2007 PLP 715 (MLD)

The present appeal i.e. E.F.A. No.40 of 2004 as also F.A.O. No.19 of 2004, are being disposed of together, as both involve common questions of law and facts.

2. In satisfaction of a decree, passed in favour of the Allied Bank and against Messrs Zulfiqar Associates and Messrs Hudaybia Textile Mills Limited, the property in question, was attached and was directed to be put to auction; a part of the property has been auctioned on 15-9-1985 with regard to the satisfaction of the decree of Messrs Hudaybia Textile and such auction has been confirmed by the Banking Court and also had been upheld uptil the Hon'ble Supreme Court of Pakistan; thus there remains no dispute about that. However, the property for the satisfaction of the decree against Messrs Zulifqar Associates was put to auction on 21-9-1985 and has been purchased by I.J.S & Company (appellants in the present appeals i.e. EFA No. 40 of 2004 and FAO No. 19 of 2004) but this auction when objected to by the judgment-debtor has not been confirmed by the Banking Court through the impugned order, dated 24-12-2003. 2A. The present appeal i.e. EFA No.40 of 2004, has been filed by IJS & Company through Haji Muhammad Suleman, representing all the partners, whereas, F.A.O. No.19 of 2004, has been filed by IJS and Co. through Messrs Iqbal, Jamil and Saleem.

3. Through C.M. No.1855/C/2006, it has been stated that all the parties to the lis in these matters, have entered into a compromise, the terms and conditions of which are reduced into writing, signed by all the stakeholder and photocopy whereof has been submitted along with the said application Mr. Rassal Hassan Syed, learned counsel for the appellant in EFA No.40 of 2004, today has also placed the original agreement on the record, and it has been prayed by the parties thereto that the appeals be disposed of in the light and terms of the said agreement.

4. At this stage, it may be pertinent to mention that C.M. No.1988/C/2006, has been moved by Mst. Sughran, etc., through Mian Israr-ul-Haq Advocate, seeking their impleadment as the respondents to these appeals on the claim that the property in issue or a part thereof has been declared in their favour to be non-evacuee property and for the implementation of the said order of the Custodian, the applicants had already filed a Writ Petition No.6700 of 1995, which is pending adjudication before this Court. Thus on account of the above, as the applicants have the right and interest in the property in question, which shall be seriously hampered and prejudiced, if the property is allowed to be disturbed/transferred, on account of the settlement between the parties to the appeals. It is further stated that certain portions out of the property in question is also in occupation of the applicants.

5. Mr. Abdul Rehman Ansari, Advocate appearing on behalf of one Riaz, who is present in the Court states that he needs time to move an application for impleament as a party in these appeals, because Riaz statedly has purchased some share in IJS, from one Abdul Rahim, who has acquired the share from Sh. Muhammad Saleem, the original partner of. IJS and Company and thus he also has the interest in the outcome of the litigation.

6. Though Mr. S.M. Naseem, learned counsel for Messrs Zulfiqar Associates, and Mr. Rassal Hassan Syed learned counsel for the appellants, have controverted the plea of Mian Israr ul Haq, Advocate that the petitioners in the writ petition No.6700 of 1995 have any right or the interest in the property, rather states that it is all based upon fraud, manipulation and fabricated documents. However, they reserve their right to contest the said petition. But at the same time, it has been agreed by the learned counsel for all the parties to the appeals, including Muhammad Suleman and Muhammad Iqbal, present in the Court, through whom EFA No.40 of 2004 and FAO No.19 of 2004, have been filed respectively, that this compromise and the order passed by this Court in pursuance thereof, shall be subject to the final outcome, decision of the Writ Petition No.6700 of 1995. It is further agreed by the parties to the compromise, that till the decision of the writ petition, the property which is being divided under the agreement by them, shall not be further alienated, and any change in the character, shall be at the risk and cost of the person concerned. This is acceptable to Mian Israr ul Haq Advocate and therefore, he does not press C.M. No.1988/C/2006 and C.M. No. 1989/C/2006, which are disposed of accordingly.

7. Muhammad Riaz, the client of Hafiz Abdul Rehman Ansari, Advocate, is not party to these appeals originally; it is Sh. Saleem, who is the appellant in the matter. It is the claim of Muhammad Riaz that Sh. Saleem has transferred his share in the IJS & Company, in favour of Abdul Rahim and Abdul Rahim, through an agreement has transferred such share in favour of Riaz. Abdul Rahim's name finds mention in the agreement but today, he is not present in the Court, as he is stated to be out of country, therefore, the fact of some agreement by him in favour of Riaz cannot be confirmed at the present. But if Abdul Rahim has made any valid agreement in favour of Riaz, may be enforceable before the appropriate forum. But not in the present lis and thus he cannot be arrayed as a party, therefore, his oral request in this behalf is turned down.

8. With the consent of the learned counsel for the parties, the original agreement is placed on the record as Mark-A and the present appeal as also FAO No.19 of 2004, are being disposed of strictly in accordance thereof.

9. We have noted with concern with the Writ Petition No.6700 of 1995, before this Court is pending since 1995; let either of the parties move an application to the Hon'ble Chief Justice for fixation and expeditious disposal of the said writ petition and we hope that in view of the restraint put upon the parties to the compromise, about the further alienation of the property, the Honourable Chief Justice, may consider the desirability of the early fixation of the case. Therefore, by setting aside the impugned orders, these appeals are disposed of, strictly in terms of "Mark-A", which shall form part of this judgment and the auction held in favour of the auction purchaser to the extent of the compromise, shall be confirmed by the Banking Court in accordance with law. But such confirmation and the rights of the auction purchasers based thereupon, shall be subject to the final outcome of the Writ Petition No.6700 of 1995. C.M. No.2-C/2004. In the light of compromise between the parties, Mr. S.M. Naseem, learned counsel for the applicants/respondents Nos. 1, 4 and 5, does not press this application. Disposed of as such. F.B./I-82/L Order accordingly.