ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.142 of 2021

___________________________________________________________________ Date Order with signature of Judge

___________________________________________________________________

FRESH CASE:

1. For order on CMA No.1572/2021 (Urgent).

2. For order on CMA No.1573/2021 (Exemption).

3. For hearing of main case.

4. For order on CMA No.1574/2021 (Stay).

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23^rd August 2021

Ms. Sofia Saeed Shah, Advocate for Appellant alongwith Mr.Aijaz Ali, Advocate.

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1. Urgency granted.

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

3&4. Instant High Court of Appeal has been filed against order dated 09.08.2021 passed by the learned Single Judge, on the original side, of this Court during final arguments in Suit No.2086/2015, wherein, according to learned counsel, the learned Single Judge has been pleased to observe that since the defendant Mrs. Farida Hameed Nandia did not appear in the witness box nor filed any affidavit-in-evidence, whereas, the entire defendant’s evidence has come from her sons, which were not arrayed as defendants, therefore, the counsel for the appellant is put on notice to satisfy the Court as to how even the suit is maintainable under the circumstances. It has been contended by learned counsel for appellant that such observation of the learned Single Judge at the final stage of the proceedings when evidence has been recorded and matter is fixed for final arguments, besides being misconceived in law and facts, will adversely affect the claim of the appellant on merits and there is likelihood that suit filed by the appellant for specific performance against the defendant may be dismissed on misconception of facts and law. Learned counsel for the appellant submits that since there was an oral agreement between the appellant and the respondent Mrs. Farida Hameed Nandia for the sale of the subject property, followed by issuance of receipt, and acknowledgment regarding part payment made by the appellant, therefore, the appellant has arrayed her as defendant, whereas, after having filed written-statement she has adduced her evidence in the suit through her real son as attorney, and has also examined another son as her witness. According to learned counsel, since defendant Mst. Fareeda Hameed Nandia chose to be represented through attorney (real son) it would not affect the case of the appellant in any manner, therefore, the observation of the learned Single Judge in this regard are not justifiable in facts and law. It has been prayed that impugned order may be set aside and the learned Single Judge may be directed to decide the suit on merits on the basis of evidence produced by the parties.

From perusal of the impugned order, it appears that the learned Single Judge has provided an opportunity to the learned counsel for appellant/plaintiff to clarify this aspect of the matter, whereas, no adverse order has been passed, therefore, we are of the opinion that no cause of action accrues to the appellant to approach this Court by filing instant High Court Appeal, which is premature. Accordingly, we will dispose of instant appeal with the directions to the learned counsel for the appellant to satisfy the query of the Court by referring the relevant provisions of law pertaining to party to the proceedings. However, before parting with the order, we may observe that under the facts and circumstances of the case as stated by the learned counsel for the appellant, it will be appropriate if, judgment is passed on the issues framed in the suit on the basis of available record and the evidence adduced by the parties.

With these observations, instant High Court Appeals stands disposed off.

J U D G E

*Farhan/PS*