ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.161 of 2022

___________________________________________________________________ Date Order with signature of Judge

___________________________________________________________________

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Mr. Justice Abdul Mobeen Lakho

FRESH CASE:

1. For order on CMA No.1291/2022 (Urgent).

2. For order on CMA No.1292/2022 (u/s.5, Limitation Act).

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

4. For order on CMA No.1293/2022 (Exemption).

5. For hearing of main case.

6. For order on CMA No.1294/2022 (Stay).

-----------

9^th May 2022

Mirza Sarfaraz Ahmed, Advocate for Appellants.

-*-*-*-*-*-

1. Urgency granted.

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

4. Exemption granted subject to all just exceptions.

2,5&6. Instant High Court Appeal has been filed against impugned order dated 22.03.2022 passed by the learned Single Judge of this Court in Suit No.Nil of 2022 [Re: Mst. Zarina & others v. Province of Sindh and others] filed by the respondents No.1 to 3 against the appellants and others seeking declaration, injunction, possession and cancellation in respect of land admeasuring 04 acres 25.5 ghuntas in Survey No.735 situated in Deh Thano, Tappo Malir, Taluka Murad Memon, Malir Karachi, whereby, according to learned counsel for the appellants, on the basis of incorrect facts placed by the respondents before the learned Single Judge, status quo order has been passed, whereas, Nazir has been appointed as Commissioner to inspect the suit property and to submit report with regard to the possession, which has resulted in stoppage of construction work on the appellants’ land, which according to learned counsel for the appellants, is the ancestor land of the appellants. It has been further contended by the learned counsel for the appellants that pursuant to the Court’s order Commissioner has submitted his report with regard to the subject land, wherein, it has been stated that the land being claimed by the respondents is not identifiable and the respondents are not aware about actual allocations and identification of the land, whereas, fifty percent work over the project of the appellants has been completed and the possession whereof has also been given to the allottees, however, in view of the restraining order, further work has been stopped.

From perusal of the impugned order passed by the learned Single Judge, it appears that while issuing Notices to the defendants, ad-interim order has been passed directing the defendants to maintain status quo, whereas, the appellants have already submitted reply to the injunction application under Order XXXIX Rules 1&2 CPC and also filed an application under Order XXXIX Rule 4 CPC for vacating the stay order, and now the matter is reportedly fixed for hearing on 10.05.2022. Since no final adverse order has been passed on the injunction application, which is still pending disposal, therefore, we are of the view that instant appeal is premature, whereas, the appellants are at liberty to state all the facts and produce relevant documents and make a request before the learned Single Judge for recalling or modifying the impugned ad-interim order.

While confronted with hereinabove factual and legal position, learned counsel for the appellants could not submit any reasonable explanation, however, submits that since adverse remarks have been made with regard to entitlement of the appellants over the subject land, therefore, requests that learned Single Judge may be directed to decide both the applications, one filed by the respondents No.1 to 3 under Order XXXIX Rules 1&2 CPC and the other filed by the appellants under Order XXXIX Rule 4 CPC after hearing the parties at an early date without being influenced by the adverse observations made in the impugned ad-interim order.

Accordingly, instant High Court Appeal is disposed of with directions to the appellants to approach the learned Single Judge on the next date of hearing and raise all such objections and grounds as agitated in the instant High Court Appeal and the learned Single Judge may hear both the parties and pass appropriate order(s) strictly in accordance with law on both the applications, preferably, within a period of two weeks from the date of hearing of such applications.

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

J U D G E