ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.366 of 2022

_____________________________________________________________________ Date Order with signature of Judge

_____________________________________________________________________

HEARING / PRIORITY CASE:

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

2. For hearing of main case.

3. For hearing of CMA No.3551/2022 (Stay).

-----------

Dated; 23^rd September 2022

Mr. Khawaja Shams-ul-Islam, Advocate alongwith Appellant.

Mr. Haider Waheed alongwith Mr. Shahzeb Akhtar Khan, Advocate alongwith Respondent No.1.

-*-*-*-*-*-

1. Instant High Court Appeal has been filed against the impugned order dated 25.10.2022 passed by the learned Single Judge of this Court in Suit No.1608 of 2022 filed by the respondent No.1, seeking declaration, permanent and mandatory injunction with the prayer to permanently restrain the appellant from entering into the subject property i.e. Bungalow No.15/3, 22^nd Street, Phase-VI, D.H.A., Karachi and from interfering in the respondent No.1’s possession thereof in any manner, whereas, a declaration has been sought to the effect that the appellant has no right or entitlement whatsoever to seek entry into the respondent No.1’s property without her consent, whereas, through impugned order passed on 25.10.2022, the learned Single Judge after recording the contention of the counsel for the plaintiff while issuing notices to the defendants in the suit has been pleased to appoint the Nazir of this Court as Commissioner to inspect the subject property during the course of day to ascertain the averments made in the plaint and has been further pleased to direct the defendant No.1 not to enter in abovementioned residence of the plaintiff, whereas, concerned SHO has also been directed to provide protection to the plaintiff against the defendant No.1 in the suit.

2. On 28.10.2022, when instant High Court Appeal was fixed before this Court for hearing and after hearing the contention of the learned counsel for the parties the following order was passed: -

“4&5. Instant High Court Appeal has been filed against the impugned order dated 25.10.2022 passed by the learned Single Judge of this Court in Suit No.1608 of 2022, whereby, according to learned counsel for the appellant, on the first date of hearing while issuing notices to the defendants, the appellant, who is husband of the respondent No.1, has been restrained from entering in the residence, which was purchased by the appellant out of his own funds, however, subsequently, due to love and affection the same was gifted to the respondent No.1. Per learned counsel, out of the wedlock between the appellant and the respondent No.1, there is one male child, however, in view of the impugned order appellant has also been restrained even from seeing his child and has been in fact ousted from his own house. Learned counsel for the appellant further submits that earlier similar suits were filed by the respondent No.1 as well as appellant in respect of the subject property, which was duly compromised between the parties vide order dated 29.08.2022 and in the garb of such order, respondent No.1 has concocted false and frivolous story with regard to the maltreatment and filed fresh suit and obtained impugned restraining order. It has been prayed that the impugned order may be set aside and the appellant be allowed to enter into his own house and to meet with his son without any interference.

Mr. Ahmed Masood, Advocate present in Court pursuant to a notice under Order 43 Rule 3 CPC, claims copy of instant appeal on behalf of the respondent No.1 and requests for time to file reply/objections, however, submits that the instant High Court Appeal is not maintainable, as it has been filed against ad-interim order passed by the learned Single Judge, whereas, the subject suit is fixed for hearing on 07.11.2022 and the appellant has right to file objection as well as recalling or modification of the impugned order. It has been further contended by the learned counsel for the respondent No.1 that no prejudice will be caused to the appellant through impugned ad-interim order, which is to be operative till next date of hearing i.e. on 07.11.2022, when the injunction application can be finally heard and disposed of after hearing both the parties.

Learned counsel for the parties have been enquired as to whether there is any possibility of amicable settlement between the parties, as it was done earlier in the previous suits filed by both the parties, which were disposed of through a compromise decree, they request for time to seek instructions in this regard. However, learned counsel for the appellant submits that notice of instant High Court Appeal may be issued to the respondents and till next date of hearing respondents may be directed not to create any third party interest in respect of the subject property and to allow the appellant to meet with his son at any reasonable time. Since the learned counsel for the respondent No.1 is in attendance, let copy of instant appeal alongwith annexures be supplied to him by the learned counsel for the appellant, who may file reply/objection, if any, before next date of hearing with advance copy to the leaned counsel for appellant.

To come up on 08.11.2022, to be taken up at 11:00 A.M., when the appellant and the respondent No.1 shall be in attendance. Learned counsel for the parties shall make an effort to amicably resolve the dispute between the parties outside the Court, if possible, so that further litigation may be avoided between the parties, who are husband and wife, having a son of tender age of 2½ years. However, till next date of hearing, no third party interest may be created in respect of the subject property.”

3. Today, the appellant and the respondent No.1 are present alongwith their learned counsel, who were asked, as to whether there is any possibility to amicably settle their dispute outside the Court in order to avoid further litigation, however, it appears that the parties could not reach to any amicable settlement outside the Court, therefore, both the learned counsel for the parties have been heard.

4. Learned counsel for the appellant has vehemently argued that the learned Single Judge was not justified to pass the impugned order on the first date of hearing while hearing the plaintiff only, as certain material facts were not disclosed while obtaining an exparte ad-interim order to the disadvantage of the appellant, who is wedded husband of the respondent No.1 and actual owner of the subject property, which was purchased by him in her name as benami. According to learned counsel, prior filing of the subject suit, respondent No.1 had earlier filed similar suit seeking declaration in respect of the subject property, including the suit seeking dissolution of marriage by way of khulla as well as criminal proceedings against the appellant, whereas, the appellant has also filed a suit seeking declaration in respect of same subject property as benami, however, in view of settlement reached at between the parties out of love and affection by the respondent No.1 and their son the above suit and the proceedings were disposed of through a compromise decree dated 10.09.2022. Per learned counsel, pursuant to the aforesaid compromise between the parties, respondent No.1 in order to grab the property of the appellant having custody of his son filed the aforesaid frivolous suit alleging maltreatment by the appellant and has obtained an exparte ad-interim order through misrepresentation of facts, whereby, the appellant has been ousted from the lawful possession of his property and has also been restrained from entering into his house and to meet with his son. According to learned counsel for the appellant, the impugned order has been obtained by the respondent No.1 while referring to one of the clauses of the compromise decree relating to ownership of the subject property, whereas, remaining clauses of such compromise have been totally ignored, according to which compromise between the parties would be effective if all the terms and conditions of the compromise are met, which included that both the parties will resolve all their disputes amicably and will live with peace and harmony alongwith their son in the subject property. It has been further contended by the learned counsel for appellant that the appellant being wedded husband of the respondent No.1 and father of male child cannot be restrained from entering into in his house or to meet with his son, whereas, the appellant undertakes to ensure that he will not cause any harm, injury and annoyance to the respondent No.1 in any manner.

5. Conversely, learned counsel for the respondent No.1 submits that the respondent No.1 is the lawful owner of the subject property, whereas, in view of maltreatment and harassment being caused by the appellant the subject suit has been filed seeking protection against such harassment. It has been contended by the learned counsel for the respondent No.1 that respondent No.1 has also filed a suit for dissolution of marriage, whereas, the appellant is at liberty to file appropriate proceedings before the appropriate Court of jurisdiction relating to his marital status, or custody of the minor, including visiting right, however, cannot be allowed to have forceful entry into the subject property, which is owned by the respondent No.1 pursuant to aforesaid compromise decree. It has been further contended by the learned counsel that instant High Court Appeal is otherwise misconceived and not maintainable, as it has been filed against an ad-interim order, whereas, the appellant is at liberty to file reply/objection through the application seeking modification and recalling of the impugned order from the learned Single Judge in accordance with law.

6. Heard the learned counsel for the parties, perused the record and an order passed in the compromise decree as well as the impugned order passed by the learned Single Judge in the above suit with their assistance. The contention of the learned counsel for the respondent No.1 with regard to maintainability of instant appeal that instant appeal has been filed against an ad-interim order and not final order, appears to be a valid objection, however, keeping in view the nature and dispute between the parties agitated in the subject Suit No.1608/2022, who are husband and wife and the compromise decree passed in earlier similar Suit Nos.1014 and 1106 of 2022 between both the similar parties relating to same subject property. We are of the tentative view that the decision in the subsequent Suit No.1608/2022 filed by the respondent No.1 against the appellant may have reference to earlier proceedings including compromise decree between the parties, as referred to hereinabove, therefore, it may deem appropriate to dispose of instant High Court Appeal with the direction to the appellant to submit reply/objection through listed application by raising all such factual and legal grounds as has been agitated through instant High Court Appeal in the aforesaid suit before the learned Single Judge, who may pass appropriate order on the pending application(s) after hearing both the parties in accordance with law, preferably, within a period of two (2) weeks from the date of hearing of such application(s). However, till then, both the parties shall maintain status quo, whereas, no third party interest in respect of the subject property may be created. Both the parties are at liberty to move urgent application before the learned Single Judge for early disposal of the pending application(s).

J U D G E

*Farhan/PS*