1990 PLP 1681 (SCMR)

Ali Ahmad Fazeel, Senior Advocate Supreme Court and Khalilur Rahman, Advocate‑on‑Record for Respondent. Date of hearing: 1st February, 1990. SHAFIUR RAHMAN, J.‑‑The petitioner/plaintiff in a pending suit on the original side in the High Court of Sindh, seeks leave to appeal against the judgment/order of the appellate Bench of that High Court dated 17‑8‑1989, whereby the rejection of an ad‑interim order sought for in the suit was upheld.

2. When the petition came up for hearing before a Petition Bench of this Court on the 30th of January, 1990, notice was ordered to issue to respondent "why the petition be not converted into appeal and allowed in terms of interim order dated 29‑8‑1989 and the matter expedited by the High Court". The petition has come up for hearing after such notice to the respondent.

3. The Petitioner being the developer bid for a plot of land at an open auction held on 21‑5‑1989. According to the Petitioner, the Auction Committee had to finally approve the bid given and on such approval additional deposit of the second instalment of 25% of the occupancy had to be deposited. In terms of these conditions, the Petitioner's bid for the plot was the highest and the auction committee called upon .it to make the required deposit which it did. It was thereafter that the Petitioner was informed that the governing body had not approved its highest bid and had ordered the re‑auction of the plot. By recourse to a civil suit the re‑auction was challenged and an application was filed under Order XXXIX Rules 1 and 2 restraining the respondent from re‑auctioning the property or transferring it to any one else. The Court trying the suit granted the interim order on 1.4‑6‑1989 which was continued till 7th of August, 1989 when the application was finally rejected because a resolution of the governing body showing that the highest bid of the Petitioner was rejected was produced and examined by the Court.

4. An appeal was preferred against the refusal of the learned Single Judge of the application for grant of an ad‑interim injunction. It was dismissed in limine on the ground that the learned Judge had considered the pleas advanced by the Petitioner while considering the grant or refusal of the ad‑interim order.

5. On 29‑8‑1989 when the Petition came up for hearing in chamber before the Supreme Court, the following order was passed:‑‑ "The re‑auction of the property is not stayed but if any such re‑auction takes place the bid shall not be confirmed till 10‑11‑1989 by which date the main petition be fixed for hearing. This order was substituted on 12‑9‑1989 when an unconditional order prohibiting the re‑auction was passed and that order has continued todate.

6. After hearing the learned counsel for the parties we find that there are two serious issues between the parties, the first being, whether the Auction Committee was the competent authority for approving the bid given at an auction or some other authority. Secondly, if some other authority was competent to accept or reject the bid, whether it has exercised the powers in accordance with law. The contention which prevailed with the High Court was that the governing body had passed a resolution rejecting the bid. The Petitioner's contention has consistently been that the governing body stood dissolved and was not in existence when it is said to have rejected the bid. These are the two issues which did require even for the purposes of establishing a prima facie case, a further enquiry in presence and with the assistance of the parties.

7. We find that while that exercise is being undertaken by the High Court, it would be proper that a conditional order of re‑auction should be passed in terms of the Order dated 29‑8‑1989, that the re‑auction of the property may take place but its confirmation will be subject to the orders passed in these proceedings by the Court. The High Court shall be free to look into the matter in the meantime and to regulate the interim order in the manner and to the extent it considers necessary while such interim order will hold the field till such substituted order, if any, is passed. The Petition is converted into appeal and accepted, and the orders passed, in terms just indicated, leaving the parties to bear their own costs. H.B.T./R‑162/S Petition accepted.