1. Impugned in this revision is an order passed by the learned 1st Additional District Judge, Karachi
(East) in Civil Miscellaneous Appeal No,21 of 1998 on 30-4-1998.
2. Respondents were directed to be served through substituted service by way of publication in the "Daily Jang" at the cost of the applicant. On 15-9-1998 service against the respondent was held good and it was consented to by the respondent No,2 that these revisions may be admitted, heard and disposed of on the next date of hearing. On 18-9-1998, these revisions had been partly heard but a peculiar aspect occurred whereby the learned counsel for the applicant had informed that an appeal against the order of the Honorable Provincial Ombudsman of Sindh had been filed before the Governor of Sindh. Cons.;Quaintly, office was directed to enquire from the Provincial Ombudsman Secretariat, Sindh as to the outcome of the appeal filed before the Governor of Sindh.
3. Report from the Provincial Ombudsman Secretariat has been received, dated 25th September, 1998 confirming the decision of the Ombudsman passed in Case No,POS-33835/98-A. Such appeal has been rejected by the Competent Authority and correspondence to such effect has been conveyed in confirmation of rejection of the said appeal, vide Governor's Secretariat Letter No,GS/39-5/ 97(SO-IV)'1449, dated 20-6-1997.
4. Coming to the controversy in the present proceedings, it would be profitable to place the background in respect of the controversy being agitated in these proceedings. It seems that the applicants are Builders and Developers and are exclusive owners of Plots of land bearing Nos.A-65, A-68, and A-69 situated in Block No,10, Gulshan-e-Iqbal Scheme No,24, Karachi, by virtue of the order of allotment dated 4-6-1997, which had been issued in favour of the applicant in lieu of the Plots Nos.A-44, A-45 and A-46, situated in Block 10, Gulshan-e-Iqbal, Karachi. It further seems that the respondent No,1 was able to engineer and manage in obtaining one of the plots, which stood violative of the orders passed by the Provincial Ombudsman Sindh on 25-10-1993. Such violation was accordingly brought to the notice of the Ombudsman seeking safeguard of the properties of the applicant. It further seems that the respondent No,1 had filed an application before the Ombudsman to be joined as a necessary party having interest in the proceedings, which was accordingly allowed by virtue of the fact that the respondent No,1 had claimed to be purchaser of Plot No,A-65, out of the said three plots. Record reveals that pleas of the respondent were dismissed for non-prosecution and it was held by the Honourable Ombudsman that the respondent No,1 apart from being a fictitious person has, in fact, been set up by land grabbers in connivance with public functionaries working in the office K.D.A. For the purposes of ready reference, Para. 7 of the order passed by the Honourable Ombudsman is reproduced in extenso hereinunder: -- "(7) It may be noted that these alleged encroachers (1 Muhammad Murad, 2 Zamir Ahmed, 3.
5. Razaullah and 4. Riaz Hussain) had also moved a miscellaneous application on 18-1-1996 for being impleaded as interveners. They claimed that they had purchased these plots from Al-Mehran Builders. The interveners, however, placed nothing on record to show that Messrs Mehran Builders had any thing to do with those plots and had proprietary rights in them. There was also nothing on the record of K.D.A. to show that these plots had ever been allotted to, or were in any way in possession of, Al-Mehran Builders. It is also worth noting that the name of intervener No,3 is Razaullah but the documents on which he relies are in the name of Raza Muhammad (page 18-20 of intervener's file). All these four interveners set up as front men by some unscrupulous builders who are in collusion with some corrupt elements in K.D.A. Land Department to grab the plots. All these four interveners could not be found on the addresses given by them in their application and could not be served on these addresses (these addresses are of the plots in question). They (or some persons posing for them) did appear before Shah Mansoor Alam (Director-General of Ombudsman's Secretariat) a couple of times but they could not establish their identity or their bona fides and according to Shah Mansoor Alam they appeared to be of the category of labourers and not of the type who could purchase these plots. Even so, they vanished and did not appear before me when summoned and it was found that they were not residing on the addresses given in their petition (the addresses are of the plots in question). If they were bona fide interveners, they would have been residing, as per the claim in their application, on the plots in question. In the alternative, they would have given their current addresses if they had shifted their residence. They are clearly set up by land grabbers with the collusion of the corrupt elements in the Land Department of K.D.A. As such, their application for being impleaded in these proceedings was dismissed for non-prosecution on 9-12-1996 vide order at paras. 178-179 of the note sheet. It is evident that this application should also be deemed to have been dismissed on merits as well."
6. Being aggrieved by the findings of the Honourable Ombudsman, the, respondent No,1 seems to have invoked Constitutional jurisdiction of this Court by filing Constitutional Petition No,678 of 1997.
7. Such petition was dismissed in limine by a Division Bench of this Court, headed by the Chief Justice, vide order, dated 26-3-1997. Things do not appear to have settled here. It further seems that the respondent No,1 had yet filed petition before the Honourable Supreme Court of Pakistan being Civil Petition for Leave to Appeal bearing No,124-K of 1997. The learned counsel has placed a copy of the order passed on 3-6-1997 by a Bench of the Supreme Court of Pakistan, in the said petition, wherein the respondent No,1 sought permission to withdraw the said petition before the Supreme Court of Pakistan. For the purposes of ready reference, order passed by the Honorable Supreme Court of Pakistan in Civil Petition No,124 of 1997 is reproduced in extensor herein under:-- "Order Mr. Farooq H. Naek, learned counsel for the petitioner after addressing for some time, sought permission for withdrawal of the petition for approach competent forum.
8. The petition is dismissed as withdrawn.
9. (Sd.)
10. Munawar Ahmed Mirza, J.
11. (Sd.)
12. Khalil-ur-Rehman Khan, J."
13. The respondent having failed before the Honorable Ombudsman Sindh, before this Court and having withdrawn their petition before the Supreme Court of Pakistan appear to have agitated the same issue by way of filing a Civil Suit No,567 of 1997 in the Court of the learned VIth Senior Civil Judge, Karachi-East, without joining the present applicant as a necessary party to the proceedings.
14. In the said proceedings an application under Order 39, Rules 1 and 2, C.P.C. was also filed seeking an injunction in favor of the respondent No,
1. The said suit was resisted by the present applicant on factual as well as legal plain. At the very outset, it appears that the learned Civil Judge had granted an order of status quo, ex parte, and thereafter, when the application under Order 39, Rules 1 and 2 came to be dealt by the Senior Civil Judge, the same stood dismissed. Aggrieved by the order of dismissal, the respondent No,1 seems to have filed Civil Appeal bearing No,21 of 1998 before the Court of the learned 1st Additional District Judge, Karachi East. Upon hearing, the learned Additional District Judge, Karachi (East) had set aside the order, dated 19-3-1998, passed by the learned Senior Civil Judge, Karachi (East) and allowed the application filed by the respondent under Order 39, Rules 1 and 2, C.P.C. The applicant feels aggrieved by the order passed in the appeal, which is impugned in the present revision application. It has been contended by the learned counsel for applicant that the matter having gone right up to the apex Court of this Country and thereafter, stood resolved. No proceedings could either have been entertained or for that matter adjudicated by the Court of Civil Judge especially in the light of the Bar contained under section 29 of the Sindh Ordinance IX of 1991. For the purposes of ready reference Article 29 of the Sindh Ordinance is to the following effect;-- "29. Bar of jurisdiction.--- No Court or other authority shall have jurisdiction---
(1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Ordinance; or
(2) to grant an injunction or stay or make any. Interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Ombudsman."
15. Consequently, the learned counsel for the applicant contended that an appeal, which is provided under the Statute had also been filed by the respondent before the Governor of Sindh. Such appeal is said to have been dismissed by the Governor of Sindh. In compliance of section 32 of Sindh Ordinance No,1 of 1991 this aspect of dismissal of appeal by the Governor of Sindh stands confirmed and fall in line with the submissions made by the learned counsel, vide correspondence, dated 25- 9-1998 addressed to the office of this Court. The said correspondence is also accompanied with an order of rejection by the Governor of Sindh. The learned counsel further submitted that the order of the Ombudsman had been totally disregarded and once such an order had been passed and once finality had been attained in respect of the said order, a suit in relation to the same controversy would be barred by law and, therefore, the learned 1st Appellate Court ought not to have passed an order, which is impugned in this revision. He further canvassed that the principles for grant of injunction were not satisfied so as to warrant an order of a nature that has been passed by the Appellate Court. The said order was canvassed to operate in deprivation to the applicant in respect of his properties, which, according to the learned counsel, defeats the principles of natural justice, as well as mandate of the Constitution.
16. Having considered the submissions made by the learned counsel and having ascertained that the orders passed by the Honourable Ombudsman attained finality. Having further examined the aspect that the controversy in issue had attained finality at the level of the apex Court of this country. The orders passed by the Appellate Court in terms of granting an injunction was not warranted by law.
17. Keeping in view the findings arrived at by the. Honourable Ombudsman in respect of the respondent No,1, the Appellate Court ought to have been careful, especially when the same was being resisted by the applicants on the strength of the orders firstly passed by the Honorable Ombudsman Sindh, then passed by a Division Bench of this Court headed by the Chief Justice followed by an order of the Supreme Court of Pakistan as well as rejection of an appeal against the order of the Honorable Ombudsman by the Governor of Sindh. These proceedings appear to be nothing short of but an instrument of black mail so as to subject the applicant to harassment in terms of deprivation of their property.
18. Having said as much, the present revision application succeeds. The impugned order passed by the Appellate Court is set aside. At this stage, the learned counsel for the applicant contends that in view of the order passed, the suit, which has been initiated, may also be ordered to be dismissed.
19. I would be reluctant to dismiss the said suit in the present proceedings. It will, however, be open to the learned counsel to place this order before the learned Trial Court seeking such dismissal as is being sought herein. The learned Trial Court is expected to deal with such application at an appropriate time in accordance with law.
20. This disposes of the aforesaid revision application along with the listed application.