1987 PLP 1589 (SCMR)

S.A. NUSRAT, J.‑‑This appeal has arisen in the background of following brief facts. 2. The appellant filed a suit for declaration claiming ownership of the disputed house on the basis of a gift made in her favour by her late husband. The respondent Abdul Sattar, alleged to be an adopted son of late Muhammad Bux, also claimed share in the property. The suit was disposed on in terms of a compromise arrived at between the appellant and the contesting respondent Abdul Sattar Ansari on 19‑12‑1978. The respondent Ahmed Khan, who claims to be one of the heirs of Muhammad Bux, moved an application in the trial Court under section 12(2) of the Code of Civil Procedure praying for setting aside the compromise decree on the ground of fraud. He also moved an application under Order XXXIX, rules 1 and 2 read with section 151 of the Code of Civil Procedure whereupon an interim order was passed on 1‑12‑1980 which was later confirmed on 9‑7‑1981. By the said order the appellant/ plaintiff was directed to maintain status quo till final disposal of respondent's application under section 12(2) of the Code of Civil Procedure. The application moved by the appellant under Order XXXIX, rule 4, C.P.C. was dismissed. The appellant challenged the order dated 9‑7‑1981 in appeal before the Additional District Judge which was dismissed on 8‑5‑1983 on the ground that the appeal itself was not maintainable as it was filed against respondent No. 1 who was not yet a party in the lower Court, because his application, moved as an intervenor for being impleaded as a party to the suit, was still pending. She thereupon preferred a revision application in the Sind High Court which was dismissed as per impugned judgment dated 13‑12‑1984 with the following observations: "In the present case, the applicant after obtaining the collusive decree, has secured mutation in her favour and may proceed to do away with the property before the respondent /intervenor has been able to open up his case in Court. To prevent, this possibility becoming a reality, the Court has simply ordered that status quo should be maintained." 3. Leave to appeal was granted, inter alia, to examine the contention whether the requirements of Order XXXIX, rules 1 and 2, C.P.C. having not been fulfilled, as found in the impugned judgment itself, there was any prima facie case made out for maintaining the order of status quo granted in the case. 4. The learned High Court had undoubtedly reached the conclusion that on reading of the respondent's application and the supporting affidavit filed by him no case appeared to have been made out strictly within the meaning of Order XXXIX, rules 1 and 2, C.P.C. It was, however, observed that "a search for certain set phrases in the application" was not desirable and one had to look to the substance rather than form of the application. Nonetheless no fault can be found with the judgment of the learned High Court as the exercise of discretion in the matter was otherwise justifiable under section 151, C.P.C. 5. The main grievance, however, of the appellant concerns the remarks appearing in the operative part of the judgment which are likely to prejudice the case of the appellant at the trial. We would, therefore, direct that the said remarks shall be ignored by the trial Court who should decide the matter on its own merits. With the above observations the appeal is dismissed with no order as to costs. M.I. /F‑16/S Appeal dismissed.