1. ' After conclusion of the arguments I had allowed this revision on 15-4-1997 by a short order which reads as under:- "For reasons to be recorded later on this petition is admitted, heard and allowed and the impugned order is set aside. The Revision Application No,80 of 1995 shall be remain and deemed to be pending before the Appellate Court and the Appellate Court is directed to dispose of the revision application expeditiously within one month. The parties are directed to appear before the Appellate Court on 2-5-1997 and till the disposal of the revision application by the learned Appellate Court the property in dispute shall remain sealed which should be done by the Nazir of District Court, Karachi South till. Further orders and the learned lower Court would be at liberty to pass any order according to law regarding sealing or desealing of the premises in dispute at the time of disposal of the revision R&P should also be returned immediately."
2. ' The following are the reasons for the same.
3. ' In this petition under section 561-A, Cr.P.C. The petitioner has challenged the order, dated 9th July, 1996 passed by the learned II Additional District Judge, Karachi South whereby Criminal Revision No,80 of 1995 (Khawaja Ahmed Saeed v. Khawaja Waqar Ahmed and another) was allowed and it was ordered inter alia, as follows:-- "Since the last possession was with Aman Saeed, therefore, I order to deseal the property and give the possession of the plot in dispute to Aman Saeed but he is directed not to dispose of/part with the possession of the plot in question in any manner. The order of the S.D.M. Is set aside."
4. ' The brief background of the matter is as dfollows:-- ' Late Khawaja Farrukh Saeed who was father of the petitioner expired in December, 1984 leaving behind the following legal heirs:- "(a) Mst. Kishawar Sultana Widow
(b) Khawaja Waqar Saeed Son
(c) Khawaja Saquib Saeed Son
(d) Khawaja Noman Saeed Son
(e) Khawaja Umer Saeed Son
(f) Mst. Zubeda Khanam Widow
(g) Khawaja Aman Saeed Son"
5. ' According to the petitioner the abovenamed legal heirs at (a) to (e) and (0 and (g) voluntarily entered into agreement, dated 3-3-1985 regarding settlement of the estate left by late Khawaja Farrukh Saeed and in view of that settlement the premises bearing No,HV2/24, situate at Hiranand Khem Singh Road, Ramsawami, Karachi (hereinafter referred to as the disputed premises) was mutated in favour of the first group of the legal heirs. However, the respondent No,2 allegedly trespassed in the disputed premises on 19-2-1992 and locked Chowkidar Yar Muhammad into a room where he was kept in wrongful confinement for two days. During this period the respondent No,2 dalongwith his accomplice removed any tiles valued at Rs,50,000 and 80 carpet looms (wooden) valued at Rs,80,000. This incident was reported to the police vide complaint, dated 24-2- 1992 but prior to that on 20-2-1992 the incident of criminal trespass was also reported by the petitioner to the S.H.O., Garden Police Station, Karachi. Ultimately on 23-2-1992 the area police submitted report under section 145, Cr.P.C. In the Court of learned A.C. Arid S.D.M., Garden who ordered for registration of the case under section 145(1), Cr.P.C. On 27-2-1992 the learned S.D.M.
6. Passed an order under section 145(4), Cr.P.C. Whereby the disputed property were sealed. During the pendency of this criminal case the mother of respondent No,2 also filed civil suit bearing No,1540 of 1992 for declaration and injunction (sic) in the Court of learned VII Civil Judge, Karachi South. It is the case of the petitioner that on 17-12-1996 he happened to visit the area in which the property in dispute is situate and was surprised to find the same without any seal and same strangers were sitting in front of the said property. On enquiry he was informed that the disputed property was desealed some time back. Therefore, on 21-12-1996 the petitioner filed an application in the Court of learned A.C. And S.D.M., Garden and made a complaint regarding the desealing of the property but was informed that the disputed property had been desealed in view of the impugned order passed by the learned II Additional District Judge, Karachi South. The petitioner has stated in para. 15 of this miscellaneous application that Suit No,1540 of 1992 was also dismissed by the learned Civil Judge for non-prosecution on 16-8-1993 and so far it has not been restored.
7. ' I have heard Mr. Bilal A. Khawaja learned counsel for the petitioner, Mr. Ghulam Mustafa Merrion learned Advocate for the respondent as well as Mr. S.M. Sayadaine Zaidi learned A.A.-G. For the State and have perused the record.
8. ' Learned counsel for the applicant contended inter alia, that the learned trial Court committed gross illegality and decided the revision application without hearing the petitioner and thus wrongly and illegally ordered that the possession of the disputed property be given to the respondent No,2. Learned counsel for the respondent No,2 submitted that the petitioner who was cited as respondent No,1 in the criminal revision had no right to be heard. This submission of the learned counsel for the respondent No,2 is totally misconceived. Every party who is before the Court has a right to be heard.
9. After going through the case diary I also find considerable force in the submission of the learned counsel for the applicant that in the title of revision Application No,80 of 1995 incomplete address of the present applicant was given. With the result the bailiff of the Civil Court had rightly returned the summons unserved because the phase number was not mentioned. It would also be relevant to note that in Suit No,1540 of 1992 which was filed by the mother of the respondent No,2 complete address of the present applicant was given in the title of the plaint and, thus, full address was available with the respondent but service was not effected on the present applicant and he has been condemned unheard. In the case diaries it is shown that at the stage a clerk (name not mentioned) of M.M. Tariq, Advocate was shown to be present but admittedly the present applicant never engaged Mr. M.M. Tariq, Advocate. Therefore, it appears that some fictitious persons' presence was shown its the case diary. The learned Trial Court ought to have carefully examined the case diary regarding the presence of the parties before passing the impugned order which even otherwise appears to have been passed without proper application of judicial mind.
10. Accordingly, this petition is allowed and the impugned order is set aside.