1. AQEEL AHMED ABBASI, J.--- Through instant petition, petitioner, namely, Ghulam Muhammad son of Alam Khan Jokhio, impugned the order dated 04.10.2007, passed by the Member (LU), Board of Revenue Sindh and sought following relief(s):--- (A)Declare that the order dated 04.10.2007, passed by the Respondent No.4 is illegal and void, and further be pleased to set aside the same.
2. (B)Declare that petitioner is a legal owner of land measuring 30.05 acres situated at Na class No.21, Sector No.36-A, Deh Dozan Scheme No.33 Karachi, vide entry No.67/41, dated 22.07.2007, sanctioned by the Respondent No.6 vide order dated 22.07.2004. (C)Declare that Respondent No.3 has no concern with the land of the petitioner because the petitioner is the owner of the land Na class No.21, Sector No.36- A, Deh Dozan Scheme No.33 Karachi whereas the Respondent No.3, is allottee of land in Na class No.21, Deh Dozan, Scheme No.33 Karachi.
3. (D)Declare that Respondent No.3 is in illegal possession of the land in sector 36A owned by the petitioner under the garb of allotthent/lease deed in Sector 36/A/3 Scheme 33 Karachi.
4. (E)Permanent injunction against the Respondent No.2 from creating 3rd party interest in the said property.
5. (F)Any other relief or relief's which this Hon'ble Court may deem fit and proper in the circumstances of the case.
6. 2.However, the aforesaid petition was finally disposed of by consent of learned counsel for the parties vide order dated 13.11.2008 in the following terms:- "This petition, after hearing the learned counsel for the parties at some length, is disposed of by consent of the learned counsel for the parties that the order passed by the Member (Land Utilization) Board of Revenue dated 04.10.2007 is tentative in nature and will not come in the way of the title of the petitioner. Any party, if aggrieved by Entry No.67/41, can approach to Civil Court for redress of his grievance, who will decide the issue after hearing all the interested parties.
7. In view of the disposal of the petition, the listed applications have become infructuous, which are accordingly disposed of."
8. 3.Record shows that after disposal of the instant petition in the aforesaid terms respondent No.3 filed an application under Section 114, C.P.C. (C.M.A. No.10882/2008) seeking review of the aforesaid order, however, such application was dismissed as withdrawn vide order dated 12.08.2014.
9. Thereafter, the petitioner has filed two applications i.e. C.M.A. No.19323/16 under Article 204 of the Constitution read with Sections 3 and 4 of Contempt of Court Ordinance, 2003 read with Section 151, C.P.C., as well as application under Order XXXIX, Rules 1 and 2, C.P.C. read with Section 151, C.P.C. i.e. C.M.A. No.19324/16. On 25.06.2016, after a lapse of about eight years from the date of final disposal of instant petition by consent vide order dated 13.11.2008. Through aforesaid applications, the petitioner alleged that respondents Nos.3, 4 and 7 and Assistant Commissioner, Scheme No.33 as well as Deputy Commissioner, East Karachi, have committed contempt of Court as they deliberately violated the order passed by this Court on 13.11.2008. 4.Learned counsel for the petitioner submits that through consent order dated 13.11.2008, the divisional bench of this Court has been pleased to hold that Entry No.67/41 in respect of subject and is in the name of petitioner, namely, Ghulam Muhammad son of Alam Khan Jokhio, whereas, in case of any dispute, the aggrieved party can approach to Civil Court for redressal of grievance in accordance with law. According to learned counsel, in spite of above factual position, the respondent No.3 filed a Constitutional Petition No.D-1180/2011 seeking implementation of the aforesaid order in their favour, however, subsequently the petition was dismissed as withdrawn vide order dated 18.11.2011. Per learned counsel, respondent thereafte,r, with mala fide intention, approached the Member, Land Utilization Department, Board of Revenue Sindh, Karachi, with a request to take Suo Motu action against the second endorsement made by respondent No.4 on Entry No.67/41 Case No.SCOA-.187/06, through misrepresentation of facts and by misinterpreting the order passed by this Court on 13.11.2008, whereas, the Member, Land Utilization Department, Board of Revenue Sindh, has passed an illegal order dated 03.05.2016 by holding that land of petitioner, namely, Ghulam Muhammad son of Alam Khan Jokhio, stands already cancelled vide order dated 04.10.2007 and the 2nd endorsement made by the Tapedar on 19.11.2014 in the record of right is of no legal value. Learned counsel for the petitioner argued that the order of the Member, Land Utilization Department passed in the above Suo Motu Case may be set aside for being illegal and contemnors may be punished accordingly.
10. 5.Conversely, learned counsel for the respondent No.3 Mr. Ovais Ali Shah has vehemently opposed the submissions made by the learned counsel for the petitioner and contended that both the listed applications i.e. C.M.As. Nos.19323/16 (under Contempt of Court Act, 2003 read with Section 151, C.P.C.) and 19324/16 (under Order XXXIX, Rules 1 and 2, C.P.C.) filed by the petitioner after final disposal of the instant petition vide consent order dated 13.11.2008, are misconceived in law and facts, hence liable to be dismissed in limine. It has been further contended by the learned counsel for the respondent No.3 that the relief sought by the petitioner in the instant petition has been in fact declined by this Court, as the order of the respondent No.4, i.e. Member, Land Utilization Department, Board of Revenue Sindh dated 04.10.2007 impugned by the petitioner in the instant petition has not been set-aside. On the contrary, per learned counsel, the constitutional petition was finally disposed of by consent in terms of order dated 13.11.2008, wherein, it has been held that the order passed by the Member, Land Utilization Department, Board of Revenue Sindh, dated 04.10.2007 is tentative in nature and will not come in the way of the title of the petitioner, whereas, per learned counsel for respondent No.3, it has been further held that any party, if aggrieved by Entry No.67/41 can approach to Civil Court for redressal of his grievance, and the dispute relating to subject entry will be decided after hearing all the relevant parties. It has been vehemently argued by the learned counsel for respondent No.3 that at the time of filing aforesaid constitutional petition by the petitioner, the name of the respondent No.3 i.e. Ms.Seema Rasool Umar daughter of A.M. Qureshi was shown as owner in the record of rights through Entry No.67/41, which not only remained intact till final disposal of the instant petition vide order dated 13.11.2008 but thereafter as well, for the reason that there has been no direction issued by the learned divisional bench of this Court in the instant petition requiring respondents to cancel the aforesaid entry by replacing the name of the petitioner in the record of rights. Per learned counsel, there is no ambiguity in the consent order passed by the learned divisional bench of this Court in the instant case, whereas, the petitioner through mis-representation, after expiry of about six years from final disposal of instant petition on 13.11.2008, managed a second endorsement in the Entry No.67/41 in the record of rights without any Court's order or directions from competent authority. In view of above illegality committed by the officials of the Land Utilization Department, respondent approached the Member, Land Utilization Department, Board of Revenue Sindh, through a case No.SCOA-187/06 with a request to take suo motu action against such endorsement. Per learned counsel the Member, Land Utilization Department, Board of Revenue Sindh, after hearing the relevant parties and having examined the record as well as the order passed by this Court in the instant petition on 13.11.2008, has been pleased to pass an order dated 03.05.2016, clarifying the factual and legal position, which had emerged pursuant to aforesaid order of this Court, whereas, the petitioner, who participated in the aforesaid proceedings by filing objections, instead of filing any appeal or any other legal proceedings, available under the law against such order has filed the contempt application along with application for stay, which according to learned counsel, besides being misconceived in facts and law, are tainted with malice, hence not maintainable and liable to be dismissed. Per learned counsel, petitioner has not been able to point out any violation of Court's order nor could refer to any such act or omission which may in any manner, suggest that the respondent No.3 or the alleged contemnors have it any manner violated or flouted the Court's order dated 13.11.2008. It has been further contended by the learned counsel for respondent that without prejudice to hereinabove submissions regarding maintainability of contempt application it is also settled legal position that after final disposal of a constitutional petition along with listed application and that too by consent of the parties, application under Order XXXIX, Rules 1 and 2, C.P.C. or any similar application requiring further orders in a disposed of matter, is not maintainable. It has been prayed that both the listed applications may be dismissed in limine with cost.
6. We have heard the learned counsel for the parties, perused the record and the consent order passed by this Court in the aforesaid petition, with their assistance. Admittedly, the grievance expressed by the petitioner in the aforesaid petition against order dated 04.10.2007 passed by the respondent No.4 i.e. Member, Land Utilization Department, Board of Revenue Sindh, in respect of subject land and Entry No.67/41, would have been redressed in substance, if the petition would have been allowed as prayed, by setting-aside the impugned order of the Member, Land Utilization Department, as referred to hereinabove, directing the respondents to restore the Entry No.67/41 in favour of the petitioner. However, record shows that petitioner could not obtain any such favourable relief in the aforesaid petition, which was finally disposed of by consent of learned counsel for the parties vide order dated 13.11.2008, which clearly reflects that neither the impugned order dated 04.10.2007, which was impugned by the petitioner has been set-aside, nor there have been any directions issued by this Court, requiring the respondents to restore the Entry No.67/41 in favour of the petitioner. namely, Ghulam Muhammad son of Alam Khan Jokhio. It has been further observed that the order dated 04.10.2007 passed by the Member, Land Utilization Department, Board of Revenue Sindh, has been held to be tentative in nature, whereas, it has been further clarified that an aggrieved party in respect of Entry No.67/41 is at liberty to approach the proper forum or the Civil Court of proper jurisdiction, for redressal of A grievance of any of the aggrieved party. It further appears that instead of seeking redressal of grievance relating to Entry No.67/41 by approaching the relevant forum as provided under the Land Utilization Act or by filing a Suit before the competent Court of Civil jurisdiction, the petitioner sought second endorsement in the aforesaid Entry, which appears to have been clarified by the Member, Land Utilization Department, Board of Revenue Sindh, in SROA-187/2006 vide order dated 03.05.2016, whereas, the petitioner instead of challenging the aforesaid order of the Member, Land Utilization Department, Board of Revenue Sindh before the proper forum, has filed the listed applications i.e.19323/16 under the Contempt of Court Ordinance, 2003 and C.M.A. No.19324/16 under Order XXXIX, Rules 1 and 2, C.P.C., which under the facts and circumstance of this case are misconceived and not maintainable.
11. Reference in this regard can be made to a recent order dated 23.11.2016 passed by a divisional bench of this, (one of us namely, Aqeel Ahmed Abbasi, J was a member) in the case of Mst. Farhat Agha v. Government of Sindh and others, wherein, it has been held as under:--- "6. The application listed at serial No.4, filed by the respondent No.3 and the applications listed at serial Nos.5 and 6, filed by the petitioner, are interlocutory applications, under the provisions of Order XXXIX, Rules 1 and 2, C.P.C., seeking ad-interim injunction. Admittedly the petition stood disposed of vide the aforementioned order dated 29.01.2008 and in our view the ad-interim injunction being ancillary to the relief sought in the main case, can only be granted in a pending case, when it is established that there exists three ingredients namely prima-facie case in favour of the applicant, balance of convenience also does lie on his/her side and he/she shall stiffer irreparable loss, if the injunction, prayed for, is not granted. Since this is a disposed of matter, therefore, these three applications in hand are patently misconceived and not maintainable."
12. Reliance can also be placed in the cases of (i) Hazrat Khan v. Amanullah Khan and others (1996 SCM R 1217), wherein the Honourable Supreme Court of Pakistan has been held that:--- "So far as Civil Revision No.143 of 1989 is concerned as already stated the only grievance of the petitioner is that ad interim order of injunction should not have been passed by the learned District Judge, which ought to have been set aside by the learned Single Judge. It appears to us that the effect of the order is that, as explained by the learned Advocate-General, the relevant authorities must give effect to the timing prescribed by the Court in its order. There appear no reasons in the order of the District Judge for having adopted this extraordinary course, to grant ad interim injunction when he was remanding the case to the Trial Court. Having disposed of the appeal, we see no reason why the District Judge felt it just and reasonable to issue orders of temporary injunction himself. He should have left the matter to the Trial Court before which the suit stood remanded. The effect of the order passed by the learned Single Judge was indeed to bless the order of temporary injunction as well, for which we see no justification at this stage.
13. Without, therefore prejudicing any party, we are of the opinion that the learned Single Judge should have modified the judgment and order of the learned District Judge by setting aside the order of temporary injunction contained in the judgment."
14. In case of Ram Sarup and others v. King Emperor (A.I.R. 1924 Oudh 345), it was held that:- "One aspect of the matter which does not appear to have been emphasised or considered is the fact that the Subordinate Judge's order was passed after the suit had once been dismissed and before it had been restored to the file. There was, therefore, no suit pending at the time before the Court and it had no jurisdiction to pass any order. I am of opinion that the injunction granted by the Subordinate Judge was void ab initio and having been made without jurisdiction it can, therefore, be no bar to the release of the property. The order under which that property was originally attached was an entirely illegal order. I accordingly allow this application and direct that the property be released from attachment in favour of the applicants by the Deputy Commissioner of Bahraich "
7. In view of hereinabove facts and circumstances of the case both the above applications were dismissed vide our short order dated 10.11.2016 and above are the reasons for such short order.
15. However, it may be clarified that dismissal of listed applications in above terms will not adversely affect the merits of the case or entitlement of either party relating to subject entry, which may be decided by the appropriate forum or Court of jurisdiction if approached by any aggrieved party, strictly in accordance with law, after providing opportunity of being heard to all concerned.