1. ' SYED HAIDER ALI PIRZADA, J.---This High Court Appeal calls in question part of an order passed by a learned Single Judge of this Court whereby he allowed the application (C.MA. No,4840/90) and the respondent No,2 has been directed to reseal the premises situated on first and second floor only of the building to maintain the status quo ante till further orders that may be passed in the suit and part of the order passed on 24-2-1991 on the reference of the Official Assignee as Commissioner by an order dated 19-12-1990 whereby he held that "Official Assignee has given his report that the property in suit is divisible and can be partitioned by metes and bounds and the Official Assignee is appointed as Commissioner to submit his proposal for partition by metes and bounds within four weeks of the date of the order".
2. ' The facts leading to the filing of the above appeal are that the respondent No,1 filed Suit No, 486 of 1990 on the original side of this Court for partition of joint property No,334/1/C, Commercial Area, P.E.C.H.S., Karachi by metes and bounds between the respondent No,1/plaintiff and appellant No,1 as co-owners with equal shares. Along with the plaint, the respondent No,1 filed an application under Order XXXIX, Rules 1 and 2, C.P.C. Praying that the defendant No,1/appellant No,1 be restrained from taking possession of any portion of the property in question directly or in direclty and maintain status quo until the partition is equally and lawfully effected by this Court on 21-5-1990. Notice was ordered to be issued and interim status quo till the next date of hearing was ordered. It is the case of the appellant No,1 that he was not served with the status quo order till 9-9-1990. On 21-8-1990 the appellant No,1 filed his written statement in the above suit and he explained the entire position in the said written statement. It is their further case that in para. 6 of the written statement, it was asserted that ever since the purchase of the building, the appellant No,1 has been in exclusive possession of the entire first floor and that the entire second floor has been in exclusive possession of tenant/appellant No,2, who is the eldest brother of the respondent No,1 as well as the appellant No,1. In para. 13 of the written statement, it was asserted*that the respondent No,1 started illegal proceedings under section 145, Cr.P.C. In collusion with another brother Syed Shaida Hussain in the Court of Assistant Commissioner/S.D.M., Karachi East and obtained illegal sealing orders under section 145(4), Cr.P.C. From the said Court, which proceedings were sought to be quashed under section 561-A, Cr.P.C. From this Court by the appellant No,1 and the appellant No,2 and the possession was ordered to be restored jointly to the appellants. Thereafter the building was desealed by A.C./S.D.M., Ferozabad, Karachi East and possession of the first and second floor of the building was delivered on 16-8-1990 to the appellants. The appellant No,1 asserted in his written statement that a division of the property cannot reasonably and conveniently be made and that the value of rupees twenty lacs fixed by the respondent No,1 herein in his plaint for the building was acceptable to the appellant No,1 and he is prepared to sell his one-half share in the said property in favour of respondent herein or his nominee on this price. A counter-affidavit was also filed by the appellant No,1 to the stay application.
3. ' A preliminary decree was passed on 9-12-1990 and the Official Assignee was appointed as Commissioner and was directed to submit his report suggesting whether property in suit was capable of being partitioned or not. The Official Assigneee submitted his report on 19-12-1990. The report states that the building was incapable of division in its present position and unless major changes are made by having new constructions as suggested by him.
4. ' In September 1990 the respondent No,1 filed an application for contempt of Court which was dismissed by the impugned order dated 24-2-1990. In October 1990 the respondent No,1 filed an application under section 151: C.P.C. For desealing of the entire property. The appellant No,1 contested the application by filing objections.
5. ' The case of the appellant No,2, as set out in the memo. Of appeal, is that he is a tenant in exclusive possession of the entire second floor of the said building eversince 1978 and is not a party to the partition suit. His further case is that his tenancy rights in respect of the second floor of the building are not the subject-matter of the above suit or in any way connected with it. The further case of the appellant No,2 is that the impugned order was passed without hearing him or even giving him a chance to explain his position.
6. ' Mr. Akhtar Mehmood, learned counsel appearing for the appellants contended that the S.D.M. Had ordered the sealing of the entire building and not only the restaurant.
7. ' On the other hand Mr. S.H. Fani, submitted that only the restaurant was sealed.
8. ' We have heard Mr. Akhtar Mehmood, learned counsel appearing for the appellants and Mr. S.H.
9. Fani, learned counsel appearing for the respondent. We have gone through the impugned order and carefully considered the submissions of the learned counsel appearing for the parties.
10. ' Mr. S.H. Fani appearing for respondent No,1 in this appeal contended that the appellant No,2 who was not a party to the suit, could not file appeal.
11. ' It is clear that this contention is substantial. As pointed out by their Lordships of the Supreme Court in H.M. Saya and others v. Wazir Ali Industries Limited (PLD 1969 SC 65), under the practice consistently followed by the English Courts that a person who is not a party to a suit or a proceeding, may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal. It was held that this is an equitable rule which should be followed in the absence of any provision to the contrary in the Code of Civil Procedure.
12. ' In the instant case, Mr. Fani had to concede that the order in question really affected the appellant No,2. The appellant No,2 had not filed the appeal against the order without the leave of the appellate Court. It is, in our opinion, clear that leave to a person to appeal from a decree or order in a suit or proceeding to which he was not a party should not be ordinarily granted unless he establishes that he has an interest which is affected by the order or decree from which he proposes to appeal. If he establishes that he has such interest, it seems to us, that it is not necessary for him to further establish that if he does not institute an appeal with the leave of the appellate Court, the consequence will be that the order or decree against which he proposes to appeal, becomes conclusive without his being able to show whether appeal should or should not be granted, should depend upon the facts of each case and it is for the appellate Court to decide whether the case before it, is a fit case for the grant of such leave.
13. ' In the instant case, the appellant No,2 had not filed appeal with the leave of the appellate Court.
14. The appellant No,2 had not sought the leave from us. In these circumstances, even if the appellant No,2 had sought leave, the same should not be granted as no case had been made out by him. In this view of the matter, the preliminary objection is upheld.
15. ' It appears from the record that the S.D.M. Passed two orders dated 18-11-1989 and 25-4-1990. The first order is passed on application moved by the plaintiff/respondent himself before the S.D.M. A part of order dated 18-11-1989 of the S.D.M. Ferozabad, Karachi reads as under:-- "Now therefore this is to authorise and require you (SHO Ferozabad PS) to attach the abovementioned premises (Cafe Carry Home) by taking attachment and to return the warrant to this Court with an endorsement certifying the manner of the execution."
16. ' Mr. Akhtar Mehmood invited our attention to the last para. Of the application filed by the plaintiff/respondent before the S.D.M., Ferozeabad. It is advantageous to reproduce last para. Of the application which is as follows:-- "That the relevant authorities be directed to seal the premises i,e, the Restaurant and the Apartment till such time the matter regarding ownership is finally decided by a competent Court."
17. ' The submission of Mr. Akhtar Mehmood is that the plaintiff/respondent himself sought the attachment of the entire building and therefore the order passed by the S.D.M. Should be construed to mean that he ordered the sealing of the entire building and not only the restaurant. This submission is misconceived. It is clear from the order dated 18-11-1989 that only the restaurant was ordered to be attached and sealed. It seems that the learned Single Judge has rightly observed that order dated 18-11-1989 was only in respect of the restaurant.
18. ' We have perused the order dated 25-4-1990 of the S.D.M. A perusal thereof would show that he ordered the attachment of the building only to the extent of first and second floor.
19. ' It seems that the appellants challenged the order dated 18-11-1989 in Criminal Miscellaneous No,33 of 1990. The Criminal Miscellaneous Application was allowed on 2-9-1990 whereby the proceedings under section 145, Cr.P.C. Were quashed. The order regarding scaling of property was set aside and the possession of the disputed premises (restaurant) was restored to the appellant.
20. The learned Single Judge has rightly held that the desealing and handing over possession of residential premises situate on first and second floor was beyond the scope of the order passed in Criminal Miscellaneous Application No,33 of 1990.
21. ' In Muhammad Rashid v. Iyaz Khan and others (PLD 1978 Lahore 919), Mr. Aftab Hussain, J. (as he then was) held that if the Court comes to the in Karam Ali and others v. Raja and others (PLD 1949 Lahore 100), a Full Bench of the Lahore High Court held that in spite of the order of status quo, the petitioner had been deprived of possession of the property in dispute, the same shall be restored to him conclusion that in spite of the order of status quo the petitioner has been deprived of possession of the property in dispute, the same shall be restored to him. The principle laid down in these decisions is applicable to the facts of the instant case.
22. ' The learned Single Judge has rightly come to the conclusion that order dated 18-11-1989 of the S.D.M. Was in respect of restaurant only. We find that the conclusion reached by him, is correct.
23. ' Mr. Akhtar Mehmood contended that the following portion of the order be set aside:-- "Official Assignee has given his report that the property in suit is divisible and can be partitioned by metes and bounds."
24. ' We have perused the report of the Official Assignee. A reading of the report makes it clear that the property is indivisible. The observation of the learned Single Judge is not correct. The above portion from the order is set aside. The report of the Official Assingec is deemed to be pending on the original side of this Court.
25. ' The appeal is allowed to this extent only.