IN THE HIGH COURT OF SINDH AT KARACHI
PRESENT:
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Mahmood A. Khan.
Constitution Petition No. D – 421 of 2023
PETITIONER : Syed Fiaz-ul-Hasan Shah through
Mr. Shahzad Mehmood, Advocate.
Respondents : Nemo for the Respondents.
Intervenor : Muhammad Atif Shah Anwari Taji
through Mr. Muhammad Haseeb Jamali,
Advocate.
Hearing of CMAs : 12178 and 12179 of 2023
Date of Hearing : 23.05.2023
Date of Short Order : 23.05.2023
O R D E R
Aqeel Ahmed Abbasi, J : - Through listed applications filed on behalf of the applicant, namely, Muhammad Atif Shah Anwari Taji son of Muhammad Hafeez Javed, one under Section 12(2) CPC [Misc. No.12178/2023] and other under Order XXXIX Rules 1 & 2 CPC read with Section 12(2) CPC & Section 151 CPC [Misc. No. 12179], whereby, it has been prayed that the order passed by this Court on 18.05.2023 in the instant petition, may be set-aside, as according to the applicant, the same has been obtained by way of fraud, misrepresentation, concealment of judicially established facts, concealment of judgment and decree passed in the Civil Suit No.446/2002, and without impleading proper and necessary party/parties, including the present applicant in the instant petition. It has been further prayed that the petitioner and the official respondents may be restrained from interfering in the affairs and management of Dargah-e-Khanqa-e-Alia Tajia and its allied offices, including Islamic Education & Cultural Organization, till disposal of the listed applications. Alongwith listed applications, the applicant has annexed the pleadings and judgment/decree passed by the XIVth Senior Civil Judge, Karachi West in Suit No.446/2002.
2. Mr. Muhammad Haseeb Jamali, learned counsel for the applicant has argued that the dispute agitated through instant petition and all the issues relating to claim of the petitioner in respect of Sajada Nasheen of the Dargah-e-Khanqa-e-Alia Tajia and its allied offices, including Islamic Education & Cultural Organization, have already been decided by the XIVth Senior Civil Judge, Karachi West through judgment and decree passed in Suit No.446/2002 against the petitioner and in favour of the applicant, which fact according to learned counsel, has been concealed by the petitioner, who has obtained the order dated 18.05.2023 through misrepresentation and concealment of facts. According to learned counsel, the applicant being the Sajada Nasheen of the Dargah-e-Khanqa-e-Alia Tajia is in peaceful possession of such Dargah since his appointment as Sajada Nasheen for the last several years, therefore, was the necessary party in the instant petition, however, the petitioner has deliberately not impleaded the applicant as respondent in the instant petition, whereas, with the connivance of the official respondents, the order has been obtained in the instant petition against the interest, right and claim of the applicant over the subject property. It has been prayed that impugned order may be set-aside.
3. Keeping in view the above submissions and the allegations of fraud, misrepresentation and concealment of facts by the petitioner in the instant petition, we have examined the record of the instant petition once again and have also gone through the order dated 18.05.2023, whereby, instant petition was finally disposed of in the following terms: -
“Through instant petition the petitioner has sought the following reliefs:
a. To direct and order respondents 1 and 2 to give, grant and issue necessary documents of property Plot No.63, KMC survey No.108, Sheet No.K-28, Trans-Lyari, Mewa Shah Qabrustan, Karachi and mutate the same in favour of petitioner as per Settlement Declaration dated 26.05.1975.
b. To direct and order respondents 3 and 4 to deliver the charge of the office of M/s Islamic Educational & Cultural Organization of Pakistan, Karachi along with complete record and assets with the aid of Deputy Commissioner and police concerned under proper inventory;
c. Cost of the proceedings throughout;
d. Any other relief which this Honorable Court deems proper may also be granted;”
It has been contended by the learned counsel for the petitioner that grandfather of the petitioner namely Hazrat Baba Mohammad Tasin Zaheen Shah Taji formed many self-funded Institutions, including Islamic Educational and Cultural Organization of Pakistan, Karachi registered under the Societies Registration Act, 1860, whereas he was the first life time president and chairman and now the petitioner is current president of the society registered with the respondent No.4.
It is contended that petitioner filed C.P. No.D-2280 of 2021 relating to some other property of the deceased Hazrat Baba Mohammad Tasin Zaheen Shah Taji, wherein on receipt of counter affidavit by respondents therein it was revealed that there are some other properties of the deceased viz M/s Zaheen Shah Academy and the instant subject property i.e. Plot No.63, KMC, Survey No.108, Sheet No.K-28, Gutter Bagicha, Mewa Shah Qabrustan, Karachi. Accordingly, the petitioners approached the respondents 1 and 2 for providing record of such property, but the respondents 1 and 2 have refused to provide the same, therefore, the petitioner has filed instant petition
Pursuant to Court’s Notices comments have been filed on behalf of respondents 1 and 2 as well as respondents 3 and 4 according to which claim of the petitioner is with regard to right and title in respect of the subject property i.e. plot No.63, KMC survey No.108, Sheet No.K-28, Gutter Bagicha, Mewa Shah Qabrustan, Karachi which has been duly verified and certified extract of the plot has also been issued, whereas the Provincial Assistant Registrar, Joint Stock companies, Karachi has also filed his comments paragraph 7 and 8 of which are reproduced as under:
“7. The contents of para 7 are not denied. FIR No.35 of 2021 has been registered against the impersonated person and is pending for trial before Additional Sessions Judge, Karachi South. The petitioner may approach the concerned Deputy Commissioner for handing over possession/charge and original record in respect of M/s Islamic Educational & Cultural Organization, Karachi as the respondents No.3 and 4 have no mechanism.
8. The contents of para 8 are not denied. It is admitted that this office has issued “Intimation Certificate” in favour of the petitioner as genuine office bearers of above Organization/ Society. However, the petitioner may approach the concerned deputy commissioner for redressal of his grievance for delivery of charge and record.”
Learned counsel for the petitioner submits that in view of undisputed facts and the comments filed on behalf of the official respondents grievance of the petitioner has been substantially redressed, however, requests that instant petition may be disposed of with directions to the Registrar Cooperative Societies/Provincial Assistant Registrar, Joint Stock Companies, Karachi to issue letter to the concerned Deputy Commissioner in view of pragraphs 7 and 8 of their comments and he may be further directed to handover charge, record and assets of the trust to the petitioner. Mr. Junaid Ahmed, Provincial Assistant Registrar, Joint Stock Companies, Directorate of Industries, Government of Sindh present in Court submits that letter to this effect will be issued to the concerned Deputy Commissioner, whereas copy shall be marked to the petitioner within seven days. Learned Additional Advocate General Sindh submits that since claim of the petitioner has been duly recognized by the official respondents, therefore, there seems to be no impediment for grant of instant petition, therefore, the concerned Deputy Commissioner may be directed to do the needful in view of paragraphs 7 and 8 of the comments filed on behalf of respondents 3 and 4. Accordingly, instant petition is disposed of with directions to respondent No.4/Provincial Assistant Registrar, Joint Stock Companies, Karachi to write a letter to the concerned Deputy Commissioner in terms of paragraphs 7 and 8 of his comments, who shall handover and deliver charge, record and possession of the assets of the Islamic Educational & Cultural Organization of Pakistan, Karachi to the petitioners within fifteen days from the date of receipt of such letter. Petition stands disposed of in the above terms.”
4. From perusal of hereinabove order, it transpires that relief being sought through instant petition was mainly limited to the extent of supply of necessary documents by the KMC to the petitioner in respect of the property No.63, KMC Survey No.108, Sheet No.K-28, Trans Lyari, Mewa Shah Graveyard, Karachi, whereas, after notice in the above petition, respondents No.1&2 filed their comments alongwith extract of Plot No.63, Survey No.108, Sheet No.K-28, Trans Lyari, Mewa Shah Graveyard, Karachi. Similary, the official respondents No. 3 & 4 have also filed their comments through Additional Advocate-General, Sindh, and while submitting response to Paras 7 and 8 of the pleadings in the instant petition, did not deny the claim of petitioner in respect charge and assets of M/s. Islamic Educational & Cultural Organization, and also intimated about registration of an FIR No.35/2021 against the impersonated persons, pursuant to which, trial before Additional Sessions Judge, Karachi South is reportedly pending. However, in the aforesaid comments, with regard to the claim of petitioner to hand over possession/charge of original record and assets of M/s. Islamic Educational & Cultural Organization, Karachi, it has been stated that possession/charge of the original record and assets can be handed over by the concerned Deputy Commissioner in accordance with law. In view of above comments filed on behalf of the official respondents, petitioner sought disposal of instant petition with the request that the Provincial Assistant Registrar, Joint Stock Companies, Karachi may be directed to issue letter to the concerned Deputy Commissioner in view of Paras 7 and 8 of their comments, requiring him to handover the possession/charge of the original record and assets of the Society to the petitioner, whereas, Provincial Assistant Registrar, Joint Stock Companies, Karachi, who was present in Court alongwith learned Additional Advocate-General, Sindh, did not oppose disposal of instant petition in above terms. However, inspite of above un-disputed position and record produced by the petitioner and the official respondents, this Court while disposing of instant petition in aforesaid terms, has been pleased to observe that “This is, however, without prejudice to any judicial proceedings, right or claim of any person relating to the subject property and/or the society”.
5. In view of hereinabove facts and circumstances of instant petition, and the relief being sought through instant petition it appears that no adverse order has been passed against the present applicant, who claims to be Sajada Nasheen of Dargah Khanqah-e-Alia Tajia situated at Mewa Shah Graveyard Karachi pursuant to some judgment and decree passed in Suit No.446/2012, which otherwise has not attained finality, as according to learned counsel for applicant, a Civil Appeal No.248/2021 against said judgment and decree is pending before the Appellate Court. It has been observed that the applicant is neither claiming nor produced any document of title in respect of the subject property on which Dargah Khanqah Alia Tajia is situated, whereas, extract has been issued by the lessor, Land Department of KMC dated 02.02.2023, wherein, the entire detail of initial allotment of 10-17 acres land and its subsequent transfer has been given in the following terms: -
“Karachi Municipal Corporation reserved and ground to Mohd. Tasin Shah Sahab Zaheen Taji Chief Comm of Karachi vide 11/172/B/50-LS-9, dated 16.5.59 (Case No.L. Misc 291/59 Transferred to Islamic Educational & Cultural org. Regd. Land 10-17 acres for extension of existing Khanqah-e-Tajia and Adjoining Land Measuring 05-16 acres to be used by Allottee’s successor Sajjada Nashin / Trustee / President Syed Riazul Hasan Zahin s/o Syed Mehmood-ul-Hasin for acomodation and gardening vide declaration Settlement of Trust Dt, 26.05.1975 made by Allotee Mohd Tasin Shah Sahab Zahin Taji.
6. It is pertinent to note that no finding has been given contrary to record as evidence in the instant petition, by the learned XIVth Senior Civil Judge, Karachi West in the judgment and decree, as referred to hereinabove, nor the applicant could establish his title of the subject land in his favour before us through listed applications, nor the issue relating to status of M/s. Islamic Educational & Cultural Organization, Karachi or its management and assets appears to have been decided in the said judgment and decree. On the contrary, the claim of applicant relating to right and title of the subject land and Khanqah-e-Alia Tajia appears to have been decided against applicant through finding on Issue No.16 in the following terms:
“ISSUE NO.(16)
76. The burden of this issue lies on the defendants’ side. From perusal of examination in chief of defendant No.1, as well as affidavit in evidences of his witnesses, it cannot be said that the Khanqah and its properties buildings were owned constructed by Baba Anwar Shah and Baba Anwar Shah had presented/gifted House No.42-R, Block-6, P.E.C.H.S., Karachi and other valuable articles to Baba Taji as in regard of above version, defendant No.1 in his examination in chief says that Baba Anwar Shah had also renovated and constructed the Mazar Sharif, Khanqah and Tajul Masjid, therefore, renovation is another thing from complete construction. Further, defendants have not produced any documentary proof or other sufficient material that Baba Anwar Shah Taji had gifted House No.42-R, Block-6, P.E.C.H.S., Karachi and other valuable articles to baba Taji. In absence of material evidence, it cannot be said that the same was gifted to Baba Taji by defendant No.2. Thus the issue is decided in negative.”
7. Moreover, it has been further observed that the Suit No. 446/2012 was filed by the father of petitioner (since deceased) through his son/legal representative Syed Fiaz-ul-Hasan Shah, petitioner in the instant petition, mainly for the purposes of seeking declaration in respect of Sajada Nasheen of Khanqah-e-Alia Tajia, Mewa Shah Graveyard, Karachi, whereas, from perusal of the issues framed by the learned Senior Civil Judge in the aforesaid suit and the finding recorded thereon, it appears that no decision appears to have been given in relation to any right and entitlement of the applicant, namely, Muhammad Ali Shah in respect of the subject land i.e. Plot No. 63, KMC Survey No. 108, Sheet No. K-28, Trans Lyari, Mewa Shah Graveyard, Karachi or assets of M/s. Islamic Educational & Cultural Organization, Karachi.
8. Learned counsel for the applicant was confronted to assist this Court, as to whether, in the judgment and decree in Suit No.446/2002 the applicant could establish any right, title or ownership in respect of the subject land 10-17 acres for which KMC has issued the extract, or there is any decision in favour of the applicant, namely, Muhammad Ali Shah in respect of Islamic Educational & Cultural Organization Karachi, or its assets and record, or pursuant to the decision in the instant petition, the claim of the applicant as Sajada Nasheen of Khanqah-e-Alia Tajia, has been affected, in response to such query of the Court, learned counsel for the applicant could not submit any reasonable explanation, however, submitted that the applicant is claiming right and possession of Dargah Khanqah-e-Alia in his capacity as Sajada Nasheen, therefore, the order passed by this Court in the instant petition, requiring the concerned Deputy Commissioner to handover the possession of the subject property / Dargah Khanqah-e-Alia Tajia, would adversely affect the right and possession of the applicant as Sajjada Nasheen of Dargah Khanqa Alia Tajia, as established through judgment and decree in the above suit. We are not persuaded with such argument of the learned counsel for the applicant for the reason that the issue relating to hold the title of Sajjada Nasheen of Dargah was not subject matter of instant petition, whereas, instant petition has been disposed of by placing reliance on the official record submitted by the lessor KMC and the Registrar Joint Stock Companies, in relation to title of the land and management, record and assets of Islamic Education and Cultural Organization, Karachi, whereby, directions have been issued to the Provincial Assistant Registrar, Joint Stock Companies, Karachi to communicate the legal position (as per official record) regarding claim of the petitioner alongwith relevant record to the concerned Deputy Commissioner, who shall then proceed further to handover and deliver charge, record and possession of the assets of M/s. Islamic Educational & Cultural Organization, Karachi to the petitioners; provided there is no other legal impediment in this regard. While disposing of instant petition in above terms, it has been further observed that “this is, however, without prejudice to any judicial proceedings, right or claim of any person relating to the subject property and/or the society.” Prima facie, the applicant has not disputed the official record relating to right and title of subject land, nor could refer to any finding to the contrary in the judgment and decree in the suit relating to Islamic Educational & Cultural Organization Karachi, its management or assets, which was subject matter of instant petition.
9. In view of hereinabove facts and circumstances of the case, we are of the view that the applicant has not been able to point out any fraud, misrepresentation or concealment of facts by the petitioner with regard to limited claim in the instant petition, whereas, it appears that applicant, through listed applications, by referring to the judgment and decree passed in above suit, which prima facie, was relatable to determination of the claim as Sajada Nasheen of Khanqah-e-Alia Tajia only, has attempted to seek a declaration, right and entitlement over the subject land and the management, record and assets of the Islamic Education & Cultural Organization without approaching the relevant forum or seeking declaration to this effect from competent Court of law. Nothing has been produced in the instant petition to make out a prima facie case to file the listed applications under Section 12(2) CPC and/or under Order 39 Rules 1 & 2 read with Section 12(2) CPC to seek setting-aside of the order dated 18.05.2023 passed in the instant petition. Accordingly, we do not find any substance in the listed applications, which were dismissed in limine vide our short order dated 23.05.2023 and above are the reasons of the said short order. It is, however, clarified that our decision in the above petition is related to two issues as discussed hereinabove and not in respect of any other issue, right or claim of the parties, if any, which may be decided by the relevant forum/authorities/Courts in accordance with law.
J U D G E
J U D G E
*A.Shakoor/*Farhan/PS*