IN THE HIGH COURT OF SINDH AT KARACHI

Suit No. 183/2010

[Syed Ali Athar vs. City District Government Karachi & others].

Plaintiff : through, Mr. Muhammad Omer

Lakhani Advocate.

Defendant No.1 : through, Mr. Muhammad Idress Alvi, Advocate

Defendant No.2 : through, Mr. Usman Tufail Shaikh, Advocate

Defendant No.3 : through, M/s. Wasiq Mirza and Nadeem Babar, Advocates

Date of hearing: 28.08.2014

Date of order: 12.09.2014

O R D E R

SALAHUDDIN PANHWAR, J. Through this order I intend to dispose of applications being CMA No.1255/10 [Under Order 39 Rule 1 & 2], CMA No.1950 of 2010 [Under Section 151 CPC ] and CMA No.2496 of 2010 [Under Order VII Rule 11 CPC].

2. Succinctly, relevant facts as set out in the plaint are that Plaintiff purchased two plots bearing No.ST-4 and ST-5 situated at Wasim Bagh, Block 13/D-2, Karachi, admeasuring 737.77 Sq.yds. and 368 Sq.yds respectively [hereinafter referred to as the property] by way of registered Sub-Lease Deed. Both the plots were reserved for School and its Playground in layout plan, approved by Defendant No.2. Plaintiff being a registered Educational Society erected a building on Plot No.ST-4 with the approval of Defendant and opened a school with the name “Cambridge Public School (Secondary)”. The Plaintiff after construction of the School Building raised a boundary wall on Plot No.ST-5, reserved for Playground by the Colony owners and also got no objection from previous owner for approval from the Defendant No.2 pursuant to that he deposited required fee before Defendant No.2. Defendant No.3, being aggrieved, approached Defendant No.1 for converting illegal conversion of the plot No.ST-5 from Public Park to school playground so also moved an application to the Provisional Ombudsman (Mohtasib) Sindh, Karachi. The Defendants visited suit property and issued notice for removal of construction of compound wall. The Plaintiff claiming to be lawful owner of both the plots, thus he filed instant suit with the following prayers:-

“(a) Declaration that the Plaintiff is lawful owner in possession of the Suit Property i.e. Plots Nos.ST-4 & ST-5, admeasuring 1106.65 Square yards, Wasim Bagh, Block No.13/D-2, Gulshan-e-Iqbal, Karachi-East by virtue of Registered Sub-Lease Deed vide Registered No.3370 dated 16.08.2004 of Sub-Registrar T. Division-IV, Karachi and M.F. Roll No.54004/1984 Dated 25.08.2004 of Photo Registrar, Karachi, and the Suit Property is meant for School & School Play Ground and any proceeding before any forum is inoperative against the Plaintiff.

(b). Declaration that any action of the Defendants Nos.1 & 2 in respect of the Suit Property for conversion into Public Park is illegal, malafide, null, void ab-initio, ultra vires, and not binding upon the Plaintiff.”

3. The Defendant No.2 in written statement contended that plaintiff has not raised the construction on the suit plot according to approved plan; on plot No.ST-5 no construction can be raised, as was reserved for public park. While denying the allegations of Plaintiff it is further maintained that the Defendant in compliance of order passed by Mohtasib removed the illegal construction of boundary wall. The Ombudsman in his decision decided that ST-5 is a public park whereas Defendants No.1 & 3 in their written statement contended that colony owner illegally converted amenity plot reserved for public park into playground of school and transferred the same in the name of the Plaintiff.

4. Learned counsel for Defendant No.2 while arguing aforesaid applications contended that Plaintiff has suppressed the real facts, as Ombudsman has already given decision regarding plot No.ST-5 whereby declaring that EDO shall cancel the sub-lease of ST-5 which is public park and same shall be restored as public park, therefore, instant suit is barred under Section 29 of the Ombudsmen Act. Whereas, counsel for the defendants No. 1 & 3, while adopting contentions raised by learned counsel for defendant No.2, pleaded that plaintiff has no prima facie case and has not approached this Court with clean hands.

5. On the other hand, learned counsel for the Plaintiff, inter alia, contended that Plaintiff purchased both the plots through registered sale deed, therefore, Ombudsman is not competent to cancel such lease deed or issue such directions and the proper forum for cancellation of any instrument is Civil Court under Section 39 of Specific Relief Act. However, the Plaintiff has preferred appeal against the Ombudsman order which is pending for decision. During pendency of instant suit, Defendants demolished the boundary wall erected around the plot No.ST-5, which is completely in use of the Plaintiff. In support of his contention, he relied upon case law reported in PLD 2011 S.C. 365 on the plea that subsequent event after filing of lis can be considered.

6. I have heard the respective sides and have given my due consideration to what has been argued so also to the material placed on the record.

7. Since the defendants have strongly come forward with an objection to very maintainability of the suit, therefore, before proceeding any further I feel it quite justified and proper to address this issue. The objection has been made with reference to the Article 29 of The Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order 1983 which, being relevant, is reproduced hereunder:-

29. Bar of jurisdiction.--No Court or other authority shall have jurisdiction.-

(1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Order ; or

(2) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib.

Perusal of above, it reflects that no doubt Article 29 (a) bars the jurisdiction of the court to question the validity of any action taken, or intended to be taken under an order of the learned Mohtasib but this Article, no where restricts the competent Court to entertain a suit where one approaches for determination of ‘legal rights or legal status of a document’. It is the absolute and exclusive domain of the Civil court to try all suit (s) of civil nature determining the legal character, rights, obligation and status of person, property and documents per Section 9 of the C.P.C. While the jurisdiction of the Mohtasib is defined by Article-9 of the Order whereby Mohtasib is authorized to investigate any allegation of maladministration on the part of any Agency or any of its officers or employees. A ‘trial’ is not complete in its meaning unless a full-fledged proceedings is done, as per procedure, so provided while the ‘investigation’ is conducted / carried out in a summary manner therefore, an ‘investigation’ cannot be equated with the term ‘trial’ particularly when the ultimate objective of both are entirely different from each other. In earlier the or ‘misfeasance’ is to be examined while in the later the ‘rights and status; are determined.

8. There is another difference into the status of Civil Court and that of Mohtasib. A Civil Court is competent to declare and enforce such declaration (decree) while the Mohtasib at the end of ‘investigation’ is to make recommendation to the quarter concerned as is evident form the Article -11 of the Order, which reads as under:-

“11. Recommendations for implementation.

(1) If, after having considered a matter on his own motion or on a complaint or on a reference by the President, the Federal Council or the National Assembly, or on a motion by the Supreme Court or High Court, as the case may be, the Mohtasib is of the opinion that the matter considered amounts to maladministration, he shall communicate his findings to the Agency concerned-

(a) to consider the matter further ;

(b) to modify or cancel the decision, process, recommendation, act or omission ;

(d) to take disciplinary action against any public servant of any Agency under the relevant laws applicable to him ;

(e) to dispose of the matter or case within a specified time ;

(f) to take action on his findings and recommendation to improve the working and efficiency of the Agency within a specified time ; or

(g) to take any other step specified by the Mohtasib.

(2)…

(3)…..

(4)….

(5)….”

The Article 11, nowhere authorizes the Mohtasib to declare status of person, or of a registered document or order for cancellation thereof. Worth to add here that a legal bar comes into play only to protect a legal order / act or proceedings.

9. In the instant matter the plaintiff has approached this Court for declaration of his legal right and that of status of registered document the determination whereof could only be done by the Civil Court within meaning of the Specific Relief Act. At this juncture a reference to the decision, made by the Mohtasib shall make position further clear which is reproduced hereunder:-

DECISION

I) Direct the EDO (Revenue) CDGK, to forthwith initiate proceedings in competent forum to get the sub-lease of ST-5 (the plot of Public Park) granted to “Syed Ali Athar, cancelled’

ii) Direct the EDO (MPGO) that the plot ST-5 be restored as Public Park, as per Original Lay Out plan of 1986 and illegal order of 1994 be cancelled / withdrawn, Stern action be taken against all those involved in the issuance of this illegal order;

The first portion of the decision makes it quite clear that the learned Mohtasib even directed the authority to move before proper forum to ‘get the sub-lease of ST-5 (the plot of Public Park) granted to “Syed Ali Athar (present plaintiff), cancelled’ which course was not resorted to by the authority rather plaintiff has approached for ‘declaration of his such title/status’ . Thus, the position, being so, make me of the clear view that jurisdiction of this court is not barred, particularly, when the plaintiff has not sought any relief against or in respect of the Order of the Mohtasib rather suit appears to be in line with first direction of decision of learned Mohtasib. At this juncture, it would be conducive to refer case of AMBER AHMED KHAN vs. PAKISTAN INTERNATIONAL AIRLINES CORPORATION, KARACHI AIRPORT, KARACHI [PLD 2003 Karachi 405] wherein it was held that:

“Indeed Article 29 of the Order bars the jurisdiction of Courts to question the validity of an order made or purported to have been made under this Order. Nevertheless, such bar according to a series of precedent laid down by the Honourable supreme court since Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (PLD 1965 SC 698) must be confined to orders made within the four corners of a Statute and cannot be extended to those passed in blatant violation of elementary principles of natural justice as held in Tarique Pirzada’s case. Moreover, it needs to be kept in view that under Articles 9 and 11 of the Order, the Mohtasib may entertain a complaint by an aggrieved person, alleging maladministration and is empowered to make recommendations for implementation. There is no provision barring an aggrieved person from approaching a Court of law for redress in case he is unable to obtain the same under the Order. A court unlike the Mohtasib is required to entertain a suit provided it is maintainable and can pass an enforceable decree while the Mohtasib can make recommendations for implementations. Therefore, while the Mohtasib does not have jurisdiction to investigate or enquire into matter which is subjudice before a Court under Article 9 but there is no corresponding provision in the Order or any other law barring a Court from entertaining a suit or legal proceedings in a matter being or having been investigated by the Mohtasib. We are therefore, clearly of the opinion that the plaintiff’s suit being founded upon his original cause of action, nothing turns upon the proceedings having been initiated before the Mohtasib and culminating upon the decision on the defendants’ representation.”

10. Accordingly, in view of above discussion, the application of the defendants, moved Under Order 7 Rule 11 CPC [CMA No.2496/10] stands dismissed.

11. Now, I would like to take up the application of the plaintiff, moved Under Order 39 Rule 1 & 2 CPC. It is now stood settled that to succeed for grant of an injunction one has to establish co-existence of all three ingredients i.e prima facie case, balance of convenience and irreparable loss / injury. It is not a disputed position that the plaintiff has been holding the possession over the subject matter under a registered document i.e c Registered Sub-Lease Deed and even the defendant No.1 (CDGK) admitted in para-3 of its written statement that :

That the contents of para 3 of the plaint are not denied. However, it is submitted that plot for school and school playground exist in lay out plan approved by the answering defendant vide No.8(24)-6/TP/87-91/866 dated 21.12.1992.

Not only this but even the Mohtasib in his order mentioned that :

REPORT OF THE AGENCY

‘2. The MPGO submitted that plot No.ST-4 for School and ST-5 for Park were approved by the DP& UD (defunct KDA) on 12.01.1986 as per approved Lay Out Plan. However, on the request of the owners of Wasim Bagh, the then Director General KDA, accorded approval of revised Lay Out plan on 16.06.1994, converting ST-5 from Public Park to School playground’.

FINDINGS

h) The owner of Wasim Bagh malafide maneuvered the revision of the Lay Out plan of 1986, converted the said Public Park into School Playground and sold it to the School owner for handsome amount, thereby depriving the residents from enjoying the benefits of a park’

The above fact (s) are sufficient to show that the plaintiff, prima facie, appears to be holding possession under bonafide under a document which is still holding the field hence prima facie case flows in his favour.

12. It is also a matter of record that despite instruction / direction of the Mohtasib the authority (quarter concern) did not move for cancellation of title document of the plaintiff and without first getting such title cancelled it would not be proper and within meaning of equity, fair play and good conscious to remove the plaintiff from the subject matter, therefore, the balance of convenience also flows in favour of the plaintiff. Since removal of the plaintiff from the subject matter and demolishing of the structure, raised thereon, prima facie appears to be without proper resort and even in strict line of the instruction/ order of Mohtasib therefore, the plea of the plaintiff regarding irreparable loss and injury also carries weight. The authority, at the end of the day, if succeeds in getting first instruction /direction of Mohtasib complied with then it would be justified for it (authority) to proceed towards second instruction but not before that. The position, being so, make it quite clear that no prejudice or loss would be suffered by authority in acting within four corners of procedure, law and instructions / directions of Mohtasib particularly when all such action(s) are being claimed under such order of learned Mohtasib.

13. As regards to the CMA No.1950/10, candidly there has always been security issue (s) and even there has been placed a letter issued by high official of the police to guard school premises. In the school number of students / children are attending who also step in the subject matter i.e plot (ST-5) (either a public part or school playground), therefore, till disposal of such dispute it shall not be proper to let the lives of the students under any danger / harm therefore, it would also be in the interest of all fairness to allow the plaintiff to raise compound wall, demolished during proceedings of the suit. Let me, however, make it clear that the raising of the compound wall, in any way, shall not be claimed by the plaintiff for any other purpose nor expenses on such construction shall be made any excuse if at the end of the day the plaintiff is found not entitled for relief, prayed for.

14. In view of above discussions, both the applications of the plaintiffs moved Under Order 39 R 1 & 2 CPC [CMA No.1255/10] and Under Section 151 CPC [CMA No.1950/10] are allowed.

JUDGE

Sajid