IN THE HIGH COURT OF SINDH AT KARACHI

 

 

C. P. NO. D-3962/ 2011

 

            Present:

            Mr. Justice Aqeel Ahmed Abbasi.

            Mr. Justice Muhammad Junaid Ghaffar.

 

 

Muhammad Naved Aslam & others ------------------------------- Petitioners 

 

Versus

 

E.D.O. Revenue Jamshoro &Others ------------------------------ Respondents 

 

 

Date of hearing:                  17.02.2014 & 09.10.2014

 

Date of Judgment:              13.11.2014

 

Petitioners:                          Through M/s Khawaja Shamsul Islam and Imran Taj Advocates.

 

Respondent No. 3                Through M/s Kamal Azfar, Zayyad Khan

Abbasi and Dhani Bux Advocates.

 

Respondent No. 2                Mr. Ahmed Pirzada Advocate.

Along with Respondent No.1 Mr. Sohail Adeeb Bachani Deputy Commissioner and

Mr. Irshad Ali, Mukhtiarkar.

 

 

J U D G M E N T

 

 

 

Muhammad Junaid Ghaffar, J: -            Through instant petition the petitioners have impugned order dated 28.10.2011 passed by the Executive District Officer (Revenue), Jamshoro (respondent No. 1) whereby Entry No. 193 dated 30.04.2005 of V.F. VII-B in favour of the petitioners in respect of Khet No. 367 and 368 measuring 42.21 Acres land at Deh Babur Band, Taluka Thano Bula Khan has been cancelled.

 

2.         Briefly the facts as stated in the Memo of Petition are that the petitioners had purchased Qabooli land bearing Survey No. 367(23.10 acres) and Survey No. 368(19.11 acres) in Deh Babur Band Tapo Hathal Buth, Taluka Thano Bula Khan, District Jamshoro (“Property”) through registered Sale Deed dated 22.3.2005, whereafter the physical possession of the property was handed over to the petitioners and the Revenue record was also mutated in the name of the petitioners. The property in question is situated at 95 kilometer main Super Highway from Karachi to Hyderabad. It is further stated that respondent No. 3 had purchased land measuring 199 acres consisting of Survey Nos. 390/1-4 and 389/1-3 in Deh Babur Band, Tapo Hathal Buth, Taluka Tano Bula Khan, District Jamshoro at 67 Kilometer; Main Super Highway from Karachi to Hyderabad through registered Sale Deed dated 9.2.1995. The land purchased by respondent No. 3 was cancelled by the Additional Commissioner-I, Hyderabad vide order dated 31.3.2000, whereby it was declared that the land was in fact a Government land. The respondent No. 3 thereafter preferred an appeal / revision bearing No. 122/2000 before Member (Judicial), Board of Revenue, Government of Sindh, which was dismissed for non prosecution on 17.9.2001. Thereafter,  the respondent No. 3 preferred a belated application for restoration of the said appeal on which the then Member, Land Utilization Department, Board of Revenue, Government of Sindh,  passed orders whereby not only the appeal was restored but the order dated 31.3.2000 passed by the Additional Commissioner-I Hyderabad was also set aside through order dated 14.2.2008. Thereafter the Respondent No.3 with the help of Respondent No. 1 maneuvered demarcation of her land on or about 19.08.2008 and got its sketch prepared showing location of her land overlapping the land of the petitioners at 95 KM Super Highway from Karachi towards Hyderabad. Meanwhile the Respondent No.1 initiated Suo Moto proceedings in respect of the land of the Petitioners and vide his order dated 26.03.2009 ordered cancellation of mutation entry No. 193 which was recorded in the name of the petitioners. Such cancellation was challenged by the petitioners by filing Appeal No SROA-79 before the Member, Land Utilization, Board of Revenue. The petitioners also assailed this alleged unlawful demarcation of land by filing CP No.D-149 of 2009 (Hyderabad) which was dismissed on 26.05.2009 with the observation, that since an appeal had already been preferred against the order of cancellation of land, the petitioners may avail the statutory remedy against demarcation after restoration of their entry in the records. Thereafter the Appeal bearing No SROA-79 which was already pending before the Member, Land Utilization, Board of Revenue which was disposed off vide order dated 02.07.2009, whereby the matter was remanded back to Executive District Officer (Revenue), Jamshoro for hearing the parties and decision of the case afresh. In the meantime the petitioners had to contest the matter as the respondent No. 3 who was asserting her ownership in respect of the property purchased by her, on the ground that its location is at the site of the land which was purchased by the petitioners, therefore the petitioners thereafter challenged the order dated 14.2.2008 passed in Revision No. 122/2000 by the then Member, Land Utilization, Board of Revenue, Karachi by filing Suit No. 1122/2009 and also sought declaration to the effect that the petitioners were the lawful owners of the property in question and further that the property being claimed by respondent No. 3 is situated at a different/distinct place from the property of the petitioners. The respondent No. 3 in the said suit raised a preliminary objection with regard to the maintainability of the suit for want of territorial jurisdiction. The learned Single Judge while hearing the application under Order VII Rule 10 CPC vide judgment dated 26.03.2010 (reported as PLD 2010 Kar 261) ordered for return of plaint to the appropriate Court having territorial jurisdiction in the matter by holding that the original civil jurisdiction has been conferred upon this Court through Section 7 of the Civil Court Ordinance, 1962 and such being a special jurisdiction; hence the same could only be exercised in relation to matters emanating from the territorial limits of the District of Karachi and except for the districts of Karachi, no other territory falls under the original civil jurisdiction of this Court. The petitioners preferred High Court Appeal against the said order bearing No. 62 of 2010 which was also dismissed by a learned Division Bench of this Court vide judgment dated 21.4.2011 (reported as 2011 CLC 1176) holding therein that the order passed by the learned Single Judge with regard to the return of the plaint for presenting the same before the Court having appropriate jurisdiction was unexceptional and did not suffer from any infirmity or irregularity. The petitioners, thereafter preferred a Civil Petition for Leave to Appeal bearing No. 624-K/2011 before the Hon’ble Supreme Court and the Hon’ble Supreme Court vide order dated 12.8.2011 has granted leave to appeal to examine inter alia, that as to whether the issue of territorial jurisdiction has been rightly decided by the two Courts below against the petitioners. The precise grievance of the petitioners presently is that when such proceedings were pending before the Hon’ble Supreme Court in which the respondent No. 1 was also a party, the order dated 28.10.2011 could not have been passed whereby the entry No. 193 dated 30.4.2005 in respect of the property of the petitioners has been cancelled.

 

3.         The learned Counsel for the petitioners contended that the respondent No. 1 being a party by name in the Civil Petition for Leave to Appeal before the Hon’ble Supreme Court, could not and should not have, passed the impugned order dated 28.10.2011 as the respondent No. 1 was well aware and duly served regarding such proceedings being pending before the Hon’ble Supreme Court. Learned Counsel further contended that status quo order was operating in respect of the property of the petitioners since filing of the suit in 2009 vide order dated 10.08.2009 and such order continued during the pendency of the  High Court Appeal. Learned Counsel referred to the notice issued by the Deputy Registrar Supreme Court of Pakistan branch Registry, at Karachi dated 12.10.2011 which was received in the office of respondent No.1 and contended that in addition to it a letter dated 25.8.2011 was also addressed by the petitioners to the respondent No. 1 through which the leave granting order passed by the Hon’ble Supreme Court was also communicated. Learned Counsel further contended that respondent No. 1 was also served through a legal notice dated 20.9.2011 through which the respondent No. 1 was informed regarding the pendency of the proceedings before the Hon’ble Supreme Court and not to proceed any further in the instant matter. Learned Counsel further contended that in fact the learned Single Judge vide order dated 26.3.2010 had not dismissed the suit; rather had returned the plaint, therefore the suit filed by the petitioners is deemed to be pending adjudication and it is only a matter of territorial jurisdiction which has to be decided, that as to whether the suit shall proceed before this Court at Karachi, or before the Civil Court at Jamshoro, Kotri. Per learned Counsel since the Hon’ble Supreme Court is seized of the matter with regard to the territorial jurisdiction, therefore proprietary demands that status quo should be maintained by the official respondents and any order passed in respect of the subject dispute by the respondent No.1, in fact amounts to defeat the purpose of grant of leave by the Hon’ble Supreme Court in the instant matter. On merits of the case the learned Counsel contended that the land of respondent No.3 stood cancelled vide order dated 31.03.2000 passed by the then Additional Commissioner-I Hyderabad, declaring it to be a Government land against which an appeal / revision bearing No. 122/2000 was also dismissed in default on 17.9.2001,  therefore the order dated 14.2.2008 passed after a lapse of more than seven years by the Member, Land Utilization, Board of Revenue, Karachi through which the order dated 31.3.2000 has been set aside, could not have been passed and such order being without any lawful jurisdiction does not confer any right to respondent No.3 in respect of the property being claimed by respondent No.3. Learned Counsel further contended that the impugned order dated 28.10.2011 has been passed Ex-parte against the petitioners, without making any genuine efforts to get the petitioners served; hence the same is a nullity in the eyes of law. Learned Counsel further contended that the respondent No. 1 in the impugned order dated 28.10.2011 has dared to observe that the petitioners have sent some letters, wherein they have mentioned that their case is pending before Hon’ble Supreme Court, however, on perusal of the same it reveals that it is only a threat. Per learned Counsel such use of the words by the respondent No.1 in the impugned order dated 28.10.2011 is contemptuous and the respondent No.1 should be reprimanded by this Court for passing such derogatory remarks in his order. Learned Counsel also referred to letter dated 15.1.2014 addressed to the Deputy District Attorney, Kotri by the respondent No.1, wherein it has been stated that concerned Mukhtiarkar is the primary source of information and custodian of record of rights and Mukhtiarkar Thano Bula Khan, has stated that there is no Government interest involved in the above suit and the matter is between private parties. Per learned Counsel such stance taken by the respondent No.1 in F.C. Suit No. 38/2011 pending in the Court of Senior Civil Judge Kotri is in total disregard to and in contradiction to the basis on which the impugned order dated 28.10.2011 has been passed by the same respondent, whereby it has been observed that after perusing the case and hearing the opponent a conclusion is drawn that the land involving Khet No.  No. 367 and 368 (property of the petitioners) is a Government land and has been fraudulently transferred to private persons. In view of such contention the learned Counsel for the petitioners submitted that the impugned order is liable to be set aside and the respondent No. 1 be restrained from taking or initiating any action in respect of the property of the petitioners till the decision of the Hon’ble Supreme Court with regard to the territorial jurisdiction of the Court, whereafter ultimately the subject controversy would be decided by the Court of competent jurisdiction.

 

4.         Learned Counsel for the respondent No. 3 has vehemently objected with regard to the maintainability of the instant petition, as according to the learned Counsel for the respondent No.3, adequate remedy is available under section 161(c) of the West Pakistan Land Revenue Act 1967 Act. Learned Counsel further contended that the leave granting order is not a stay order in the matter, and further the petitioners could have filed a contempt application before the Hon’ble Supreme Court in this regard. Learned Counsel further contended that the respondent No. 3 has subsequently filed a F.C. Suit before the Civil Judge at Kotri bearing No. 38/2011 02.12.2011 wherein an application filed by the petitioners under Order VII Rule 11 CPC already stands dismissed vide order dated 19.11.2013 against which a Civil Revision has been filed by the petitioners which is pending. In support of his contention the learned Counsel for respondent No.3 has relied upon the case of Waris Khan Vs Humayun Shah (PLD 1994 SC 336), Muhammad Nawaz and 19 others Vs. Provincial Government and 4 others (PLD 1997 Peshawar 1), Abdul Rehman Vs. Sher Zaman and others (2004 CLC 1340), Khuda Bux Vs. Government of Sindh and others (PLD 1989 Karachi 83), Rasta Mal Khan & others Vs. Nabi Sarwar Khan and others (1996 SCMR 78) and Ahsan Ali through L.Rs. and others Vs. Province of Sindh through District Coordination Officer Thatta and 4 others (2007 SCMR 884).

 

5.         Mr. Ahmed Pirzada learned Counsel appearing on behalf of Board of Revenue, Government of Sindh frankly conceded that no order should have been passed by the respondent No.1 as the question of territorial jurisdiction was pending before the Hon’ble Supreme Court and any decision by the respondent No.1 would amount to rendering the proceedings before the Hon’ble Supreme Court as infructuous.

 

6.         We have heard both the learned Counsel and perused the record. By consent instant petition is being finally disposed off at katcha peshi stage.

 

7.         First we would like to respond to the preliminary objections raised on behalf of Respondent No.3 with regard to the maintainability of instant petition. Insofar as the hearing of instant petition at the Principal Seat at Karachi instead of Circuit Bench Hyderabad is concerned, the Hon’ble Chief Justice vide order dated 09.12.2011 on an application made under Rule 7 of Sindh High Court Benches Rule 1987 has been pleased to direct that instant petition is to heard at the Principal Seat at Karachi, hence the objection in this regard is not tenable. Learned Counsel for Respondent No. 3 has also raised objection with regard to maintainability of instant petition on the ground that the petitioners were required to avail the alternate remedy available to them in terms of section 161(c) of the West Pakistan Land Revenue Act 1967, hence instant petition is not maintainable. We have perused the provisions of section 161(c) of Land Revenue Act, and are of the view that there cannot be any cavil to such proposition, that ordinarily, an aggrieved person has to resort to the statutory remedy as provided under the relevant statute and must not invoke the Constitutional jurisdiction of this Court in terms of Article 199 of the Constitution of Pakistan in a routine manner, as such remedy is discretionary in nature and is to be exercised in favor of an aggrieved person in extreme circumstances in a case having its own peculiar facts and circumstances. However, it would not be out of place to mention, that the bar of alternate remedy is not absolute, and as stated above this Court can exercise its discretion in exceptional circumstances after examining the facts and circumstances of each individual case. In the instant matter, it is not merely the order dated 28.10.2011, passed by Respondent No.1, which has been impugned before us, rather what has been challenged before us is, that as to whether, respondent No.1 was justified in the given facts and circumstances of the instant case to proceed any further in the matter, when admittedly the issue of territorial jurisdiction of Civil Court is yet to be decided by the Hon’ble Supreme Court. It is in this context the petitioners are before us, and in the given facts and circumstances of the matter in question, we are of the view that instant petition is maintainable before this Court; hence the objections with regard to the maintainability of instant petition, being misconceived is hereby repelled.    

 

8.        It appears that the petitioners are the owners of property bearing  Survey No. 367 (23.10 acres) and Survey No. 368 (19.11 acres) in Deh Babur Band, Tapo Hathal Buth, Taluka Thano Bula Khan, District Jamshoro, which was purchased by the petitioners through a registered Sale Deed dated 22.3.2005. The petitioners are in physical possession of the said property and are running a poultry farm on it wherein several machines have also been installed by the petitioners. The property being claimed by the petitioners is apparently situated at 95 KM main Super Highway while going from Karachi to Hyderabad. This location of the property was also confirmed by the Nazir of this Court in his report dated 24.8.2009, submitted before the learned Single Judge in compliance of the order dated 10.8.2009 passed in Suit No.1122/2009. The Nazir had further confirmed that the petitioners were in possession of the said property at the time of inspection. On the other hand the respondent No. 3 claims to be the owner of land measuring 199 Acres consisting of block / survey No. 390/1-4 and 389/1-3            in Deh Babur Band Tapo Hathal Buth, Taluka Thano Bula Khan, District Jamshoro which apparently is situated at 67 kilometer on main Super Highway from Karachi to Hyderabad. Such property is claimed to have been purchased by the respondent No. 3 through a registered Sale Deed dated 9.2.1995 however, entry in the Revenue Records in respect of the property of respondent No.3 was cancelled by the Additional Commissioner-I Hyderabad vide its order dated 31.3.2000 declaring the land of respondent No. 3 as a Government land against which an appeal / revision was preferred bearing No. 122/2000 before the Member (Judicial), Board of Revenue, Government of Sindh and such appeal / revision was dismissed in default on 17.9.2001. Thereafter, the respondent No. 3 preferred a belated application almost after seven years which was allowed by the then Member, Land Utilization Department, Board of Revenue, Government of Sindh, whereas the order dated 31.3.2000 was set aside vide order dated 14.2.2008. The real dispute between the parties started after passing of order dated 14.2.2008 through which the land being claimed by the respondent No. 3 was revived. Soon after passing of the order dated 14.02.2008, the Respondent No.3 initiated proceedings whereby possession of the property was sought and subsequently the land of respondent No.3 was also demarcated with the assistance of official respondents by preparation of a sketch which showed the location of the land of respondent No.3 overlapping the land of the petitioners at 95 KM Main Super Highway from Karachi towards Hyderabad. In the meanwhile EDO (Revenue), Jamshoro, started some Suo Moto proceedings in respect of cancellation of the land of the petitioners and vide order dated 26.03.2009 cancelled the mutation entry No. 193 recorded in favor of the petitioners against which an appeal bearing No SROA-79 of 2009 was preferred by the petitioners before the Member, Land Utilization Board of Revenue, Government of Sindh. During pendency of this appeal, the alleged unlawful and arbitrary demarcation of the land of Respondent No.3 was also challenged by the petitioners by filing CP No D-149 of 2009 (Hyderabad) which was dismissed by a learned Division Bench with the observation that since an appeal has already been preferred by the petitioners against the impugned order dated 26.03.2009, the petitioners may avail the statutory remedy against the alleged demarcation before the appropriate forums. The appeal bearing No SROA-79 of 2009 was heard by Member, Land Utilization Board of Revenue, Government of Sindh, and the petitioners contended that since Respondent No.1 had passed the impugned order without providing any opportunity of being heard in its Suo Moto proceedings, hence the impugned order be set aside and the matter be remanded to Respondent No.1 with directions to allow personal hearing to the petitioners and decide the issue afresh. The counsel for respondent No.3 had consented to such proposal, whereafter the matter was remanded vide order 02.07.2009 to Respondent No.1 accordingly. After passing of the remand order and during the pendency of the proceedings the petitioners being aggrieved with order dated 14.02.2008 which was still in field in favor of respondent No.3 and the petitioners had to contest the matter on account of the interference by the official respondents as the respondent No. 3 mainly asserted her ownership of the land about it s location being at the site of the petitioners’ land, the petitioners thereafter filed a Civil Suit bearing No. 1122/2009 before this Court and vide order dated 10.02.2009 status quo order was passed by this Court. The respondent No. 3 raised a preliminary objection with regard to the maintainability of the suit on the point of territorial jurisdiction and a learned Single Judge of this Court vide judgment dated 26.3.2010 directed the office to return the plaint to the petitioners for its presentation before the appropriate court of jurisdiction after retaining copies of the pleadings on its record. The petitioners being dissatisfied impugned the said judgment of the learned Single Judge, through High Court Appeal No. 62 of 2010 and once again the status quo order was passed, whereafter a learned Division Bench of this Court vide its judgment dated 21.4.2011 came to the conclusion that the order passed by the learned Single Judge, whereby the plaint was returned for presenting it before the Court having appropriate jurisdiction, was unexceptional and for such reasons the appeal was dismissed. The petitioners being further aggrieved preferred a Civil Petition for Leave to Appeal bearing No 624-K of 2011 before the Hon’ble Supreme Court and the Hon’ble Supreme Court vide order dated 12.8.2011 granted leave in the matter to examine inter alia, that as to whether the issue of territorial jurisdiction has been rightly deiced by the two Courts below against the petitioners. Such order of the Hon’ble Supreme Court was also communicated to the respondent No. 1 who has been arrayed in the said petition for Leave to Appeal as respondent No. 2 in its own name. The respondent No. 2, however, despite having knowledge of the pendency of the proceedings before the Hon’ble Supreme Court, before whom the proceedings were pending after passing of remand order dated 02.07.2009 by Member, Land Utilization, Board of Revenue, Sindh, went on to pass the impugned order dated 28.10.2011 in favour of respondent No. 3 by cancelling the entries available in the record in favour of the petitioners. It is also a matter of record that after dismissal of the High Court Appeal and passing of the order dated 28.11.2011 and grant of Leave by the Hon’ble Supreme Court, the respondent No. 3 has filed F.C. Suit No. 38/2011 on 2.12.2011 before the Civil Judge, Kotri, whereby the respondent No. 3 has prayed for restoration of possession of the land in question and declaration for her title as a legal owner of the land in question. The respondent No. 3 had also filed an application under Order XXXIX Rule 1 & 2 CPC whereas an application under Order VII Rule 11 CPC was filed in the said suit by the petitioners before the Senior Civil Judge, Kotri. Both these applications were dismissed vide order dated 19.11.2013 by the Senior Civil Judge, Kotri which have been further impugned before the learned District & Sessions, Judge Jamshoro at Kotri. To ascertain the factual position of the proceedings, this Court vide order dated 20.1.2014 had sought report from the learned Senior Civil Judge Kotri who vide its report dated 3.2.2014 has informed that these applications were taken up for hearing and had been decided for the reason that as per the directions contained in the National Judicial Policy, such old matters were required to be decided by the end of February 2014, however, the Court is mindful of the fact that some litigation is pending before the Hon’ble Apex Court between the parties, therefore, the Court has no intention to decide the matter finally.

 

9.         It is a matter of record and which has not been disputed by the parties that a status quo order dated 10.08.2009 was operating in Suit No 1122 of 2009 before the learned Single Judge and the learned Single Judge through its judgment dated 26.03.2010 has directed the office to return the plaint for its presentation before the Court of appropriate jurisdiction. Insofar as the status of the suit is concerned, the same has not been dismissed. Mere return of the plaint would neither mean dismissal of suit, nor would amount to deciding the issue on merits. Similarly, a learned Division Bench of this Court vide order dated 12.04.2010 directed the parties to maintain status quo in the matter and the same continued in High Court Appeal 62 of 2010. After dismissal of the appeal by the learned Division bench of this Court, the petitioners have preferred a Civil Petition for Leave to Appeal before the Hon’ble Supreme Court and the Hon’ble Supreme Court vide its order dated 12.8.2011 has granted leave in the matter to decide as to whether this Court has correctly decided the issue of territorial jurisdiction with regard to the subject dispute. The question before the Hon’ble Supreme Court is not on the merits of the case; rather the Hon’ble Supreme Court will be deciding that as to whether the matter has to be proceeded before this Court in its original Civil Jurisdiction or before the Civil Court at Jamshoro, Kotri. It is also a matter of record that respondent No. 1 in the instant petition has been arrayed as respondent No. 2 in the Civil Petition for Leave to Appeal before the Hon’ble Supreme Court by name and the respondent No. 1, admittedly is in knowledge of the pendency of the proceedings before the Hon’ble Supreme Court, however, despite having such knowledge, the respondent No. 1 has proceeded in the matter and has made an attempt to alter the status of the proceedings which were, and are,  pending in litigation between the parties either before this Court in its original Civil Jurisdiction or ultimately before the Civil Court at Jamshoro, Kotri. The Respondent No.1 has made an observation in its order dated 28.10.2011 with regard to the proceedings pending before the Hon’ble Supreme Court and such observation itself is an admission that the Respondent No.1 was at least aware about such proceedings being pending before the Hon’ble Supreme Court and any subsequent statement that the respondent No.1 was not aware about any such proceedings cannot be accepted The dispute between the parties i.e. the petitioners and the respondent No. 3 has not been adjudicated on merits as yet. The merits of the case will only be decided once the issue of territorial jurisdiction is finally decided by the Hon’ble Supreme Court, therefore, any interference by the parties or the official respondents in the matter would be unfair and would amount to pre-empting the decision which could be finally passed by the Civil Court having jurisdiction in the matter, after recording of evidence and discussing the merits of the case. It is further noted that respondent No. 1 while passing the impugned order has also passed remarks to the effect that the reference by the petitioners with regard to the proceedings being pending before the Hon’ble Supreme Court is in fact a “threat”. The respondent No.1 has observed as follows in his order dated 28.10.2011:

 

“They have only sent letters wherein they mentioned that their case in this regard is already pending in the Hon’ble Supreme Court of Pakistan but, the perusal of same[sic] above letters it reveals that it was only a threat. During the case they did not file any appeal before the [sic] any appellant Court of law against this Court.”

 

We are of the opinion that such remarks of Respondent No.1 are not only unwarranted but reflects a contemptuous mindset as if the pendency of the proceedings before the Hon’ble Supreme Court is of no consequence. This attitude of a public functionary cannot be appreciated by this Court as it is the primary duty and responsibility of such functionaries to act in a fair and non-partisan manner. There wasn’t any exigency in the matter which is being contested by the parties since long and propriety demanded that the respondent No.1 should not have proceeded with the matter in haste and without following the due process of law. Mr. Ahmed Peerzada, the learned Counsel for the Board of Revenue, Government of Sindh has in fact conceded that respondent No. 1 should not have passed any order in the matter, once it was in his knowledge that proceedings between the parties are pending before the Hon’ble Supreme Court. Though the learned Counsel for Respondent No.3 has contended that the Hon’ble Supreme Court did not pass any stay order in the matter, hence the Respondent No.1 was justified in proceeding with the matter. However, with respect, we are not inclined to agree to any such interpretation, simply for the reason that in such eventuality, the proceedings pending before the Hon’ble Supreme Court would then become merely of an academic nature. Once the Hon’ble Supreme Court decides that as to which Civil Court has the appropriate territorial jurisdiction in the matter, only then the subject controversy would be decided on merits after the contesting parties lead their evidence. Any other mode or manner being adopted for deciding the issue in hand would not be appropriate. The Respondent No.1 has been either a defendant or a respondent in the controversy since its inception through Suit No 1122 of 2009 and High Court Appeal No 62 of 2010, wherein status quo orders were operating since filing of the suit. Now merely for the fact that the Hon’ble Supreme Court while granting leave in the matter, has not passed any orders with regard to maintaining status quo or not, must not be construed by the Respondent No.1 so as to exercise a free hand in the matter and pass orders in the matter in haste, when the entire action of the official respondents, including the order dated 14.02.2008 passed by the then Member, Land Utilization, Board of Revenue, whereby the appeal filed by the respondent No.3 was revived after a lapse of more than 7 years, is under challenge. Hence it was incumbent upon the Respondent No.1 not to proceed any further, once it was brought to his knowledge that the matter was pending before the Hon’ble Supreme Court, irrespective of the fact that no restraining order was passed in the matter. Reference in this regard maybe made to the case of Noor Muhammad Vs. Civil Aviation Authority and another reported in 1987 CLC 393, wherein a learned Single Judge of this Court has held as under:-

 

“10.   On the basis of the law, referred to above, I am of the view that the principle of the law laid down by the English, American as well as Indian superior Courts, as referred to above, is applicable to the present case.  When the proceedings were instituted by the plaintiff and a notice of the injunction application was issued to the defendants calling upon them to show cause why a stay order should not be issued, its practical effect was to lay off for the time being, owing to the Court notice, as it is expected that the Government Institution and their functionaries will assist the Court in administration of justice and they will not try to change the factual position unilaterally to their advantage, in normal circumstances, particularly when a Court notice is received by the said Authority or functionary and the matter is fixed for hearing in the Court just the other day.” (Emphasis supplied)

 

10.       This decision as referred above was challenged in High Court Appeal before a learned Division bench of this Court in the case of Civil Aviation Authority Vs. Noor Muhammad reported as PLD 1988 Karachi 401 and the findings of the learned Single Judge were not disturbed by the learned Division bench of this Court and it was held as under:-

 

“In our view, the point for consideration in the present case is, as to whether simplicitor service of summons and notice upon a defendant in respect of filing of a suit for declaration and permanent injunction and an application for ad interim injunction by a plaintiff, is sufficient to place restraint upon the defendant against taking any adverse action against the plaintiff before the grant of an ad interim injunction by the Court.  There cannot be any doubt that the Court can undo any act on the part of a defendant which he might have taken malafidely after the service of the notice of an injunction application, if the Court is satisfied that the dictates of justice so demand and, therefore, in a fit case the Court can pass an order of status quo ante i.e. restoring the parties to the position which was obtaining at the time of the filing of the suit and the injunction application but, in our view, this does not necessarily mean that in every case where a defendant after service of notice of a stay application takes some adverse action / step against the plaintiff, the Court as a matter of course should order restoration of status quo ante without examining the merits of the case. However, it is desirable that a defendant should not take any action after the service of notice of a stay application with the intention to render the stay application infructuous, as it may create complications for him.” (Emphasis supplied)

 

11.       Though in the instant petition, we are not inclined to dilate upon the merits of the dispute lest it may prejudice the case of any of the contesting parties, however, after examining the impugned order we cannot refrain ourselves from commenting on the conduct of Respondent No.1 in passing the impugned order dated 28.10.2011 as the same appears to have been passed not only in haste, but even without appreciating the real controversy and the issue in hand. On the one hand the respondent No.1 has observed in his order that “after perusing the case paper and hearing the opponent, I have come to the conclusion that the land involving Khet No. 367 and 368 [(petitioners property)] is a Government Land and has been fraudulently transferred to private persons”, whereas in Para wise comments / written statement filed before the learned Senior Civil Judge, Kotri, in F.C. Suit No. 38/2011 the Mukhtiarkar Thano Bula Khan “has categorically stated that there is no Government interest involved in the suit land and the matter is between two private parties”. These two versions of the same officer are prima facie contradictory to each other. It must be appreciated that the dispute between the parties is in respect of different survey Nos., however, after the alleged demarcation of the land of Respondent No.3 by the official respondents, the land being claimed by the petitioners and the Respondent No.3 are now overlapping and such demarcation is also under challenge on behalf of the petitioners. The land being claimed by the petitioners has been cancelled through an Ex-parte order dated 28.10.2011, impugned through instant petition, holding it to be a Government land, whereas in respect of the land now being claimed by the respondent No.3, it has been stated before the Court of Civil Judge, at Kotri that the land is not a Government land and is a matter of dispute between private parties. The matter does not end here, as in fact an effort is being made to recall the comments/written statement from the Court on the pretext that the same have been filed due to mistake. Such conduct of the official respondents speaks of malafides on their part on the face of it. The change and / or transfer of officers on official posts does not mean or allows any subsequent officer to take a stance of his own, which is contrary to the record already furnished before a Civil Court. It would be advantageous to reproduce the contents of the letter dated 15.1.2014 written by Respondent No.1 and addressed to the Deputy District Attorney at Kotri, which has been filed before the Civil Court at Jamshoro, Kotri in F.C. Suit No 38/2011 and is as follows:-

 

“The Deputy District Attorney,                                          Dated: 15.01.2014

Kotri.

 

SUBJECT:     CLEARFICATION OF LETTER DATED 03.04.2012.

 

 

Reference:     Your office letter No.D.D.A. 50 of 2013 dated 17.12.2013.

 

            It is stated that Mst. Aisha Siddiqui filed an F.C. Suit No.38/2011 in the Court of Senior Civil Judge Kotri for declaration, possession manse profile and permanent injunction.

 

            In this context Mukhtiarkar thanoBula Khan was directed to submit his parawise comments / written statement through Assistant Commissioner Thano Bula Khan.  The Mukhtiarkar and Assistant Commissioner Thano Bula Khan filed parawise comments / written statements in the Hon’ble Senior Civil Court Kotri, in F.C. Suit 38/2011 through Deputy District Attorney at Kotri. Vide letter No.Mukh. SM 438 dated 26.12.2011.  The Mukhtiarkar is the Primary source of information and custodian of record of Right.  The Mukhtiarkar Thano Bula Khan has stated that there is no Government interest involved in the above Suit and matter is between two private parties.

 

            Mr. Nasir Abbas Somroo the then Deputy Commissioner Jamshoro, issued letter of authorization to Mr. Sikander Ali Kalhoro to submit the written statements in F.C. Suit No.38/2011 in the Honorable Court. 

 

            Mr. Agha Sohail Ahmed Pathan, who took the charge of Deputy Commissioner Jamshoro from outgoing Deputy Commissioner Nasir Abbas Somroo, wrote a letter No.O.S/D.C./1007 dated 03.04.2012 for the return of already submitted parawise comments on the pretext that they were submitted without Consultation of Mr. Agha Sohail Ahmed Pathan.

 

            It is humbly submitted that Mukhtiarkar Thano Bula Khan and Assistant Commissioner are the primary source [of] information and custodian of the Record of Rights therefore under[signed] deems it appropriate to apprise the Honorable Senior Civil Court Kotri to consider the parawise comments of the Mukhtiarkar and Assistant Commissioner Thano Bula Khan and decide that matter on merits, as per law.

 

Sd/-

(SOHAIL ADEEB BACHANI)

DEPUTY COMMISSIONER

JAMSHORO”

 

 

12.       From perusal of the impugned order dated 28.10.2011 and letter dated 15.1.2014 it appears that there are material contradictions in the stance of respondent No.1. The respondent No.1 has passed the impugned order on 28.10.20111 and has also addressed letter dated 15.1.2014 and has taken two divergent views with regard to the status of the land, that as to whether the same is a Government land or a land belonging to the private parties. This Court cannot appreciate such conduct on the part of official respondent who is required to act fairly and in a transparent manner, and on the basis of the record available before him in discharge of its official duties. If the record of the official respondents shows that there is no Government interest involved in the subject land, then as to how, subsequently it could be observed by the same officer that the land in dispute belongs to the Government and that too without affording any opportunity of hearing to the aggrieved party and without recording of any evidence. The demarcation of land is also being disputed by the petitioners, on the basis of which these two divergent views have been expressed by the Respondents No.1, hence there was no occasion to pass the impugned order dated 28.10.2011, through which the entire case of the petitioners has been thrown out. In fact the petitioners are also agitating the restoration of appeal of Respondent No.3 after a lapse of more than seven years vide order dated 14.02.2008, and if the Civil Court of competent jurisdiction comes to the conclusion that such restoration of appeal was not justified, then even without touching the merits, the whole case of respondent No.3 would die its own course. 

 

13.       In view of herein above peculiar facts and circumstances of this case, we are of the opinion that the respondent No.1 has committed gross illegality in passing the impugned order dated 28.10.2011 as the matter with regard to the territorial jurisdiction of the competent Civil Court is still pending before the Hon’ble Supreme Court and the dispute between the parties could only be decided by such Court of competent jurisdiction on merits only after recording evidence, once the Hon’ble Supreme Court decides the matter of jurisdiction. In view of such position the respondent No. 1 was required to maintain status quo and not to proceed with the matter under any circumstances as the same will have an adverse effect on the merits of the case and will prejudice the interest of the parties, moreover, without seeking permission or clarification from the Hon’ble Supreme Court being seized of the matter and in which proceedings, the respondent No.1 is a party. Consequently, the impugned order dated 28.10.2011 is set aside and the parties are directed to maintain status quo in the matter till the issue of territorial jurisdiction is finally decided by the Hon’ble Supreme Court. The petition stands allowed in the above terms. 

 

Dated: __.11.2014

J U D G E

 

 

 

 

 

J U D G E

 

ARSHAD/