ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Justice Mrs. Rashida Asad

High Court Appeal No.307 of 2021

___________________________________________________________________ Date Order with signature of Judge

___________________________________________________________________

FRESH CASE:

1. For order on CMA No.2447/2021 (Urgent).

2. For order on CMA No.2448/2021 (u/s. 151 CPC).

3. For order on CMA No.2449/2021 (Limitation).

4. For order on office objection a/w reply as at ‘A’.

5. For order on CMA No.2450/2021 (Exemption).

6. For hearing of main case.

7. For order on CMA No.2451/2021 (Stay).

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15^th December 2021

Mr. Muhammad Ali Lakhani, Advocate for Appellants.

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1. Urgency granted.

4. Learned counsel for the appellant undertakes to comply with office objection before next date of hearing.

5. Exemption granted, but subject to all just exceptions.

2,3,6&7. Instant High Court Appeal has been filed against two orders dated 22.10.2021 and 01.12.2021 passed by the learned Single Judge of this Court in Suit No.2316 of 2021, whereby, according to learned counsel for the appellants, adverse order has been passed against the appellants, who are not a party in the aforesaid suit, whereas, in the garb of restraining order passed on 22.10.2021, Official Assignee visited the site of the appellants and has stopped the appellants for carrying on construction work of HMR Waterfront (Pvt.) Limited i.e. appellant No.1, over the land, which has been leased out to the appellants by D.H.A., whereas, all the approvals have been obtained by the appellants from the relevant authorities in this regard. It has been further contended by the learned counsel that notice of contempt has also been issued to the appellants for alleged violation of Court’s orders, whereas, the appellants were never served with Court’s notice, nor have been provided any opportunity of being heard. Without prejudice to above submissions, it has been submitted that since the appellants are in possession of lawful documents relating to title of the property and thus, entitled to carry-on the lawful construction activity, therefore, impugned orders could not be passed without hearing the appellants.

Mr. Kh. Shams-ul-Islam, Advocate, who is present in Court in some other cases, submits that though no notice under Order 43 Rule 3 CPC has been served upon the respondents No.1 to 6, however, he waives notice of instant appeal, claims its copy alongwith annexures and requests for time to file vakalatnama and objection/reply on behalf of the aforesaid respondents. It has, however, been submitted by the learned counsel for respondents that the aforesaid orders were challenged by the DHA in High Court Appeal No.303/2021, which has been disposed of by this Court vide order dated 13.12.2021, wherein, all the parties have been directed to appear before the learned Single Judge and to file objection to all the pending applications as well as objection to the report of Official Assignee, with further directions that the application filed under Order VII Rule 11 CPC by the D.H.A. will be heard first, therefore, instant appeal may be disposed of in similar terms. Per learned counsel, today the matter was fixed before the learned Single Judge, where all the parties were present, and the learned Single Judge has proceeded to hear the application filed under Order VII Rule 11 CPC and the matter has been adjourned to 10.01.2022 for further arguments on such application. Per learned counsel, instant appeal is time-barred in respect of order dated 22.10.2021. According to the learned counsel for respondents, learned Single Judge has not proceeded on the contempt application in view of the order passed by this Court in the aforesaid terms, therefore, instant High Court Appeal is misconceived under the facts and circumstances stated hereinabove.

Mr. Ahmed Ali Hussain, Advocate has shown appearance on behalf of the respondent No.9, waives notice of instant appeal, claims its copy alongwith annexures and requests for time to file vakalatnama and objection/reply.

While confronted with hereinabove submissions of learned counsel for respondents No.1 to 6, learned counsel for the appellants submits that appellants will be satisfied, if the appeal may be disposed of in terms of order passed by this Court in H.C.A. No.303/2021, while extending the similar protection, provided that the appellants may be allowed to be impleaded as party in the aforesaid suit and to file written-statement and reply/objections in respect of all pending applications, including the application for contempt of Court’s orders, and till next date of hearing, no adverse action may be taken nor any adverse inference may be drawn against the appellants pursuant to the impugned orders passed in the instant matter.

We have heard the learned counsel for the parties and perused the record with their assistance.

In view of the order already passed by this Court on 13.12.2021 in H.C.A. No.303/2021 in respect of the subject controversy, we are of the opinion that the grievance expressed through instant High Court Appeal has been somehow taken care of vide our order passed in the above High Court Appeal, wherein, the learned Single Judge has been directed to decide the application filed under Order VII Rule 11 CPC by the DHA first with regard to the maintainability of the aforesaid suit, whereas, the learned Single Judge has not passed any further order on the contempt application or the earlier orders passed in the instant suit. Accordingly, instant High Court Appeal is disposed of in terms of order dated 13.12.2021 passed by this Court in HCA No.303/2021 while extending the similar protection to the appellants, whereas, the appellants are at liberty to file proper application before the learned Single Judge for becoming party in the aforesaid suit and raise all such objections before the learned Single Judge, who may pass appropriate orders, after hearing the appellants, in accordance with law.

Instant High Court Appeal stands disposed of in the above terms.

J U D G E

*Farhan/PS*