2024 C L C 1081
[Sindh]
Before Nadeem Akhtar and Yousuf Ali Sayeed, JJ
MARKET COMMITTEE, KARACHI through Secretary----Petitioner
Versus
Haji AMIR MUHAMMAD KHAN and 3 others----Respondents
H.C.A. No.327 of 2023, decided on 3rd October, 2023.
Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr. 1, 2, 3 & 4---Specific Relief Act (I of 1877), Ss. 42, 12 & 54---Suit for declaration, possession and permanent injunction---Ad-interim order, violation of---Restoration of possession---Allottee filed suit against the Market Committee on the basis of a registered sale deed executed by the Nazir of Single Judge of the High Court (Trial/Executing Court) by virtue of a previous decree in his favour---Appellant/defendant (Market Committee) was directed by the Court to restore possession of the suit-plot to the respondent / plaintiff (allotee)---Plea of the appellant/defendant was that neither the number of the suit plot was correct nor such plot physically existed and it was also not traceable in layout plan, and decree had already been assailed by filing an application under S.12(2), C.P.C---Validity---Site Plan attached to the registered sale deed executed by the Nazir of the Court in favour of the allottee and the Layout Plan of the subject market, prima facie, showed that the suit property was shown and described therein---Question as to whether the suit property did not exist and the plot claimed by respondent/plaintiff fell within the amenity plot / parking area, as alleged by the appellant, or was available and was situated elsewhere, as claimed by respondent /plaintiff, could be decided in the Suit only after examining the evidence led by the parties---Thus, the dispute relating to the location and title of the piece of land in dispute was yet to be decided in the Suit---Regarding possession of the suit property, the record showed that inspection thereof was ordered in the respondent /plaintiff's (previous) suit by appointing the Nazir of High Court as Commissioner who submitted his report stating that respondent No.1 was in possession---Perusal of the impugned order showed that the above factors were taken into account by the Single Judge of the High Court while directing the defendants to restore the possession of respondent /plaintiff as, admittedly, an ad-interim order, securing the latter's possession, was in the field at the relevant time---Therefore, the impugned order did not require any interference to the extent of restoration of the respondent/ plaintiff possession---It was an admitted position that the decree in respect of the suit property passed in favour of the allottee and the registered sale deeds executed in pursuance thereof in favour of the allottee and respondent / plaintiff were still in the field---However, the dispute involved in the suit relating to the location and title of the piece of land in dispute was yet to be decided---Due to said reason, the finding in the impugned order that respondent No.1 / plaintiff was apparently the lawful transferee of the suit property, was premature and could at best be tentative---If the subject matter of the lis was not preserved till the final disposal of the suit, not only would the purpose of filing the suit be defeated, but there would also be multiplicity of proceedings between the parties---Respondent / plaintiff had given an undertaking before the High Court that if possession of the suit property was restored to him, he shall construct a boundary wall around it at his own cost to save it from encroachment, and shall not raise any other construction thereon till the final disposal of his suit---Said undertaking appeared to be reasonable and suitable for preserving the subject matter of the lis and equitable for protecting the interest of the contesting parties during pendency of the suit---High Court modified the impugned order in terms of the said undertaking---Appeal stand disposed of accordingly.
Shafiq Ahmed Lanjar for Appellant.
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