ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C.P.No. D-1124 of 2021

Date of hearing

Order with signature of Judge.

Hearing of Case (Priority)

1.For orders on office objection

2.For hearing of CMA 5088/2021

3.For hearing of main case

Date of Hearing: 08-08-2021

Date of Order: 08-09-2021

Mr. Shoaib Niaz Khaskheli Advocate for Petitioners.

Mr. Ahmed Ali Shahani, Assistant A.G-Sindh.

O R D E R

Muhammad Junaid Ghaffar J., Through this Petition, the Petitioners have sought the following relief(s):

“(a) That this Honorable Court may graciously be pleased to declare that the petitioner is legally lawfully owner in the light of grant/sanad’s on different dates i.e. 12-11-1989 of petitioner’s plot and act of respondents is illegal and excess use of authority and the act and conduct of the respondents No.02,04,06 and rest of all respondents for demolishing the houses of Petitioners without having any direction of honourable court or usage of power is illegal, unlawful and without jurisdiction in any manner whatsoever in nature except in due course of law.

(b) This Honorable court may graciously be pleased to declare the notice issued by respondent No.04 as null and void.

(c) To direct the respondents thereby restraining them from interfering, demolishing and interfering with fundamental rights, title, possession and enjoyment of the above property directly or indirectly in any manner whatsoever, in nature without adopting due course of law, till final disposal of present petition”.

2. At the very outset, we have confronted the Petitioners’ Counsel as to how this Petition is maintainable in view of the fact that Petitioners have already filed Civil Suit No.34 of 2021 (Habib-ur-Rehman and others v. P.O. Sindh and others) in respect of same relief against alleged action of respondents, whereby, they are removing and / or demolishing the property of the Petitioners, and to this he submits that since no written statement has been filed, the matter is not being proceeded by the trial Court and therefore this petition is maintainable. However, we are least impressed by this submission inasmuch as the Petitioners had by themselves chosen the remedy of a Civil Suit; and therefore, mere non filing of a written statement does not entitle the petitioner to seek remedy under the Constitutional jurisdiction by way of this petition.

3. Moreover, in like situation, in C.P.No.D-6550 of 2020, the matter of illegal encroachment on various Government lands was taken up by a Division Bench of this Court at Sukkur, and various directions were issued from time to time for demolishing all such illegal construction and encroachment and pursuant to that, various affected people had approached the Court against such action. The matter was then referred to a larger Bench of this Court at the Principal Seat by the orders of the Hon’ble Chief Justice and on 18.01.2021, an order was passed and the relevant part of such order reads as under:

Prior to parting with this order, it is considered appropriate to address the numerous applications for impleadment, per Order I Rule 10 CPC, filed and being filed in the present petition to agitate individual grievances. As noted supra, the ambit of this bench is confined to the issue demarcated above, to be considered in the light of the SC Directions. These applications require this Court to enter into a fact finding exercise, requiring appreciation of evidence and adjudication of conflicting claims, notwithstanding settled law that settlement of factual2 issues is discouraged in the exercise of Constitutional jurisdiction. In such regard, we are constrained to observe that the applicants may prefer their respective claims before the fora of competent jurisdiction, which shall decide the same independently upon merit. With the said observations all such pending / listed applications are hereby disposed of.

4. One of the parties who was aggrieved with such action had approached the larger Bench in a connected petition bearing No.D-3009 of 2015 by way of an application bearing CMA No.28286 of 2020 under Order 1 Rule 10 CPC, praying therein that the order of the Court and the notice issued pursuant to the directions of the Court was not valid and applicable to the Applicant as the property in question was in possession of the Applicant on the basis of a registered lease issued in its favor. The larger bench had dismissed the said application on 1.2.2021 “upon the same terms as contained with respect to Order 1 Rule 10 CPC applications in the order dated 18.1.2021”, as above. The Applicant was still aggrieved and approached the Hon’ble Supreme Court and on 15.3.2021 while refusing leave to Appeal against the said order, has been pleased to observe that:

We agree that the plea raised by the petitioner of having lawful title to the property occupied by it should be raised before the Court of plenary jurisdiction authorized to record evidence and give findings therein. The learned counsel submits that the competent Court is not specified in the impugned order. Clearly petitioner may, it so inclined, approach the learned Civil Court to consider its plea on merit and strictly in accordance with law. Neither the impugned order dated 1.2.2021 nor the order dated 18.1.2021, both passed in CP No.D-3009 of 2015, impose any limitation on a competent Court to consider such plea independently on its merits. There is accordingly no ground for this Court to interfere with the impugned order. This petition is therefore dismissed and leave to appeal is refused.

5. The crux of the above order is that in such matters, it is the Civil Court which is the proper Court to seek remedy as it involves determination of a factual dispute, hence otherwise this petition cannot be entertained. It may also be noted that this Court is not a Court of injunction in these matters. The Petitioners have to approach the Civil Court for hearing of their injunction application and passing of an ad-interim order.

6. Accordingly, this Petition being misconceived is hereby dismissed. However, trial Court seized with the matter i.e. Civil Suit No.34 of 2021 is directed to hear the Petitioners on their injunction application and pass appropriate ad-interim orders; or for that matter, a final order in accordance with law at the earliest so as to redress the grievance of the Petitioners against demolition exercise being carried out by the respondents.

7. With these observations, this Petition stands dismissed. Let copy of this order be issued to the concerned trial Court (Senior Civil Judge-I, Khairpur) seized with Suit No.34 of 2021.

JUDGE

JUDGE

Ahmad