Order Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No.D – 175 of 2013
|
Date |
Order with signature of Judge |
Present :
1. Mr. Justice Irfan Saadat Khan
2. Mr. Justice Nadeem Akhtar
1. For orders on Nazir’s report dated 31.12.2013 & 20.01.2014 :
2. For orders on office objection :
3. For Katcha Peshi :
Petitioner : Muhammad Ali Chawla & Company (Pvt.) Ltd., through
Syed Shahenshah Hussain, Advocate.
Respondents 1 & 2 : Karachi Metropolitan Corporation and the Director
General Parks & Horticulture Department, KMC, through
Syed Sultan Ahmed, Advocate.
Respondent No.3 : Province of Sindh, through Qazi Muhammad Bashir,
AAG.
Date of hearing : 30.04.2014.
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O R D E R
NADEEM AKHTAR, J. – The petitioner company has filed this Constitutional Petition praying that the respondents be directed to perform their official duties ; to provide an alternate space for the car parking area and a road having direct access to the petitioner’s plot ; and, to issue a sanction letter to the petitioner for development of the said car parking area and construction of 25 feet wide road, at its own cost, having direct access from the car parking area to its plot.
2. As per the averments made in the petition, Plot No.ST-42, Kohsar Scheme 13-A, situated at Hill Park, Karachi (‘the plot’), was allotted and leased out to the petitioner on 27.08.1975. The petitioner was allowed to develop a car parking area at its own cost on Plot No.ST-13 situated near the plot. As there was no direct access / approach to the plot, the petitioner requested KDA to provide an access / road for the plot, which was accepted by KDA by allowing the petitioner to make a tunnel from the plot to the car parking Plot No.ST-13. However, the tunnel could not be constructed due to technical reasons. Accordingly, the petitioner approached the respondents/ authorities concerned to make proper arrangement for a direct approach to the plot. This request was accepted by the respondents by allowing the petitioner to construct a 16 feet wide road for approaching the plot directly, and a site plan was also issued by the respondents for this purpose. While the development of the car parking area and construction of the road was in progress, one Ashraf Motanmade an attempt to encroach upon the area that was allocated for the road and car parking. On a complaint filed by the petitioner, the said encroachment was removed. However, the said Ashraf Motan made another attempt to encroach upon the said area, and this time he succeeded in constructing four residential town houses thereon illegally, resulting in the stoppage of the development of car park and construction of the road.
3. The petitioner filed a complaint before the Provincial Ombudsman, Sindh, against the aforesaid illegal actions, but neither was any action taken nor was any result forthcoming. It is stated in the petition that the petitioner then filed Constitutional Petition No. D-1370/2008 before this Court against the present respondents, along with an application seeking an ad-interim order to permit the petitioner to widen the “existing katcha approach road”. According to the petitioner, the said application was granted vide order dated 08.12.2010, but the entire petition was disposed of by this Court without adverting to the actual prayer made therein by the petitioner. The prayer made by the petitioner in its earlier Constitutional Petition No.D-1370/2008 is reproduced below as the same is relevant for the purposes of deciding the instant petition :
“For the facts and reasons disclosed above it is most respectfully prayed that the respondents may please be directed through a writ of this Hon’ble Court to perform their official duties for which they are bound by law and concerned rules, regulation etc. to get vacate(!) / released the Government land encroached upon by the unlawful occupants and thereafter to clear off the spot which was reserved for the approach road as well as for parking area for the plot of the petitioner.
It is further prayed that if the respondent is not in a position to get cleared off the unlawfully encroached upon Govt. property then they may be directed to provide alternate place / spot for the approach road and the car parking space, out of the land lying undeveloped and vacant around the Plot No.ST-42, belonging to the petitioner.”
4. A perusal of the order passed on 08.12.2010 in Constitutional Petition No.D-1370/2008 filed by the petitioner earlier shows that the said petition was finally disposed of by this Court by directing the petitioner to widen the road leading towards the plot by 2 feet at its own cost. The said order was passed with the above direction in view of the statement given by the learned counsel for the petitioner that the petitioner would be satisfied if it is allowed to widen the passage / road by 2 feet. The officer / representative of respondents 1 and 2 also made a statement before this Court on that date that there was no hindrance in widening the road by 2 feet. Thus, it appears that the aforesaid order passed on 08.12.2010 in the petitioner’s earlier petition was passed with the consent of the parties.
5. While hearing the present petition, it was noticed by us that the petitioner has sought the same relief herein that was sought by it in its earlier Constitutional Petition No.D-1370/2008. For the sake of convenience and ready reference, the prayer made by the petitioner in the present petition is reproduced here :
“For the facts and reasons disclosed above it is most respectfully prayed that the Respondents may please be directed through a writ of this Hon’ble Court to perform their official duties for which they are bound by Law and concerned rules, regulations etc and to provide alternate space/spot for the car parking area and direct approach road for its Plot No.ST-42, Kohsar Scheme 13-A, Hill Park, Karachi preferably out of the vacant land lying undeveloped adjacent to Plot No.39-G-2 as shown in the site plan with green color (Annexure I/2). Moreover, the Respondents may be directed to issue sanction letter to the Petitioner Company for development of such car parking area construction of 25 feet wide direct approach road from the alternate car parking area to its plot on its on cost.”
6. On our query, learned counsel for the petitioner conceded that the prayers in the earlier petition and the instant petition are the same. When we asked the learned counsel to satisfy us as to how the petitioner can seek the same relief through a fresh petition when its grievance was redressed in the earlier petition, he submitted that the relief sought by the petitioner in its earlier petition was not granted to it as the same was disposed of by this Court without deciding the main controversy. We are unable to convince ourselves to agree with the learned counsel ; firstly, as the earlier petition was disposed of with the consent of the parties on the basis of the statement given before the Court by the learned counsel for the petitioner ; and, secondly, if it is assumed that the relief sought by the petitioner in its earlier petition was not granted by this Court, it is well-settled that in such an event the relief not granted is deemed to have been refused / rejected. Moreover, if the petitioner was not satisfied with the order of disposal of its earlier petition, the petitioner ought to have filed an appeal against the said order or an application for its review. Admittedly, no such step was taken by the petitioner, with the result that the said consent order attained finality long ago. In the present petition, this Court cannot sit in appeal against the said order, nor can the said order be reviewed.
7. We have also noticed that after final disposal of the earlier petition on 08.12.2010, another order was passed by this Court in the same petition on an application filed by the petitioner, whereby it was ordered that the order dated 08.12.2010 be complied with under the supervision of Deputy Director Parks of respondent No.1. It is to be noted that even at that stage the petitioner did not complain that its grievance had not been redressed or the relief sought by it had not been granted by this Court.
8. From the above, it transpires that the subject matter of and the dispute alleged in this petition are the same that were directly and substantially decided between the same parties with their consent in the earlier petition filed by the petitioner, and the order passed therein attained finality long ago. Therefore, the present petition is barred under the principles of res judicata in terms of Section 11 CPC. Section 11 CPC specifically bars the Court to try any Suit or issue in which the matter directly or substantially in issue has been directly and substantially in issue in a former Suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent Suit or the Suit in which such issue has been substantially raised, and has been heard and finally decided by such Court. In Muhammad Anwar V/S M/S Associates Trading Co. Ltd. and others, 1989 MLD 4750, it was held by this Court that applicability of the principles of res judicata was not exclusively restricted to proceedings in Suits, and the same as enunciated in Section 11 CPC could be enforced in proceedings other than Suits to which it does not strictly apply ; and, the general principle that there should be finality to litigation and further that a person could not be vexed over twice in respect of an issue which had already been adjudicated by the Court, could be applied to such proceedings.
9. Regarding applicability of the principles of resjudicata to Constitutional / Writ Petitions, in Fazal Din and 14 others V/S The Custodian, Evacuee Property, Lahore and 21 others, PLD 1971 SC 779, the Hon’ble Supreme Court was pleased to hold that the previous judgment of the High Court given between the same parties in writ petition, did operate as a bar in the way of the petitioner for agitating the matter once again by another petition. There is plethora of judgments on this point, some of which are (1) Muhammad Saleem Ullah and others V/S Additional District Judge, Gujranwala and others, PLD 2005 SC 511, (2) Pir Bakhsh represented by his Legal Heirs and others V/S The Chairman, Allotment Committee and others, PLD 1987 SC 145, (3) Abdul Ghafoor V/S Chief Settlement Commissioner and another, 1985 SCMR 464 and (4) Messrs Haji Maula Bakhsh & Sons V/S Collector of Customs and another, 1985 SCMR 1547.
10. In view of the above discussion and the above referred authorities, this petition is not maintainable and as such is liable to be dismissed.
Foregoing are the reasons of the short order announced by us on 30.04.2014, whereby this petition was dismissed with no order as to costs.
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J U D G E
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J U D G E