ORDER SHEET
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ORDER WITH SIGNATURE OF JUDGE
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For hearing of CMA No. 5752/90.
28.5.2007.
Mr. Mushtaq A. Memon, Advocate.
Mr. Muhammad Ali Jan, Advocate.
Mr. Khurshid Ali Hashmi, Advocate.
Mr. Muhammad Mustafa Hussain, Advocate.
Mr. Samiuddin, Advocate.
Mr. Itrat Hussain Rizvi, Advocate.
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Mr. Mushtaq A. Memon states that against the order dated 31.1.2007 High Court Appeal has been filed, matter stands stayed. He seeks time to verify this fact. However, in the interest of justice matter is adjourned to a date in office.
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ORDER SHEET
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ORDER WITH SIGNATURE OF JUDGE
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1) For orders on CMA No. 515/2007.
2) For orders on CMA No. 516/2007.
3) For hearing of CMA No. 4186/2006.
4) For hearing of CMA No. 4905/2006.
5) For hearing of CMA No. 4906/2006.
6) For hearing of CMA No. 6819/2006.
7) For hearing of CMA No. 6820/2006.
8) For hearing of CMA No. 98/2006.
9) For evidence.
(A/W part)
A/W Suit No. 245/90
A/W Suit No. 246/84
A/W Suit No. 247/90
31.1.2007.
Mr. Muhammad Ali Hakro, Advocate.
Mr. Ch. Abdul Rashid, Advocate.
Mr. Muhammad Ali Jan, Advocate.
Mr. Khurshid Ali Hashmi, Advocate.
Mr. Muhammad Mustafa Hussain, Advocate.
Mr. Samiuddin, Advocate.
Mr. Itrat Hussain Rizvi, Advocate.
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CMA No. 6819/2006.
Intervenor Khizar Abdul Khaliq claimed that he is a bonafide purchaser for valuable consideration under a duly executed registered conveyance deed dated 18.2.2003 in respect of Flat No. B-3 situated at 2nd floor measuring 1850 square feet in the building known as Court View Apartments, subject matter of the suit without any notice having purchased the same from Mrs. Nafisa Arif who had purchased the same from defendant No. 23 Anwar Bhatti. It is contended that the intervenor has no knowledge about the pendency of the litigation between the parties, he obtained the loan from Citibank Home Loan Scheme in a sum of Rs. 10,20,000/- and all the original title documents have been deposited with Citibank.
Mr. Mohammad Ali Hakro learned counsel for plaintiff has contended that the matter is subjudiced since 1990. The evidence of the plaintiff has been recorded. During the pendency the defendant No. 23 had resorted to create right in favour of Mrs. Nafisa Arif, intervenor claimed to have acquired the right, side of the defendant was closed on 25th April 2006, however in the subsequent proceedings 13 defendants were allowed to lead evidence by way of filing their affidavit in evidence, substitution of the name of the Intervenor would effect the merits of the case. It is further contended that defendant No. 23 was already declared ex-parte therefore the order so passed would be binding against the intervenor seeking permission to be joined as one of the defendant.
I have considered the arguments advanced at bar. Defendant No. 23 had acquired a suit flat which was subsequently sold to Mrs. Nafisa Begum from whom the intervenor had acquired the suit property whereas his predecessor in interest were already declared ex-parte in the year 1991 and subsequently side of the defendant to lead evidence was closed on 25th April 2006. The intervenor is hereby stands substituted with defendant No. 23 subject to all rights available under the proceedings already taken place shall be binding on the newly joined defendant.
Mr. Mohammad Ali Hakro learned counsel for plaintiff is directed to amend the title with red ink. Defendant No. 23 is directed to file written statement within 10 days. Orders accordingly.
CMA No. 6820/2006.
Intervenor Shaikh Abdul Aziz has resorted to file application inter-alia, contended that he is a bonafide purchaser for valuable consideration under a duly registered conveyance deed dated 23.2.2001 of Flat No. D-4 situated at 2nd floor measuring 1350 square feet in the building known as Court View Apartments having purchased the same from defendant No. 56 Abubakar Aka and is entitled to the substitution in place of defendant No 56. It is contended that the applicant is the owner of the property subject matter of the suit and any order passed in the suit would directly effect his right and entitlement in respect of the property in his possession acquired by him lawfully therefore he be impleaded as defendant No. 56.
Mr. Mohammad Ali Hakro learned counsel for plaintiff has contested the application on the ground of delay contended that the defendant side to lead evidence was closed on 24th April 2006, therefore subject to all rights available to the defendant No. 56 the applicant may be substituted in place of defendant No. 56.
On appraisal of the contentions it appears that the applicant has acquired the suit flat under a registered conveyance deed from her predecessor in interest. She claims to have no knowledge of whatsoever nature about the pendency of the present suit. I accordingly allow the application and substituted the applicant in place of defendant No. 56.
Mr. Mohammad Ali Hakro learned counsel for plaintiff is directed to amend the title with red ink and defendant No. 56 is directed to file written statement within 15 days hereof. Orders accordingly.
CMA No. 4906/2006.
It is inter-alia contended that Mrs. Najma W/O Zakir Hussain has purchased Show Room No. G-2/B Court View Apartment from M/S Fawad Aviation Services (Pvt) Limited but fact of the pendency of the litigation was suppressed. However a registered sale deed was executed on 8th July 2005 therefore it will be just and fair that instead of defendant No. 7 applicant be substituted and arrayed as defendant.
Mr. Mohammad Ali Hakro learned counsel for plaintiff has contested the application however he has conceded that subject to the determination of all rights of the applicant and all the proceedings till date has taken place shall be binding on the newly joined defendant.
I have considered the arguments advanced at bar. Since defendant No. 7 M/S Rind Travels Limited was predecessor in interest of M/S Fawad Aviation Services (Pvt) Limited under a registered sale deed therefore applicant has acquired right in the suit property therefore for factual and complete adjudication and settled the question involved the applicant is substituted in place of defendant No. 7 with direction to file written statement within 15 days positively.
Mr. Mohammad Ali Hakro learned counsel for plaintiff is directed to amend the title with red ink. Orders accordingly.
CMA No. 4905/2006.
Vide order dated 23.5.2006 the defendant No. 5 was substituted in place of Jamal Abdul Nasir S/O Capt. Abdul Haq. On inquiry it transpired that defendant No. 51 was declared ex-parte sold Flat No. B-1 handed over physical possession mutated the name in the record of Military Estate Office whereas defendant No. 69 was already allowed to be substituted. They had resorted to file written statement within stipulated time therefore ex-parte order dated 8.9.1991 passed against the defendant No. 51 be allowed to be set aside and the suit be restored to its original position.
Mr. Mohammad Ali Hakro learned counsel for plaintiff has contended that after the lapse of inordinate delay the contesting defendant has resorted to file the application, side of the defendant to lead evidence was closed on 25.4.2006 therefore at this juncture contested defendant cannot be allowed to contest the case on merits.
I have considered the arguments advanced at bar. Since valuable right accrued to the plaintiff on account of right accused by them under the law in the suit property therefore it will be just and fair that they be allowed to contest the suit on merits therefore impugned order is hereby set aside, the defendants are allowed to proceed with the case on merits. CMA No. 4905/2006 is allowed. Orders accordingly.
CMA No. 4186/2006.
Applicant Zia Ahmed Awan has acquired the right to purchase Flat No. D–1, in the suit property from one Hameedullah S/O Ghous Muhammad Khan defendant No. 30 under sale agreement dated 31st July 1994 as well as in favour of his mother namely Mst. Ashraf Begum purchased Flat No. D-2 from defendant No. 36 under conveyance deed registered on 14.9.1999 for valuable consideration. Subsequently applicant’s mother transferred the aforesaid property by way of oral gift in his favour thus intervenor is in possession of Flat No. D-1 and D-2. It is contended that the intervenor be allowed to be substituted in place of defendant No. 36.
Mr. Mohammad Ali Hakro learned counsel for plaintiff has raised manifold legal pleas contended that the application of the applicant cannot be allowed as defendant No. 30 and 36 had lost interest in the property did not participate in the proceedings was declared ex-parte. It is further contended that on 25th April 2006 side of the defendants to lead evidence was closed except 13 defendants therefore the applicant cannot be arrayed / substituted in place of defendant No. 30 and 36.
I have considered the arguments advanced at bar. Since the applicant had acquired the suit flats under valid documents during the pendency of the suit against the contesting defendant therefore I allow the application to the extent of applicant being arrayed as defendant in place of defendants No. 30 and 36
Mr. Mohammad Ali Hakro learned counsel for plaintiff is directed to amend the title with red ink and defendant No. 30 and 36 are directed to file written statements within 15 days. Orders accordingly.
CMA No. 515 & 516 /2007.
Issue notice to all concerned.
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To be continued.
CMA No. 988 /2006.
Learned counsel for defendant No. 43 has stressed that P.W.1 Malik Fayyaz may be summoned for the purpose of cross examination as the opportunity could not be availed by her counsel on account of his non-availment at Karachi on the date when the matter was fixed for cross examination her counsel was on general adjournment on a visit of United States of America. It is urged that if the contesting defendant is not allowed to cross-examine the solitary witness examined by the plaintiff, her case shall be seriously jeopardize causing injustice.
Mr. Hakro has contended that the case is pending adjudication from the year 1990. Testimony of the solitary witness Malik Fayyaz was recorded, by permitting the defendant No. 43 shall tantamount to reopen the case as each one of the substituted defendant would come forward with a similar move which shall result in inordinate delay. It is further urged that the plaintiff is an old and firm person not in a position to move frequently therefore in the interest of justice he should not be re-summoned for the purpose of cross examination.
I have considered the arguments advance at bar. In the present case there have been substitution of several defendants during the course of proceedings after the evidence of the plaintiff’s witness Malik Fayyaz Ahmed was recorded. No doubt case is lingering since 1990 yet in the interest of justice the advocate for the defendant No. 43 and all other advocates appearing for substituted defendants are allowed final opportunity to cross examined the plaintiff’s witness for just decision of the case. This exercise shall be conducted by the learned Commissioner for recording evidence after one month of the passing of the order after due notice to all the advocates for the defendants and substituted defendants interested in cross examination as a final chance. Application stands disposed off accordingly.
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