2001 PLP 1277 (SCMR)

DEEDAR HUSSAIN SHAH, J.‑‑‑Leave is sought against the judgment of the High Court of Sindh, 'Karachi, dated 17‑7‑2000, passed in C.Ps. Nos.D‑419 of 1993, 665 of 1993, D‑937 of 1991 and D‑279 of 1994.

2. The facts of the case are that Messrs Makhdoom Bilawal Cooperative Housing Society, respondent No. l herein, filed Constitutional Petition No :937 of 1991 in the High Court of Sindh, Karachi, for the following relief:‑‑ "(a) Declare that the order, dated 7‑8‑1991 (Annexure P/7) passed by the respondents Nos. l and 2 purporting to cancel the allotment of 50‑0 acres land in Deh Dih Taluka and District Karachi (East) in favour of the petitioners is without lawful authority and of no legal effect; (b) direct the respondent No.4 to issue challan for second instalment payment relating to the land and accept the same; (c) permanently restrain the respondents to take over the land allotted to the petitioners or to allot the land to some other person or persons; (d) such other relief as may be appropriate in the circumstances of the case."

3. During pendency of the petition, respondent No. l /petitioner and Government of Sindh, through its Chief Secretary, Secretary to Government of Sindh/Member, Sindh Board of Revenue, Thandhi Sarak, Hyderabad, Commissioner of Karachi and Deputy Commissioner, Karachi (East) .respondents therein, filed C.M.A. No.3849 of 1991, under Order XXIII, Rule 3, C.P.C. the contents whereof are read as under:‑‑ "It is submitted by the parties that this Hon'ble Court will be pleased to allow the petition with no order as to cost and pass order in terms of compromise mentioned hereinafter as the respondents have agreed to give alternative land in lieu of claim made in the petition which offer petitioners have accepted:‑‑ (2) That the respondents undertake to issue challan for payment of second instalment towards price of land immediately and will accept future payments as per terms of allotment order. (3) That the respondents undertake to put the petitioners in vacant possession of 50 (fifty) acres of land in Deh Dih as per sketch on receipt of second instalment according to the terms of allotment. (4) That in case the respondents commit default of the above terms of compromise, the petitioners will be entitled to execute through this Hon'ble Court." On the said application, after hearing the learned counsel for the parties, the learned High Court passed the following order:‑‑ "This is an application (C.M.A. No.3849 of 1991) under Order 23, Rule 3, C.P.C. filed by the parties. Learned counsel appearing for the parties identify the signature of their respective clients on the application. The Secretary of the petitioner admits the contents of compromise application. The terms of compromise are legal. Petition is disposed of in terms of compromise. " Thereafter the petitioner filed C.M.A. No. 1187 of 1993 under section 12(2), C. P. C. which reads as under: "For the reasons disclosed in the accompanying affidavit, it is prayed on behalf of the applicant that this Honourable Court be pleased to set aside the order, dated 19‑12‑1991 passed on compromise application filed by the parties in the petition as the same has been obtained behind the back of the applicant and as such based on fraud and misrepresentation. This application is made in the interest of justice." The learned High Court dismissed the said application vide judgment dated 17‑7‑2000. Hence, the present petition.

4. Ch. Muhammad Jamil, learned counsel for the petitioner, inter alia, contended that the impugned judgment is not sustainable in law; that the learned High Court has seriously erred in passing its judgment on the findings given by a learned Single Judge in Suit No.605 of 1992, which was subsequently confirmed by the Appellate Court; that the learned High Court has also erred in law by not applying its mind that the land in dispute was pot only different from the other uncertain and undefined alternate land that was being promised by the official respondent in the compromise and further that no land of Government of Sindh was available in the said sector for allotment to respondent No. 1; and that in the interest of justice the learned High Court should have allowed the application under section 12(2), C.P.C. Learned counsel further referred to the Notification dated 3‑3‑1959, which is at page 57 of the paper book and reads as under: "Now, therefore, the Karachi Development Authority in exercise of the powers conferred on it by Article 12 of Karachi Development Authority Order, 1957 (President's Order No.5 of 1957), hereby declares with effect from the date of issue of this Notification the area bounded and abutted as under to be the controlled area for the purpose of prevention of haphazard growth of colonies, buildings and other operations in that area:‑‑ ON THE NORTH:‑ By Malir River and the western and southern boundaries of Deh Sanbro. ON THE EAST:‑ By the boundary of the Karachi Administration area and eastern boundaries of Deh. Khanto and Gangiaro. ON THE SOUTH:‑ By the Kadiro Greek, Korangi Creek and the P.A.F. Korangi. (Arabian Sea). ON THE WEST:‑ By Gizri Creek and the mouth of Malir River. This land includes the whole of Deh Dih, Deh Phihai, Deh Ibrahim Hydri, Deh Rehri, Deh Sharabi, Deh Gangiaro, Deh Khanto and parts of Deh Landhi and Deh Drigh Road. A map of the area will be fixed on the Notice Board of the Karachi Development Authority and may be seen by all interested."

5. On the basis of this Notification learned counsel emphasized that land involved in the matter belongs to K.D.A. which is owner of the land; that the findings of the learned Single Judge in Civil Suits Nos. 605, 606 of 1992 between Messrs Apparels (Pvt.) Ltd. and KDA, were irrelevant and distinguishable from issues in this petition, and were decided by the learned Single Judge in favour of Messrs Apparels (Pvt.) Ltd. and the claim of K.D.A. was rejected, and that the impugned judgment is solely based on the findings of the abovementioned suits and the learned Division Bench has not applied its independent mind to the facts of the case, which has resulted in miscarriage of justice to the petitioner.

6. Mr. Mushatq Memon, learned counsel for respondent No. l submitted that from the record it is crystal clear that K.D.A. is not owner of the land in dispute; that there is no other notification in terms of the Articles 11, 12, 47 and 50 of the K.D.A. Crder No.5 of 1957. The notification referred to hereinabove, at page 57, is not the conclusive proof that the KDA is owner of the land in dispute because from Deh Dih the Government granted land to other parties also, and the civil suit filed on the original side in the High Court of Sindh, was d6reed against the claim of K.D.A. The K.D.A. preferred an appeal which was also dismissed by a Division Bench of the Sindh High Court. Feeling aggrieved with the orders of the Appellate forum the K.D.A. approached this Court and filed C.P.S.L.A. Nos.383 and 384‑K of 1985, which were dismissed by this Court vide order, dated 5‑9‑1995. By this time the above order attained finality and, the claim of the K.D.A. on whole of Deh Dih had not been approved by the Court. Mr. Memon further pointed out that the respondents are in possession of the land they have constructed boundary wall around there which is supported by the report of the Nazi' which was considered by the learned High Court.

7. We have considered the arguments advanced by the learned counsel for the parties and minutely gone through the record. Before the learned High Court Assistant Advocate‑General appeared and argued the case of Government of Sindh and also placed on record the judgments in Suit No.605 of 1992, H.C.A. No.103 of 1994 and tie leave refusing order in C.P.S.L.A. Nos.383 and 384‑K of 1995 and ago filed counter‑affidavit dated 10‑4‑2000 and stated at the Bar that the disputed land was never allotted to K.D.A.

8. Perusal of the impugned judgment show that the learned Judges have considered the entire case in its true perspective and after going through the judgment of the learned Division Bench, leave refusing order of this Court, with convincing, plausible, logical reason, within the well‑settled principle of law, and after proper appraisal of evince including documents, 'A dismissed the application under section 12(2), C.P.C.

9. For the facts and reasons stated above, he are of the considered opinion that this petition is without substance and merit, which is hereby dismissed and leave is refused. Q.M.H./M.A.K./K‑33/S Petition dismissed