2007 Y L R 2387

 
[Karachi]
 
Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ
 
AHSANUDDIN and another---Applicants
 
Versus
 
UNITED BANK LIMITED through Corporate and Industries and others---
Respondents
 
C.M.A.No.1579 of 2005, C.M.As. Nos.1895, 158, 1799 and 1974 of 2006 ire High Court
Appeal No.145 of 2005 decided on 13th December, 2006.
 
Civil Procedure Code (V of 1908)---
 
----Ss. 151 & 152---Review---Application under Ss.151 & 152, C.P.C. seeking revieil of
order---Mistake pointed out by the applicants, was apparent on the face of the record which
had occurred primarily due to lack of proper assistance by the counsel of the applicants, who
had not disclosed the relevant facts---Applicants, in circumstances, could not be made to suffer
for such reason---Impugned order was reviewed to the extent that the relevant appeal of the
applicant was restored only to the extent of the claim of applicant.
 
Muhammad Rafi for Applicant No.2.
 
Naveedul Haq for Respondent No.1.
 
Shahid Hussain Malik, Auction Purchaser in person.
 
ORDER
 
This order will govern the disposal of CMA No.158 of 2006, which is an application under
sections 151 and 152, C.P.C., moved by appellant No.2, seeking review of the order dated
31-1-2006.
 
2. Briefly, the facts relevant for the disposal of this application are that in this appeal, which
is directed against the order dated 18-5-2005 passed by learned Single Judge of this Court in
Ex. Application No.39 of 2003, an order was passed on 21-12-2005 whereby the appellants
were directed to deposit the total auction amount with 5% interest, with the Nazir of this
Court on or .before 24-12-2005. It was further observed that in case entire amount was not
deposited the matter will be dismissed on the next date of hearing.
 
3. On 17-1-2006, when the case came up before the Court, learned counsel Mr. Nawab
Mirza, who was representing appellants in the case at that time made a statement at the bar
that in case appellants failed to deposit the auction amount with 5% interest before the next
date of hearing this appeal shall be deemed to have been dismissed automatically without any
further orders to that effect, and order was passed by the Court accordingly. After passing of
such order, when the matter again came up before the Court on 31-1-2006 Mr. Khalid
Dawoodpota, Advocate appeared on behalf of the appellants and submitted that due to heart
attack sustained by appellant No.1 the amount as ordered by this Court from time to time has
nit been deposited. In view of such statement made by the learned counsel for the appellants,
without disclosing the deposit of entire amount of Rs.12,39,000 by appellant No.2 respect of
property No.R-44, Block 18, F.B. Area, Karachi claimed by him, it was observed by this
Court in its order dated 31-1-2006 that due to non-deposit of amount the appeal
automatically stood dismissed.
 
4. It is in the above background that the listed application has been moved by the appellant
No.2 with the prayer that this appeal to the extent of appellant No.2 may be heard and
decided on merits by review of order dated 31-1-2006 to that extent as the order dated 21-12-
2005 was fully complied by him by way of deposit of entire amount of Rs.12,39,000 with the
Nazir of this Court by 24-12-2005. In support of such claim of appellant No.2 statement in
writing has been submitted before the Court on 9-5-2006 which is accompanied with the
Photostat copies of three pay-orders and the copy of application dated 24-12-2005 addressed
to the Nazir of this Court showing the acknowledgement of receipt of two pay-orders by the
Nazir of this Court on 24-12-2005. These documents are not disputed thus it is established
from the record that at the time of passing of order dated 17-1-2006 and 31-1-2006 no proper
assistance was provided to this Court by disclosing these facts, which had resulted in passing
of these two orders against the appellant No.2. Such mistake is evident from the face of the
record and thus liable to be corrected in exercise of powers of review vested in this Court.
 
5. Mr. Shahid Hussain Malik, the auction purchaser in the case, did not dispute the facts, as
stated on behalf of appellant No.2. However, he contended that the entire auction money of
Rs.35 millions was supposed to be deposited by the appellants by 24-12-2005, therefore,
deposit of only Rs.12,39,000 by the appellant No.2, in respect of one of the auctioned
property was not the strict compliance of such directions of this Court contained in the orders
dated 21-12-2005 and 17-1-2006, which makes this application liable to be dismissed.
 
6. Having carefully gone through the case record, we are not in agreement with such
submissions of the auction purchaser, for the simple reason that the twee properties auctioned
during the proceedings of Ex. Application No.39 of 2003 were auctioned separately, and in
such circumstances the appellant No.2, by way of deposit of Rs.11,80,000, the highest bid
amount, along with 5% interest was claiming only property No.R-44, Block 18, F.B. Area,
Karachi, in his possession. Thus to that extent he was justified in claiming that compliance
of. order dated 21-12-2005 and 17-1-2006 was made by him in its letter and spirit. Mr.
Naveedul Haq learned counsel for the respondent No.1 Bank has also conceded to this
position.
 
7. Considering the above-noted aspect of the case, we are of the review that the mistake
pointed out by the appellant No.2, in the form of listed application, is apparent on the face of
the record. It has occurred. primarily due to lack of proper assistance by the learned counsel
for the appellants Nos.l and 2, who did not disclose these relevant facts. In such
circumstances, the appellant No.2 cannot be made to suffer for this reason. Accordingly, the
order dated 31-1-2006 is reviewed to the extent that the present appeal is restored only to the
extent of the claim of appellant No.2 in respect of Property No.R-44, Block 18, F.B. Area,
Karachi. Office is directed to fix this appeal ' for hearing before the Court on 11-1-2007, on
which date no further adjournment will be allowed to the appellant No.2. Till then the
appellant No.2 shall not be dispossessed from Property No.R-44,. Block 18, F.B. Area,
Karachi. It is clarified that appeal on behalf of appellant No.1 stands dismissed in terms of
the earlier order passed in this appeal. Therefore, in respect of the remaining, two auctioned
properties the executing Court is free to proceed in accordance with law.
 
Applications at Serial Nos.1 and 4 are dismissed being not pressed.
 
Application at Serial Nos.2 and 5 are adjourned to 11-1-2007.
 
M.B.A./A-79/K
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????Order accordingly.