ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

I.A. No.28 of 2021

___________________________________________________________________ Date Order with signature of Judge

___________________________________________________________________

Hearing / Priority Case:

1. For hearing of CMA No.183/2022.

2. For hearing of CMA No.2012/2021.

3. For hearing of CMA No.646/2021.

4. For hearing of main case.

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11^th March 2022

M/s. Ashraf Hussain Rizvi and Bacha Fazal Manan, Advocates for Appellant alongwith Appellant No.1 Shah Zamin Khan.

Mr. Ghulam Akbar Dharejo, Advocate for Respondents alongwith Respondent No.1 Muhammad Zada.

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Learned counsel for the parties have filed a joint application seeking disposal of instant appeal by consent, however, it appears that no provision of section has been mentioned in the said application. While confronted with hereinabove position, learned counsel for the parties requests that instant appeal may be treated as application under Order XXIII Rule 3 CPC and the same may be allowed by consent by modifying the impugned judgment and decree as prayed in the application, which has duly supported by the affidavits of the appellant No.1 Shah Zamin Khan, who submits that appellant No.2 Mehboob Alam Ansari is his partner, though he has put his signature on the application, however, could not attend the Court as presently he is admitted in the hospital. Learned counsel for the respondents verifies such position. Accordingly, the application is taken on record. Office is directed to assign number to the said application.

By consent of the parties and their counsel present in Court, the application is allowed. Office is directed to modify the impugned judgment and decree in terms of the compromise application between the parties. For the sake of convenience the application seeking compromise is reproduced hereunder: -

JOINT APPLICATION ON BEHALF OF ABOVE NAMED

APPELLANTS NAMELY

1. SHAH ZAMIN KHAN S/O REHMATULLAH KHAN

2. MEHBOOB ALAM ANSARI S/O NAZEER AHMED ANSARI

AND

ABOVE RESPONDENT MUHAMMAD ZADA S/O AMEER ZADA FOR DISPOSAL OF THE ABOVE APPEAL

On behalf of the above named appellants namely Shah Zamin Khan S/O Rehmatullah Khan & Mehboob Alam Ansari S/O Nazeer Ahmed Ansari and Respondent Muhammad Zada S/O Ameer Zada it is most respectfully prayed that this Honourable Court may be pleased to set aside the Judgment and Decree dated 03-02-2021 passed by the learned IXth Additional District & Sessions Judge commercial / Revisional Court Karachi East in the matter of summary Suit No. 57/2020only to the extent of above named appellants namely Shah Zamin Khan S/O Rehmatull Lah Khan and Mehboob Alam Ansari S/O Nazeer Ahmed Ansari , and to remand the case of the above named Respondent Muhammad Zada against the above named Appellants Shah Zamin Khan S/O S/O Rehmatullah Khan & Mehboob Alam Ansari S/O Nazeer Ahmed Ansari for being tried as an ordinary Civil Suit providing to them opportunity of defence , including submission of written statement and leading evidence and providing opportunity of leading evidence to both parties , and for being disposed in accordance with law.

It is further prayed that the Execution proceeding filed by the above named Respondent Muhammad Zada for execution of the Decree passed in the above referred matter of summary Suit No.57/2021 may accordingly be set aside only to the extent of the above named Appellants Shah Zamin Khan S/O Rehmatullah Khan and Mehboob Alam Ansari S/O Nazeer Ahmed Ansari.

It is, however, clarified that the Judgment and Decree passed in the above referred summary Suit No.57/2021 shall remain intact against the remaining Respondent namely Imtiaz Ali Khan S/O Zafer Ali Khan and Akhter Ameen Khan S/O Meer awais Khan.

Instant First Appeal stands disposed of accordingly.

J U D G E

*Farhan/PS*