Order Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 988 of 2013
Date Order with signature of Judge
For hearing of CMA No.11003/2013 (U/Ss 152 & 151 CPC) :
08.11.2013:
Mr. Imran Ahmed, advocate for the plaintiffs.
Syed Safdar Ali, advocate for defendant No.1.
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This Suit has been filed by the plaintiffs for mandatory and permanent injunction, and damages. C.M.A. No. 8300/2013, which is pending, has been filed by the plaintiff praying for “temporary injunction restraining unauthorized and illegal construction in the access area of suit project and also injunction in mandatory form, directing the defendants or any other person or persons acting under or through them to remove illegal constructions in the vicinity connected with the suit project of the plaintiffs and clear the complete access leading to the plaintiffs’ suit project from it all sides.”
2. On 05.08.2013, an ad interim injunction order was passed on the plaintiffs’ CMA No.8300/2013, restraining defendant No.1 till the next date of hearing from raising any illegal construction on the public roads and allotted land of the plaintiffs. On 19.08.2013 and 06.09.2013, the said ad interim order was extended till the next date of hearing. On 30.09.2013, the said order was modified to the extent that all the parties were directed to maintain status quo till the next date of hearing. On 02.10.2013, the plaintiffs filed an application for urgent hearing along with CMA No.11003/2013 under Sections 152 and 151 CPC, praying that the order passed on 30.09.2013 be recalled and corrected, as the same was affecting the legal construction raised by “any party”. On 02.10.2013, notice of CMA No.11003/2013 was ordered to be issued, and it was further ordered that the restraining order passed on 30.09.2013 will not apply to the legal construction made by the plaintiffs or to be made by the plaintiffs strictly in accordance with the approved building plan. The said order dated 02.10.2013 was set aside on 05.11.2013 by a learned Division Bench of this Court in HCA No.132/2013 filed by defendant No.1, with a direction to the single Judge of this Court to decide the plaintiffs’ CMA No.11003/2013 on 08.11.2013, that is today, after hearing the parties.
3. The learned counsel for the plaintiffs submitted that defendant No.1 is an encroacher, and he has raised and is still raising illegal construction on the encroached land, including public roads and pathways. He further submitted that, by taking undue advantage of the status quo order and by misinterpreting the same, defendant No.1 is raising illegal construction in full swing. It is contended that the first ad interim injunction order restraining defendant No.1 was passed by this Court after appreciating the material on record, and the said order ought to have been continued in order to safeguard and protect the subject matter of this Suit. The learned counsel submitted that, because of the modification of the earlier order by directing the parties to maintain status quo, the valuable vested rights, title and interest of the plaintiffs in the suit land have been seriously prejudiced.
4. The learned counsel for defendant No.1 has vehemently opposed this application by submitting that the plaintiffs have no locus standi to file this Suit, and they do not have any approved plan from MPGO. The allegations of illegal construction or encroachment by defendant No.1, have been denied. It has been contended on behalf of defendant No.1 that the Nazir’s report and the record maintained by the Board of Revenue, are in favour of defendant No.1. It has been urged that defendant No.1 has filed an application for rejection of the plaint, which should be decided before passing any order on this application.
5. In his rebuttal, the learned counsel for the plaintiffs submitted that the prayer made in the listed application is just and proper, as the plaintiffs have prayed that any party, whosoever he may be, should be restrained from raising illegal construction. He reiterated that the status quo order should be modified by specifically clarifying the restraining order. In support of this submission, the learned counsel relied upon the case of Gaman and 5 others V/S Muhammad Ali and 8 others, PLD 1995 Supreme Court 572.
6. I have heard the learned counsel at length, and have also gone through the authority cited by the learned counsel for the plaintiffs. This application has been filed under Sections 152 and 151 CPC for correction in the order dated 30.09.2013 and for recalling the same. The scope of Section 152 CPC is limited to the extent of correcting arithmetical or clerical mistakes, or correcting errors arising from any accidental slip or omission in orders, judgments and decrees. The prayer made in this application cannot be granted under Section 152 CPC. However, inherent powers under Section 151 CPC can be exercised by this Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court. Such powers can also be exercised by this Court under Section 94(e) CPC, which provides that in order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed, make such other interlocutory orders as may appear to the Court to be just and convenient. In any case, it is well-settled that by mentioning incorrect provision of law, the party is not debarred from the relief to which he is otherwise entitled. The present application, therefore, is being considered as an application under Sections 94(e) and 151 CPC.
7. The objections raised by the learned counsel relate to the merits of the case, which cannot be considered or decided while deciding this application. I do not agree with the learned counsel for defendant No.1 that his application for rejection of the plaint should be heard and decided first. The order of the learned Division Bench is binding on me, whereby it was ordered that this application should be decided today after hearing the parties. Moreover, the defendant No.1’s application for rejection of the plaint can be heard at any stage, irrespective of the decision of this application.
8. In the case of Gaman and 5 others (supra), it was observed by the Hon’ble Supreme Court that civil courts while disposing of stay applications frequently pass status quo orders which are often misused by the parties ; and, a party intending to take unlawful possession of disputed property having obtained status quo order from civil Court, in its garb, attempts to dispossess the opposite party by force. For the guidance of the subordinate courts, it was laid down inter alia by the Hon’ble Supreme Court that status quo orders should not be passed in vague and general terms ; it should clearly state as to what extent does it operate ; whether it prohibits interference in one’s possession or alienation of property by a party, raising of construction on the property, or change in the status or character of the property pending decision of the case ; and, the stay / injunction must be unequivocal and clear leaving no room for any ambiguity thereby providing an excuse for its misuse by parties.
9. I am of the view that the ad interim injunction order dated 05.08.2013, whereby defendant No.1 was restrained from raising any illegal construction on the public roads and on the land allotted to the plaintiffs, was in accordance with the guidelines laid down by the Hon’ble Supreme Court. Whereas, the status quo order passed on 30.09.2013, was contrary to the said guidelines, especially in view of the averments made in the plaint and the stay application filed by the plaintiffs. It is to be noted that the order dated 05.08.2013 was an ad interim order, and final order on the plaintiffs’ stay application is yet to be passed as the said application is still pending. It is also to be noted that it is an admitted position that an interim order is still operating in this matter in the form of a status quo order. Therefore, it shall be in the interest of all the parties that the stay application filed by the plaintiffs is heard and decided at the earliest. In the meanwhile, as laid down by the Hon’ble Supreme Court, the order that is operating in this case should not be in vague and general terms ; it should clearly state as to what extent does it operate ; and, it must be unequivocal and clear leaving no room for ambiguity thereby providing an excuse for its misuse by any of the parties.
10. In view of the above discussion, the order dated 30.09.2013 is hereby recalled, and it is ordered that till the disposal of CMA No.8300/2013, the plaintiffs and defendant No.1 shall not raise any construction in violation of their respective approved plans. The parties are put on notice that CMA No.8300/2013 shall be heard and decided on the next date of hearing. The listed application stands disposed of in the above terms.
J U D G E