his request being the bid money deposited by him.

4. Learned counsel for the petitioner submits that in terms of the bids invited by respondents the petitioner was declared the sole and successful bidder and as per Clause-23 of the bid document, the agreement was to be executed in favour of successful bidder. Admittedly the petitioner was declared successful bidder, he has deposited the bid money and a such it is the respondent/Pakistan Railway who failed to fulfil its commitment. Further submits that document declared to be false and fake was never provided by the petitioner. It is the respondents who managed the said false document. He further submits that he got refunded the bid money on the understanding that same will be deposited when the final agreement will be executed.

5. Learned counsel for the respondents controverted the arguments of learned counsel for the petitioner and submits that invitation of bid was for development of commercial property and its finalization was subject to approval by the competent authority. The petitioner no doubt deposited Rs.1 Million with respondents but on 8-4-2010 he submitted an application for refund of above said amount. The petitioner vide receipt dated 8-4-2010 received the cheque being the refund of security deposit and as such the petitioner's relationship with respondent came into end. Reason for rejection of petitioner's bid was that when the respondents sent financial certificate provided by the petitioner from Askari Commercial Bank for its verification the said bank vide letter dated 10-2-2010 specifically confirmed that they have not issued the letter and it is the forged and fake document.

6. Heard. Record perused.

7. The invitation of bids and that the petitioner was the sole bidder, he deposited Rs.l Million being the bid money and also submitted financial report are not denied. It is an admitted fact that as per bid document Clause-23 read as under:

"Agreement shall be executed upon due diligence." This clause of bid is also not denied by the petitioner. The petitioner while submitting the bid document has annexed a certificate from Askari Commercial Bank Islamic Bank Service, Multan dated 19-1-2010 for establishing his financial stability which is the necessary document for participating in bid as it was a joint venture and the petitioner was to invest the money for raising commercial building in the respondents land. The respondents when submitted the said certificate for verification to the issuing Bank, the issuing Bank vide letter dated 10.2.2010 reported as under:

"Please refer to your letter No DM/IC-2JV PROJECT/2010 dated 10-2-2010 we would like to inform you that we have not issued certificate of 1500.00 (M) in favour of Messrs Bakht Fraz Construction Company bearing Account No.91203600039301."

8. The petitioner when become aware about the said verification report, he submitted an application on 7-4-2010 to Director Marketing Ministry of Railway Islamabad claiming that their bid money Rs.1 Million be refunded to them. The reason for refund was shown that they came to know through reliable source that their bid has not been accepted. The respondent vide letter dated 8-4-2010 released the said amount through cheque which was received by the petitioner on 8-4-2010.

9. The petitioner has asserted not a single word in his petition that his bid has been rejected in spite of the fact that he was aware about its rejection as is evident from his own letter dated 7-4-2010. He further got refunded his bid amount and as such it is the petitioner who himself withdrew from the bid and as such the petition merits rejection. Further the petitioner's version that he is in possession of the property has been vehemently denied by the respondents. Further the petitioner himself has failed to produce any document showing that he is in possession of the property, subject-matter of bid and as such the petition is liable to be dismissed on this score alone.

10. In view of the above, this petition fails and is dismissed. H.B.T./B-25/L Petition dismissed.