ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Constt: Petition No.D- 362, 398 & 706 of 2011

Constt: Petition No. D-3572  &  3581   of 2012

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______________________________________________________________________        DATE                                     ORDER WITH SIGNATURE OF JUDGE ______________________________________________________________________

           

For katcha Peshi.

 

 

                                                            Mr.Justice Aqeel Ahmed Abbassi &

                                                            Mr.Justice Ghulam Qadir Leghari.

 

 

 

Date of hearing: ____________

 

Mr. Zulfiqar Ali Sangi, Advocate for petitioner in

C.P No.D- 362 of 2011.

 

Mr.Manoj Kumar, Advocate for Respondents in C.P No.D-

362/2011, 3572 & 3581 of 2012

 

Mr.Ashok Kumar Dodeja, Advocate for Respondent No.10 & 11

in C.P No.D-3572 of 2012

 

Mr. Hassan Akbar, Advocate for Respondent No.11 in C.P No.D-

3572 of 2012.

 

Mr. Noor Hassan Malik, Asstt: A.G

 

 

           

                                    O R D E R

 

 

Aqeel Ahmed Abbassi J.  Since all the above petitions pertain to a dispute in respect of a plot i.e S.No. 405-A admeasuring 33,884 sq feet  situated near Naz Cinema Ghotki therefore, these petitions will be disposed of through common order, by consent of all the learned counsel and A.A.G.

                        Out of above five petitions, three petitions were filed from time to time by the petitioners, seeking restraining orders against the official respondents from dispossessing the petitioners from subject plot without due course of law, including  CP No.D-362/2011 filed on 10.02.2011, CP No.D-398 of 2011 filed on 11.02.2011 and CP No.D-706 of  2011 filed on 16.03.2011. Thereafter, two more petitions i.e C.P No.D-3572 of 2012 and CP No.D-3581 of 2012 were also filed on 17.12.2012 and 18.02.2012 by two individual petitioners as public interest petitions and sought directions of this Court to the effect that official respondents may be directed to reserve such plot for Children Park, School, Hospital etc and also to declare that the act of official respondents issuing lease of aforesaid plot in favour of private respondents is illegal.

 

2.                     From perusal of the contents of CP No. D-362/2011, CPNo.D-398 of 2011and CP No.D-706 of 2011, it transpires that petitioners claimed to be in possession of small kacha pacca shops, houses, cabins etc over subject plot, however, without any documents establishing their title or lawful possession over subject plot. In CP No.D-362 of 2011 filed on 10.02.2011 when the matter was taken up for hearing in Court, notices were ordered to be issued to the respondents and the parties were directed to maintain status-quo till next date of hearing. However, record shows that no stay was granted in CP No.D-398 of 2011 and CP No.D-706 of 2011 whereas,  on the statement of learned counsel for the petitioners, the above petitions were directed to be
taken up along with CP No.D-362 of 2011. As regards, CP No.D-3572 of 2012 and CP No.D-3581 of 2012 are concerned, no stay was granted by the Court and both the petitions were directed to be taken up along with CP No.D-362 of 2011 at the request of learned counsel for petitioners. On 03.04.2013 in CP No.D-3572 of 2012, it was ordered that till next date , no third party interest be created in respect of subject plot till next date. However, in CP No.D-3581 of 2012, no restraining order appears to have been passed, whereas above petition was being taken up along with aforesaid petitions at the request of learned counsel for the petitioner. It is surprising to note during all this period of about five years, no substantial order has been passed, whereas, above petitions were pending disposal without any useful progress.

3.                      On 19.01.2016, when above petitions were taken-up for hearing at some length, following order was passed.

 

     “ Mr. Qurban Ali Malano, Advocate representing the petitioners in C.P No.D-362 of 2011 called absent, no intimation received. Miss. Asma Soomro, Advocate is holding brief on behalf of Mr. Abdul Sattar Soomro, learned counsel for petitioners in C.P No.D- 398 & 706 of 2011 as the latter is out of station on account of some personal work.

                 No one has shown appearance on behalf of petitioner in C.P No.D-3581 of 2012. Mr. Hassan Akber, Advocate for respondent No.11 submits that instant petitions are pending since long, whereas, stay is operating which is seriously injuring the interest of the respondents and construction work has been stopped. He has also raised an objection with regard to maintainability of instant petitions, which according to learned counsel are not maintainable as the petitioners are not the aggrieved persons as the relief sought through instant petitions seeking cancellation of lease or sub-lease, cannot be extended particularly when the matters involved seriously disputed facts. Since learned Counsel for petitioners in the aforesaid petitions are not in attendance, as an indulgence and last chance, we are adjourning these matters to 16.2.2016 at 1.00 a.m with caution that if no body appeared in the above petitions on the next date, instant petitions will be dismissed for non- prosecution, learned Counsel for petitioners are directed to satisfy this Court as to maintainability of instant petitions on next date, when the instant petitions will be heard and disposed of at katcha peshi stage. Interim order passed earlier to continue.”

 

4.                     Finally, on 16.02.2016, when the above petitions came up for hearing, the learned counsel for the respondents have vehemently argued that above petitions have been filed with malafide intention by the petitioners who have no locus standi to file such petitions, as they do not possess any right and  title whatsoever or lawful possession over subject plot, which according to learned counsel for respondents, has been leased out in favour of the private respondents under a registered instrument.  Learned counsel for the respondents have further argued that in order to create confusion, the petitions have been filed by different persons with a common object to restrain the respondents from using their lawful property and net to raise any construction on their plot of land in accordance with law, so that the respondents may be blackmailed at the hands of petitioners. Per learned counsel, petitioners have failed to place on record any document of title or their lawful possession in respect of subject plot, whereas, under the garb of an exparte order obtained through misrepresentation in CP No.D-362 of 2011, the petitioners have managed to obtain further restraining order in one of the above petitions, requiring the respondents not to create any third party interest. Learned counsel for respondent have argued that since then, the private respondents in obedience to the order passed by this Court requiring the parties to maintain status quo, could not raise further construction which has caused serious financial losses to the respondent who has been restrained from utilizing his lawful property at the instance of petitioners who admittedly have no right or entitlement in respect of subject plot. It has been further contended by learned counsel for the respondents that the comments filed on behalf of official respondents as well as private respondents in the above petitions, reflect that subject plot has been leased out in favour of private respondents through a registered document, therefore if an aggrieved person having claim , right and interest over subject plot has to file a suit under section 39 of specific Relief Act, seeking cancellation of registered sale deed, instead of filing above frivolous petitions, which are liable to be dismissed with heavy costs.

 

5.                     Learned A.A.G has referred to the comments filed on behalf of official respondents and submits that prima facie petitioners have no  right, title or even lawful possession over the subject plot which stands leased out in favour of respondents, therefore unless, the registered sale deed is cancelled by competent Court of jurisdiction, no adverse inference can be drawn against private respondent(s). Per learned A.A.G., above petitions are misconceived and liable to be dismissed in limine, however  petitioners may approach the proper Court of civil jurisdiction seeking cancellation of registered sale deed or to file any other appropriate proceedings for cancellation of their right or title if any, in accordance with law before any forum and prayed that instant petitions are misconceived and liable to be dismissed.

 

 

                                                           

                                                                        J U D G E

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Irfan/PA                                                             J U D G E