IN THE HIGH COURT OF SINDH, KARACHI

 
H.C.A. No. 73 of 2013

   

          Present

                                                   

                                                Mr. Justice Aqeel Ahmed Abbasi

                                               Mr. Justice Muhammad Junaid Ghaffar

                                                                 

Mst. Sana Naseem………………..………………………………..Appellant

 

Versus

 

Zahoor Ahmed Awan & another………………………….……Respondents

 

Date of hearing              :              24.09.2013

Date of order                  :              24.09.2013

 

Syed Hassan Ali, advocate for the appellant

Zahoor Ahmed Awan, respondent No.1 is present in person.

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O R D E R

 

Aqeel Ahmed Abbasi, J:  Through instant High Court Appeal, the appellant Mst. Sana Naseem daughter of Muhammad Naseem has impugned the order dated 02.04.2013 passed by the learned Single Judge of this Court in Suit No.1222/2005, whereby objections filed by the appellant to the Nazir’s report dated 6.9.2012 were overruled by the learned Single Judge with an observation that  “objections to the Nazir’s report appears to be frivolous and baseless and the objector has failed to establish that any of her articles were lying in any of the room at guesthouse at the time of handing over the possession on 19.05.2012 under the supervision of Nazir and his staff, therefore, objections are overruled”.

 2.      Counsel for the appellant has argued that the learned Single Judge of this Court was not justified to pass the impugned order and to turn down the objections of the appellant filed on the Nazir’s report dated 6.9.2012, without examining the entire record of the proceedings in this regard, whereby the possession was handed over to the plaintiff in the suit by the Nazir. Per learned counsel, the report furnished by the Nazir of this Court as referred to hereinabove, did not disclose the true facts, whereas the Nazir of this Court did not act any terms of the order of the learned Single Judge of this Court dated 09.03.2010 nor complied with the directions of the Hon’ble Supreme Court as contained in the order dated 03.05.2012 passed in Civil Petition No.26-K/2012. It has been contended by the learned counsel for the appellant that while handing over possession of the suit property to the plaintiff the Nazir did not prepare the proper report of the proceedings of taking over and handing over of the suit property on 19.05.2012 nor prepared any inventory of the articles of the appellant, which according to learned counsel, were lying in one of the rooms of the suit property including marriage articles/jahaiz and gold ornaments of the appellant. Per learned counsel, an application was filed before the Nazir of this Court for the return of such articles which was not entertained by the Nazir, whereafter the appellant filed objections before the learned Single Judge of this Court, who vide impugned order has turned down the same, therefore, the appellant being aggrieved by such order has filed instant High Court Appeal with the prayer to set aside the impugned order and to direct the Nazir to return the articles of the appellant as per list furnished before the Nazir, which according to learned counsel for the appellant, have been usurped by the respondent No.1 namely Zahoor Ahmed Awan at the time of taking over the possession of the suit property.

 

3.       On 29.08.2013, when instant High Court Appeal was taken up for hearing the learned counsel for the appellant was put to notice to satisfy this Court as to maintainability of the instant High Court Appeal, in the following terms:-

29.08.2013

Mr. Syed Hassan Ali, Advocate for the Appellant.

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Learned counsel for the appellant is directed to satisfy this Court as to maintainability of the instant High Court Appeal, which appears to have been filed against an order passed in a Suit, wherein the appellant was neither a party nor claim any right or entitlement over subject property. It appears that pursuant to the order passed by Hon’ble Supreme Court the Nazir handed over the possession of the subject premises to the respondents, whereafter compliance report was submitted, on which objections were filed by the appellant, wherein serious allegations have been leveled against the Nazir. Such objections were turned down by the learned Single Judge of this Court vide impugned order dated 02.04.2013.

We are of the tentative view, that under the facts and circumstances of this case, the instant High Court Appeal is not maintainable. Learned counsel for the appellant has sought time to satisfy this Court as to maintainability of the instant High Court Appeal. On his request adjourned to 24.09.2013.”

 

4.       On 24.9.2013, when the matter was taken up for hearing learned counsel for the appellant could not satisfactorily respond to the query of this Court regarding maintainability of the instant High Court Appeal, however, argued that since the valuable articles of the appellant have been usurped by respondent No.1 with the connivance of the Nazir, who did not conduct himself properly, therefore, the appellant is entitled for the return of her articles, which according to learned counsel, were lying in one of the rooms of the guesthouse which was being managed by the appellant in the suit property on behalf of defendant.

 

5.       We have heard the learned counsel for the appellant and perused the impugned order passed by the learned Single Judge of this Court on objections filed by the appellant on Nazir’s report dated 06.09.2012. Relevant facts, giving rise to the instant appeal are that the respondent No.1 filed Suit No.1222/2005 against the respondent No.3 and two others for specific performance of contract, recovery of possession, permanent injunction and damages to the tune of Rs.3,57,87,699/-. The parties in the said suit contested up to the Hon’ble Supreme Court of Pakistan, where litigation ended vide order dated 03.05.2012 passed by the Hon’ble Supreme Court in Civil Petition No.26-K of 2012. The Nazir of this  Court filed his report dated 13.9.2012 which reflects that as per Court’s order dated 09.03.2010 plaintiff was directed to deposit balance sale consideration of Rs.60,70,767/- within one month and defendant i.e. owner of the property was directed to furnish all the original title documents of the subject property i.e. House No.4/21, Hasham Road, Model Colony, Karachi, whereas Nazir of this Court was directed to execute the Sale Deed and thereafter, hand over the possession of the property to the plaintiff. The said report of the Nazir further reveals that the Hon’ble Supreme Court was pleased to direct that after deposit of above balance sale consideration such money was to be invested in a maximum profit bearing scheme of the Government of Pakistan and disburse the sale consideration amount to the respondent when the possession of the said property is delivered to the plaintiff/petitioner.

 

6.       As per bailiff’s report and the facts noted by the learned Single Judge it appears that after deposit of the balance sale consideration in compliance of the order passed on 09.03.2010 and after order of the Hon’ble Supreme Court dated 03.05.2012 passed in Civil Petition No.26-K/2012, the Nazir/Staff of the Nazir reached at the Suit property when Manager and other4 employees of the guesthouse being run on behalf of the defendant in the Suit were present, whereafter, concerned SHO also reached to provide assistance, and handing over the possession of subject property to the plaintiff took place on 19.05.2012.

 

7.       It further reflects that articles lying in the room of guesthouse were handed over to the appellant, who did not object to the entire proceedings, however, subsequently filed objections before the learned Single Judge with certain allegations and by casting serious aspersions on the Nazir of this Court. Learned Single Judge of this Court, after having examined the entire facts and the material available on record has dismissed the objections for being frivolous and baseless. We have noted that the appellant did not produce any material or witness in support of her allegations either before the learned Single Judge or before us, which could justify or support the objections, which otherwise, appears to be baseless, frivolous and contrary to the record. We do not find any merits in the instant High Court Appeal, which was dismissed vide our short order dated 24.09.2013 along with listed application and these are the reasons for such short order.

 

                                                                                      J U D G E

 

                                                    J U D G E