1. MAQBOOL BAQAR, J.---Through the instant petition, the petitioner has sought the following reliefs:-
(A) Declare that the actions of the respondents are unlawful, mala fide, excessive, arbitrary in nature and in infringement upon the petitioner's fundamental rights and entitlements as guaranteed and envisaged under the Constitution of the Islamic Republic of Pakistan, 1973;
(B) Issue a Writ of Mandamus directing the official Respondent to act strictly in accordance with law and to perform their duties and obligations whilst safeguarding the rights and liberties of the petitioner;
(C) In furtherance of the foregoing, issue a Writ of Prohibition and to restrain the respondents and/or other person(s) acting under them, through them and/or on their behalf from causing upon the petitioner and/or his representatives any unlawful and illegal dispossession from Plot No,17-B, attached to Plot No, 17-A, admeasuring 02 acres, situated in Phase II, Block A, K-28, Trans Lyari, Hawksbay Road, Karachi and/or altering the status quo as it prevails at the time of institution of the instant proceedings pending an effective adjudication hereon;
(D) Direct the Nazir and/or any other officer of this Hon'ble Court to conduct an inspection at Plot No,17-B, attached to Plot No,17-A, admeasuring 2 acres, situated in Phase II, Block A, K-28, Trans Lyari, Hawksbay Road, Karachi, and to determine and report for this Hon'ble Court's convenience the status vis-a-vis the possession and occupation thereof as prevailing on the date of institution of the instant proceedings.
2. ' On 5-2-2012, notices were ordered to be issued to the respondents as well as learned Advocate- General, Sindh for 12-1-2012 and the respondents were directed to maintain the status quo and not to disturb the possession of the petitioner over the subject plot. The Nazir was also directed to visit the subject plot and report to the court regarding possession thereon. Vide his report dated 11-1- 2012, the Deputy Nazir as well as Nazir submitted the following report. Relevant portion whereof is reproduced as under :- "(ii) The said plot was pointed out by the petitioner, which comprised around 2 acres with covered boundary wall of approximately 7 to 8 feet height and having one iron gate on front road side. It was noted that the plot was in sort of rectangular shape, under which front and back side having short width and right & left side contains long length. At here, it was also noted that the backside of plot contain another road. The entire land was in barren position, where no construction was found.
3. No item(s) was also noted except some flower/plant pots were laying before the entrance side of main iron gate. It was informed by Mr. Muneer that, he is also engaged in flower pot business.
(iii) Some staff of the petitioner was present at the time of inspection, who identified themselves as Chowkidar/Watchman. The names of said staff were noted as Mr. Faiz Ullah and Mr. Hadees Khan.
4. Furthermore, the staff also informed that they are deputed here by the petitioner since 6 to 7 years.
(iv) Based on the above position of inspection, it seems that Mr. Muhammad Muneer, the petitioner holds the possession of subject property.
5. ' Regarding such possession, Mr. Muneer has also provided some property documents containing 10 pages, which are self-explanatory and attached herewith (flagged-A)
(v) The inspection was completed at 3-45 p.m. And none, was present from the side of respondents. Moreover, at the time of inspection, some photographs have been taken, which are attached (flagged-B on 4 pages).
6. ' On applications bearing Miscellaneous Nos. 664/12 and 665/12, on 17-1-2012, notices were ordered for 31-1-2012 and the Nazir was directed to visit and inspect the suit site and report to the court as to who is in possession thereof and as to whether possession as reported by him on 10-1-2012 has changed and if so, in what manner and to what extent. The Nazir in pursuance of the said order, carried out second inspection and submitted his report on 2-2-2012. The relevant portion of the second report dated 2-2-2012 is as follows:-- "(2) In compliance of above order, on 2-2-2012, the undersigned with staff members accompanied with Mr. Muhammad Muneer Admani, petitioner, Mr. Shahid, representative of respondent- No,5 and Mr. Muhammad Ismail, S.-I., Additional S.H.O. Police Station Mauripur reached at site. The subject land was bounded by wall with masonry blocks having main gate facing towards south side. At the site nine trucks with containers, one container lifter, one crane were parked and number of used/second hand vehicles tyres were also lying in the plot. At site Fazalullah disclosed that he was supervisor of Haji Muhammad Muneer since last seven years at salary of Rs,12,000 and that he had also deputed chowkidars at site. One of them has been thrown away by the respondent No,5 while other had gone to his village. He further stated that the property is illegally encroached/occupied by Ghularn Mustafa since last 10 to 12 days. Due to intervention of respondent one of the Chowkidars of petitioner namely Hadees Khan was illegally detained for two days at PS Mauripur. Thereafter, he was got released through personal sources. On the other hand the representative of respondent No,5 Muhammad Ismail produced some documents including Form-II, registered sale-deed dated 20-9-2011 in favour of respondent No,5 and further stated that they are in possession of alleged plot since last 9 months on the basis of registered sale deed and carrying out the business of Transport and their vehicles are parked inside the boundary wall of subject property. Respondent No,5 further disclosed that one Suit bearing No, 43 of 2012 is also pending adjudication before honourable High Court in respect of same property and submitted photocopies of concerned documents along with copy of order dated 14-1-2012 and report of commissioner dated 17-1-2012 in Suit No,43 of 2012. About 15 to 20 Labour persons were available at site and the property was found in possession of Ghulam Mustafa. Respondent No,5 also submitted photocopy of the written statement of defendant No,1 in Suit No,43 of 2012 namely Zahir Khan Jakhrani. Relevant documents are enclosed as annexure A to annexure G.
(3) At site it was noted that vehicles and tyres were available there which were not available at the time of first inspection dated 10-1-2012. Further the big flower pots which were available on the subject property at the time of first were not available at the time of fresh inspection. Moreover, the subject plot was in possession of Muhammad Munir on first inspection. During visit photographs were taken by both sides which are annexued with report at P/1 to P/27 submitted by respondent No,5 while P/28 to P/46. Moreover, petitioner stated that his relevant documents are filed in the main case".
7. ' From the report dated 11-1-2012, it is clear that the petitioner was in possession of the subject land.
8. However, subsequent report i.e,, report dated 2-2-2012 reveals that the petitioner has, by then, been dispossessed by respondent No,5. Details as mentioned in the first report and the photographs annexed thereto, clearly reveal that not only the petitioner was in possession but except for some flower pots, which were lying near the entrance, there was nothing inside the plot.
9. ' Comparison of the two sets of photographs; the first set taken during the first inspection and the second set taken during the second inspection, shows that in the first set neither was there any board of the transport company, claimed to be owned by respondent No, 5 nor were there any trucks parked or were any tyres stored, as are visible in the second set. Another distinguishing feature between the two reports/sets of photographs is that at the time of first inspection no portion of the boundary wall was painted nor did the walls bear any writing. However, in the second set certain portions of the walls have been freshly painted and the walls also bear certain writings.
10. ' Mr. Yousuf Moulvi, learned counsel for respondent No, 5 submits that the flower pots were managed by the petitioner and were kept inside the plot at the stance of the petitioner. The above argument simply reinforces the petitioner's claim that he was in possession and control of the subject land otherwise one could not conceivably restore his goods inside any property without his possession and /or his control of the said property, and of course such was not done with the consent of respondent No, 5.
11. ' Mr. Yousuf Molvi, learned counsel for the. Respondent No,5 in support of his contention that first report is liable to be ignored, has relied upon in the case of Syed Ali Gohar Shah versus Province of Sindh & others, reported in 2004 CLC 1875, to the effect that the court cannot appoint a Commissioner for inspection without notice to the defendants except in cases where the issuance of notice may frustrate the purpose of the inspection but the commissioner has to execute the commission with notice to the opposite party. As noted in the judgment, this court has discretion to dispense with the notice if situation so requires. In the present case, situation was such that if notice would have been issued, the purpose of inspection would have been frustrated.
12. Furthermore, in the afore-cited case, perhaps the inspection was ordered for the purpose of identification of the suit plot, as inspection was ordered to be carried out with the assistance of Survey Settlement, Survey and Land Record Officer. While in the present case, purpose of inspection was simply to verify as to who was in possession of the subject plot.
13. In the circumstances, we do not find any force in the submission of Mr. Yousuf Molvi and having found that at the time of order for maintaining status quo, it was the petitioner who was in possession of the suit plot and has, subsequently and in violation of the said order, been dispossessed by the respondent A No,5, would direct the Nazir of this court to take over possession of subject land at the earliest and within two weeks' time, by which time, the respondent No, 5 shall remove all his vehicles and/ or any other objects/ articles that he may have placed on the subject plot. In case of his failure, Nazir shall have those removed and shall recover the expenses incurred in the exercise from respondent No,
5. Nazir shall appoint appropriate number of security guards to ensure that no further encroachment or trespass takes place in respect of the suit plot. Salary of the guards shall be borne by the petitioner exclusively. It may, however, be clarified that above observation does not create any better right or interest in favour of the parties in respect of the suit plot.
14. ' After we have dictated the above, Mr. Muhammad Ali Lakhani, Advocate for the petitioner requests that the petition may be disposed of in the foregoing terms.
15. ' Mr. Yousuf Moulvi, advocate for respondent No, 5 concedes to the above. We would, therefore, dispose of the petition in the foregoing terms with direction for early disposal of Suit No, 43 of 2012.