ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.407 of 2022

___________________________________________________________________ Date Order with signature of Judge

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FRESH CASE:

1. For order on CMA No.4083/2022 (Urgent).

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

3. For order on CMA No.4084/2022 (Exemption).

4. For hearing of main case.

5. For order on CMA No.4085/2022 (Stay).

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Dated; 5^th December 2022

Mr. Muhammad Asad Iftikhar, Assistant Advocate-General, Sindh for Appellants.

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1. Urgency granted.

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

3. Exemption granted subject to all just exceptions.

4&5. Instant High Court Appeal has been filed against the impugned order dated 29.11.2022 passed by the learned Single Judge of this Court in Suit No.398 of 2022 filed by the appellants under Section 92 CPC read with Order XXXV CPC mainly with the prayer that directions may be issued to the defendants No.1 to 21 in the suit to interplead together concerning their claim in order to determine as to who, amongst them, are/is the lawful owner of Plot No.490, Jamshed Quarters, Karachi and the Educational Institutions built and functioning thereon entitled to receive rent for the same from the plaintiffs No.2 and 3, whereby, on an urgent application filed on behalf of the appellant the learned Single Judge has been pleased to pass following order:

“Urgency granted. Let the matter fixed in two weeks’ time.”

Learned A.A.G. submits that urgency application was filed keeping in view the order passed by the executing Court requiring the appellant to vacate the subject premises, whereas, directions have been issued to obtain aid of the police and other law enforcement agencies for the execution. According to learned AAG, the said suit, being interpleader, has been filed pursuant to the order passed by the Hon’ble Supreme Court of Pakistan dated 07.02.2022 in Civil Review Petition No.130 and 131 of 2020, whereby, the appellants were allowed to file interpleader suit, which was accordingly filed alongwith injunction application, whereas, the matter was fixed in Court on several occasions, however, the learned Single Judge did not pass any order on such injunction application, which under the facts and circumstances of the case, amounts to refusal to grant injunction, therefore, instant High Court Appeal has been filed. It has been further contended by the learned AAG that there are four Educational Institutions/Colleges being run and operated by the Government of Sindh, wherein, 7,643 students are studying and there is dispute between the private respondents, including KMC with regard to title, therefore, the interpleader suit has been filed and unless any decision is made on such suit directions for handing over the possession of the subject premises will not only adversely affect the right of the Government of Sindh but also seriously prejudice the right of the students, who are studying in the Educational Institutions/Colleges. It has been prayed by the learned AAG that unless the learned Single Judge passes an order on the injunction application after hearing the parties respondents may be restrained from proceedings further in the execution.

Conversely, Syed Mureed Ali Shah, Respondent No.10 has shown appearance upon service of Notice under Order 43 Rule 3 CPC, claims copy of instant High Court Appeal alongwith annexures and requests for time to file reply/objection. However, he has raised an objection as to maintainability of instant appeal, which according to him, is totally misconceived and not maintainable for the reason that there is no adverse order passed by the learned Single Judge on the injunction application nor any directions have been issued, which may otherwise prejudice the claim of the appellant in the interpleader suit, which otherwise, is totally misconceived and not maintainable, as the appellants have no title of the subject property, nor entitled to remain in possession, as they have been directed to vacate the same pursuant to orders of the Hon’ble Supreme Court vide order dated 18.12.2019. It has been further contended by respondent No.10 that the suit was filed on 08.03.2022 and thereafter the matter was fixed in Court on six different dates, however, none of the said dates of hearing the appellants could not obtain any ad-interim order. According to Mr. Mureed Ali Shah, respondents have also filed an application under Order VII Rule 11 CPC for rejection of plaint on the ground that said suit is barred by law and not maintainable, as the appellants being tenants have locus standi or legal character to file interpleader suit. Moreover, according to learned counsel for respondent No.10, the order passed by the executing Court dated 05.03.2021 was passed pursuant to order passed by the Hon’ble Supreme Court of Pakistan dated 18.12.2019 in Civil Petitions No.709-K and 710-K of 2017 and C.M.As No.3636, 9288 & 9291 of 2019 in C.P. No.709-K of 2017, which order was also challenged by the appellants in Constitution Petition No.S-239 of 2021, however, said petition has also been dismissed by the learned Single Judge of this Court vide detailed order dated 25.10.2022, wherein, according to respondent No.10, all the orders passed in respect of the subject premises relating the ejectment, including the order passed in Civil Review Application No.130 and 131 of 2020 on 07.02.2022 by the Hon’ble Supreme Court of Pakistan, such plea of the appellant has already been rejected. It has been prayed that instant High Court Appeal is liable to be dismissed with cost.

While confronted as to maintainability of instant High Court Appeal, which prima facie appears to be totally misconceived, as through impugned order neither any adverse order has been passed on the injunction application nor even the request of the appellants for urgent hearing has been declined, learned AAG does not press instant High Court Appeal, however, submits that appellants will approach the learned Single Judge of this Court by filing urgent application or an application for antedating the matter to obtain appropriate orders in accordance with law.

Accordingly, instant High Court Appeal stands dismissed as not pressed alongwith listed application.

J U D G E

*Farhan/PS*