Kamran (Petitioner) VS Mrs. Zaitoon & Others (Respondent)

IN THE HIGH COURT OF SINDH AT KARACHI

C.P.No.S-758 of 2025 Kam ran Versus Mst. Zaitoon and others

DATE ORDER WITH SIGNATURE OF JUDGE(s)

Date of Hearing: 21.05.2026.

Date of Order: 17.08.2026.

Date of announcement: 24.08.2026.

M/s. Nousheen Khan Tajammul, Abdul Hakeem, Advocate for petitioner.

Mr. Muhammad K.halid, Advocate for Respondent No. 1.

ORDER

ZULFIQAR ALI SANGI, J: Through this Constitutional Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has called in question the legality and propriety of (i) the order dated 13.07.2024 passed by the learned IVth Additional District Judge, Karachi Central in Civil Revision No.24 of 2022, whereby the revision preferred by the petitioner against the order dated 03.03.2022 was dismissed; and (ii) the order dated 03.03.2022 passed by the learned IIIrd Senior Civil Judge, Karachi Central in Civil Suit No.742 of 2010, whereby an application purportedly filed by respondent No.1 under Order XXI Rules 88 and 89, C.P.C. was allowed and she was permitted to deposit the amount of the highest bid for purchasing the

IN THE

suit property HIGHtoCOURT in preference OF the petitioner, had emerged whoSINDH AT the as KARAC

highest bidder in the auction.

C.P.No.S-307 of 2026

2.Briefly stated, the facts giving rise to the present petition are that Muhammad Shariq Harneed died at Karachi on deceased Abdul Waheed son of Abdul Versus Mst.

22.10.1990, leaving behind, Mahwish inter Hanif &properties alia, immovable another bearing

Nos.10/ 755 and 10/754, PlotDATE Liaquatabad, Karachi. Some of his legal ORDER WITH SIGNATURE OF JUDGE(s heirs instituted Civil Suit No.742 of 2010 for declaration, administration, rendition of accounts and permanent injunction in Date of Hearing: 21.05.2026.

respect of the said properties. During pendency of the suit, an Date ofunder application Order: Partition Act, 1893 was filed seeking Section 3 of the 17.08.2026.

Date of announcement:

determination and purchase of the shares

of the value of the property

Mr. Syed Muhammad Abid Ali Qadri, Advocate for Petitioner. Respondent No.1 Mst. Mehwish Hanif present in person.

Page 2 of 7 C.P.No.5-758 of 2025

the concerned preliminary decree was passed whereby the Nazir of value of the suit District Court was appointed to ascertain the market auction, with properties and to dispose of the same through public legal heirs direction to distribute the sale proceeds amongst the law.

according to their respective shares under the applicable decree, the Nazir

3.In pursuance of the aforesaid preliminary respect of Plot conducted auction proceedings on 27.07.2021 in the highest bid No.10/755, Liaquatabad, Karachi. The petitioner offered requisite amount of of Rs.51,75,000/- and deposited the amount, through pay order.

Rs. 11,00,000/-, being one-fourth of the bid consideration Subsequently, according to the petitioner, the entire sale was deposited within the prescribed period.

initially moved

4.After conclusion of the auction, respondent No.1 to bring a an application under Section 151, C.P.C. seeking permission 11.08.2021, she filed purchaser offering Rs.60,00,000/-. Thereafter, on 88 and 89, C.P.C., an application purportedly under Order XXI Rules preferential right claiming that she was a co-sharer/legal heir and had a highest bid offered by the to purchase the property by matching the share of the petitioner. She also expressed willingness to deposit the money for payment to other legal heirs and five percent of the purchase the auction purchaser.

specifically raised

5.The petitioner contested the application and contended that objections regarding its maintainability. It was nor offered an respondent No.1 had neither participated in the auction already been equal bid at the time of sale; that the auction had contemplated by concluded; that the mandatory five percent amount and that the other Rule 89 had not been deposited with the application;

IN THE HIGH COURT OF SINDH

statutory requirements had likewise not been

AT KAR

fulfilled. Similar

objections were raised by respondent No.2.The learned trial Court, C.P.No.S-307 of 2026 03.03.2022, allowed the application under however, vide order dated Muhammad Shariq to be a co -sharer Order XXI Rule 88, C.P.C., holding respondent No.1 Versuswithin fifteen days, and directing her to deposit the amount of the bid Mst. Mahwish Hanif & another confirmed.

failing which the bid of the petitioner would stand

DATE ORDER WITH SIGNATURE OF JUDG

6.Aggrieved, the petitioner preferred Civil Revision No.24 of Karachi Central. The before the learned IVth Additional District Judge, Date of Hearing: 21.05.2026. dismissed the learned Revisional Court, vide order dated 13.07.2024, Dateprincipally revision, of Order: bid offered by the petitioner was holding that the17.08.2026.

enforceable right merely in the nature of an offer and did not create an Date of announcement: 24.08.2026.

Mr. Syed Muhammad Abid Ali Qadri, Advocate for Petitione

Page 3 of 7 C.P.No.S-758 of 2025

Reliance was until acceptance and confirmation of sale by the Court. in placed, inter alia, upon the judgment of the Hon'ble Supreme Court 2134).Hence, Jawed v. First Women Bank Ltd. and others (2020 SCMR the present petition.

7.Learned counsel for the petitioner has contended that the Courts XXI Rules below have misconstrued the scope and application of Order where, at the 88 and 89, C.P.C. According to him, Rule 88 applies only them is time of auction, two persons offer the same amount and one of unfettered right to a co -sharer. It does not confer upon a co-sharer an highest bidder intervene after conclusion of the auction and displace the that the merely by offering to match his bida is further contended requirements of Rule 89 are mandatory and that respondent No.1 failed the five percent to deposit the amount required by law, including the compensation payable to the auction purchaser. It is argued that auction petitioner, on the other hand, had complied with the terms of the sale ought and deposited the entire sale consideration, and therefore to have been confirmed in his favour.

counsel for respondent No.1 has supported the 8. Learned a co- impugned orders and submitted that respondent No.1, being acquire the sharer in the suit property, possessed a preferential right to in property. It has further been argued that no vested right accrued highest bid, favour of the petitioner merely because he had offered the It is therefore as the sale had not yet been confirmed by the Court. jurisdiction contended that the learned Courts below rightly exercised in favour of the co -sharer.

carefully

9.I have heard learned counsel for the parties and have

IN THE HIGH COURT OF SINDH AT KARAC

examined the record and the impugned orders.

C.P.No.S-307 of 2026 The principal question requiring determination is whether Order respondent No.1, after conclusion of the auction, could invoke Muhammad Shariq XXI Rule 88, C.P.C. merely by offering to match the highest bid, and Versus Mst.

ell)* whether the requirements of 89 had been Mahwish Rule another with.

&complied duly Hanif

appropriate to examine be SIGNATURE the

11. DATE ORDER

Before proceeding further, it would WITH OF JUDGE(s specific statutory scheme. Order XXI Rule 88, C.P.C. deals with a where situation arising at the time of sale. The rule contemplates that Date of Hearing: 21.05.2026. same amount two or more persons, one of whom is a co-sharer, bid the be the bid for the property, the bid of the co -sharer shall be deemed to Date of Order: 17.08.2026.

the auction of the co-sharer. The statutory preference is thus linked to Date of announcement: 24.08.2026.

Mr. Syed Muhammad Abid Ali Qadri, Advocate for Petitioner.

C.P.No.S-758 of 2025 Page 4 of 7

itself and to the contemporaneous making of an equal bid. The provision cannot reasonably be construed as conferring a general right upon a co- sharer to remain absent from the auction, permit another person to become the highest bidder and thereafter, after the auction has concluded, seek substitution by filing an application offering to match the highest bid. In the present case, it is an admitted position that respondent No.1 did not participate in the auction held on 27.07.2021 and did not make any bid at the time of auction. The petitioner alone emerged as the highest bidder. Respondent No.1 approached the Court subsequently and, on 11.08.2021, sought permission to match the highest bid. Thus, the very factual situation contemplated by Rule 88, namely, competing bids of the same amount at the time of sale, was absent. The learned trial Court, therefore, fell into error in treating the mere status of respondent No.1 as a co-sharer as sufficient to invoke Rule 88, without first examining whether the statutory conditions prescribed by the rule existed.

12.The matter assumes greater significance when examined in the context of Rule 89.Rule 89 is not merely procedural in character. It prescribes specific conditions upon which an application to set aside a sale may be entertained. The person seeking relief under the rule is required to make the deposits prescribed therein within the statutory framework. The requirement relating to payment of five percent of the purchase money to the purchaser is specifically intended to compensate the auction purchaser whose bid has resulted in the sale proceedings and who is sought to be displaced. Such statutory requirement cannot be substituted by a mere undertaking or expression of willingness to

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deposit theTHE amountHIGH COURT OF SINDH AT KARAC subsequently.

13.C.P.No.S-307 The record shows that respondent No.1 didof not2026 accompany her application with the requisite statutory deposit. In particular, the five Muhammad Shariq Versus was not deposited in percent amount payable to the auction purchaser accordance with Rule 89.Mst. TheMahwish learned Hanif & another trial Court nevertheless entertained and allowed the application without recording any lawful DATE ORDER WITH SIGNATURE OF JUDGE(s basis for dispensing with the mandatory requirement. In our legal system, where a statute prescribes a particular condition as a Date of Hearing: 21.05.2026.

prerequisite for invoking a remedy, the Court cannot dispense with such Dateon condition Order: considerations ofequitable or merely because the applicant

claims a preferential Date subject property.

interest in the 24.08.2026.

of announcement:

Mr. Syed Muhammad Abid Ali Qadri, Advocate for Petitioner. Respondent No.1 Mst. Mehwish Hanif present in person.

14.It is equally important to note that the application filed by respondent No.1 was not an application challenging the auction on the ground of fraud or material irregularity causing substantial injury within the contemplation of Order XXI Rule 90, C.P.C. Nor were the statutory prerequisites of Rule 90 complied with. The learned trial Court itself observed that the grounds advanced by the parties questioning the auction proceedings would fall within the scope of Rule 90. Having so observed, the Court could not thereafter permit respondent No.1 to achieve, indirectly through Rule 88, what could not lawfully be achieved under Rule 90.

15.The Revisional Court principally proceeded on the premise that the highest bid of the petitioner was merely an offer and that no enforceable right accrued to him before confirmation of sale. There can be no quarrel with the general proposition that an auction sale conducted by a Court does not become absolute merely upon the highest bid being offered and that the sale remains subject to confirmation in accordance with the provisions of Order XXI, C.P.C. The principle, however, does not mean that every person claiming to be a co- sharer may, after conclusion of auction, displace the highest bidder without satisfying the statutory requirements prescribed by the Code. The distinction between absence of an absolute right in the auction purchaser before confirmation and existence of a lawful right in a subsequent claimant to displace the auction purchaser is material. The former does not automatically establish the latter.

16.The judgment of the Hon'ble Supreme Court relied upon by the learned Revisional Court in Jawed v. First Women Bank Ltd. and others (2020 SCMR 2134) lays down the general principle concerning the

IN THE HIGH COURT OF SINDH AT KARACHI

nature of a bid and the necessity of confirmation of sale. However, the C.P.No.S-307 said principle cannot be read of 2026 as authorizing departure from the express Order XXI Rules 88 and 89, C.P.C. The question before k e . requirements of " Muhammad lil this Court is not whether th e petitioner's Shariq bid, by itself, had attained the Versus \ status of an absolute sale; rather, the question is whether respondent v. Mst. Mahwish Hanif & another No.1 had acquired a statutory right, after the auction, to substitute

DATE

herself ORDER for the highest bidder WITH without SIGNATURE complying with theOF JUDGE(s) conditions prescribed by law. In my considered view, she had not.

17.Date of Hearing:

Another 21.05.2026.

material circumstance is that the petitioner had deposited the entire bid amount of Rs.51,75,000/- pursuant to the Date of Order: 17.08.2026.

auction proceedings. The Nazir had accepted the amount and submitted Date of announcement: 24.08.2026.

Mr. Syed Muhammad Abid Ali Qadri, Advocate for Petitioner. Respondent No.1 Mst. Mehwish Hanif present in person.

the relevant report before the learned trial Court. The auction was conducted pursuant to the preliminary decree dated 10.07.2013. No finding has been recorded by either of the Courts below that the auction itself was vitiated by fraud, collusion or any material irregularity causing substantial injury to any person. Nor was the sale set aside upon any legally established ground under Order XXI Rule 90, C.P.C. In these circumstances, the Court was required to consider the petitioner's claim in accordance with the statutory scheme governing confirmation of judicial sales.

18.It is also pertinent that respondent No.1 admittedly approached the Court after the auction had concluded. Her subsequent application cannot be treated as a continuation of the bidding process. Once the auction had been concluded and the highest bid had been recorded, a person who had not participated in the auction could not retrospectively create an equal bid for the purposes of Rule 88.To hold otherwise would render the auction process uncertain and expose every concluded judicial auction to indefinite claims by persons who had chosen not to participate when property was actually put to sale.

19.The preferential right of a co-sharer, where recognized by law, is undoubtedly entitled to protection. However, such right must be exercised within the four corners of the statutory provision conferring it. A preferential right cannot be enlarged into an unrestricted right of substitution after completion of the auction. The Courts are required to balance the rights of co-sharers with the sanctity and finality of judicial auction proceedings. The latter cannot be undermined merely on the

IN THE HIGH COURT OF SINDH AT KARACH

basis of an unaccompanied offer to match the highest bid.

20.The learned trial Court, therefore, committed material illegality in C.P.No.S-307 of 2026 allowing the application under Order XXI Rule 88, C.P.C. despite the absence of the essential factual contemplated by that condition Shariq Muhammad provision and despite non-compliance with the statutory requirements Versus Mst. Mahwish of Rule 89, C.P.C. The learned Revisional Hanif Court,&instead anotherof correcting the said jurisdictional and legal error, affirmed the impugned order DATE on the ground principally ORDER that theWITH SIGNATURE petitioner's OFyetJUDGE(s) bid had not been confirmed. In doing so, it failed to address the fundamental question as to whether respondent No.1's application itself was maintainable. Date of Hearing: 21.05.2026.

21.The jurisdiction of this Court under Article 199 of the Constitution Date of Order:

is undoubtedly extraordinary and17.08.2026.

discretionary. Ordinarily, concurrent Dateofoffact findings announcement: 24.08.2026.

recorded by the Courts below are not interfered with in Mr. Syed Muhammad Abid Ali Qadri, Advocate for Petitioner.

constitutional jurisdiction. However, where such findings are founded upon misreading of the statutory provisions, failure to exercise jurisdiction in accordance with law, or assumption of jurisdiction where none exists, constitutional interference becomes justified. The present case falls within that exceptional category. The impugned orders do not merely contain an error of appreciation; rather, the Courts below have permitted a statutory preference to be exercised in a manner not contemplated by Order XXI Rule 88, C.P.C., while overlooking the mandatory requirements attached to the remedy invoked.

22.For the foregoing reasons, this Court is of the considered view that the impugned orders dated 03.03.2022 and 13.07.2024 cannot be sustained in law. Accordingly, the present Constitutional Petition is allowed. The order dated 13.07.2024 passed by the learned IVth Additional District Judge-IV, Karachi Central in Civil Revision No.24 of 2022 and the order dated 03.03.2022 passed by the learned IIIrd Senior Civil Judge, Karachi Central in Civil Suit No.742 of 2010 are hereby set aside. Consequently, the application dated 11.08.2021 filed by respondent No.1 under Order XXI Rules 88 and 89, C.P.C. is dismissed for want of compliance with the statutory requirements and for being otherwise not maintainable in the circumstances of the case.

23.As regards the petitioner's prayer for confirmation of sale, the record reflects that he was the highest bidder in the auction conducted on 27.07.2021 and that the entire bid amount of Rs.51,75,000/- has been deposited. No legally sustainable ground for setting aside the auction has been established before this Court. The learned trial Court is, therefore, directed to proceed with the matter strictly in accordance with Order XXI, C.P.C., and, subject to completion of any remaining statutory formalities, to confirm the sale in favour of the petitioner and issue the requisite sale certificate in accordance with law. The learned trial Court shall complete the consequential proceedings expeditiously, preferably within sixty days from receipt of a certified copy of this judgment.

24.The petition stands allowed in the above terms. IN

25.There shall be no order as to costs.

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