S. AHMED SARWANA, J.---The brief facts relating to the property in dispute as culled from various Suits and Constitution Petitions, namely, Suit No,374 of 1998 (Peace Developers v. KBCA), Constitution Petition No,D-500 of 1998 (Ardeshir Cowasjee and others v. KBCA and others), Suit No,1793 of 1999 (Peace Developers v. KBCA) and HCA No,347 of 2000 (Shehri and others v. KBCA and another) filed by the contesting parties in relation to the plot in dispute, are as follows.
2. On 9th May, 1951, the Municipal Commissioner of Karachi Municipal Corporation issued a Land Sale Notice informing the public that the right of occupancy for a fixed term of 99 years in respect of 13 plots including Plot No,A/4 on Hir Daram Road, Bath Island, Karachi, measuring 2,500 sq. Yards (the plot in dispute) would be offered for sale by Public Auction. The conditions for construction of the buildings on the 13 plots specified in the Notice included, among others, the following:--
(1) The building to be constructed on the plot shall be of masonry type and design approved by the Corporation, suitable for residential purposes only. No shop of godown will be permitted to be constructed.
(2) The building shall not exceed three storeys in height including the ground floor. No structure except platform, parapet walls steps, underground water tanks and the dividing walls separating servants quarters and garrages from the main building (the height of the parapet and the dividing walls not exceeding the height of the compound wall) will be allowed on the space of 15 feet from all the roads and 10 feet from the compound wall of the adjoining plot.
(3) Only one main building and the necessary servant's quarters and garrages consisting of one block may be built upon the plot.
(4) The height of the plinth should be at least three feet above the ground level of the road on which the plot abuts, and the plot shall be filled up with earth up to a level not less than the level of the road, within 12 months from the date of sanction of the Administrator.
(5)..................
(6) Not less than 2/3rd of the area of the plot shall be left as open space and such open space shall be free from any erection or obstruction subject to the following:
(a) Steps on the ground floor and platform will be excluded from the built up area.
(b) Open balconies . Abutting on the outer wall of the house will be excluded from the built up area.
(c) Open staircases will be excluded from the built up area.
(d) Covered staircase and open or covered balcony inside the internal courtyard will be included in the built up area.
(e) Continuous or more than 20 feet gallery will not be allowed as free open area, but will be included in the built up area.
(f) Covered passages on the ground floor and covered or open passages on the upper floor will be included in the built up area.
(g) Porches, bay windows and similar projections will be included in the built up area."
3. The rights of occupancy of Plot No,A-4 were apparently granted to the highest bidder vide Registered Lease Deed dated 26-4-1965 to Sherbai Merwanji and were thereafter acquired by Registered Sale-Deed dated 9-1-1996 by Peace Developers, an unregistered partnership of three persons, namely, Muhammad Rafiq, Shaikh Suleman and Muhammad Hanif. The three members of the unregistered partnership appointed Muhammad Rafiq as their Attorney to carry out construction on the plot. Karachi Building Control Authority (KBCA) by letters dated 10-9-1996 and 16-9-1996 granted approval of a Proposed Plan of a building consisting of Hollow Plinth + Ground + Two floors only on the terms and conditions stated therein. Peace Developers started construction, which was allegedly inspected by the KBCA Officers. In Suit No,374 of 1998 Peace Developers have produced a letter dated 29-11-1997, KBCA informing one "Island Cooperative Housing Society Limited, Karachi" that the owner of the plot in question was carrying out construction strictly as per approved building plan and if any deviation would be made in future, KBCA would take action in accordance with Sindh Building Control Ordinance, 1979 (SBCO) and the Rules made thereunder.
Again by letter dated 10-3-1998 KBCA wrote to Mr. S. Zulfiqar Ahmed, Licensed Architect of the building informing him that pursuant to his request dated 27-2-1998 the site was inspected and it was "found that the plinth provided was as per approved building plan". They were also informed that in case of not following the approval, action would be initiated against him under the law. It is alleged in Suit No,374 of 1998 that on 25-3-1998, four persons claiming to be the officers of KBCA came to the construction site and without disclosing their identity threatened the plaintiff to stop construction within five days, failing which, the persons would take coercive action against the plaintiff. Consequently, on 22-3-1998 Peace Developers filed Suit No,374 of 1998 against KBCA for declaration claiming the following reliefs:--
(i) Declare that the intertrence in the construction activities on the premises and the threats meted out to the plaintiff by the defendant and its officers and agents are unlawful, illegal, without jurisdiction and of no legal effect;
(ii) permanently restrain the defendant, its officers or its agents from interfering or taking any coercive measures or adverse action with regard to the construction of the plaintiff on the premises.
4. On 6-4-1998, -the Court issued notice of the injunction Application filed by Peace Developers and also restrained KBCA from interfering with the construction being raised on the suit property if it was in accordance with the approved building plan. Thereafter, during the course of the proceedings, a Commissioner was appointed to inspect the site, who submitted his report. The parties tiled their objections to the Commissioner's Report. On 4-8-1998 KBCA filed their objections in which they pointed out the following violations:--
(1) "At Soutwest Corner inside the chamfer of the Hollow Plinth two additional columns raised.
(2) The height of the Hollow Plinth (keeping the fact in mind that the floor was unfinished) approved by the Authority at 8'-6", but at site the height is about 10'-0".
(3) Changes made in the internal planning."
' In paragraph 8 of the Written Statement in Suit No,374 of 1998 filed on 14-5-1998, KBCA stated as follows:-- "8. With regard to contents of para. 11, it is submitted that construction is not strictly as per approval as it is having a violation of the height of the Hollow Plinth, which is being raised from 8'-6" to 10'-8".
Also excess covered area violation is in the main building. The latest position of construction is as under: ' That the owner have erected structure of H.P. +GR +2 floors which is 80% structurally completed with some excess area in main building and slight projections."
' KBCA also objected to the maintainability of the suit, under sections 20 and 20A, Sindh Building Control Ordinance. It appears that thereafter Peace Developers filed a Regularization Plan which was rejected by Letter No,KBCA/KDA/DCB-XV/98/153 dated 23-12-1998 as reflected from the Report submitted by Controller of Buildings, Circle "C", KBCA, duly signed by him on 20-3-2000.
5. It transpires that around the same time one Ardeshir Cowasjee alongwith other seven residents of Bath Island and Shehri, a Registered Organization, brought to the notice of KBCA several violations committed by Peace Developers in the construction on the plot. When KBCA refused to take any action against the violations committed by Peace Developers, Ardeshir Cowasjee and 9 others persons on 16-4-1998 filed C.P. No,D-500 of 1998 against KBCA, KMC, KDA and other respondents seeking, inter alia, the following reliefs:--
(i) Declare that the impugned plot cannot be converted from low-density residential plot to a high-density flats-site by respondents Nos.1 to 3 without complying with the mandatory provisions of Regulations, 1979 and Order, 1957.
(ii) Declare that the respondents Nos.1 to 3 have no power, authority or jurisdiction to convert the impugned plot from residential to flat-site, or permit the construction of a multi-storeyed building with flats on the same contrary to law and/or the Land Sale Notice (Annexure 3 above).
(iii) Declare that the approved plan (Annexs. 6 a and 6 b above) granted by the respondent No,1 for construction of a multi-storeyed building on the impugned plot is illegal and the construction is liable to be demolished.
(iv) Direct respondents Nos.1, 2, 3 and 7 to cancel all documents (including the lease) relating to the illegal conversion and construction (including the approved plan) on the impugned plot forthwith as being of no legal effect.
(v) Direct respondents Nos.1, 2 and 3 to jointly and severally, demolish all building works carried out on the impugned plot.
(vi) Direct respondent No,2 to cancel/forfeit lease of the impugned plot for violation of the law including Regulations, 1979 and the terms of the Land Sale Notice."
' On the Interlocutory Applications moved by the petitioners, the Court appointed first the Nazir as Commissioner for inspection and thereafter on 23-12-1998 ordered a fresh inspection by the National Institute of Architects and Town Planners, Karachi, who appointed Mr. Syed Aqeel Bilgrami, A Senior Architect, to inspect and verify the construction and submit a report in respect of the violations of the Approved Plan relating to the plot in dispute. Peace Developers filed an application for suspension of the order dated 23-12-1998 but the Court dismissed the same on 1-1-1999 and also ordered that the petition may be fixed for regular hearing in the first week of February, 1999. Mr. Bilgrami in his report dated 21-1-1999 pointed out various violations of the Approved Plan, some of which are as follows:- Specification As per approved Plan As per Site
1. Height of the building 43 up to roof parapet plus staircase tower44 up to roof parapet plus double height stair-case tower and tank 2.Covered area of hollow plinth 7714.88 sft. 17956 sft.
3.Height of hollow plinth 8-0 clear 10-6 clear
4. Covered area of 7714.88 sft. 15443.34 sft.
5. Total built-up area (less hollow plinth)23144.64 sft. 46330.02 sft.
General (1).....
(2) .... The building projects by 6' to 6'-6" on all four sides with bedrooms, bathrooms as well as covered terraces and covered balconies, resulting in violation of the COS all round.
(3) The layout and sizes of the rooms are entirely different from the Approved Plan. These alterations have necessitated a complete change in the structural system including a change in the layout, number and size of columns from what is shown in the Approval Plan."
' The Constitution Petition (C.P. No,D-500 of 1998) came up for hearing several times but could not be heard and disposed of and finally on 3-9-2001 the Court ordered that the petition be heard and finally disposed of with High Court Appeal No,347 of 2000.
7. Meanwhile, it transpires that on 23-12-1999 Peace Developers filed a fresh Suit No,1793 of 1999 against KBCA for Declaration and Injunction wherein they stated that they had completed the construction on the plot in question and on 7-12-1998 had submitted a Revised Plan seeking necessary approval. It was alleged that the approval was delayed and consequently Peace Developers submitted its Plan to KMC by their letter dated 7-4-1999 who having no objection thereto forwarded the same to KBCA alongwith their earlier letter dated 16-7-1999. It was also alleged that on 22-7-1999 KMC, inter alia, confirmed that a four-storey building inclusive of ground floor could be constructed on the plot but the height must be regulated according to Building Rules that may be enforced from time to time. It was further alleged that KBCA did not approve the revised Building Plan even though several buildings in the area had been constructed with Hollow Plinth + Ground + four floors.
' Consequently, Peace Developers filed the aforesaid suit claiming the following relief:- "(i) Declare that the Revised Plan for regularisation/completion submitted by the plaintiff on December 7, 1998 to the defendant stood approved in law on February 6, 1999.
(iii) Direct the defendants through a mandatory injunction to issue formal orders to regularize and/or condone the internal deviation from the approved plan submitted by the plaintiff in December, 1998 and issue requisite certificate on receipt of the Composition Fee.
(iv) Grant a permanent injunction restraining the defendant, its officers or its agents from interfering with the acts of the plaintiff in handing over possession of the premises to third party purchasers or from taking any coercive measures or adverse action with regard to the premises including but not limited to construction thereon;"
8. Alongwith the suit, Peace Developers filed an application under Order XXXIX, Rules 1 and 2, C.P.C.
For temporary injunction on which the Court on 24-12-1999 issued notice to KBCA for 13-1-2000. On the said date KBCA sought time to file a counter-affidavit which was granted. Suit No,1793 of 1999 was listed for hearing in Court on several dates but was adjourned with the consent of the parties' counsel. On 4-10-2000, the Court ordered that Suit No,1793 of 1999 be placed alongwith Suit No,374 of 1998. Thereafter, on 26-10-2000 KBCA filed its Written Statement in Suit No,1793 of 1999 wherein it gave a short history of the dispute, the filing of Suit No,374 of 1998 by Peace Developers and C.P.
No,D-500 of 1998 filed by Ardeshir Cowasjee and others which were pending adjudication and the site inspection report showing deviation of excess area. Contrary to its previous position taken in the earlier Suit No,374 of 1998, KBCA in Suit No,1793 of 1999 in Para. 8 of its Written Statement took a different position and with reference to the Controller of Buildings Report dated 2-9-2000 conceded that the building constructed under the Revised plan submitted by Peace Developers was in accordance with law except the projection beyond one metre.
9. The matter came up in Court on several dates but was adjourned and finally, on 6-11-2000 in the presence of Mr. Hani Muslim and Mr. Sikandar Yasir, Suit No,1793 of 1999 was disposed of in the following terms:- "Both counsel agreed that the suit can be decreed to the extent of the statement made by the KBCA in Para. 8 of their Written Statement. . However, if there are other violations, KBCA will be at liberty to take action in accordance with law."
9. On the same day in the presence of Mr. Amir Hani Muslim for the plaintiff and Mr. Raja Sikandar Khan Yasir for KBCA, Suit No,374 of 1998 was disposed of as follows.-"In view of the order passed in Suit No,1793 of 1999, Mr. Amir Hani Muslim does not press this suit. Suit dismissed as not pressed."
9. Being aggrieved by the order dated 6-11-2000 and decree dated 11-11-2000 in Suit No,1793 of 1999, Shehri on 25-11-2000 filed this appeal (HCA No,347 of 2000) for setting aside the aforesaid judgment and decree on the ground that it had been obtained by fraud and in collusion with KBCA.
10. On 19-12-2000 the Court ordered that HCA No,347 of 2000 Shall be heard alongwith C.P. No,D- 500 of 1998 on 16-1-2001.
11. Meanwhile, certain allottees of the Apartments located in the building in question, filed an application under Order I, rule 10, C.P.C. To join the proceedings as interveners in C.P. No,D-500 of 1998. On 16-1-2001, with the consent of Mr. Naimur Rehman, the application was granted and the interveners were allowed to be joined as party to the proceedings in the Constitution petition.
12. On perusal of the pleadings and after hearing the preliminary arguments of the contesting counsel, it transpired that all the petitioners in C.P. No,D-500 of 1998, who were the affected parties by the judgment and decree dated 11-1i-2900 in Suit No,1793 of 1999 had not been included in the appeal. Accordingly, on 27-8-2001, in the interest of justice, Mr. Naimur Rehman was directed to file an amended memo. Of appeal including all the persons who were parties in C.P. No,D-500 of 1998 in order to avoid multiplicity of proceedings because the subject-matter of the Constitution Petition as well as the appeal was the same. Mr. Naimur Rehman filed an amended title of the appeal on 3-9-2001, which was supplied to all parties in the proceedings. All counsel again agreed that this appeal may be heard at length and disposed of alongwith C.P. No,D-500 of 1998.
Accordingly, the arguments of Mr. Naimur Rehman, Advocate for the appellants in H.C.A. No,347 of 2000 and for the petitioner in C.P. No,D-500 of 1998, Mr. Amir Hani Muslim for Peace Developers, Mr. Nadeem Azhar for interveners in C.P. No,D-500 of 1998, Mr. Raja Sikandar Khan Yasir and Mr. Rasheeduddin Ahmed for KBCA, were heard on 10-9-2001, 1-10-2001, 8-10-2001, 12-11-2001, 3-12-2001, 18-2-2002 and 4-3-2002.
15. Mr. Naimur Rehman, learned counsel for the appellant/petitioners after relating the history of the litigation, the summary of which has been reproduced above, contended as follows:
(i) Peace Developers did not construct the building in accordance with the plan submitted by them and approved by KBCA. In this respect, he referred to the various inspection reports conducted by the Nazir, Mr. Khalid Farooqi, Advocate and Mr. Aqeel Bilgrami, who had been assigned the task of inspection by the National Institute of Architects and Town Planners, Karachi on the orders of the High Court. The latter had, inter alia, reported that the covered area of Hollow Plinth had been increased from 7,714.88 sq.Ft to 17,956 sq.Ft; the Height of the Hollow Plinth had been raised from 8 ft. Clear to 10.-6" clear; the covered area of each floor had been increased from 7,714.88 sq.Ft to 15,443.34 sq.Ft; the building projected by 6 ft. 6 inches on all the four sides with bed-rooms, bath rooms as well as covered terrace and covered balconies resulting in violation of the compulsory open space all around. He added that the lay-out and sizes of the rooms were entirely different from the approved plan and that the alterations had necessitated a complete change in the structural system including the change in the lay-out, number and size of columns from what have been shown in the approved plan.
(ii) As Peace Developers had not carried out the construction in accordance with the approved plan, KBCA had warned them to follow the approved building plan as a result of which they filed Suit No,374 of 1998 against KBCA to obtain permanent injunction to restrain KBCA from interfering and taking coercive measures or adverse action with regard to the construction. In the said suit, KBCA in its reply had pointed out several violations of the approved building plan and had objected to the maintainability of the suit under sections 20 and 20-A of the Sindh Buildings Control Ordinance, 1979. The Second Suit No,1793 of 1999 was mala fide inasmuch as the First Suit No,374 of 1998 in respect of the same plot and violations of the Building Plan and Building Regulations was pending in Court.
(iii) In the second suit i,e, Suit No,1793 of 1999, Peace Developers again sought mandatory injunction directing KBCA to regularize the Revised Completion Plan and condone the deviations from the approved plan. This time KBCA took a totally different stand and stated that the building had been constructed in accordance with law and the deviations made by Peace Developers did not fall under rule 16(2)(c) of the Karachi Building and Town Planning Regulations and were, therefore, regularizable/compoundable except the projections which are beyond the limit (one metre) under section 34 of the Town Planning Regulation, Part I. This clearly showed the mala fide conduct of KBCA which was subject to correction by the High Court.
(iv) That the objections raised by Peace Developers that the appellants should have filed an application under section 12(2) C.P.C. For setting aside the judgment and decree was not the only way to attack the decree of the trial Court and that the appellants could file an appeal with the permission of the Appellate Court against the decree as they. Were aggrieved parties and had filed C.P. No,D-500 of 1998 which related to the same construction and was prior in time to Suit No,1743 of 1999 and referred to the following judgments:
(a) PLD 1982 SC 146, 150.
(b) 1999 MLD 655.
(c) PLD 1993 Karachi 548, 551.
16. Mr. Amir Hani Muslim, learned counsel for Peace Developers, opposing the arguments of Mr. Naimur Rehman vehemently argued as follows:
(i) The building on the plot in question had been constructed in accordance with law and there was no violation of the Conditions of Construction as notified in the Auction Notice dated 9-5-1951 published by the Municipal Commissioner, KMC as the conditions specified in the Auction Notice were not incorporated in the Lease Deed executed by KMC.
(ii) There were three Inspection Reports giving three different opinions about the construction. The petitioners had raised disputed questions of fact which could not be decided in a Constitution Petition. (1989 SCMR 918, 920).
(iii) The Inspection Reports submitted by the various Commissioners cannot be substituted as evidence and made the basis for deciding the Constitution Petition and referred to the following judgments in this connection:
(a) PLD 1975 Lahore 515.
(b) PLD 1980 Karachi 108.
(c) 1996 CLC 654.
(iv) The variations in the construction had been made for the benefit of the residents and do not violate the Building Regulations. Peace Developers had provided for car parking, servant quarters and mosque it the Hollow Plinth. The said area cannot now be used for any other purpose as their possession had already been handed over to the allottees/purchasers.
(v) That the appellant/petitioners have been guilty, of laches. They were aware of Suit No,374 of 1998 as well and Suit' No,1793 of 1999 and should have joined the proceedings In these suits if they were serious in their objections regarding violation of the approved Building Plan and the Building Regulations.
(vi) Lessor/KMC has permitted Peace Developers to raise construction as shown in the Revised Construction.
(vii) Peace Developers has neither any intention nor can they raise further construction as they have already handed over possession of the apartments to their allottees.
(viii)There is no limit for raising the height of the water tank or Hollow Plinth prescribed in the Karachi Building and. Town Planning Regulations and therefore there is no violation of the Regulations.
(ix) In any case there are minor deviations which are regularizable/compoundable as opined by KBCA in their Written Statement which shall be done in due 'course and that the cases of Abdul Razak and Costa Livnia are distinguishable.
17. Mr. Nadeem Azhar, Advocate for the interveners/respondents Nos.17 and 21 to 24 in C.P. No,D/500 of 1998, submitted that the aforesaid interveners/respondents had purchased' their premises after investigation of title and the Building Plan, they were bona fide purchasers without notice and consequently no order against their interest should be passed by ale Court.
18. Mr. Rashiduddin, Advocate for KBCA in C.P. No,D-500 of 1998, submitted that section 2 of the Sindh Buildings Control Ordinance, 1979 (SBCO) overrides all other laws on the subject and therefore, the rights of the petitioners and the respondents in the Constitution Petition as well as those of the appellants and respondents in the High Court appeal are governed by the said law. He added that the provisions of section 6 of SBCO are mandatory and no person is permitted to construct or re-construct any building except strictly in accordance with the provisions of the said Ordinance and under section 6(2) of SBCO, no building shall be occupied by any person or shall be allowed by the builder to be occupied before KBCA has, on the application of the occupant or owner, issued an Occupancy Certificate in respect thereof in the prescribed manner. He vehemently urged that all construction and any deviation in the construction from the approved plan be judged under the provisions of SBCO and the Karachi Building and Town Planning Regulations and the petition decided accordingly.
19. On 3-12-2001 Mr. Sikandar Khan Yasir, Advocate appearing for KBCA in H.C.A. No,347 of 2000 had.
Filed a statement alongwith several documents from the KBCA Records relating to the construction on the plot in dispute with copies to the contesting parties. He referred, amongst others, to KBCA letter dated 23-12-1998 written by the Deputy Controller of Building to Peace Developers informing them that the revised plan for regularization submitted by the latter could not be considered due to various pending cases in the High Court of Sindh and that the construction raised was in violation of the approved Building Plan. He also referred to a report dated 20-3-2000 signed by the Controller of Buildings, Circle XC, KBCA wherein various violations of the approved Building Plan had been highlighted and the letter dated 22-7-1999 written by Assistant Director Land (CENT-II) KMC addressed to Muhammad Rafiq wherein the officer had stated that according to Resolution No,892 dated 28-11-1935, the sale conditions of the construction of storeys and built-up area in Bath Island Quarters was as follows:-- "Four storeys including ground floor, but the heights to be regulated according to the building rules that may be enforced/from time to time" (sic).
He submitted that in light of the conflicting positions reflected from the Constitution Petition, Suit No,374 of 1998 and Suit No,1793 of 1999, the stand of KMC, KBCA and the Karachi Building and Town Planning Regulations and the Commissioner's Report, it would be proper that the matte,- be remanded to the trial Court to decide the same after recording' the evidence of all the parties.
20. Mr. Suleman Habibullah, learned Additional Advocate-General, submitted that Constitution Petition No,D-500 of 1998 was not maintainable under Article 199 of the Constitution as Constitution petitions in respect of Public Interest Litigation can be tiled only under Article 184 of the Constitution before the Supreme Court of Pakistan. He added that none of the petitioners was an aggrieved party and, therefore, the petition should be dismissed.
21. In reply to the arguments of the learned counsel for respondents, Ms. Rizwana Ismail, inter alia, submitted that Bath Island did not exist in 1935 and therefore the 1935 Rules would not apply and the disputed construction would be regulated by Part II, Regulation 7(2) on page 72 of Karachi Building and Town. Planning Regulations which imposed restriction on the extent of construction, the Report of the Commissioner appointed with the consent of the parties can be used for resolving the dispute (1994 SCMR 2163) and that the interveners do not have a cause of action to file a suit or defend the proceedings in case of building violations by the builder (2000 SCMR 1748).
22. We have heard Mr. Naimur Rehman alongwith Ms. Rizwana Ismail, Advocates for the petitioners/appellants (Shehri and others), Mr. Amir Hani Muslim, Advocate for Peace Developers, Mr. Rashiduddin and Mr. Raja Sikandar Khan Yasir, Advocates for KBCA, Mr. Nadeem Azhar Siddiqui, Advocate for intervenors/respondents Nos.17 and 21 to 24 and Mr. Suleman Habibullah, Additional Advocate-General for Government of Sindh, perused the record of Suit No,374 of 1998, Suit No,1793 of 1999, C.P. No,D-500 of 1998 and H.C.A. No,347 of 2000 and considered the matter in light of the relevant law and the arguments advanced by the learned counsel.
23. Mr. Amir Hani Muslim, learned counsel for Peace Developers, the builders/the principal contesting party, objected to the maintainability of the High Court Appeal No,347 of 2000 filed by Shehri and nine other appellants, on the ground that the decree dated 6-11-2000 in Suit No,1793 of 1999 could be assailed on the ground of fraud and collusion under section 12(2), C.P.C. Which was the appropriate section for setting aside the decree in case the appellants were aggrieved or adversely affected by the said decree and not by filing an appeal against it. Section 12(2), C.P.C.
Provides that:- "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
It may, however, be noted that any person, who is adversely affected by a judgment and decree of a Court has the right to file an appeal against the decree as provided by section 96, C.P.C. The person aggrieved, therefore, has two remedies available to him which exist side by side. Under section 12(2), C.P.C., the aggrieved person without filing a separate suit can impugn the decree on the ground of fraud, misrepresentation or want of jurisdiction by simply filing an application under the said section supported by an affidavit. To file such an application, the aggrieved person need not be a party in the suit but he has the right to challenge the same if he is aggrieved or is adversely affected by the judgment, decree or order. (See 1984 SCMR 586 and 1999 SCMR 1516).
The Code has thus provided an easy and an inexpensive methods of seeking relief without having to pay any court-fee, which would be required in case a suit were to be filed. At the same time any person, who is aggrieved or is adversely affected by a decree also has the right to file an appeal under section 96, C.P.C. Both the remedies are concurrent and one does not exclude the other. It is open to the aggrieved party to choose either of the two. The only distinction between the two remedies, in case the person seeking 'the remedy is not a party in the suit and wants to file an appeal against the decree is that he must show that he is adversely affected by the decree of the trial Court and obtains leave of the Court to appeal (PLD 1969 SC 65 and PLD 1993 Karachi 548). Mr. Naimur Rehman, while arguing the HCA took us through the long history of the litigation in light of Suit Nos.374 of 1998 and 1793 of 1999 filed by Peace Developers and C.P.No,D-500 of 1998 filed by the appellants all of which related to the alleged illegal construction raised by Peace Developers, the various reports of the Commissioners relating to the violations of the approved Building Plan, the contradictory stands taken by KBCA in the two suits and how both, Peach Developers and KBCA, who were parties to C.P. No,D-500 of 1998, had entered into a compromise in Suit No,1793 of 1999 to get a decree in favour of Peace Developers whereby the violations of the approved Building Plan committed by Peace Developers were approved without notice to the petitioners in C.P.No,D-500 of 1998 who had been agitating against the illegal construction, thereby frustrating the proceedings in the Constitution petition and making it absolutely infructuous. He submitted that the appellants were aggrieved by the decree which had been obtained by playing a fraud on the Court and by collusion between Peace Developers and KBCA whereby the petitioners/appellants were adversely affected and prayed that it was a fit case in which the Court should grant leave to appeal against the decree dated 11-11-2000, failing which the Constitution Petition filed by the appellants would become infructuous and the illegal construction raised by Peace Developers would become regularized and lawful under the umbrella of a fraudulent and collusive decree. At this juncture, it would be appropriate to refer to the observations of the Honourable Supreme Court in the case of Abdul Majid v. Abdul Ghafoor Khan, PLD 1982 SC 146 at 150, which would be helpful in deciding the appeal and passing further consequential orders, if necessary. The observations of the Honourable Supreme Court are as follows:-- .. Although section 44 of the Evidence Act permits a party to a decision, to show that it was obtained by the other party by fraud or collusion or that the Court acted without competence; but it does not lay down a mandate that it must be shown in a separate suit and not by moving the same Court or the Appellate Court. Notwithstanding the foregoing comment on this question it is necessary to explain that the High Court or the Supreme Court might itself, in view of peculiar circumstances of a given case, when re-opened before it on any ground which might require further examination in a proper. Trial by a lower Court, make such observations, as might enable that Court to deal with the relevant questions including that of nullity."
24. It cannot be disputed that there is a difference of opinion amongst the appellants (Shehri and others), Peace Developers (respondents in the appeal and plaintiff in Suit No,374 of 1998 and 1793 of 1999), KMC and KBCA in respect of the nature and extent of construction which can be raised on the plot in question. It is an admitted position that while Suit No,374 of 1998 filed by Peace Developers to restrain KBCA from interfering with the construction was pending they tiled a revised plan for regularization of the construction before KBCA and thereafter filed a fresh Suit No,1793 of 1999 seeking a declaration that the Revived Plan for Regularization/Completion submitted by them on 7-12-1998 KBCA stood approved in law on 6-2-1999 and that KBCA by mandatory injunction be directed to regularize or condone the internal deviations from the approved plan submitted by them and issue the requisite Certificate on receipt of. Composition Fee and grant a Permanent Injunction restraining KBCA, its officers and agents from taking any coercive measure or adverse action. With regard to the premises and grant damages in the sum of Rs,50 Million. The submission of the revised plan with request to condone the deviation tiled by Peace Developers clearly shows an admission on their part that they had made substantial deviations in the construction which required condonation and approval by KBCA. It is indisputable that with regard to the violations of the approved Building Plan, KBCA: took one position in Suit No,374 of 1998 and a contradictory position in Suit No,1793 of 1999. Peace Developers and KBCA were also aware that Shehri and 9 others had filed Constitution Petition No,D-500 of 2000 relating to the alleged illegal construction on the plot in question, which was pending in the Court. It is also undeniable that there were three Survey Reports by three different Commissioners which were conflicting in opinion. The last report was submitted by Syed Aqeel Bilgrami who had been nominated by the National Institute of Architect and Town Planners, Karachi which had been appointed by the High Court to submit a report on the nature cf the construction. Mr. Bilgrami in his report dated 21-1-1999 had pointed out several violations of the approved plan, a few of which have been reproduced above.
24. On 6-11-2000, Mr. Amir Hani Muslim and Mr. Raja Sikandar Khan Yasir made a statement before the Court in Suit No,1793 of 1999 that the suit can be decreed to the extent of the statement made by KBCA in para 8 of the written statement, which reads as follows:-- "8. That as regards the contents of para. 10 it is submitted that the building has been constructed by maintaining the compulsory open space and the number of storeyed/as per approval accorded. Covered area has been increased from 1/3rd on each floor by covering the internal open spaces but within the plot ratio i,e, 1:2 as per rule. It is further submitted that the said deviation made by the owner does not fall under section 16(2)(c), Town Planning Regulation, 1979 (Part I and Part II) and is, therefore, regularisable/compoundable except the projection which is beyond the limit (one metre) under section 34, Town Planning Regulation, Part I."
' The statement was totally contradictory to what KBCA had stated in Suit No,374 of 1998 and the statement filed by it in C.P. No,D-500 of 1998. Both parties knew that C.P. No,D-500 of 1998 was pending and had been filed to challenge the violations of the approved Building Plan committed by Peace Developers. Both pait.Is also knew that C.P. No,D-500 of 1998 was pending and this order would give rise to a cause of grievance to the petitioners in C.P. No,D-500 of 1998. It was their duty to place all the facts before the learned Judge so that he could pass an appropriate and just order in light of the circumstances of the case.
26. In view of the above facts and in light of the observation made by the Supreme Court, in the case of H.M. Saya & Co. v. Wazir Ali Industries Limited, PLD 1969 SC 65 and followed by this Court in the case of Syed Musarrat Hussain Zaidi v. Syed Saleem Javed Zaidi, PLD 1993 Karachi 548, we are of the opinion that it is a fit case in which leave to appeal be granted which we hereby do and admit the same to regular hearing.
27. It would not be out of place to state here that Mr. Sikandar Yasir, learned counsel for KBCA, in his arguments conceded that there are disputed questions of facts and law which cannot be decided without recording evidence of the parties. Accordingly, in light of the reasons for admission of the appeal and the above discussion, the appeal is allowed, the order dated 6-11-2000 and decree dated 11-11-2000 are hereby set aside and Suit No,1793 of 1999 is restored to its original number on the file subject to the terms and conditions stated below.
28. We have already stated above that the question raised by Shehri and others in C.P. o.D-500 of 1998 and Peace Developers in Suit No,1793 of 1999 involve disputed questions of facts and law. It is well-established that the disputed questions of facts cannot be decided in a Constitution petition filed under Article 199 of the Constitution. The question of facts raised by the petitioners in C.P. No,D- 500 of 1998 can, however, be decided in Suit No,1793 of 1999 which has already been revived. The Constitution petition is, accordingly, dismissed subject to the terms and conditions stated below.
29. Before proceeding further, it would be appropriate to state here that on perusal of Suit No,1793 of 1999, it transpires that the same has been filed by M/s. Peace Developers, a Partnership having its office at Plot No,83, Bath Island Quarters, Karachi, through its Managing Partner. Muhammad Rafiq, as plaintiff. The plaintiff has neither stated that it is a registered partnership firm nor produced a certificate of registration of partnership. It is well established that an unregistered partnership is not a legal entity and cannot sue in its own name. (See section 69 of Partnership Act, 1932, 1994 PTD 194 and 1996 CLC 1205). It is, therefore, questionable whether Suit No,1793 of 1999 is maintainable in law.
30. As we have allowed the High Court appeal and dismissed the Constitution petition relating to the construction on Plot No,A/4 Bath Island, Karachi, we order that Suit No,1793 of 1999 shall now be proceeded as follows:--
(i) The plaintiff in Suit No,1793 of 1999 shall file the amended plaint. In place of Peace Developers, the unregistered partnership, all the partners shall be substituted as plaintiffs so that the legal lacuna pertaining to the maintainability of the suit is removed.
(ii) In the amended plaint the plaintiff shall join appellants of HCA No,347 of 2000/Petitioners in C.P.No,D-500 of 1998 and respondents Nos.15 to 24 in C.P.No,D-500 of 1998 the alleged allottees of the flats in the building.
(iii) Shehri and all others shall have the right to file in the suit all documents and take all legal/factual pleas which they had taken in C.P.No,D-500 of 1998, All the pleas taken in Suit No,374 of 1998 (Peace Developers v. KBCA) shall be available to both the parties, notwithstanding the withdrawal of the said suit on 6-11-2000.
(iv) All parties shall continue to maintain status quo in respect of the property until the decision of the suit.
(v) As the matter is pending since 1998, it is expected that all parties shall cooperate and shall not take unnecessary adjournments so that the trial Court is able to hear and decide the Suit No,1793 of 1999 without any further delay in order to avoid inconvenience to all the parties.