1992 PLP 2004 (CLC)

(iii) It was suggested that the order of the Commissioner dated 13‑1‑1975 was passed in absence of petitioner, so this order was in defiance of the principle of natural justice "that nobody should be condemned unheard". (iv) It was lastly urged that the order of the learned Member, Board of Revenue as well as the order of Commissioner were arbitrary, oppressive and contrary to facts. The petitioner had always been ready and willing before the confirmation of sale to deposit the amount outstanding against him. In fact, the non‑deposit was occasioned due to the act of the subordinate officers working in Revenue Administration of District Bahawalpur.

5. On the contrary, learned counsel for the respondents supported the impugned order on three‑fold grounds:‑ (i) It was stressed that the petitioner had obtained the order from Member, Board of Revenue on 13‑1‑1975 by misleading him about the true state of facts. According to the learned counsel, the auction was held on 1G‑9‑1974. On the same date, the respondents No.3 and 4 deposited the price of the land. The Commissioner had rejected the application of the petitioner vide an order dated 9‑12‑1974 for setting aside the sale. The learned counsel stated that these facts were not brought to the notice of the learned Member, Board of Revenue who passed the order dated 13‑1‑1975. On this account, this order was vitiative on the principle that fraud vitiates the most solemn proceedings. Reliance was placed on Sajawal Shah and another v. Syed Rahim Shah and others (PLD 1975 SC 325). (ii) It was next contended that the petitioner had not submitted application for setting aside the sale within the four corners of section 103 of the Act which stipulated that the sale could only be set aside if the owner of the land shows that he suffers from some substantial injury by reason of irregularity or mistake in the conducting of sale. According to learned counsel no such allegation was made in the application given to the Commissioner. In this background the Commissioner was completely justified in confirming the sale under section 104 of the Act and thereon the respondents Nos.3 and 4 became the owners of the land in dispute under section 107 of the Act. (iii) it was lastly represented that the petitioner has come to Court with soiled hands and was not entitled to grant of relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. No other point was urged.

6. Having set down the facts, the circumstances of the case and the arguments of the parties, I proceed to determine the contentions of the parties. I will first take the objection of the petitioner. There is no dispute that the petitioner had submitted a petition to the Commissioner for setting aside the sale on the ground that he wanted to pay the disputed amount in instalments. This application was rejected and the petitioner was permitted by revisional Court vide order dated 13‑1‑1975 to clear up the amount in dispute within a week. It is also uncontradicted that the petitioner was not able to deposit the amount on account of dilly‑dallying tactics of the subordinate Revenue hierarchy. It is also uncontested that he cleared the differences of Agricultural Development Bank of Pakistan. From these facts, question for decision is "as to whether the Commissioner had correctly and validly confirmed the sale vide an order dated 13‑1‑1975."

7. In order to resolve this question it will be appropriate to set down sections 102, 103 and 104 of the Act. They are as under:‑ Section

102. Report of sale to Commissioner.‑‑‑Every sale of immovable property under this Chapter shall be reported by the Collector to the Commissioner. Section

103. Application to set aside sale.‑‑‑(1) At any lime within thirty days from the date of the sale, application may be made to the Commissioner to set aside the sale on the ground of some material irregularity or mistake in publishing or conducting it. (2) A sale shall not be set aside on any of the grounds specified in subsection (1) unless the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of the irregularity or mistake. Section

104. Order confirming or setting aside sales.‑‑‑(1) After the expiration of thirty clays from the date of the sale, if such application as is mentioned in section 103 has noel been made, or if such application has been made and rejected, the Commissioner shall make an order confirming the sale, and if such application has been made and allowed, the Commissioner shall make an order setting aside the sale. (2) If at any time within thirty days from the date of the sale the defaulter pays the arrears in respect of which the property has been sold, together with the costs incurred for the recovery of such arrears, the Commissioner shall make an order sitting aside the sale."

8. From the examination of the aforesaid provisions, it becomes apparent that every sale of immovable property under this Chapter is to be reported by the Collector to the Commissioner, Under section 103 ibid, the aggrieved person has been invested with a right to make an application to the Commissioner for setting aside the sale on the ground of some material irregularity or mistake in publishing or conducting it by showing that he has sustained a substantial injury by reason of irregularity and mistake. Under section 104 ibid, the Commissioner is empowered to confirm or set aside the sale. The subsection (2) of section 104 ibid, equips the defaulter with a right to pay the arrears in respect of which the property has been sold together with costs incurred in recovery of such arrears. In such event, the Commissioner is bound to set aside the sale. There is yet another aspect of decisive significance to be noted, that the order of the Commissioner rejecting or, allowing the application is subject to incident of appeal and revision under sections 161 and 164 of the Act.

9. This being the legal position, it is a settled law that sales made in course of auction when are appealable cannot be confirmed during the pendency of the determination of .appeal/revision. If any authority is needed for this proposition, it is Chandra Mani Saba any] others v. Anarjan Bibi and others, (AIR 1934 P.C.134) and Buti Ram v. Sardar Singh (AIR 1934 Lahore 875).

10. In Chandra Mani Saba's case (AIR 1934 PC 134) although the point under consideration was somewhat different yet enunciation of law made by the Privy Council has bearing in this case. In this case auction‑purchaser submitted an application for delivery of possession of the property sold in auction. The judgment‑debtors took up the objection that application was barred by time. The learned Sub‑Judge repelled this objection and accepted the application. The judgment‑debtors filed appeal to the High Court. The learned judge of the High Court accepted the appeal, set aside the order of the Subordinate Judge and dismissed the application for possession holding it to be barred by time. The auction‑purchaser filed appeal before the Privy Council which was accepted. It was held: "There is no doubt that the abovementioned rule is applicable to the present case ; for its already stated the judgment‑debtors did apply to set aside the sale, and the Subordinate Judge disallowed the applications on 15th April, 1924; and on 22nd April 1924, he confirmed the sales. The sales therefore became absolute on 22nd April, 1924, at any rate so far as the Court of Subordinate Judge was concerned. But the judgment‑debtors had a right of appeal under 0.43, R‑(1)(j) against the orders of the Subordinate Judge by which he disallowed their applications to set aside the sales. This right of appeal the judgment‑debtors exercised. Upon the hearing of the appeals, the High court by reason of the provisions of section 107(2) of the Code had the same powers as the Court of the Subordinate Judge. In the present case, the High Court dismissed the appeals and on such dismissal the orders of the Subordinate Judge confirming the sales became effective and the sales became absolute. In considering the meaning of the words in Art. 180, Lim. Act, it is useful to consider the converse case. Take a case in which the Subordinate Judge allowed the application to set aside, the sale; in that case, of course, there could be no confirmation of the sale as far as the Subordinate Judge was concerned, as there would be no sale to be confirmed. But if, on appeal, the High Court allowed the appeal and disallowed the application to set aside the sale, the High Court would then be in a position to confirm the sale, and on such an order of confirmation by the High Court the sale would become absolute. Again, take a case in which the Subordinate Judge disallowed the application to set aside the s0lc; there would then be confirmation of the sale by the Subordinate Judge and the sale would become absolute as far as his Count was concerned. If the High Court allowed an appeal, and set aside the sale, there would then, be no sale, and, of course, no confirmation and no absolute sale." It was further Observed:‑ Upon the consideration of the Sections and Orders of the Code, their Lordships are of opinion that in construing the meaning of the words "where the sale becomes absolute" in Art. 180, Limitation. Act, regard must be had not only to the provisions of 0.21, R.92(1) of the Schedule to the Civil Procedure Code, but also to the other material Sections and Orders of the Code, including those which relate to appeals from order made under 0.21, R.92(1). The result is that where there is an appeal from an order of the Sub ordiante Judge, disalld0wing the application to set aside the sale, the sale will not become absolute within the meaning of Art. 180, Limitation. Act, until the disposal of the appeal, even though the Subordinate Judge may have Confirmed the sale, as he was bound to do, when he decided to disallow the abovementioned application. Their Lordsips therefore are of opinion that on the facts of this case the sales did not become absolute within the meaning of Art. 180, Limitation. Act. until 17th March, 1927, and that the applications for possession of the properties purchased at the auction sales were not barred by the Limitation Act." In Buti Ram's case (AIR 19.34 Lahore 875) there was an execution of Money decree in favour of respondent whose land was attached and sold for RS.775 on 9‑3‑1933. It was fixed for confirmation on 8‑4‑1933. In the meantime the judgment‑debtor filed an application on 28‑3‑1933 under Order XXI, Rule 89, C.P.C. stating therein that he was prepared to pay the decretal amount together with 5% of purchase‑price and prayed that the sale be set aside. On the same day, the Court recorded an order that amount payable was Rs.315 and deposited in the treasury. On 8‑4‑1933, the petitioner lodged application that amount. be deposited. However no challan was given to him. The learned Judge instead of dealing with his application sent the case for the report of the office. Next date was holiday and the office put up the report on 10‑4‑1933. On this date, the learned Judge ordered that the amount in dispute be deposited and challan be issued to the petitioner. This time too, the Challan was not given to the petitioner. On the next date of hearing, the above purchaser objected that deposit has not been made within thirty days of the sale under Article 166 in Schedule to Limitation Act and so application was barred by time. This objection was upheld by the Sub‑Judge. In revision, the High Court accepted the petition and recorded following observation:‑ "But it is equally well‑settled that a party litigant ought not to be penalized when he found it impossible to comply with the requirements of the Statute, not because of any fault of his own, but by reason of the action or inaction of the Court. On the happening of such a contingency, the maxim "actus curiae neminem gravabit" (an act of Court prejudices no man) applies 10 I.C 51(1), 1915 All. 414(2) and 1919 All. 339(3)."

12. Although the precedents noted above relate to interpretation of rules 89 and 90 occurring in Order XXI of the Code of Civil Procedure, these Rules pertain to applications for setting aside the sale of immovable property, sold in execution of decrees of the Civil Court. The sections 102 to 107 occurring in Chapter IX of the Act also deal with the applications for setting aside the sales of immovable property of a defaulter by Revenue Authorities. As noted above, the subject‑matter of both is same. On the principle of pari materia the principles laid down in Chandra Mani Saha's case (AIR 1934 P.C. 134) and Buti Ram's case (AIR 1934 Lahore 875) are fully applicable to the facts and circumstances of this case.

13. Applying these principles to the uncontradicted facts of the case, it is quite clear to me that the application of the present petitioner for setting aside sale in the first instance was rejected by the Commissioner and thereafter was accepted by the revisional Court. Subsequently it was the fault of the Collector/Tehsildar who had not issued challan form to the petitioner for deposit of the arrear of the Land Revenue for which his property was sold in auction.‑ It is necessary to be mentioned at this stage that the part of the outstanding amount i.e. the loan of Agricultural Bank was deposited .by the petitioner well within the time in consonance with the order of the revisional Court. The overall conclusion is that the petitioner had been and was willing to comply with the order of the revisional Court and pay the amount in dispute. It r was the obdurate conduct of the revenue hierarchy which did not permit the petitioner to comply with the order of the revisional Court i.e. Member Board of Revenue. In such circumstances, I have no difficulty in reaching the conclusion that the petitioner had committed no fault in complying with the order of the revisional Court whatever the lapse occurred it was due to the act of the revenue hierarchy. For the visible fault of the Collector/Tehsildar the petitioner cannot be penalized on the principle that nobody can suffer on account of the acts of the Court of Competent Authorities. Reference be made to Shamas Textile Mills Ltd. v. Muhammad Iqbal and Punjab Labour Court No.III (1986 PLC 52), Rajasab Khan v. Mahmood Hussain and another (1980 CLC .1859) and Ghulam Haider and others v. Mst. Bharri and others (PLD 1988 SC 20). In the light of aforesaid, I am of view that the order of the Commissioner dated 13‑1‑1975 and the order of Member, Board of Revenue dated 29‑5‑1975 were wholly without jurisdiction, arbitrary in nature and cannot be sustained.

14. Having dealt with this question, I now revert to the objection of the learned counsel for the respondent that the petitioner had obtained the order from the revisional Court by manipulation and by suppression of facts. This objection seems to be far from truth and contrary to subsection (2) of section 104 of the Act. This subsection confers a right upon the defaulter to get the sale set aside if he pays the arrears in respect of which the property was sold, within thirty days of the sale as stipulated in subsection (2) of section 104 of the Act. The only thing was that he had prayed for making payment in instalments. This application was arbitrarily rejected. On revision by the petitioner, he was allowed to deposit the outstanding amount within a week. This order of revisional Court was frustrated due to dilatory tactics of the revenue hierarchy. In this background the objection of the learned counsel for the respondent seems to be devoid of force and is accordingly repelled.

15. In the light of foregoing discussion, this Constitution petition is accepted with requested relief. The petitioner is directed to deposit the remaining amount within a period of three months commencing from the date of passing this order. There shall be no order as to costs. A.A./M‑479/L Petition accepted.