1. ' Through C.M.A. 1159 of 1988 plaintiff seeks punitive action against Iqbal Hussain, Assistant Director(I) A.P.C. Working under the K.D.A. And one Abdul Sattar Edhi on the ground that they have disobeyed and disregarded the order of status quo passed by this Court on 15-4-1980. Notice of this application was issued to both the alleged contemners and was also served. In response. Lqbal Hussain, Assistant Director, K.D.A. , has submitted his counter-affidavit and while no appearance is made by or for him, Mr. Abdus Sattar Edhi also submitted a counter-affidavit which is on record but which does not show that copy thereof was supplied to any of the parties.
2. ' The position taken by the above Iqbal Hussain is that defendant No,1, K.D.A., never allotted the piece of land measuring 6797.67 Sq. Yds. From out of survey No,536 claimed and possessed by the plaintiff but that the Allotment Order issued by the K.D.A.. Dated 23-11-1987 was made in respect of the land falling under Survey No,677 situated in Sector 9, Malir Township, Karachi. It is further maintained in such counter-affidavit that Survey No,536, which is the one in question in this suit, is situated in Sector 8/A of Malir Township aforesaid and has nothing to do with the above-referred Survey No,677 which is the subject matter of Allotment to Abdul Sattar Edhi Foundation. In support of such averment Iqbal Hussain also relies on confirmation of this position by the Executive Engineer concerned of K.D.A. As well as the Deputy Director (Town Planning Unit), K.D.A. It is further brought out in the said counter-affidavit that possession was not delivered to the Abdul Sattar Edhi Foundation till 13-8-1988 when letter for such purpose was addressed to it and, that being the case, the Contempt Application filed on 23-2-1983 was baseless.
3. ' In his counter-affidavit Abdul Sattar Edhi takes the plea that the order of status quo is not binding on him as it was passed at a time he was not a party to this suit and that on the basis of the Allotment Order he has started construction work of an amenity nature on the allotted plot. He, however, is silent on plaintiff's rights, if any, on such plot.
4. ' Mr. Muhammad Ahsan Shaikh has made reference to Nazir's report, dated 16-3-1980 through which it has been pointed out that concerted efforts made by the plaintiff, defendant No,1, K.D.A., and Mithan Shah, supervising Tapedar, Landhi Circle, Karachi failed In the pointation as to the location of Survey No,536 claimed by the plaintiff. It is incomprehensible as to how when the defendant No,1. K.D.A., had previously failed in the pointation of this land Iqbal Hussain, deponent of the above-said counter-affidavit, could be so specific about Survey No,536. In any case, there are two ways of resolving this problem one of which will consist in successfully locating Survey No,536 aforesaid which could not be done so far because of non-availability of relevant boundary stones and the other way could be in pointation and determination of Survey No,677 which is said to have been the subject of allotment of 6797.76 Sq. Yds. Of the land to the above-said Abdul Sattar Edhi Foundation. Till such time as this question is determined the matter of alleged contempt covered by C.M.A.1159 of 1988 cannot adequately and justly be decided. The matter cf contempt, partaking as it does of proceedigns of a criminal nature, Courts of law are required to proceed in relation thereto with utmost perspicuity. This being the case, I would be slow in applying the law of contempt without fully satisfying myself as to facts.
5. ' In view of this situation it has become necessary to consider whether another commission can be ordered to achieve something which the previous one failed in achieving. The object of issuance of a Commission for local investigation under Order 26, Rule 5, C.P.C. Is to seek elucidation of any matter in dispute in a suit and commissions are issued in all cases in which local investigation is deemed requisite or proper for such purpose. Law does not restrict this power in any way and commissions may be issued more than once if that be requisite or proper. I am, therefore, inclined to appoint another commission for such purpose in the context of which Nazir of this Court is once again appointed Commissioner to make site inspection for determination of either or both the above locations and in relation thereto he may seek assistance, once again, from the relevant officers of the C.D.C. Office as also the survey department. It is further ordered that the above-said Iqbal Hussain shall be personally present at the time of such inspection together with such other officers of K.D.A. As he considers appropriate in the context of the execution of this commission.
6. Nazir may also issue notice to Abdul Sattar Edhi Foundation of such inspection as in the context of what follows below it is such Foundation which may in reality be concerned with this inspection. It is only after submission of the Nazir's report that it will be decided whether or not any contempt of this Court has been committed and, if so, what action is called for.
7. ' In so far as C.M.A. 6592 of 1988 is concerned through which the plaintiffs seek to make Abdul Sattar Edhi above referred as a party to this suit, notice of such application was also directed to be served on Abdul Sattar Edhi and according to both the learned counsel present it was so served but in the context of this ,application also no appearance has been registered by the said Abdul Sattar Edhi.
8. Normally in this situation an application for joinder is to be granted as such. However, from the counter-affidavit of Assistant Director, K .D. A. Iqbal Hussain I find that the disputed portion of land allegedly forming part of Survey No, 677 has been allotted not to Abdul Sattar Edhi personally but to Mis. Abdul Sattar Edhi Foundation and that being the case the appropriate party for joinder would be such Foundation and not Abdul Satter Edhi personally. This being the case and the application being directed, as it is the same shall stand dismissed in its present form with liberty to the plaintiff to apply afresh for joinder of the relevant party. C.M.A. 6592 of 1988 is accordingly disposed of.
9. ' As regards Nazir's report above ordered this report shall be submitted within two weeks from today and Nazir's fee of Rs,2,000 will be deposited initially in equal proportion by the plaintiff and the defendant No,1, K.D.A., and such deposit shall be made within a week from today but the period of time allowed for deposit of Nazir's fee should not come in the way of the execution of the commission. To come up after submission of Nazir's report.