1980 PLP 810 (SCMR)

DORAB PATEL, ACTG. C. J ‑The dispute in this petition for leave has nar rowed to an area of 170 sq. yds. in a property known as building No. 83‑A G‑1, on New Queens Road, Karachi. The property belonged to a Mandir and even according to learned counsel, there is still a. Mandir on the property, but the petitioner's case is that apart from the Mandir, there is an another build ing which bad been occupied by him as a lessee for long years and as the building is now owned by the Evacuee Property Trust Board, Mr. Ali Akbar stated that the petitioner had been paying rent for many years to the Evacuee Property Trust Board. However, on 6‑9‑1976, the first respondent attempted to demolish the building leased to the petitioner on the ground that the property belonged to it namely, the Karachi Port Trust (KPT). The peti titioner therefore, immediately informed the Evacuee Property Trust Board of the first respondent's illegal claim and had filed a suit against the first respondent in the Court of a Civil Judge, Karachi. Together with the suit, the petitioner sought an injunction, pending the hearing of the suit, to restrain the first respondent from evicting him, or interfering with his rights. The suit is being contested and the first respondent also challenged the petitioner's claim for interim relief. Further, in its counter affidavit to the petitioner's application for interim relief, the first respondent had pleaded, inter alia, that the petitioner's suit was bad, because it was hit by the mandatory provisions of section 87 of the Karachi Port Trust Act. The learned Civil Judge not merely upheld this objection and dismissed the application for interim injunction, but he also dismissed the suit of the petitioner by his order dated 26‑10‑1976 on the ground that the suit was "incompetent for want of notice under section 87 of the K. P. T. Act." The order‑dismissing the petitioner's suit was indefencible, therefore, the petitioner filed' an appeal in the District Court, Karachi, in which he also challenged the refusal of the trial Court to grant him interim injunction. But the first respondent appears to have modified in the first Appellate Court the position taken by it and it gave an assurance in writing that "it will not evict the appellant from his house covering an admitted area by the Trust as 230 Sq. Yds." Therefore, as the petitioner's possession of his house was, thus guaranteed, the learned Additional District. Judge dismissed the petitioner's appeal. The petitioner challenged the dismissal in a revision in the Sind High Court and Mirza, J. had no hesitation in accepting the petitioner's claim that the trial Court had erred in dismissing and/or rejecting his plaint. Therefore, after setting aside the impugned orders, the learned Judge went on to examine the petitioner's claim for interim relief. As the peti tioner had been given, protection by the first respondent's assurance with regard to the building in his occupation and 230 sq. Yds of land on which the house stood, the dispute was only over an area of 170 S. Yds. Mirza, J. rejected the petitioner's claim for an interim injunction with regard to this area of 170 Sq. Yds., therefore, the petitioners has filed this petition for leave. As the learned Judge refused in his limited revisional jurisdiction to interfere with the discretion exercised against the petitioner by the first appel late Court, we invited learned counsel to show us how the impugned order suffered from a jurisdictional defect. But, to our astonishment, learned counsel referred us to a plan, which is at page 45 of the Paper Book. Learned counsel thought that this plan supported the petitioner's claim to an injunc tion with regard to the disputed area of 170 Sq. Yds. But, he was unable to identify this area on the plan and the buildings referred to in the plan are described as temples, therefore, we are unable to understand how this plan lends any support whatever to the petitioners claim. The petitioner then referred us to proceedings instituted by the Evacuee Property Trust Board to challenge the first respondent's claim that the land in dispute belonged to it and he stated that in this dispute, the Commissioner of Karachi had drawn a distinction between the 230 Sq. Yds for which the two Appellate Courts have upheld the petitioner's claim for interim relief and the 170 Sq. Yds. for which this claim has been rejected. Once again, we find it impossible to understand learned counsel's submission, because in rejecting the petitioner's claim for interim relief to the 170 sq. yds. in dispute, Mirza, J., has been referred to the interim report or finding of the Commissioner of Karachi in the proceedings instituted by the Evacuee Property Trust Board. On the other hand, as the petitioner admits that he is the lessee of the Evacuee Property Trust Board, we invited him to refer us to some evidence to show that the Evacuee Property Trust Board was supporting his claim to the 170 sq. yds. in dispute in the petition. Learned counsel was not able to refer us to any such evidence and, on the other hand, on going through the record, we find that in rejecting the petitioner's claim for interim relief, the .Additional District Judge observed in his order of 5‑1‑1979] "The Trust Board filed appeal before Commissioner and the objector specifically pleaded that an area of 230 sq. yards only belonged to Trust. This was re‑affirmed before Commissioner as is evident from its order placed on this file. The K. P. T., accordingly, agreed not to touch this area of 230 sq. yards till it is settled between K. P. T. and Trust Board as to whether Trust has any right over this area. This fact was throughout suppressed by the appellant as well as Mr. Qureshi in this Court and it is the K. P. T. which brought all these facts on record of this appeal." Although learned counsel was not able to refer us to any evidence to show that the Evacuee Property Trust Board was supporting the petitioner's claim, it is clear from tire observations of the learned Additional District Judge that not only did the Evacuee Property Trust Board not support the petitioner' claim with regard to the land in dispute, but that it had also taken a position which was inconsistent with the petitioner's claim. In theses circumstances, we do not see how it can reasonably be argued that there is an error of law or a jurisdictional error in the impugned order. The petition is without merit and is dismissed. Petition dismissed.