' Mr. S. Nasiruddin has contended that the order passed by the learned S.D.M. South on 10th January, 1981 is bad as the provisions of last para. Of subsection (1) of section 133, Cr.P.C. Have not been complied with. He also contended that the whole proceedings are mala fide inasmuch as the parties have been litigating before High Court in respect of the same matter.
2. Mr. Ali Ahmed Fazeel has on the other hand submitted that the position of the premises that they are in a dangerous condition has been admitted by some of the applicants in their affidavits before the High Court filed for some other proceedings.
3. Mr. Ashraf Tanoli has submitted that the application is not justified.
4. The position in the case is that the 22 applicants have got their shops constructed and the respondent No,2 is constructing a building behind these shops. There are some proceedings existing between the parties. However, on 21-11-1980, the respondent No,2 had made a complaint to the Commissioner, Karachi pointing out that the shops of the applicants were in a dangerous condition. The same was referred to Assistant Commissioner, South Karachi, who made a report and then thereafter sent it to S.D.M. Garden, who made an ex parte order on 10th January, 1981 and stated in that order that he was satisfied that the shops were in a dangerous condition and he ordered for demolition of the shops within three days.
5. The relevant law, section 133 however, provides that the order of the Magistrate should also contain a provision that if the particular person concerned objects to the said order then he should appear before himself or some other Magistrate at a time and place to be fixed by the order and move to have the order set aside or modified. It is an admitted position that the learned Sub- Divisional Magistrate South has not made any provision in the impugned order, which could provide the applicants an opportunity of appearing before the Magistrate and move to have the said order set aside. In these circumstances, A there is a definite deficiency in that order and the learned Magistrate has ordered the demolition of the shops ex parte without giving the opportunity referred above.
6. In these circumstances the order dated 10th January, 1981 is hereby set aside. The learned S.D.M.
South is directed to issue a fresh order under section 133, Cr.P.C. Embodying the requirements of the last para. Of subsection (1) of section 133, Cr.P.C. And thereafter to proceed to determine the case after hearing the objections of the applicants and after giving proper opportunity to all the parties to prove their claims or objections.
7. 1 am not inclined to quash the proceedings in this matter as I find that it would be more just if the parties had the opportunity of leading their evidence before the trial Court and have the opportunity of fully vindicating their grievances and the witnesses are subjected to the cross- examination which would bring about the real controversy between the parties. The question of mala fides can also be gone into by trial Court and it is not convenient at this stage to go into all the submissions as they require good deal of probe into disputed facts.
8. With these observations the application is allowed and the case is remanded to the S.D.M. South for rehearing after notices to the parties.