1. C.M.A. No,4368 of 2008.
2. ' MUNIB AHMAD KHAN, J.---Through this C.M.A., the plaintiff has sought action under the Contempt of Court Law, against the contemners, named in the application, three of them are officials of erstwhile KMC. To this application, counter affidavit has been filed by one of the alleged contemnors, through which entire factual position, as alleged in the application, has been disputed. Anyhow, before taking contempt application, background of the case is necessary.
3. ' The suit was filed for declaration, injunction and damages against the official respondents, with the prayer that it may be disclosed that the property bearing plot No,ST-2, Sub-Block E, Block III, Nazimabad, Karachi, belongs to plaintiff and notice, dated 25-1-2000, issued under section 3 of the Sindh Public Property (Removal and Encroachment) Act, 1975 is not a valid action. Besides damages, injunction has also been prayed.
4. ' As per documents, annexed with the Plaint, the plaintiff is claiming the plot on the basis of gift from his mother, whose title particular has been shown in annexure, available at page 49 of the suit, which is Form 4 of KDA. In the said Form the nature of the plot has been shown as amenity plot.
5. By another annexure C at page 51, the KDA has mutated the said amenity plot to the plaintiff from Rashida Begum. During the case proceedings, the plaintiff alleged that he has been dispossessed and since restraining order was passed against the defendants, not to disturb the possession of the plaintiff, therefore, the instant application was filed on 27-6-2000 under section 3 of the Contempt of the Court Act. The matter remained pending and on 10-3-2004 a statement was filed by KMC/CDGK of which relevant paragraph is reproduced:-- "That the plot bearing No, ST-6 comes under the Administrative control' of the then KDA and then KDA after approval of the competent authority original part plan bearing No,AD (PC)-3/2001, dated 27-7-2001 was showing the amendment and lay out plan of plot No,ST-6 situated at Block E, Nazimabad, Karachi from Park to Open space/Darul Sehat (Amenity) plot was originally allotted to Messrs Bhollo and Hameeda Brothers. Copy of letter, dated 31-7-2001 order and site-plan approved by the Defunct KDA has also been produced and annexed as Flags "A", "B" and "C", thereafter they have filed suit and the then KMC has issued notice that plot in question is Park plot, KDA has allotted the same to the plaintiff. However, competent authority has authorized the undersigned to make the statement before the Court that notice issued by the then KMC may be treated as withdrawn and case may be disposed of in view of the above statement."
6. ' The said statement was taken up on 15-8-2005 and the suit was disposed of in the following way:- "15-8-2005. 1 to 4:-- On behalf of CDGK a statement has been filed to the effect that notice issued by the CDGK has been withdrawn which notice has been impugned by the plaintiff in suit. Mr. Bashir stated there in view of the statement that notice, dated 25-1-2000 bearing No, DDL/C/XI/1111/01 issued under section 3 of Sindh Public Property (Removal of Encroachment) Act 1975 has been withdrawn. Mr. Bashir stated that entire suit may be disposed of in terms of the statement.
7. Accordingly, the suit stands disposed of in view of the statement filed on behalf of CDGK. So far the damages are concerned, the plaintiff does not process the same."
8. ' Learned counsel for plaintiff submits that since the application for contempt was pending and since despite the order, dated 25-8-2005, possession has not been given to the plaintiff, therefore, contemnors may be punished.
9. ' On the other hand, learned counsel for defendant submits that plaintiff has no right or title to the said amenity plot as it was never utilized for amenity purpose in the past fifty years and the said amenity plot could not be inherited legally, therefore, its mutation in the name of Rashida Begum, predecessor of the plaintiff, was wrong. Further the said amenity plot could not be gifted by Rashida Begum to the plaintiff. He further submits that keeping in view that situation, the plaintiff consented for the order, dated 15-8-2005 whereby entire suit was disposed of in terms of the statement, filed by defendant without any reservation in respect to pending applications, which was also dismissed as these were fixed from serial Nos. 1 to 4.
10. 'After hearing the learned counsel, it appears that at the moment, the Court has to see as to whether C.M.A. No, 4368 of 2006 can be taken up for further order for it has been merged in the order, dated 15-8-2005. Leaving apart the contention of defendant's Advocate that amenity plot was wrongly recorded as inherited property and thereafter mutated and gifted illegally, it is being observed that the suit was filed for declaration, injunction and damages and not for possession and prayer has been made accordingly but thereafter no amendment was requested in the Plaint or its prayer, notwithstanding the fact that the plaintiff was allegedly dispossessed, which situation remained for years and on 15-8-2005 the plaintiff consented to the disposal of the entire suit without any reservation or exceptions, which situation impliedly shows that pending applications were also merged in the order, dated 15-8-2005 and thereafter there remains no grievance of the plaintiff. The said order, as appears, was passed on the items listed as serial Nos. 1 to 4 which include the contempt application i,e, C.M.A. No,4368 of 2000 on serial No,2, hence same was also disposed of. In the said order, the plaintiff also gave up his claim for damages and he was satisfied with the statement filed by respondent.
11. ' In the circumstances, the contents of the statement are also to be looked into. Along with the said statement, other letters in respect to the plot have also been annexed, showing thereby that nature of plot has been changed. The statement itself states that the plot was an amenity plot and nothing has been promised in respect to the title of the plaintiff C or restoration of dispossession to the plaintiff. Along with the said letter, a letter, dated 31-7-2001 has also been annexed, which refers one Resolution of KDA Governing Body, dated 23-6-1973, whereby the change in the nature of the plot has been made.
12. ' In all these circumstances, and keeping in view that entire suit was disposed of without any reservation in respect to the possession or contempt application, the instant contempt application cannot be re- D agitated. It has also been noticed that earlier application of the plaintiff under section 144, C.P.C. For restoration of possession was dismissed by this Court's order, dated 4-5- 2006. The contention of the learned counsel for plaintiff and his reliance i,e, NIR 2000 Civil 333 and 1987 CLC 393 cannot be of any help in peculiar circumstances of the case. The order, dated 15-8- 2005 has apparently washed away all the miscellaneous applications which were listed on that date including contempt application. The office has rightly treated this application as disposed of, as the plaintiff himself did not take any efforts to make any application for rectification or correction of the order, dated 15-8-2005 but moved another application bearing C.M.A. No, 1569 of 2006 under section 144 for restoration and after about a year the matter was re-agitated, when it was observed vide order, dated 4-5-2006 that C.M.A. No, 4368 of 2000 is still pending, to which an explanation from the office was sought which was submitted on 8-5-2006, which is similar, as dilated above by me.
13. ' In the circumstances, this application has no force and is dismissed.