ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Suit No. 590 of 1995
Date Order with signature of Judge
For order on Nazir’s Report dated 23.01.2017
Syed Wajahat Abbas, Advocate for the Plaintiff.
Mr. Abdul Karim Advocate for the Defendant.
Syed Alay Maqbool Rizvi AAG.
Mr. Saleemuddin A. Patoli standing counsel.
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Date of Hearing: 24th January 2017
Date of announcement: 17th February 2017
1. Plaintiffs filed suit for Declaration and Permanent Injunction. After the service of the summons, the defendants filed a written statement. On 26.06.2006 Issues were settled. Commissioner was appointed for recording of evidence of the parties within three months vide order dated 07.12.2006, who, having recorded evidence of the parties, submitted report. Since then, matter was fixed for final arguments.
2. On 06.05.2016, learned counsel for the parties agreed that on account of dispute as to the locations, possessions in actually compared to the Revenue records for better understanding a joint survey with the representatives of the parties concerned, Mukhtiarkar, City Survey be got conducted by the Survey of Pakistan under the supervision of the Nazir of the Court of the subject area, wherein following land marks be considered for reference showing the related survey numbers and possession as present:-
(i) KDA Master Plan.
(ii) Shahrah-e-Faisal.
(iii) Rashid Minhas Road
(iv) PAF Establishment
(v) Railway Line.
3. The cost of Commission was ordered to be borne by the plaintiff and Defendant No.2 equally. Tentatively, a sum of Rs.50,000/- deposited with the Nazir of the Court accordingly and survey was ordered to be conducted within 20 days and report be submitted accordingly. Parties deposited the cost with the Nazir of the Court, letter issued to the Survey Department, who regretted. Thereafter, this Court, vide order dated 09.11.2016, required Survey of Pakistan to assist in the matter for assessment of the land in accordance with relevant survey numbers and possession of the parties. It is reported by the Nazir of this Court that Survey of Pakistan had regretted being unable to do the requisite. In the circumstances, with the consent of learned counsel for the parties, the said order was recalled and the amount deposited by the parties with the Nazir of this Court was ordered to be returned to them and the matter be taken up for final arguments along with pending applications.
4. On 23.01.2017, Nazir of this Court has submitted report that an amount of Rs.50,000/- was deposited by the plaintiff and Defendant No.2 @ Rs.25,000/- each on 11.05.2016 and 13.05.2016 respectively, however an amount of Rs. 25,500/- @ 51% was deposited with NBL, Court Road Branch, towards High Court Benevolent Fund and remaining amount of Rs.24,5000/- @ 49% was disbursed amongst the Nazir, Deputy Nazir and staff of Nazir Branch as per their respective shares after obtaining administrative approval of the Honourable Chief Justice, vide order dated 20.09.2016. Since exercise of subject order dated 06.05.2016 was carried out by the office on as many as six dates, wherein not only issuance of notices were made but also made proper diaries. However, for withdrawal of an amount @ 51% at Rs.25,500/- from High Court Benevolent Fund with HBL, administrative approval of the Honourable Chief Justice would be required.
5. The learned counsel for the respective parties submitted that the Nazir may be directed to refund amount in compliance of order dated 09.11.2016 through which he has been directed by this Court for refund of the Commissioner’s fee.
6. It is pertinent to point out that said amount has been disbursed amongst the Nazir’s office members and deposited in the High Court Benevolent Fund in the light of decision taken in the Administrative Committee meeting as Item No. 81 /2009 to consider the reply/report dated 07.11.2009 made by Nazir of this Court regarding share of the staff in respect of Nazir’s fee. The issue regarding appointment of Nazir and apportionment of Nazir’s fee was discussed and it was unanimously resolved as follows:-
(i) (i) Credit to HCEBF Account 51%
(ii) Nazir 15%
(iii) Deputy Nazir (General) 6%
(iv) Deputy Nazir (Accounts) 6%
(v) Staff (13 members) 22%
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Total 100%
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7. Since the 100% amount has been utilized as per decision of the Administrative Committee of this court, with the approval of the Hon’ble Chief Justice vide order dated 20.09.2016 which order prima facie was passed much prior to order dated 09.11.2006 whereby order dated 06.5.2016, passed by this Court, was recalled. It is not a case of mere depositing the amount without any exercise in consequence thereto but certain exercise was carried out by the Office of Nazir and failure has not been in result of any negligence on part of Nazir’s office therefore, Administrative Committee passed a decision which duly stood stamped by approval of the Honourable Chief Justice. In short, where the deposited amount stands utilized under an approved decision of Administrative Committee then it would not be open for the parties to seek refund of such utilized amount as same shall be governed by decision of Administrative Committee only. Needless to say that such approved decision of Administrative Committee still holds field, therefore, request of parties is not tenable. Accordingly, Nazir’s Report is taken on record. Parties be informed accordingly. Office is directed to fix the case for final argument with notice to parties.
JUDGE
Dated: 17th February 2017