2009 PLP 235 (CLC)

ARSHAD NOOR KHAN, J.

By this order I intend to deal with the order passed by this Court dated 12-4-2006 whereby the plaintiff was directed to satisfy the Court on the point of limitation in filing of the suit. The case of the plaintiff as per plaint is that he participated in an open public auction on 21-8-1999 held by defendant No.2 for sale of property situated at Plot No.C/22, Al-Hilal Cooperative Housing Society, Karachi and he tendered bid at the rate of Rs.9,150 per sq. yards. which comes to an amount of Rs.7,063,

800. At the time of participation in the auction he deposited Rs.50,000 as condition precedent to participate in the auction proceedings and on the falling of hammer he also deposited an amount of Rs.3,00,000 as such as per requirement of the brochure he deposited Rs.3,50,000 with the defendant No.2. It is further alleged in the plaint that before payment of remaining instalments, defendant No.2 informed the plaintiff that one Abdul Karim Raeesani occupant of the said property filed a Civil Suit No.183 of 2000 against defendant No.2 for permanent injunction with the prayer not to eject him from the property, hence the officials of the defendant No.2 refused to accept the balance hid amount and Civil Revision No.143 of 2001 is still pending adjudication relating to Civil Suit 183 of 2000 before this Court and the plaintiff filed application to join him as intervener but his application was dismissed by this Court and consequently Revision Application No.143 of 2001 was also dismissed. It is further stated in the plaint that the token money was liable to be forfeited in case, he committed any default but since he did not commit any default as such being successful bidder a vested right has been devolved in him. It is further averred in the plaint that the terms and conditions of the auction empowers the defendant No.2 to impose surcharge equivalent to or any other amount of penalty which he deems fit, in case, of default of subsequent instalment. It is further stated in the plaint that the possession of the property in question is to be delivered to successful bidder but the defendant No.2 is still not in a position to handover the possession of the property to the plaintiff as such the plaintiff served legal notice dated 18-3-2006 through his counsel upon defendant No.2 along with a cross-cheque dated 18-3-2006 amounting to Rs.67,13,800 of M.C.B.., Al-Hilal Society Branch, University Road, Karachi, but the cheque was returned and the defendant did not reply the legal notice hence the plaintiff filed suit seeking therein declaration to the effect that he is lawful bidder in respect of the property in dispute and is ready to get the same transferred in his name after payment of balance amount of the bid and consequential relief in the shape of injunction has also been prayed. Notice of this application and the suit has been served on the defendants and defendant No.2 filed his written statement admitting therein the auction of property in dispute being abandoned property, in terms of section 2(a) of the Abandoned Properties (Management) Act, 1975, hereinafter shall be referred to as the "Act of 1975". As the abandoned properties vested in Federal Government and by virtue of section 11 of the Act, 1975 it was decided to dispose of the abandoned properties including the property in question by way of auction and a high power auction committee was constituted who prepared the brochure and an advertisement for auction of as many as 11 properties, on the basis of "as is where is" was published in newspapers and the auction was held on 21-8-1999 wherein plaintiff participated in two auctions viz. Plot No.C/15 admeasuring 800 sq. yards and Plot No.C/22 admeasuring 772 sq. yards both located in Al-Hilal Cooperative Housing Society and he deposited token money and Rs.3,50,000 on the fall of hammer for a total bid amount of Rs.7,063,800 and signed an undertaking for the bidder. It is further stated in the written statement that the plaintiff wrote as may as four letters requesting therein for refund of Rs.3,50,000 deposited by him and that the Suit No.183 of 2000 was filed by illegal occupant of Property C/22, which was contested by the defendants and was dismissed by the Court of Senior Civil Judge, Karachi-East and the appeal filed against the said judgment was also dismissed by the Additional District Judge, Karachi-East and revision filed by the said illegal occupant has also been dismissed by the High Court on 13-3-2006. It is further stated in the written statement that the main thrust of the plaintiff was only to get the amount of Rs.3,50,000 returned and prayed for dismissal of the suit. The suit was fixed before this Court on 12-4-2006 and it was noticed that the suit filed by the plaintiff was barred by the point of limitation; therefore, the plaintiff was directed to satisfy the Court on the point of limitation. I have heard Mr. Irfan Hassan, Advocate for the plaintiff and Mr. S. Tariq Ali, Standing Counsel for defendants. The learned counsel for the plaintiff vehemently contended that the defendants themselves refused to accept the balance amount of the total auction price on the ground that the civil litigation was pending adjudication before the High Court, therefore, plaintiff was not at fault and the defendant was called upon by the plaintiff through legal notice dated 18-3-2006 to accept the balance amount of auction price and execute the sale-deed as such the limitation for filing the suit was 12 years but he completely failed to point out any specific article of Limitation Act which provides 12 years to file suit of similar nature. He has further contended that the defendant in order to deprive off the plaintiff from his legitimate and vested right of execution of sale-deed in his favour have ruined the plaintiff for such a long time for which the plaintiff is not at fault as such the suit filed by the plaintiff is very much in time. Mr. S. Tariq Ali, Standing Counsel for defendants while refuting the contention advanced by the learned counsel for the plaintiff has vehemently contended that the suit filed by the plaintiff is hit under section 23 of the Act of 1975 and that the suit is barred under Article 120 of the Limitation Act, he therefore, stressed that the suit filed by the plaintiff after such a long time is hopelessly time-barred and is liable to be rejected. I have considered the argument advanced on behalf of the parties and have gone through the averments contained in the plaint as well as the material available on record. It is not disputed that auction of the disputed property was held on 21-8-1999 and the plaintiff tendered highest bid at the rate of Rs.9,150 per square yard for a total sale consideration of Rs.7,063,800 and deposited Rs.3,50,000 as per condition of the brochure of the auction. It is also an admitted fact that the defendant accepted the bid tendered by the plaintiff being highest bid and informed the plaintiff about the acceptance of the said bid vide their letter dated 27-9-1999 filed by the plaintiff as Annexure "C" to the plaint. A perusal of the letter of acceptance issued by the defendant No.2 shows that the bid tendered by the plaintiff being highest was accepted and he was required to deposit the balance payment of 75% in three equal instalments of 25% of the total bid after every three months -from the date of issuance of letter of acceptance dated 27-9-1999, Annexure "C" to the plaint. The plaintiff was therefore, required to tender three instalments on the expiry of three months each and admittedly the plaintiff did not deposit a single instalment of remaining balance of 75%. The plaintiff in his plaint has alleged that the defendant refused to accept the balance amount on the point that a Civil Revision No.143 of 2001 was pending adjudication before the High Court involving the same subject-matter of the suit. The plaintiff has completely failed to name any of the officer of defendant No.2 who either informed him about the pendency of the litigation before this Court or who refused to accept the balance of the remaining amount of bid. The plaint is completely silent to show that he ever offered any amount of instalment to defendant No.2 immediately after receipt of letter of acceptance, Annexure "C" to the plaint. He remained silent in payment of any instalment till December, 2004 when he filed application in Civil Revision No.143 of 2001 before this Court to join him as party, which admittedly was dismissed by this Court on 13-3-2006 and finally the civil revision was also dismissed vide order of this Court dated 10-4-2006. The material available on record shows that Abdul Karim Raeesani, who was illegal occupant of Plot No.C/22 had filed a suit for injunction against his illegal eviction at the hands of defendants, which was dismissed and Revision Application 143 of 2001 before this Court was also dismissed on 13-3-2006. It is also not disputed that plaintiff participated in the auction proceeding on "as is where is" basis, as such the plaintiff himself was in the knowledge about the occupation on the said property by Abdul Karim Raeesani and even otherwise the title of the property in dispute was never disputed before the Civil Court which being abandoned property devolved on defendant as such there was no justification for the plaintiff to stop the remaining balance of 75% of the bid amount which had to be paid in three equal instalments nor .the plaintiff has brought on record any cogent reason to show that his silence was justified and lawful which prevented him to deposit the instalment of auction price, as such Article 120 of the Limitation Act is applicable to the case of the plaintiff which provides a period of six years for filing of the suit, for which no period of limitation is provided elsewhere in the schedule, from the time when the right to sue accrues as in the present suit right to sue accrues to the plaintiff when he was declared successful bidder by issuance of letter of acceptance, Annexure "C", by the defendants and the present suit has been filed on 7-4-2006 which shows that the suit has been filed after expiry of limitation period. It is also not disputed by the plaintiff that he did not apply to the defendants for refund of the amount of Rs.3,50,000 deposited by him. The defendants have brought on record the letters dated 21-9-2000, 740-2000, 14-10-2000 and 4-11-2000 wherein the plaintiff was persistently demanding the return of his amount deposited by him with the defendants and the said letters show that the plaintiff had no mind to deposit the instalments of 75% of the bid amount in three instalments to the defendants and subsequent claim of service of notice on defendants through his counsel appears to be, concocted story and after-thought for the reason that now-a-days the prices of the properties have been abnormally enhanced. This brings me to consider as to whether the material available on record could be considered by the Court to invoke the provision of Order VII, rule 11, C.P.C. as the defendant in their written statement have also drawn the true picture of the case coupled with the attitude and conduct of the plaintiff as well as his irresponsibility in purchase of the property in dispute and have also filed admitted letters written by the plaintiff to the defendants for refund of his amount of Rs.3,50,

000. The case-law has now liberally interpreted the provisions of Order VII, rule 11, C.P.C. and the Honourable Supreme Court in the case of S.M. Shafi Ahmed Zaidi through legal heirs v. Malik Hassan Ali Khan through legal heirs reported in 2002 SCMR 338 while considering the scope of Order VII, rule 11, C.P.C. was pleased to observe that besides the averments made in the plaint other material available on record which on its own strength was legally sufficient to completely refute the claim of the plaintiff could also be looked into for the purpose of rejection of plaint. It is further observed by the Honourable Supreme Court that it is not necessary that other material shall be taken as conclusive proof of the facts stating therein but it actually moderates that other material on its own intrinsic value be considered along with the averments made in the plaint. The dictum laid down by the Honourable Supreme Court in the case of S.M. Shafi Ahmed Zaidi (supra), therefore, fully empowers the Court to consider other relevant material also while invoking the scope of Order VII, rule 11, C.P.C. and may consider the other allied materials relating to resolve controversy in between the parties. In the present case, as discussed above, the plaintiff participated in the auction on "as is where is" basis and despite of his full knowledge of the occupancy of the property in question, he not only participated in the auction but he was also declared as successful bidder but he subsequently changed his mind and pressed for return of his amount of Rs.3,50,000 through letters stated above and said letters are sufficient proof to reflect on the intention of the plaintiff not to pay the remaining balance 75% of bid amount as per condition precedent to auction and these letters are very material to resolve the controversy of the present case. In the case of Ume Aiman and others v. Muhammad Yousuf and others reported in 2002 CLC 1620, this Court while considering the scope of Order VII, rule 11, C.P.C. was pleased to observe that in appropriate cases even contents of written statement/affidavits may be looked into when considering application under Order VII, rule 11, C.P.C. which observation of this Court is also attracted to the circumstances of the case in hand. The case of S.M. Shafi Zaidi (supra), as well as the case of Ume Aiman (supra), fully empowers the Courts to consider the averment contained in the plaint along with admitted documents as well as contents of the written statement and reject the plaint if said material is sufficient to reject the plaint. In the present case, I find that the ratio of the aforesaid cases is fully applicable under the circumstances of the present case and the suit of the plaintiff appears to be barred under Article 120 of the Limitation Act as well as because of his act and conduct by addressing letters to the defendants for refund of amount, he disqualified himself to maintain the suit and the suit cannot be finally decreed in his favour in view of aforesaid reasons. The plaint is, therefore, rejected under Order VII, rule 11, C.P.C., with no order as to cost. S.A.K./K-36/K Plaint rejected.