ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. NO. 342 of 2008

Date Order with signature of Judge

Before: Mr. Justice Gulzar Ahmed

Mr. Justice Irfan Sadaat Khan

1. For Katcha Peshi

2. For hearing of CMA No. 1937/08

3. For orders on CMA No.1986/08

4. For orders on CMA No.1987/08

5. For orders on CMA No.1988/08

6. For orders on CMA No.1989/08

7. For orders on CMA No.1990/08

8. For orders on CMA No. 1991/08

9. For orders on CMA No. 1992/08

10. For orders on CMA No. 1993/08

11. For orders on CMA No. 1994/08

12. For orders on CMA No. 1995/08

13. For orders on CMA No. 1996/08

14. For orders on CMA No. 1997/08

15. For orders on CMA No. 1998/08

16. For orders on CMA No. 1999/08

17. For orders on CMA No.2052/08

18. For orders on CMA No.2053/08

19. For orders on CMA No.2054/08

20. For orders on CMA No.2055/08

21. For orders on CMA No.2056/08

22. For orders on CMA No.2057/08

23. For orders on CMA No.2058/08

24. For orders on CMA No.2059/08

25. For orders on CMA No.2191/08

26. For orders on CMA No.2192/08

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Date of hearing 02.3.2010

Mr. Waseem Akhtar Advocate for the Appellant.

Mr. Muhammad Hanif Advocate for the Intervener.

Mr. Dilawar Hussain Advocate for Official Liquidator.

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GULZAR AHMED, J: This is an appeal filed by M/s. Qamran Construction Company (Pvt.) Ltd. against the order dated 04.11.2008 and 21.11.2008 passed in JM No.27/88 by the learned Company Judge.

The Counsel for the appellant has contended that it was owner of a project known as Marine Drive and has sold flats and shops in the said project but through the impugned orders the learned Company Judge allowed the Official Liquidator to sell certain flat in the said project. He contended that the flat allowed to be sold had nothing to do with M/s. Shaikh Sajjad Hussain & Sons (Pvt.) Limited and that they belong to the appellant.

On the other hand Mr. Dialwar Hussain appearing for the Official Liquidator has disputed the fact that the flat was owned by the appellant and has contended that as per the record available with the Official Liquidator, the flat was the property of the company in liquidation and it was rightly ordered to be sold by the impugned order. It seems that some of the persons have also filed applications for becoming party in this appeal.

We have considered the submissions made by the learned Counsel for the parties and have gone through the record.

It appears that through order dated 12.9.2008 in the same JM the learned Company Judge has allowed selling of certain flats and shops in the project known as Marine Drive on Plot No. Fl-10, Block-2, Clifton, Karachi. One Umeed Ali son of Ahmed Ali has filed an application under section 12(2) CPC claiming himself to the owner of Flat No.802 in the Marine Drive project on the basis of a Sale Agreement made with one Afzal Khan. The learned Company Judge after elaborate discussion in the order dated 4.11.2008 came to the conclusion that no case of fraud or misrepresentation was made out upon which the application was dismissed and the order of selling the said flat was maintained. In the order dated 21.11.2008 the learned Company Judge has directed the Nazir to implement the earlier order dated 4.11.2008.

Though it was contended by the Counsel for the appellant that the project Marine Drive belongs to the appellant and in this respect he has referred to the Agreement dated 30.9.1986 made between M/s. Muhammad Naqi & Company and the appellant and also to the Indenture of Lease dated 12.3.1983 of the plot, it appears that the Plot No. Fl-10, Block-2, Clifton, Karachi belongs to M/s. Naqi & Company as the lessor of the plot in terms of the Indenture of Lease referred to above while through the Agreement the appellant was to make construction on the said plot and sale the flats and shops according to the terms contained in the Agreement. It was admitted by the Counsel for the appellant that all the flats and shops in the project Marine Drive were sold and that subleases were executed in favour of the purchasers of the flats and shops by M/s. Muhammad Naqi & Co. To the extent of claim of the appellant that it is the owner of the project stands negated by very fact that it has no power to convey to the purchasers the flats and shops purchased by them in the said project. The Counsel for the appellant, however, was candidly asked as to what right the appellant has of its own in project, he stated that as the appellant has sold the flats and shops, the appellant apprehends that if shop which is allowed to be sold in terms of the impugned order, the purchaser of the flat will file case against the appellant. He, however, candidly admitted that the appellant has no subsisting right, title or entitlement in the flat the subject matter of the impugned order.

We are afraid that merely for the reason that the appellant apprehends filing of case against it by purchaser of the flat will not provide justification to the appellant to file appeal. If the right of any of the purchaser of the flat is affected by the impugned order they themselves can come and object to the same in accordance with law before the Company Judge or by way of filing of an appeal against the impugned order but the appellant on no basis can maintain the present appeal as it is not real aggrieved party. Even otherwise, the claim of the ownership of the appellant of flat is seriously in doubt for the reason that the appellant has no interest in the land as admittedly the subleases of the flat was signed and executed by M/s. Muhammad Naqi & Co and not by the appellant.

The very impugned order shows that it was passed on the application of Umeed Ali who has neither been made a party in this appeal nor is it stated that he has field an appeal against the impugned order. The only inference that can be drawn from such fact is that perhaps Umeed Ali may have been staged by the appellant itself.

Be that as it may, as noted above, no right, title or interest of the appellant itself being involved in the subject matter of the appeal, we do not find as to how the appeal can be maintained by the appellant.

For the forgoing reasons, the appeal is found to be not maintainable and is dismissed as such in limine.

All the listed applications are also disposed of leaving the applicants thereof to avail appropriate remedy in accordance with law.

After hearing the learned Counsel for the parties through a short order passed today, the appeal was dismissed, above are the reasons for the same.

J U D G E

Aamir/PS