ORDERSHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

1^stAppeal No. S-19 of 2009

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DATE ORDER WITH SIGNATURE OF JUDGE ______________________________________________________________________

Hearing of case (Priority)

1. For hearing of CMA 254/2009 (1 R.10)

2. For hearing of CMA 260/2009 (1 R.10)

3. For hearing of main case.

4. For hearing of CMA 244/2009

Date of Hearing: 13.09.2021

Date of Order: 13.09.2021

Mr.Tarique G. Haneef Mangi, Advocate for Applicant.

Mr. Ahmed Ali Shahani, AAG.

O R D E R.

Muhammad JunaidGhaffar, J.Through this 1^stAppeal, the Appellant has impugned order dated 26.05.2009, whereby, the petition under section 11 of the Sindh Waqf Properties Ordinance, 1979 (“Ordinance”) filed by the Appellant was dismissed as time barred.

Learned counsel for the Appellant submits that the notification dated 03.01.2008 issued by Chief Administrator,AuqafSindh, Hyderabad,whereby, the administration, control and management of DargahHazratSadruddin Shah Badshah was assumed, was impugned by the Appellant by way of petition No. C.P No. D-249 of 2008, initially at the Principal Seat of this Court, which then was sent to Sukkur Bench,and was numbered as C.P No. D-385/2008was dismissed as not maintainable vide order dated 21.05.2009; that thereafter, the petition under section 11 of the Ordinance was filed; but has been dismissed by the learned District Judge, Sukkur, as being time barred; that the time which was consumed in filing of the petition and passing of the order as above has not been considered by the Court below; that in all fairness limitation ought to have been condoned as at the most it was a case of approaching a wrong forum. In view of these submissions, he has prayed for setting aside the impugned order and remand of the same for its adjudication on merits.

Learned Assistant Advocate General has opposed this Appeal on the ground that after dismissal of the petition by this Court the District Judge has decided the issue on a legal point; and since the petition was time barred; hence this Appeal does not merit any consideration.

I have heard the learned counsel for the Appellant as well as learned Assistant Advocate General. Record reflects that an application bearing CMA No. 254/2009 under Order 1 Rule 10 CPC was filed by various interveners and on 08.02.2021, learned counsel had informed that brief has been taken away by the Interveners and thereafter a direct notice was sent; but nobody has turned up as they are not available at the given address. In view of such position application under order 1 Rule 10 CPC as above is dismissed for non-prosecution.

It appears that the petition filed by the Appellant against notification dated 03.01.2008 was dismissed by this Court vide order dated 21.05.2009 as not maintainable and the operative part of the said order reads as under:

“ At this stage, the learned counsel for the petitioner states that he will file the petition before the learned district court and district court may be asked to entertain his petition but in our humble opinion, it is statutory obligation on the part of district court as envisaged under section 11 of the ordinance, 1979 to entertain and adjudicate upon the matter brought before him and we can only observe to the extent that, in case, if the petitioner is filing petition under section 11 of the ordinance, 1979, the learned district court may entertain and adjudicate upon all the points and objections legal as well as factual available to the parties under the law on its own merits.”

Perusal of aforesaid order reflects that while dismissing the petition as not maintainable, the Appellant was given an option to seek remedy in accordance with law,whereas,the district court was directed to entertain and adjudicate upon the legal as well as factual aspects of the matter in accordance with law. It is a matter of record that this petition was filed on 12.2.2008 impugning notification dated 3.1.2008; whereas, this order was passedon 21.05.2009. On a query by this Court that as to when the impugned notification was published in the gazette and made available to all; learned AAG has frankly conceded that this is not on record. In that case it can be said that the petition was filed within reasonable time; if not within time. After dismissal of the petition on 21.05.2009, the remedy under section 11 of the Ordinance was availed on 25.5.2009. This again was done immediately in time. However, the learned District Judge has dismissed the petition as being time barred on the ground that notification was issued on 03.01.2008 and the Appellant was required to challenge the same within 30 days’ time; hence, the petition was held to be time barred by one year and four months. From the impugned order itdoes not reflect that as to how the District Judge came to the conclusion that the petition was time barred without dealing with facts of this case and filing of petition within time, and thereafter its dismissal as not maintainable on 21.05.2009, and then filing of a petition under section 11 of the Ordinance. The impugned order is silent on this aspect of the matter i.e. the period which was consumed during these proceedings. In fact,it ought to have been discussed by the learned District Judge and only thereafter, it could have been held that benefit of such delay in pursuing the remedy before this Court cannot be considered for condoning the delay. In essence, the facts of the case discussed hereinabove warranted considering this and also to allow benefit to the Appellant by condoning the delay. No finding has been given on this aspect of the matter in the impugned order which seem to have been passed in a slipshod manner without taking into consideration this crucial aspect of the case.

Notwithstanding this, even in the order of this Court dated 21.5.2009, clear directions were given that the other aspects as well as factual aspects shall also be considered; this unfortunately was not done as well.

In view of hereinabove facts and circumstances of this case, it appears that the Appellant has been condemned without proper opportunity of getting the matter decided on merits, whereas,in the given facts, the delay, if any ought to have been condoned as time was spent before this Court after entertaining the petition filed by the Appellant.

In these circumstances the impugned order cannot be sustained and is hereby set aside. The delay, if any, is condoned,whereas, the District Judge seized with the petition of the Appellant shall decide the same on merits of the case in accordance with law expeditiously.

The Appeal is allowed in the above terms.

JUDGE

Irfan/PA.