1. ' SYED SAEEDUDDIN NASIR, J.--- 1,'3 to 21. Deferred.
2. Through this order I intend to dispose of C.M.A. No,4550 of 2011, which is an application under Order XL, Rule 1, read with Order XXXIX, Rules 2(3) and 7 and also read with sections 94 and 151 of Code of Civil Procedure, 1908. Through this application the plaintiff seeks attachment of the building known as "Moon Garden" 'situated on Survey, No,309, Deh Okewari, Tapo Songal, Taluka and District East, behind Aladdin Park, Block 10-A, KDA Scheme No,24, Gulshan-eIqbal, Karachi, and further seeks appointment of the Nazir as receiver of the aforesaid building, with directions to take possession and to post guards thereon and to install appropriate sign boards informing the general public about the Court attachment and orders.
2. ' Learned counsel for the plaintiff has, inter alia, contended that through an order dated 17-4-2007 passed by this Court it had restrained the defendant No,7, namely, Abdul Razzak Khamosh from raising any further construction in the aforesaid building, and not to part with possession of the impugned building, which necessarily included no creation of third party interest therein.
3. ' The learned counsel for the plaintiff further contends that pursuant to order dated 25-4-2007 Nazir of this Court had inspected the building in question and submitted his inspection report dated 30- 4-2007, which showed the state of construction of the aforesaid building. The photographs taken on 20th April, 2007 of the aforesaid building are also part of record of this case.
4. ' The learned counsel for the plaintiff further states that pursuant to order dated 30-4-2007 the Nazir of this Court along with an independent Architect again inspected the building and submitted his report in respect thereof on 25-9-2008, which comprehensively outlined and showed both the external and the internal states of construction in the said building. The photographs taken in the year 2008 of the said building are also part of record of this case.
5. ' The learned counsel for the plaintiff submits that the Hon'ble Supreme Court of Pakistan through order dated 7-10-2008, disposed of Civil Petition No,398-K of 2008, on the undertaking of defendant No,7 that he shall not raise any further construction and will not create any third party interest and will not hand over the possession to anybody in relation to the said building. He next pointed out that through letters dated 23-6-2007 and 13-12-2007 the defendant No,1 - KBCA has directed demolition of unauthorized construction of the said building. He states that the plaintiff has also learnt that the defendant No,7, after passing of the abovementioned order dated 17-4-2007 has also engaged in massive construction in the internal and external structure of the impugned building. It is obvious and apparent that the aforementioned actions of defendant No,7, Abdul Razzak Khamosh, are in violation of the abovementioned order of this Court as well as the Hon'ble Supreme Court of Pakistan. He further contends that the defendant No,7 in violation of the undertaking given by him before the Hon'ble Supreme Court has also created third party interest in the said building and has leased out several flats therein by executing lease deeds in violation and contempt of the aforesaid orders.
6. ' In support of his contention learned counsel for the plaintiff has relied upon the following case law:---
(1) Haji Muhammad Hussain and others v.-Muhammad Abbas (2001 YLR 1767)
(2) Muhammad Aslam v. Mahmood Ali and another (1986 CLC 160)
(3) Pir Omar Khayyam v. Mrs. Ruby Hameedullah and others (2014 YLR 1654)
(4) Syed Munawar Hussain Shah v. Syed Nusrat Hussain and others (2014 CLC 945) '
(5) Saeed ur Rehman v. Ehsanullah Khan Afridi and others (PLD 2007 Kar. 527)
(6) Muhammad Aslam v. Mahmood All and another (1986 CLC 160)
(7) Asadullah Mirbahar and another v. Mrs. Ayesha Muzahir and others (PLD 2011 Kar. 151)
(8) Sahibzada Ghulam Muhammad Khan v. Nawab Jahangir Khanji and others (PLD 2011 Kar. 602)
7. ' At the end of his arguments, learned counsel for the plaintiff has prayed for orders of attachment and appointment of Nazir of this Court as Receiver in respect of the building in question with direction to take over possession of the same in order to safeguard the interest of the plaintiff.
8. ' Mr. Mushtaq A. Memon, learned counsel for defendant No,7, while controverting the arguments extended by the learned counsel for the plaintiff has, inter alia, argued that in the instant case neither the provisions of Order XL, Rule 1 nor the provisions of Order XXXVIII, Rule 5 of the Code of Civil Procedure Code, 1908, are attracted inasmuch as the plaintiff has not claimed any proprietary interest in the subject matter of the suit whereas the aforesaid two provisions of law are relating to a situation in which the plaintiff has some proprietary interest in the subject-matter of the suit, which is likely to be affected in the long run if interim orders for protection and preservation of the subject-matter of the suit are not passed at the interlocutory stage. In support of his contention learned counsel has relied upon the following case law in order to substantiate his arguments:-
(1) Mst. Salma Jawaid and others v. S.M. Arshad and others (PLD 1983 Kar. 303)
(2) Smt. Vanibai and another v. Republic of Pakistan and others (PLD 1970 Kar. 42)
(3) Sardar Wali Muhammad v. Sardar Muhammad lqbal Khan Mokal and others (PLD 1975 Lah. 492)
(4) Mst. Ghulam Zainab and others v. Mst. Tahira Sultana and others (PLD 1917 Lah. 830)
(5) Latif-ur-Rehman v. Haji Farmanullah (PLD 2014 Pesh. 1)
(6) Mehtab Beg and others v. Chiragh All (1975 SCMR 54)
(7) Shamsul Ar n and others v. Karachi Building Control Authority and others (PLD 2007 Kar. 498)
(8) Salahuddin v. Rahim Bakhsh (PLD 1992 Quetta 59)
(9) MIs H. Nizam Din and Sons Limited v. M. V. "Oroomee" and others (PLD 1977 Kar. 722)
(10) MIAs SOFA C. & CO. v. Naeem Khan (2005 CLC 1270)
(11) Muhammad Ather Hafeez Khan v. MIs Ssangyong and Usmani JV (PLD 2011 Kar. 605)
(12) Mrs. Rukhsana Yasmeen (Yahya) v. Naza Ali and others (2012 MLD 171)
(13) MD. Anwarullah Mazumdar v. Tamina Bibi and others (1971 SCMR 94)
9. ' Learned counsel for defendant No,7 has further contended that in view of the situation prevailing in the instant case, no order for appointment of receiver in respect of the building in question can be passed nor could attachment orders be passed inasmuch as the application does not satisfy the requirements contemplated Order XXXVIII, Rule 5, C.P.C., moreover, the instant application is not even under Order XXXVIII, Rule 5, C.P.C.
10. ' Learned counsel for defendant No,7 further submits that a fresh plan for regularization of the additional floors, that have been constructed in violation, of approved plan, has already been submitted with the competent authority for regularization of the same and the defendant No,7 has paid huge amount for regularization fee.
11. ' I have heard the learned counsel for the parties at length, examined the material available on record and appreciated the case -law cited by the learned counsel for the parties.
12. ' I am in total agreement that the arguments extended by the learned counsel for defendant No,7, Mr. Mushtaq A,. Memon Advocate, that under the circumstances of present case no receiver can be appointed under Order XL, Rule 1, C.P.C., as prayed for by the learned counsel for the plaintiff in the said application, nor can the Court attach the building in question under Order XXXVIII, Rule 5, C.P.C.
13. Inasmuch as A the circumstances of the case do not warrant passing of such an order for attachment. However, upon examining the provisions under which the instant application has been made, it transpires that the same is also read with Order XXXIX, Rules 2(3) and 7 of the Code of Civil Procedure, 1908, which confers ample power to this Court to attach the property in respect of which injunctive order is passed, and the same is violated by anyone of the parties to the suit.
14. ' In view of the above, it is ordered that the shops/units/ premises/apartments which are built in the unauthorizedly constructed part of the building, and which are not in occupation/possession of anyone of the allottees, shall be attached by the Nazir of this Court and the Nazir shall also put lock and seal on the doors of such shops/units/premises/apartments. However, this attachment order shall automatically stand vacated as and when the regularization plans submitted by the defendant No,7 with the competent authority i.e, defendant No,1 are approved.
15. ' The Nazir fee is 'tentatively fixed at Rs,1,00,000 which shall be borne by the plaintiff.