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Petitioner: ABDUL MAJEED VS Respondent: KHALID YASIN and 2 otherss
Court Name: Sindh High Court Judge(s): Shabbir Ahmed Title: ABDUL MAJEED vs KHALID YASIN and 2 otherss Case No.:Civil Suit No,1524 of 1998, Civil Miscellaneous Applications Nos.10550, 11262,
11263 of 1998 and 2311 of 1999 Date of Judgment:2000-12-18 Reported As: 2002 CLC 468 Result: Order accordingly Judgment ORDER ' I intend to dispose of by this order plaintiff's applications (i) C.M.A., No,10550 of 1998 under Order 39, Rules 1 and 2, C.P.C. For injunctive order, restraining the defendants Nos.1 and 2 from demolishing or damaging the plaintiff's hotel premises on the portion (measuring 107 Sq. Meter on K.P.T. Plot No,74 (Settlement Department No,K.P.T.1-IX-A-19, G/5, '6 and 7) Keamari Township, Karachi and or disturbing and interfering in plaintiff's peaceful possession and use of said hotel premises in any manner, (ii) C.M.A. No,11262 of 1998, under Order 39, Rules 1 and 2, C.P.C. Read with section 151, C.P.C., restraining the defendants Nos.1 and 2 and their agents and employees from raising any construction on demolished back portion of the plaintiff's hotel on the Plot No, 74/7 (corresponding Settlement Department No,K.P.T.1-IIX-A-19, 0/5, 6 and 7) and/or entering upon such back portion of the hotel and/or using such back portion of the hotel for their any purpose, pending disposal of the suit, (iii) C.M.A. No,11263 of 199$ for attachment of the properties detailed in the application belonging to defendants Nos.1 and 2, the contemners and imprisonment of the said defendants and further for order for action for contempt of Court according to law and (iv) C.M.A. No,2311 of 1999 under Order 6, Rule 17, C.P.C. Read with section 151, C.P.C. For amendment of the plaint for additional paras. No,9-A substitution of para. No,10 and addition of para. In prayer clause detailed in the application. 2. The above applications have been hotly contested by the defendants. Before capitulating the plea of the respective parties qua the applications, it would be proper to state the facts in brief, which are as follows.
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3. Plot No,4 with new No,74/7, Keamari Township measuring about 533.3 sq. Yds. Was allotted to one Pran Nath Bhopat Rai Baveja, by the K.P.T. Somewhere in the year 1936. He raised a building on the plot which was declared evacuee on his migration to India after partition of the Sub-Continent. The Settlement Department, Government of Pakistan divided the said building in 14 tenements and transferred the same to different claimants. Yousuf Ali son of Ghulam Abbas was transferred the portion marked by Settlement Department as G-5, 6 and 7 through transfer order, dated 17-5-1976, whereas, the defendant No,2 was allotted G/8, G/9, G/11, G/12, G/13 vide P.T.D., dated 23-7-1998 and 25-5-1973. 4. The case of the plaintiff is that Yousuf Ali by agreement of sale through is attorney Malik Arshad Mahmood, sold the premises to Muhammad son of Haider. On 24-7-1995 he purchased the same by agreement and on the basis of sale agreement, he has applied for allotment of the premises in his favour and has also paid the requisite fee and charges. He has pleaded that K.P.T. Has subdivided the plot and produced the sketch Annexure "H", showing the assignment of new subdivision of plot of Plot No,47. It is the case of the plaintiff that he is running hotel business under the name and style of Al-Madina Hotel and has applied for allotment of the said portion measurement of which according to him, is 107 sq. Meters (hereinafter referred to as the suit plot). The defendant No,2's plot is adjacent to the suit premises, which according to the plaintiff, is marked 74/9. The defendant No,2 demolished the old structure on her adjoining plot through her son, defendant No,1 for reconstruction of a building and asked the plaintiff to remove back portion of his hotel premises in order to extend construction of the new building. On his refusal, he was threatened that the said portion would be demolished by force and with help and influence of his brother Yamin Khan, the Deputy Inspector-General of Police of Karachi. It was the case of the plaintiff that in furtherance of threats, on 2-12-1998 the defendant No,1 accompanied by about 4 persons called the 'plaintiff from his hotel and threatened him to remove the structure of back portion within two days otherwise he would bring his demolition force to demolish the said portion. The plaintiff legal right was under threat in respect of the plot in his occupation. He has already applied for the allotment to the K.P.T., as such the suit was filed on 3-12-1998. 5. On 4-12-1998, following order was passed by this Court:- "2. Plaintiff claims to be in lawful possession of plot bearing No,74/7, by virtue of the documents Annexures "A", "B", "C" and "D" filed with the plaint. His grievance is that his immediate neighbours raising illegal and unauthorized construction and wants to demolish some part of the construction on the aforesaid plot, Issue notice to the defendants for 9-12-1998. Till then defendants Nos.1 and 2 are restrained from causing any damage to the plaintiff's property." 6. The above order was passed on C.M.A. No,10550 of 1998, which was supported by affidavit of the plaintiff. In para. No,3, the plaintiff reiterated that he is in legal possession of a portion, measuring 107 sq. Meters of the K.P.T. Plot No,74/7 (corresponding Settlement Department No,K.P.T.1-IX-A-19, G/5, 6 and 7), with construction hotel premises from his previous owner. The plot belongs to the K.P.T. And he has applied for allotment of the said portion also has paid the security deposit and the allotment charges. The defendant No,1 son of the allottee, defendant No,2 of the adjoining plot, demolished the old structure of the said adjoining plot, apparently for reconstruction purpose, so that in order to extend new construction on the adjoining plot to that portion of his hotel asked him to remove back portion. On his resistance, the defendant No,1 further threatened him to demolish the back portion of his hotel by force by claiming Yamin Khan the D.I.-G. Posted at Karachi, his brother and would use all the influence of the said police officer against him to carry out the demolition work of the back portion. Lastly on 2-12-1998, the defendant No,1 threatened to demolish it within 2 days. The threatened actions to demolish the back portion are illegal, unauthorized and mala fide designed to infringe his legal right of his hotel premises and maintained that he has made out a good prima facie case and the balance of convenience lies in his favour.
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7. In spite of urgency, the injunctive order obtained was not got issued by the plaintiff from the office to be served on the defendants till 7-12-1998. 8. C.M.A. No,10646 of 1998, under Rule 110 of S.C.C.R. (O.S.) and C.M.A. No,10647 of 1998 under Order 26, Rule 9, C.P.C. Read with section 151, C.P.C. Were moved for inspection of the- premises through Nazir for purpose of the elucidating the dispute i,e, unauthorized demolition of the hotel premises and construction of a new wall on such demolished portion of the hotel by the defendants. The urgent application was granted. The following order was passed on application for inspection without notice to the defendants, which reads as follows:-- "2. Consistent with the interim order, dated 4-12-1998, passed on injunction application and subject to all just exceptions, Nazir of this Court is appointed as Commissioner to visit the site and submit his report with regard to the demolition of the hotel premises on the plot in suit, if any, as complained. He may also inspect and report whether any construction is being raised on the demolished portion, as alleged. The report may be supplemented by photographs if found necessary by the Nazir. His fee is fixed at Rs,5,000, Inspection may be carried out as quickly as possible and if possible today." 9. It may be mentioned that the orders, dated 4-12-1998 and 7-12-1998 were got issued on 7-12- 1998 simultaneously. ' The Nazir on receipt of the order, carried out the inspection on 7-12-1998 at 4-10 p.m. Without notice to defendants and submitted the report supplemented by the sketch and photographs taken during the inspection. 10. In the written statement, the defendants have taken the plea that the plaintiff has no title or right to institute and initiate the proceedings on the basis of so-called sale agreement which does not itself create any title, interest in or charge on the property and suit being incompetent and is liable to be dismissed. They have also denied the sketch Annexure "H", produced by the plaintiff being false, fabricated and manipulated document and cannot be relied upon. It was also denied that defendant No,3 has assigned Plot No,74/7 to the tenements of the plaintiff. It was their case that Plot No,74 (old No,4), Keamari Township was allotted in pre-Independence days to one Hindu and after Independence it became an evacuee property vested in Settlement Department. It was divided into 14 tenements bearing Nos.G-1 to G-14, out of which tenements Nos.G-8, G-9, G-11, G-12, G-13 and G-14 were allotted to the defendant No,2 by Settlement Department vide P.T.D. Issued on 23-7-1968 and 6-10-1971. The site plan was issued by Settlement Department on 23-11-1980 specifying the area of the tenements allotted to her, the details of which are as under:-- Area of G-8, G-9, G-14 = 54.9 sq. Yards Area of G-11, G-12, G-13 = 107.0 sq. Yards Area of courtyard = 54.6 sq. Yards Total area 216.3 sq. Yards or 180.84 sq. Meters 11. The case set up by the defendants was that in order to carry out the construction the defendant No,2 through her son defendant No,1, Khalid Yasin intended to demolish old structure. However, before demolition of her tenement No,G-13, plaintiff was contacted who was unauthorized in possession of a small portion of tenement No,G-13. After lot, of persuasion and on defendants' proposal to bear the costs, the plaintiff agreed for the demolition and removal of unauthorized construction on the tenement No,G-13 on the condition that an area of 1 foot width occupied by him on which beam supporting his hotel's roof is erected will be left untouched, for which the defendant will not charge any amount. The parties as such agreed and consequently, the said unauthorized portion was vacated by the plaintiff and the same was removed/demolished in the presence of the plaintiff. However, the unauthorized construction of one foot width on the
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defendants' land was left untouched. It was further pleaded that the plaintiff became greedy and started demanding exaggerated amount as compensation. On refusal of the defendants to meet his demand the plaintiff filed the present suit. The site plan on which he has relied upon is not authenticated and hand made by him having no legal sanctity only to camouflage the factual position, in order to misguide the Court to obtain prohibitory order and has twisted the facts. The extension of threats to the plaintiff for demolition of the back portion by force or with the help or influence of his brother was also denied. It was pleaded that the plaintiff, in order to exploit the position of the defendant No,2's son, who is Deputy Inspector-General of Police and posted at Mirpur Khas, has given false news item in various newspapers levelling false and frivolous allegation in order to harass the defendant and to damage the reputation of her son and to cause embarrassm ent. They have denied site visit on 2-12-1998 or any other day to threaten the plaintiff in order to remove the structure, which was already removed. On 29-11-1998 as such there was no question of advancing the threats to the plaintiff. 12. The plaintiff, in support of his applications, C.M.A. No,11262 of 1998 and C.M.A. No,11263 of 1998 injunction application and ' contempt application, have filed separate affidavits with same averments, wherein it has been asserted that by order, dated 4-12-1998, the defendants Nos.1 and 2 were restrained by this Court in the above suit from damaging his hotel premises. The defendant avoided the service of the interim injunction order through the bailiff. However, the defendant was intimated of the said order on the same day viz. 4-12-1998. Thereafter, on 5-12-1998 at about 7-00 p.m. The defendant No,1 accompanied by gang of hired criminal trespassed into his hotel and started demolishing the back portion of his hotel forcibly by criminal intimidation to him and his employees. He rushed to make complaint against the defendant No,1 and reported the matter to Jackson Police Station, but police took no action being malafidely in collusion with defendant No,1 under the influence of his brother, the D.I.-G. Police. Since 6-12-1998 being Sunday, he made an application under Order 26, Rule 9, C.P.C. On 7-12-1998, for urgent inspection of the said demolition work which was being carried out by defendant No, 1. The Nazir was directed to make site inspection on the same day. The Nazir made the inspection and found demolition work was still continuing by the defendants Nos.1 and 2. It was maintained that even after the said inspection and full knowledge of injunction order, dated 4-12-1998, the defendants Nos.1 and 2 continued the demolition work of his hotel till 9-12-1998 and have started cleaning the debris of such demolished portion of his hotel for the purpose of construction of their building on the back portion of his hotel demolished by them. 13. The defendants also filed separate counter-affidavit to the applications referred to above with the same facts and denied the allegations and maintained that after the parties reached to a consensus whereby the plaintiff was permitted to occupy one foot space of the defendants' land, the unauthorized temporary construction was removed on 29-11-1.998 in presence of the plaintiff, however, the plaintiff, thereafter, became greedy by asking for exaggerated amount of compensation and on refusal, filed the present suit. The plaintiff obtained the order from the Court on 4-12-1998 but deliberately no attempt was made to get the process issued/served on the defendants till 7-12-1998, on which date the plaintiff moved an urgent application for inspection of the premises by levelling false allegations and got premises inspected. It was maintained that on 7-12-1998, neither any work of construction nor removal of waste material was carried out by the defendants pertaining to the property which was unauthorizedly occupied by the plaintiff. There were other old tenements on her plot as well which were also demolished and some remaining work pertaining to that portion was in process. They have also maintained that neither the plaintiff intimated them about the injunction order on 4-12-1998 nor with the help of so-called hired criminal gang, the defendant trespassed to the hotel of plaintiff on 5-12-1998 or forcibly demolished any. Portion. The collusion of the Jackson Police Station was also denied, on the
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contrary F.I.R. No,11 of 1999 on 12-1-1999 at about 11-50 a.m. Was lodged. The application has been filed with mala fide intention in order to usurp her valuable property. They have also denied that the demolition was carried out on 7-12-1998 or the construction work pertaining to the raising of cement block wall or any other work was going on 7-12-1998 or thereafter. It was also reiterated that unauthorized construction was removed in the presence and with his consent on 29-11-1998. In order to cut short the controversy they have shown their willingness to get the property measured in accordance with the site plan issued by the Settlement Department as to the entitlement of either party iii respect of disputed portion through the concerned authorities of the Settlement Department or the K.P.T. And unconditionally assured to vacate and hand over the, portion of the plot to plaintiff if the report of the authorities favours him or his legal entitlement is found. 14. The allegation of violation of the Court orders was also denied and they maintained that it is absolutely false, frivolous and baseless that they have disregarded the order of this Court or has committed the unlawful breach of interim order. It was reiterated that the order, dated 4-12-1998 was never communicated to them. After the inspection by the Nazir, they came to know as to the institution of this suit and made appearance through their counsel on 9-12-1998 obtained the copies from the bailiff on 10-12-1998. They further reiterated that they being law-abiding citizen and have great respect and regard to the orders of the Court and cannot think of disobeying the order passed by this Court. They maintained that the application has been filed with sole motive and intent to pressurize and harass the defendants to achieve malicious motive. 15. The plaintiff through separate rejoinder denied the removal of the construction with consensus and maintained that it amounts to admission that the demolition was arbitrarily, unilaterally and unauthorizedly. 16. I have heard Mr. K.B. Bhutto, learned counsel for the plaintiff and Mr. Sajjad Ali Shah, learned counsel for the defendants Nos.1 and 2 as well as Mr. Muhammad Arif Khan, learned counsel for the defendant No .3 . At the very outset Mr. K.B. Bhutto, learned counsel for the plaintiff has not pressed the C.M.A. No,10550 of 1998 on the ground that the same has become infructuous and in changed circumstances C.M.A. No,11262 of 1998, has been filed by the plaintiff, therefore, the C.M.A. No,10550 of 1998 is dismissed as not pressed. 18. Mr. K.B. Bhutto, learned counsel for the plaintiff has vehemently contended that the plaintiff is in occupation of the hotel premises bearing Nos.G-5, 6.And 7 for which he has applied for allotinent to the K.P.T. And the matter is under process and contended that the defendants have admitted the demolition, which according to him was illegal and under the influence of Muhammad Yamin Khan, the D.I.-G., brother of defendant No,1 and son of defendant No,2. He further contended that the police of the' area was under the influence of the defendants and have not come in rescue of the plaintiff and the order passed by this Court was also violated which was brought to the notice of the defendants. He further contended that the question to be determined by the Court is whether the demolition work was carried on after the grant of injunction on 4.-12-1998. He further contended that the defendants' plea is that the demolition work was done on (sic) 1998 with the consent of the parties this requires evidence. He vehemently argued that the defendants not only trespassed over the portion of the plaintiff but demolished the same under influence of the D.I.-G., the son of the defendant No,2 and contended that even the F.I.R. Was lodged on the intervention of this Court when the writ petition was filed, which was vehemently contradicted by the defendants' counsel, who maintained that the F.I.R. Was lodged on the basis of telex and telegram sent by the plaintiff to the various authorities. Petition filed by the plaintiff was dismissed when the registration of F.I.R. Was brought to the notice of the Court. Mr. K.B. Bhutto has not controverted these facts on the contrary, Mr. Bhutto conceded that the direct complaint, filed by the plaintiff was dismissed by the learned Magistrate and the revision filed before this Court was also dismissed. The learned counsel for the
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plaintiff contended that the plaintiff's property has been damaged and the defendants have encroached over the portion if they are not restrained, the plaintiff's interest would be seriously prejudiced, who has established a prima facie case and balance of convenience lies in his favour and a case for grant of injunction is made out restraining the defendants from raising construction over the disputed portion. 19. The plaintiff's case that his tenements size/area is 107 sq. Yds. Or meter is based on Annexure "H", the sketch. Except the sketch, the document produced by the plaintiff does not contain the area of the plaintiff's tenement. The authenticity of sketch has been challenged by the defendants Nos.1 and 2 and the counsel for the K.P.T. Has also not accepted its authenticity. The learned counsel for the defendants vehemently contended that the defendants are the allottee of G-8, G-9,G-14, G-11, G-12 and G-13 from the Settlement Department and also got allotment of courtyard from K.P.T. Thus, the area of tenement allotted to the plaintiff is 214.53 sq. Yds. And contended that the defendants allowed the plaintiff to remain in possession of the portion of defendants' land, to the extent of one foot width and the demolition was done much before the filing of the suit. They have also maintained that even the plaintiff has not come to the Court with clean hands. He also maintained that the plaintiff has no right in respect of the property on the basis of agreement of sale in terms of section 54 of Transfer of Property Act. He contended that the order, dated 4-12-1998 was not communicated by the plaintiff purposely though there was urgency and obtained ex parte order of inspection without notice to the defendants only to prejudice the mind of the Court against the defendants. He has also contended that even the inspection carried out by the Nazir without notice to the defendant has no value and has to be excluded from the consideration. He further contended that the plaintiff is exploiting the position of Yamin Khan, D.I.-G. Only to gain sympathy and maintained that he had no role in the affairs. He further maintained that though the F.I.R. Was registered at the behest of the plaintiff against the brother of sitting D.I.-G., which was found by Courts below to be false and frivolous. The plaintiff by maligning a reputed officer wants support to his mischievous and greed desire. He contended that it was easy for D.I.-G. To got cases registered 'against the plaintiff at various police stations of Sindh if the D.I.-G. Would have been of such nature, which is very common in police hierarchy but not a single counter-F.I.R. Or F.I.R. Has been lodged against the plaintiff, which is reflective of the fact that the defendants are not of the type of persons as the plaintiff tried to depict. 20. The plaintiff's counsel has mainly based his case on the report submitted by Nazir in pursuance of the order passed by this Court on 7-12-1998, it would be proper to dispose of the objection taken by the defendants on such report. 21. Before dilating the objections, it would be advantageous to reproduce the provisions of C.P.C. Governing the appointment of commissioner for site inspection, which are contained in Rules 9 and 18 of Order 26, C.P.C. Rule 7 of Order 39, apart from Rule 18 of Order 18, C.P.C. More particularly provisions of Rules 9 and 18 of Order 26 and Rules 7, 8 of Order 39, which reads as follows:-- "26(9) Commissions to make local investigation.--- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: ' Provided that, where the (Provincial Government) has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. 26(18) Parties to appear before Commissioner.--- (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
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(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence. 39(7) Detention, preservation, inspection, etc., of subject-matter of suit.--- (1) The Court may, on the application of any party to a suit and on such terms as it thinks fit,-- (a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to ' enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. (2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule. (8) Application for such orders to be after notice.--- (1) An application by the plaintiff for an order under Rule 6 or Rule 7 may be made after notice to the defendant at any…
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