Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. D – 6378 of 2016

Before :

Mr. Justice Nadeem Akhtar

Mr. Justice Arshad Hussain Khan

For hearing of Main Case :

(Detailed report filed by District & Sessions Judge Karachi-East) :

09.12.2016 : Arshad Ali (CNIC No.42201-0882083-1), son of the petitioner.

Mr. Miran Muhammad Shah, Addl. Advocate-General, Sindh.

Arif Razzaq, SHO Landhi Karachi.

O R D E R

NADEEM AKHTAR, J. – This Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed by the petitioner Mst. Fatima Begum as the lawful owner of House / Quarter No.31/1, Area 5-D, Landhi No.6, Karachi (‘subject property’). She has claimed that respondent No.1 Bashir Ahmed is her tenant in respect of the subject property. The case of the petitioner, as averred in the petition, is that a civil Suit was filed by respondent No.1 claiming to be the owner of the subject property, which was dismissed on merits, and the appeal filed by him against such dismissal was also dismissed, whereafter he filed Civil Revision Application No.173/2010 before this Court against the above concurrent findings of the Courts below. Meanwhile, the petitioner filed a rent case in respect of the subject property against respondent No.1 which was allowed, and the appeal filed by respondent No.1 against his order of ejectment was also dismissed whereafter respondent No.1 filed Constitutional Petition No. S-1320/2011 before this Court against the concurrent findings in the rent proceedings. Execution Application No.52/2010 filed by the petitioner against respondent No.1 was allowed on 11.03.2013, but the ejectment order could not be executed in view of the stay granted in the above petition filed by respondent No.1. By a common judgment delivered by a learned Single Judge of this Court on 29.09.2016, both the above Civil Revision Application and Constitutional Petition filed by respondent No.1 were dismissed with costs of Rs.50,000.00 by directing respondent No.1 to vacate the subject property within thirty (30) days from the date of the said judgment and to deposit the above amount with the Nazir of the District and Sessions Judge Karachi East in favour of Amin Lakhani Memorial Clinic For Lawyers at Karachi Bar Association, and the Executing Court was directed to recover the above amount of costs as execution of money decree by attachment of movable and immovable properties of respondent No.1 and to complete the entire exercise within thirty (30) days. The Executing Court was further directed by this Court that in case the subject property is not vacated by respondent No.1, writ of possession shall be issued with police aid and permission to break open the locks, if any, without further notice.

2. We have examined the above referred common judgment delivered by the learned Single Judge of this Court, which supports the case of the petitioner. On the first date of hearing (24.11.2016), it was submitted by the learned counsel for the petitioner that in compliance of the directions given by this Court writ of possession was issued by the Executing Court with police aid and permission to break open the locks, but the same was not executed by the SHO concerned / respondent No.2 as he is in collusion with and under influence of respondent No.1. It was further submitted by him that it was the duty of the Executing Court to execute the order as directed by this Court, which has not been done in the present case, and as such the petitioner has no other remedy in law except for approaching this Court.

3. Record shows that execution application filed by the petitioner was allowed way back on 11.03.2013, but possession of the subject property could not be taken over from respondent No.1 because of the stay granted by this Court in his petition, which stay stood vacated on 29.09.2016 when his petition was dismissed with costs and with specific directions to the Executing Court to take over possession of the subject property from respondent No.1 within thirty (30) days from 29.09.2016 and also to recover the amount costs from him within the said period. Needless to say that the sole function of the Executing Court was to execute the order of eviction passed against respondent No.1 in the rent proceeding which had attained finality, even if no directions had been given by this Court ; and when specific directions were given by this Court with a specific time-frame, the Executing Court was duty-bound to comply with such directions in letter and spirit. Prima facie it appears that by not executing the order, the Executing Court had not only failed in exercising the jurisdiction vested in it by law, but has also not complied with the directions given by this Court. This is a matter of grave concern for this Court, and in this context we may refer to Mst. Mubarak Salman and others V/S The State, PLD 2006 Karachi 678, wherein it was held inter alia by a learned Division Bench of this Court that once it has been found that Presiding Officers of the Courts have abused the process of the Court, then it is incumbent upon the Superior Courts, and it is one of the duties of the Superior Courts, to correct such wrongs of the subordinate courts by exercising whichever powers available with them either inherent, supervisory, revisional or Constitutional powers, either on the application of any party or under its suo motu jurisdiction ; the reason being that it was the act of the Court done in the abuse of process of Court, that is to be corrected by the Court itself or by the Superior Court as soon as it is brought to its notice through any source ; and, except for the superior Courts, there is no other authority which can correct such act of the subordinate courts.

4. In the above circumstances, on 24.11.2016 notice was ordered to be issued to the respondents as well as to the Advocate General Sindh ; the Executing Court was directed to submit before the next date a detailed report / explanation for not executing the order and not complying with the directions of this Court within the stipulated period with regard to taking over possession of the subject property from respondent No.1 and recovering the amount of costs from him in R.C. Execution No.52/2010 (Rent Case No. 470/2004) Mst. Fatima Begum V/S Bashir Ahmed ; and respondent No.2 / SHO P.S. Landhi Karachi East was directed to appear in person before this Court on the next date and also to produce respondent No.1 Bashir Ahmed before this Court without fail.

5. In compliance of the aforesaid order, a detailed report dated 01.12.2016 has been filed by the Executing Court, which is taken on record. SHO P.S. Landhi Karachi Arif Razzaq is present in person. He states that writ of possession issued by the Executing Court has been executed by taking over possession of the subject property from respondent No.1 and handing over the same to the petitioner. This fact has been confirmed by the petitioner’s son Arshad Ali who is present on behalf of the petitioner. As the petition has served its purpose, the same stands disposed of.

J U D G E