ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

H.C.A. No. 94 of 2014

Date	Order with signature of Judge

1. For orders on office objection and reply of advocate at flag “A”.

2. For Katcha Peshi.

3. For orders on C.M.A No. 960/14.

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11.04.2014.

Mr. Faiz H. Shah, Advocate for appellant.

Mr. Malik Naeem Iqbal, Advocate for respondent.

Mr. Nadeem Shaikh Advocate.

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1. Learned counsel for the appellant undertakes to comply with office objections and to file amended title within a week.

2&3. Through instant High Court Appeal, the appellant has impugned order dated 02.04.2014, passed by the learned Single Judge of this Court on an application under Order XXXIX Rule 1&2 C.P.C. filed on behalf of the respondent whereby, interim exparte order has been passed in the following terms:-

“Till next date ad-interim orders are granted as prayed.”

2. Learned counsel for the appellant submits that the impugned order, which has been passed on the first date of hearing without issuing notice to the appellant, is patently illegal and without jurisdiction, as none of the factors, which are required to be considered while granting interim stay, have been taken into consideration by the learned Single Judge, whereas, an exparte ad-interim order has been passed as prayed by the respondent in the application under Order XXXIX Rule 1&2 C.P.C. which according to learned counsel, amounts to granting final relief on the injunction application. Per learned counsel, the respondent which is a housing authority, does not even had a legal character to file the Suit, which otherwise is not maintainable, whereas, the controlling authority in respect of the jurisdiction of subject project is the K.M.C. and not the respondent i.e. D.H.A. as it has no concern whatsoever with regard to approval of plan or construction of the subject project. It is further contended by the learned counsel that all the necessary approvals have already been obtained by the appellant before starting the instant project which infact is a ‘public interest project’ which is meant for the benefit of public at large, whereas the construction of flyover bridge and underpass is being undertaken by the appellant on their own cost which will reduce the traffic hazards and congestion in the locality. Per learned counsel, even approval under Environment Protection Act, 1997 has been obtained in respect of Initial Environmental Examination (I.E.E.) whereas E.I.A. is not required in terms of Section 12 of Environment Protection Act, 1997 in the instant case.

3. Learned counsel for the appellant has prayed that the operation of the impugned order may be suspended and the appeal may be allowed as substantial financial losses on daily basis have started to be accrue to the appellant which will cause irreparable loss and injury to the appellant who have a primafacie case whereas more inconvenience will be suffered by the appellant if impugned order of granting stay is not vacated.

4. Learned counsel for the appellant was confronted as to maintainability of the instant appeal, which appears to have been filed against an interim order, in response to which, the learned counsel has referred to provisions of Order XXXIII Rule 1(r) C.P.C. and submits that the appeal can be filed against an exparte interim order. In support of his contention, learned counsel has also placed reliance in the case of 1998 C.L.C. 61 Lahore (Pioneer Pakistan Seed Ltd. vs. United Distributors Pakistan Ltd. and 5 others), P.L.D. 1992 Peshawar 76 (Umer Gul vs. Malik Abdul Manan and others), P.L.D. 1994 Peshawar 228 (District Council Haripur through Administrator, Deputy Commissioner, Haripur vs. Zaheerullah Khan), 2008 C.L.C. 930 Peshawar (Arbab Fazal Rauf and another vs. Arbab Sajjad and 6 others), P.L.D. 1965 Karachi 603 (H.M.Saya & Co. vs. Wazir Ali Industries and another) and P.L.D. 1969 S.C. 65 (H.M.Saya & Co. vs. Wazir Ali Industries and another).

5. Mr. Malik Naeem Iqbal Advocate who is present in court pursuant to notice under Order XXXXIII Rule 3 C.P.C. waived notice of instant appeal and submits that instant appeal is not maintainable as it has been filed against the interim order whereas, the hearing of the case is already fixed before the learned Single Judge on 17.04.2014. It has been contended by the learned counsel that in terms of Section 12 of the Environment Protection Act, 1997 the subject project required an approval in respect of Environment Impact Assessment (E.I.A.) which in the instant case has not been obtained by the appellant. Learned counsel further submitted that hearing of instant appeal may be adjourned as the matter is already fixed before learned Singe Judge on 17.04.2014, who may pass final order on application under Order XXXIX Rule 1&2 C.P.C, after hearing all the parties, whereafter, any party aggrieved by such final order may file an appeal before this Court.

6. To this submission, learned counsel for the appellant submits that since the impugned exparte order is patently illegal, as it does not meet the requirement of law for grant of an interim relief as prayed, whereas none of the ingredients i.e. primafacie case, irreparable damage or injury and balance of inconvenience, have been taken into consideration by the learned Single Judge while passing the impugned order, therefore, the operation of the impugned order may be suspended during pendency of instant appeal.

7. We have heard learned counsel for the parties, perused the impugned order and examined the record as well as the relevant provisions of law and the case law relied upon by the learned counsel for the appellant. We are of the tentative view that primafacie, the impugned order did not show any extreme urgency nor it was spelt out therefrom whereby legal requirement of notice necessary under Order XXXIX Rule 3 C.P.C. to opposite side was to be dispensed with. Whereas, the ingredients of grant of stay or an ad-interim order appears to have not been examined while passing the impugned exparte order. As regards objection of maintainability of instant appeal against the interim exparte order, we are of the view that this aspect can be dealt with by examining the Clause (i) of subsection (1) of section 104, C.P.C. wherein it is provided that an appeal shall lie from an order made under rules from which an appeal is expressly allowed by rules. Rule 1(r) of Order XLIII, C.P.C. expressly lays down that an appeal shall lie under the provisions of section 104 from an order under rules 1, 2, 4 or Rule 10 of Order XXXIX. Therefore, we are of the tentative view that any order of granting or refusing an injunction, ad interim or otherwise, would be covered by Rues 1 and 2 of Order XXXIX, C.P.C., and appealable. The case law relied by the learned counsel for the appellant in this regard also supports our view as recorded hereinabove, whereas further reliance in this regard can also be placed on the following judgments on the subject:-

Returning Officer Karachi Municipal Corporation vs. Hafiz Muhammad Habibullah and others (P.L.D. 1956 Karachi 429), Balaby Das vs. Muhammad Ishaq (AIR 1933 Lahore 282), Zila Parishad Budaun and others vs. Brahma Rishi Sharma (AIR 1970 Allahabad 376 Full Bench), Amolak Ram vs. Sahib Singh (1885) ILR 7 All 550), Lachmi Narain vs. Ram Charan Das (1913) ILR 35 All 425), Ganesh Prasad Sabu vs. Dukh Haram Sahu (AIR 1922 Allahabad 441 (1), District Board of Farrakhabad vs. Ikhlaque Hussain (AIR 1933 Allahabad 86) and Shayam Behari Singh vs. Biseswar Dayal Singh (AIR 1924 Patna 713).

8. In view of hereinabove, the impugned order is hereby suspended. Let instant appeal may be fixed on 23.04.2014 as suggested by the learned counsel for the parties. However, it is clarified that the learned Single Judge is at liberty to pass appropriate order on the application under Order XXXIX Rule 1&2 C.P.C. pending before him strictly in accordance with law without being influenced from any of the observations made hereinabove, which are of tentative nature.

JUDGE

Athar Zai