HAMID ALI MIRZA, J.---This civil petition for leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the order dated 6-9-2001 in Constitution Petition No,D-179 of 2001 passed by learned Division Bench of the Sindh High Court at Karachi, whereby Miscellaneous Applications Nos.974, 984 and 541 of 2001, when first two Miscellaneous Applications filed by seven persons to be impleaded as respondents in the main Constitutional petition were allowed, however Miscellaneous Application No,541 of 2001 filed by the petitioners seeking restraint order against various respondents from raising further construction and transferring, selling etc the property, was dismissed holding that no case for interim order was made out.
2. Brief facts of the case are that the petitioners filed Constitution Petition No,179 of 2001 against thirteen respondents praying therein the relief as follows: "(a) declare that the original and revised plans for the building on the plot, approved in violation of the lease/land-grant conditions and the Regulations, are null and void ab initio,
(b) declare that construction on the plot effected in violation of the law, the lease/land-grant conditions and the Regulations, and in contravention of the approved (albeit illegal) plan is illegal and liable to be demolished,
(c) direct the respondents Nos, I and 2 to demolish the building so raised with the assistance of respondents Nos.3 and 4, as the aforesaid construction has been effected in violation of the law,
(d) restrain the builders, respondent No,10, from raising any further construction on the plot or parting with physical possession of the construction already raised or creating any third party interest therein,
(e) restrain the KBCA, respondent No,1, from issuing any revised/regularization approved plans, "NOC for Sale" or -Occupancy Certificate" in respect of the building raised in violation of the regulations and of the approved plan,
(f) restrain the Commissioner respondent No,3, and his District Registrar from registering any conveyance in respect of any part of the property without a proper "Occupancy Certificate' from the respondent No,1,
(g) restrain the utility companies, respondents Nos.6 to 9, from giving any electric, gas, telephone or water supply connections in respect of the building on the plot, without, a proper "Occupancy Certificate" from the respondent No,1,
(h) direct the BOR and KMC, respondents Nos. 3 and 5 to forfeit/cancel the lease of the plot for violation of the building regulations and lease/land-grant conditions,
(i) direct the respondents Nos.1 and 2 to institute multiple criminal prosecution proceedings against the builders, colluding politicians/ministers and Government/KBCA officials, including respondents Nos.10, 11, 12 and 13, for corruption, fraud and causing public danger, and for contravening the Regulations and the Ordinance."
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3. We have heard .Learned counsel for the parties and perused the record.
4. Main contention of the learned counsel for petitioners is that the learned Division Bench while deciding applications under Order I, rule 10, C.P.0 erred in law in allowing the same whereby the said interveners were impleaded as respondents in the petition when on one hand it was held in the judgment that the provisions of C.P.C. Would not be applicable in the Constitution petitions and on the other hand, the Court allowed the said interveners to be impleaded as respondents as the said respondents/interveners could not be said to be aggrieved persons within the meaning of Article 199 of the Constitution. He further contended that the learned Division Bench also erred in law in holding that provisions of Order XXXIX, rules 1 and 2, C.P.0 would not be applicable to the Constitution petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan and further that no case for interim restraint order was made out.
5. We do find merit in the contention that provisions of Civil Procedure Code would regulate proceedings and would not necessarily depend on the nature of jurisdiction of the Court.
Admittedly the Constitution petition has been filed under Article 199 wherein some assertions for enforcement of civil rights have been made therefore same A would be civil proceedings hence provisions of C.P.C. Would be applicable other than specifically barred as such the said provision would apply in the exercise of High Court's jurisdiction in civil matters whatever may be nature of that jurisdiction. Reference may be made to leading judgment of this Court in (I) Hussain Bakhsh v.
Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein their lordships observed:- - The Civil Procedure Code regulates civil proceedings. The nature of the proceedings does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not; it is necessary to see what are the questions raised and decided in the proceeding involves the assertion or enforcement of a civil right, it is a civil proceedings. As regards application of the provisions of the Code in proceedings before a High Court, their lordships of the Privy Council in Sabitri Thakurari v. Savi (AIR 1921 PC 80) observed: "The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of original civil. Jurisdiction, to which the Code is not to apply."
2. Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others (PLD 1992 SC 723) wherein this Court held as under:- "A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure. By virtue of section 117 of the Code a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specifically excepted. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114 of the Code conferring power to review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under said section 114 if that section is otherwise applicable."
(3) Shabir Ahmad and another v. Akhtar Alam and others (PLD 1994 SC 598), (4), Ch.Pervez Ellahi v.
Province of Punjab (PLD 1993 Lahore 595), (5) Malik Khanan v. Malik Baz Muhammad Khan and others (PLD 1983 Quetta 30) and (6) Muhammad Nawaz and another v. Abdul Ghafoor and others (PLD 1981 Kar. 469). It is regrettable that High Court did not take notice of above three cases decided by this Court keeping in view also the provision of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973.
6. It is true that sub-clause (b) of clause (3) of Article 199 of the Constitution do provide making of interim orders under the Constitutional jurisdiction of High Court, so also Civil Procedure Code has also provided provisions of rules 1 and 2 of Order XXXIX but none of the provision either in the Constitution or in the Code of Civil Procedure has laid down conditions or ingredients to be considered while determining the question of grant or refusal of interim relief. In the circumstances even if interim relief is granted under the Constitutional jurisdiction, time tested considerations for grant or refusal of relief the Code of Civil Procedure viz. Existence of prima facie case (ii) irreparable damage or injury to be caused, and (iii) inconvenience have been determining factors for deciding interlocutory petitions in the Constitutional jurisdiction, The above-cited constitutional provision is to be read with the provisions contained in C.P.C. For grant or refusal of interim relief as there being no liar or prohibition in their application under the Constitution, considering also that Constitutional jurisdiction being paramount and every form of limitation which normally would fetter the exercise would not prevent/control the superior Court from exercising such powers when it would appear to be expedient in the interest of justice.
7. Be that as it may, in the matter of entertainment of the petitions and grant of relief in equitable and discretionary jurisdiction, it would not be necessary to follow in entirety the technicalities of the law but also by the substance of the controversy when the proceedings would appear not tainted with mala fides of the fact. Reference may be made to Pakistan Engineering Council and others v.
Engineer I.A. Omani and others (1991 SCMR 654).. It may also be observed that the technicalities would not prevent the Court from exercising its Constitutional jurisdiction and granting relief which otherwise petitioner is entitled to it. In the instant case the respondents/interveners have sought their relief for their implement on the ground that they have purchased the flats in the building and pleaded that in case they would not be impleaded, their rights in the property could be affected. In circumstances, the principle laid down under Order I, rules 1, 3 and 10 of the Code of Civil Procedure could be applied even in the Constitution petition through the interveners could not be termed to be "person" within the meaning of Article 199 (5) of the Constitution. The said interveners can be made as a party to a Constitution petition when their rights in the property could be affected and their presence before the Court is considered necessary to defend their rights, if the said submission is not allowed to prevail, it would lead to multiplicity of proceedings and the finding given by the Court in the absence of interveners would not be binding upon them. It has been settled by this Court in the above-cited cases that provision of C.P.C. Could be resorted to in the Constitutional jurisdiction except where they are specifically excluded. The learned counsel for the respondent frankly conceded that provision of Code of Civil Procedure would apply to the Constitutional jurisdiction of High Court unless the provisions are specifically excluded. In the circumstances, we regret to say that learned Judges of the High Court did not follow the law laid down by this Court with regard to application of provisions of the Code of Civil, Procedure in the Constitutional jurisdiction of High Court, consequently the contention of learned counsel for the petitioners has merit and substance which is therefore upheld.
8. So far the refusal to grant interim relief to the petitioners by the High Court, it may be observed that the High Court rightly held that in the circumstances of the case the petitioners were not entitled equitable interim relief. Mr. Abdul Hafeez Pirzada learned counsel for the respondents submitted that all the twenty floors of the building in question were complete and completion certificates were issued in favour of respondents, therefore, the petitioners were rightly denied the interim equitable relief though he submitted that completion certificates were issued after the impugned order. It may also be observed that this Court has always declined to entertain such civil petitions wherein interlocutory order/fragmentary decisions are challenged, unless a very strong case of exceptional nature is made out which in the present case was not made out. Respondent K.B.C.A. Has also filed additional documents wherein approval was accorded by the then Chief Minister for raising a commercial building on the plot in question and the Building Plan was also approved. It has also been mentioned in the statement filed by respondent K.B.C.A. That at present "Saima Trade Tower Building" comprised of basement + Ground + Mezzanine + 19 upper floors which existed at the site maintaining the cut line to the extent of building only, which building was found to be finished and occupied so also completion certificate was approved and issued as per letter dated 12-11-2002.
9. In the circumstances the High Court rightly declined the interim relief of restraint order against the respondents holding that no final finding can be given on the pleas raised by the petitioners in the interlocutory applications, till final decision of main Constitutional petition. We find no legal or factual infirmity in the said finding of the High Court, therefore leave to appeal is declined and the petition is dismissed.