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
.
______________________________________________________________________ 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
`
Irfan/PA J U D G E