Order Sheet
IN THE HIGH COURT OF SINDH KARACHI
High Court Appeal No. 440 of 2018
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Date |
Order with signature of Judge |
Mr. Nabeel Kolachi, advocate for the appellants.
M/S Muhammad Junaid Farooqui and Naeem Ahmed Rana,
advocates for respondent No.1.
Date of hearing : 20.12.2018
O R D E R
NADEEM AKHTAR, J. – Suit No.2209/2018 was filed by the appellant against the respondents at the original side of this Court for declaration, specific performance, possession, permanent injunction and damages. In their above Suit, the appellants filed CMA No.16725/2018 praying that Nazir of this Court be appointed as commissioner to inspect the suit property in order to ascertain the number of units occupied therein illegally. The notice on the said application was ordered by the learned single Judge vide impugned order dated 26.11.2018. Thereafter, another application bearing CMA No.17032/2018 was filed by the appellants wherein it was once again prayed that in view of the urgency pleaded and apprehensions expressed therein a commissioner be appointed with the above mandate. On this application also notice was ordered by the learned single Judge vide impugned order dated 30.11.2018. It is contended that through both the impugned orders only notice was ordered without appointing the commissioner and without appreciating the urgency pleaded and apprehensions expressed by the appellants. Addressing the office objection regarding maintainability of this appeal against the above orders, it was contended by learned counsel for the appellants that under the Code of Civil Procedure, 1908, every order, even if it is an order for issuance of notice, is appealable, and also that non-grant of ad-interim or interim relief amounts to an adverse order.
2. It was contended on behalf of the appellants that the parties had entered into a contract whereby the subject shopping mall was to be constructed on self finance basis ; in view of disputes between the parties, various litigation ensued whereafter they settled the disputes by entering into a revised agreement ; the respondents committed breach of the terms and conditions of such agreement by breaking the locks of the units in the subject shopping mall and handing over their possession to tenants / allottees without the consent of the appellants ; on 26.11.2018, a status quo order was passed in the appellants’ above Suit ; and, after receiving notice in the above Suit, the appellants were illegally denied access to the subject shopping mall by the respondents. It was further contended that the purpose of filing the applications for inspection was to safeguard the interest of the parties to the agreement and also to ensure that the status quo order passed in the Suit should not be frustrated or violated by the respondents, and in case of any such act by them, the correct factual position should come on record. It was also contended that except for inspection of the subject shopping mall, there was no other way to ascertain the veracity of the allegations made in the plaint regarding illegal handing over of possession of the units by the respondents.
3. Record shows that serious allegations of breach of contract and handing over possession of units illegally to allottees were made in the plaint against the respondents and in view of such allegations, status quo order was passed in the Suit. When a status quo order is passed, parties to the proceedings are duty-bound to adhere to the same in letter and spirit by maintaining the position that stood on the date of such order ; and, when breach of such order is alleged by one party and is denied by the other party, it becomes difficult for the Court to ascertain whether the order was actually violated or not. It is due to this reason that parties apply to the Court for appointment of a commissioner to inspect the subject matter of the proceedings so that the same may be preserved during pendency of the proceedings and also to ensure that the order passed by the Court is implemented in letter and spirit. In appropriate cases, an order for appointment of commissioner is passed by the Court suo motu with the above objective. However, in some cases such order is not passed by the Court without notice to the other side. It may be noted that a party cannot seek appointment of commissioner as a matter of right as the question of such appointment depends upon the facts and circumstances of each case the discretion whereof lies solely with the Court. It may also be noted that when a party applies to the Court for appointment of a commissioner either for inspection or for any other purpose, it cannot be said that such party is seeking a relief for himself as report of the commissioner facilitates the Court in ascertaining the actual and correct factual position relating to the lis / subject matter before it. Needless to say that whatever the commissioner does he does it on behalf of the Court. Therefore, we are of the view that in cases where the question of preservation of the subject matter of the proceedings is involved or the actual and correct factual position is required to be ascertained by the Court, appointment of a commissioner should be treated as a matter for assistance of the Court rather than a relief to any of the parties.
4. In the present case the learned single Judge exercised his discretion by issuing notice on the first application filed by the appellants for appointment of a commissioner. However in view of the serious allegations and apprehensions repeated by the appellants in their second application particularly with regard to violation of the status quo order, a commissioner should have been appointed as no prejudice would have been caused to any of the defendants / respondents who were already on notice. In fact, the actual and correct factual position at the site would have come on record which would have set the appellants’ allegations and apprehensions at rest.
5. Foregoing are the reasons of the short order announced by us on 20.12.2018 whereby this appeal was disposed of in the following manner :
“For the reasons to follow, this appeal is disposed of with no order as to costs by appointing Nazir of this Court as commissioner in terms of the prayer made in CMA No.17032/2018 filed by the appellants in Suit No.2209/2018. The commissioner shall inspect the suit property after notice to the appellant / plaintiff and respondent No.1 / defendant No.4 and shall submit his report in the above mentioned Suit within seven (07) days from today. His fee shall be decided in the above Suit by the learned single Judge. In view of this order, CMA No.16725/2018 filed by the appellant in the above Suit for the same purpose has become infructuous and is accordingly dismissed.”
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