internal auction rejected and order external auction.
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| Reject internal auction and order external auction. 2024 C L C 251 |
داخلی نیلامی کی ناکامی اور بیرونی نیلامی کا آغاز
: 2024 CLC 251 لاہور
تمہید
کیس کا پس منظر
درخواست گزار کا مؤقف
عدالت کا مشاہدہ
عدالت نے ریکارڈ کا جائزہ لیتے ہوئے قرار دیا کہ ٹرائل کورٹ نے پہلے یہ طے کیا کہ جائیداد کی ملکیت میں کوئی تنازع موجود نہیں، جس کے بعد داخلی نیلامی کا حکم دیا گیا۔ فریقین کو ذاتی حیثیت میں پیش ہونے کی ہدایت کی گئی، جائیداد کی ویلیوایشن رپورٹ بھی جمع کرائی گئی، تاہم درخواست گزار نہ خود پیش ہوا اور نہ ہی داخلی نیلامی کے عمل میں سنجیدگی دکھائی۔
درخواست گزار کا طرزِ عمل
قانونی نکات پر عدالتی تشریح
رضامندی (Willingness) کا قانونی مفہوم
حتمی فیصلہ
قانونی سبق
قانونی نکات:
فیصلہ:
Must read judgement
2024 C L C 251
[Lahore]
Before Sultan Tanvir Ahmad, J
AWAIS GOHAR----Petitioner
Versus
SUMAIRA ADNAN and others----Respondents
Writ Petition No.65237 of 2023, decided on 5th October, 2023.
(a) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---
----Ss. 10, 11 & 14---Suit for possession through partition---Suit property, disposal of---Internal auction proceedings---External/open auction---Scope---Civil Court declared that the internal auction had failed and started proceedings for the external auction, which decision was assailed by the petitioner (defendant/co-owner) before District Court, however, the same was dismissed---Contention of the petitioner was that internal auction has been declared as unsuccessful in haste and without observing the requirement of law---Validity---Record revealed that the Trial Court passed order for holding internal auction, after reaching to the conclusion that there was no dispute as to the ownership of the suit property---In pursuance of S. 10(2) of the Punjab Partition of Immovable Property Act, 2012 ('the Act, 2012'), the parties were directed to appear in person---Evaluation report of the suit property was submitted and the petitioner was directed to appear on next date, when the respondent-lady remained present but the petitioner failed to appear---Even thereafter, petitioner kept seeking adjournments on different pretexts (like suffering from COVID-19, or out of the Country etc.)---Ultimately, in view of the conduct of the petitioner, the Trial Court after proceedings had spanned for about nine months, concluded that he was not interested in the internal auction and closed proceedings relating to internal auction by declaring the same as unsuccessful---Section 11(1) of the Act, 2012 reflected that if the co-owners had refused to participate in internal auction, or only one co-owner had showed willingness to participate in such auction and other(s) were not willing or when the internal auction under section 10 of the Act had failed, then the Court could proceed with open auction and fix the reserve price---In the present case, the Trial Court initiated the proceedings for internal auction but the petitioner failed to appear or to make any offer for the progress in the internal auction; he continued to be absent from the Court and his counsel kept seeking adjournments on one or the other pretext for more than nine months---No illegality or irregularity had been noticed in the impugned judgments and orders passed by both the Court below---Constitutional petition was dismissed in limine, in circumstances.
(b) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---
----S.14---Suit for possession through partition---Time-period to decide the case---Civil Court declared that the internal auction had failed and started proceedings for the external auction, which decision was assailed by the petitioner (defendant/co-owner) before District Court, however, the same was dismissed---Section 14 of the Act, 2012 provides specific period of six months to complete the proceedings in such suits from their date of institution---Process of internal auction was initiated after about eleven months of filing of the present case and the petitioner had already gained about nine months for making a suitable offer or properly assisting the Trial Court in the proceedings of internal auction or showing willingness to participate---By various means and adopting different tactics the petitioner defeated the very purpose of the Act, 2012 which had been enacted for the purposes of expeditious partition of immovable properties and to provide remedy for ancillary matters---Respondent-lady throughout the proceedings kept appearing, whereas, the petitioner had even avoided to appear in person and his lawyer had shown no interest in the progress of the case or the internal auction---No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition filed by the defendant/co-owner was dismissed, in circumstances.
(c) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---
----Ss. 10, 11 & 14---Suit for possession through partition---Internal /external auction proceedings---"Willingness" of the party---Scope and meaning---Civil Court declared that the internal auction had failed and started proceedings for the external auction, which decision was assailed by the petitioner/defendant before District Court, however, the same was dismissed---Validity---Word "willing" was defined as "eager, co-operative, ready and prompt to act; voluntary; chosen; intentional"---Word "willingness" meant "ready to do something" which word ("willingness") also denoted the conduct of a relevant party---In the present case, the petitioner, instead of willingly participate in the proceedings remained extremely disinclined---Conduct of the petitioner had shown that he was not prepared or ready for the internal auction; he kept wasting the time of the Trial Court and caused delay of about 9 months in just one step of the case (i.e. internal auction), entirely contrary to the intent of legislature reflected from the Preamble and S. 14 of the Act, 2012---No illegality or irregularity had been noticed in the impugned judgments and orders passed by both the Court below---Constitutional petition was dismissed in limine, in circumstances.
Ms. Sara Bibi v. Muhammad Saleem and others PLD 2021 Isl. 236 ref