ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.188 of 2022

___________________________________________________________________ Date Order with signature of Judge

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PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Mr. Justice Abdul Mobeen Lakho

 

 

FRESH CASE:

1.     For order on CMA No.1703/2022 (Urgent).

2.     For order on office objection a/w reply as at A.

3.     For order on CMA No.1704/2022 (Exemption).

4.     For hearing of main case.

5.     For order on CMA No.1705/2022 (Stay).

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Dated; 3rd June 2022

Mr. Ahmed Ali Hussain alongwith Mr. S. Zaeem Hyder, Advocate for Appellant.

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1. Urgency granted.

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

3. Exemption granted subject to all just exceptions.

4&5. Instant High Court Appeal has been filed against impugned order dated 30.05.2022 passed by the learned Single Judge of this Court in Suit No.[-] 604 of 2022 filed by the respondents No.8 to 11 against the appellant and other respondents, seeking declaration, cancellation of documents, damages and permanent injunction in respect of the property i.e. 2/3rd Portion of Plot/Survey No.98, held on Lease in Form B Cantonment Code, 1912, measuring 2933.11 square yards, whereby, according to learned counsel for the appellant, without providing an opportunity of being heard to the appellant, who is the owner of subject property pursuant to a registered Conveyance Deed and after seeking approval from the relevant authorities has started raising construction of a commercial building, however, an ad-interim order has been passed by the learned Single Judge, requiring the appellant to maintain status quo with regard to the subject property till next date of hearing, which has been fixed on 12.08.2022. Per learned counsel, respondents No.8 to 11 have no prima facie case to file the subject suit or to obtain any restraining order against the appellant in respect of the subject property, as admittedly there is no privity of contract between the appellant and the respondents No.8 to 11, whereas, the appellant has acquired ownership of the subject property through a registered conveyance deed from the respondent No.13 who has a privity of contract with respondents No.8 to 11. According to learned counsel for the appellant, since the appellants have acquired right and title in respect of subject property pursuant to a registered document, whereas, as per pleadings respondents No.8 to 11 executed general power of attorney in favour of the respondent No.13 in the year 2017 pursuant to which the sale in respect of the subject property was affected by the predecessor-in-interest of respondents No.8 to 11. According to learned counsel, the suit, besides being misconceived infact and in law, is also barred by limitation. According to learned counsel, the appellants, after having made entire payment of sale consideration to the respondent No.13 pursuant to conveyance deed, sought requisite approvals from the relevant authorities and started to raise construction of a commercial project, however, respondents through misrepresentation, have obtained an ex-parte ad-interim order passed from the learned Single Judge, which has not only adversely affected the right and title of appellant in respect of subject property and the commercial project, but has also caused financial loss to the appellant.

We have heard the learned counsel for the appellant, perused the impugned order passed by the learned Single Judge as well as pleadings of the suit, which prima facie reflects that through impugned order, an ad-interim relief has been granted to the respondent requiring the appellant to maintain status quo with regard to the subject property, whereas, no final order has been passed by the learned Single Judge on the injunction application [CMA No.5960/2022]. However, since the appellant has not been allowed to file reply/counter-affidavit on the aforesaid injunction application, whereas, it appears that in the absence of allegations regarding illegal or unauthorized construction, as per pleadings, appellant has been restrained from carrying on the construction work, therefore, it will be appropriate if the matter is remanded back to the learned Single Judge to pass appropriate order on the aforesaid injunction application after hearing the parties in accordance with law on the next date of hearing. However, in the meanwhile, ad-interim order is modified to the extent that the appellant will not create any third party interest in respect of the subject property till next date of hearing, and shall not raise any construction except as per approved building plan in accordance with law, which will be, however, subject to further orders by the learned Single Judge while deciding the aforesaid injunction application. The parties are at liberty to approach the learned Single Judge for urgent hearing of the application, if so advised, which request may be examined by the learned Single Judge as per discretion in accordance with law.

Instant High Court Appeal stands disposed of in the above terms alongwith listed application. It is clarified that disposal of instant High Court Appeal in the above terms will have no bearing on the merits of the case or the disposal of injunction application, which shall be decided on its own merits in accordance with law.

J U D G E

 

 

J U D G E