ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.237 of 2021

___________________________________________________________________                                        Date                                      Order with signature of Judge 

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FRESH CASE:

1. For order on CMA No.2161/2021 (Urgent).

2. For order on office objection a/w reply as at ‘A’.

3. For order on CMA No.2162/2021 (Exemption).

4. For hearing of main case.

5. For order on CMA No.2163/2021 (Stay).

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17^th November 2021

Mr. Arshad M. Tayebaly, Advocate for Appellants alongwith Mr.Umar Memon, Advocate.

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1.         Urgency granted.

2.         Learned counsel for the appellants undertakes to comply with office objection before next date of hearing.

3.         Exemption granted, but subject to all just exceptions.

4&5.     Instant High Court Appeal has been filed against an order dated 13.10.2021 passed by the learned Single Judge, on the original side, of this Court in Suit No.240 of 1971 filed by the respondent No.1, who claims to be the neighboring residents of Mohatta Palace and expressed their grievance against some portion of the aforesaid order, whereby, according to learned counsel for appellants, learned Single Judge has approved proposal of the parties for construction of Shireen Jinnah Girls Medical College/Hospital on the subject premises, which according to learned counsel, is a heritage property and situated in purely residential area, which cannot be used for any other purposes, except for residential purposes.

            While confronted as to maintainability of instant appeal, as         prima facie, the appellants are not the parties in the aforesaid suit, whereas, the proposal of construction is still under process of finalization. On such query of the Court, learned counsel for the appellants has placed reliance on the cases of H.M. SAYA & CO., KARACHI v. WAZIR ALI INDUSTRIES LTD., KARACHI AND ANOTHER (PLD 1969 SUPREME COURT 65) and SAHIB DAD v. PROVINCE OF PUNJAB AND OTHERS (2009 SCMR 385). Learned counsel for the appellants further submits that against the aforesaid impugned order, two High Court Appeals bearing No.206 and 208 of 2021 have already been filed, which are fixed tomorrow for hearing, therefore, requests that instant appeal may be fixed alongwith aforesaid appeals.

            Mr. Kh. Shams-ul-Islam, Advocate who is present in Court in some other cases, submits that though notice under Order 43 Rule 1 CPC has not been served upon the respondent No.1, however, he raised an objection as to maintainability of instant appeal, waives notice of instant appeal, claims its copy alongwith annexures and requests for time to file objection/reply. Learned counsel for the appellants undertakes to supply copy of the same during course of the day.

            Mr. S. Aley Maqbool Rizvi, learned Addl. Advocate-General, Sindh alongwith Ms. Leela @ Kalpana, Addl. A.G. Sindh, has effected appearance on behalf of Government of Sindh, waives notice of instant appeal, claims its copy alongwith annexures, and requests for time to file objection/reply. Learned counsel for the appellants also undertakes to supply copy of the same during course of the day.

            Let notice of instant appeal be issued to the remaining respondents, to be served through first three modes, for tomorrow i.e. on 18.11.2021, however, subject to maintainability of instant appeal, whereas, instant appeal may be taken up alongwith aforesaid appeals i.e. H.C.A. Nos.206 and 208 of 2021, which are fixed tomorrow for hearing.

J U D G E

   J U D G E

*Farhan/PS*