1992 ML D 1742 (PLP)

MUKHTAR AHMED JUNEJO, J.‑‑‑Petitioners Dr. Daud Murchyia and five others residing in the vicinity of Block‑6, P.E.C.H.S., Karachi have filed this Constitution Petition against K.M.C., Assistant Director, Land K.M.C., Area Councillor Block‑6, P.E.C.H.S., Azhar Ali and Masoodul Hassan Wasti with following prayers: "That orders Annexures D‑1/D‑2 acts of the respondents, their employees, subordinate and Committees of the respondents for dismantling the said Public Park, partly on 17th April, 1989 and finally on 22nd April, 1989, are illegal, void, without any lawful authority and amount to infringement of the public rights and particularly the people of Block 6, P.E.C.H.S., Karachi. To restrain and prohibit the respondents, their employees or any person/persons on their behalf or under any cover of authority to change the basic character of plots in question, amenity to residential character or raise any construction on the plots till final decision of this Constitution petition. To direct the respondents, their subordinate officials, Chairman Committee, legal affairs and justice, Director Parks, K.M.C. to produce the relevant records on the nature of the character of the land of the park in question and submit the total account of expenditure/budget for the establishment of the said public park, during the period of more than 5 years. To direct the respondents to submit the list of the employees or persons who took part in the above‑mentioned illegal operation committing unauthorised transactions, by dismantling the existing properties/articles of said Public Park with past and present production of relevant record, the place where these dismantled articles are kept which is public property. As it is strongly apprehended that after illegal dismantling and removing of the articles, funds, the staff involved have misappropriated the same, knowingly, intentionally, and dishonestly." Petitioners averred in their petition that the public park in question vas established by K.M.C. out of public fund and budget duly approved by the public representatives during the preceding five year's and the same was meant for recreation of children of the Mohallah. It was alleged that on 17‑4‑1989 at 1‑30 p.m. a gang of 60 persons with four K.M.C. trucks and respondent No.2 came at the place of said Park and uprooted fixed greeneries, trees, and dismantled iron grills etc. The petition was opposed by the, respondents Nos.4 and

5. Respondent No.4 Azhar Ali filed his counter‑affidavit. Besides his counter affidavit respondent No.4 also filed copy of C.P. No.1558/1991 and an order, dated 13‑2‑1992 passed by a D.B. of this Court dismissing said petition in limine. We have heard Mr. Muhammad Kamil Shaikh, Advocate for the petitioners; .Mr.': S .M. Nurul Hassan, Advocate for respondent No.4, Mr. Ali Muhammad Memon Advocate for respondents Nos.4 and 5 and Mr. S. Mahmoodul Hasan, Advocate for the Intervenor. The disputed property, where a public park is said to be situated, was subject‑matter of civil litigation. Respondent No.4 Azhar Ali filed suit No.1878/81. for a declaration that he was entitled to enjoy peacefully and beneficially residential plot of land bearing No.1/2‑Q situated in Row 1/2, Block 6, P.E.C.H.S. Ltd., Karachi and that K.M.C. had no right or title to the same. Respondent No.4 also prayed in his suit 'that K.M.C. be ordered to deliver peaceful and unqualified possession of the said plot to him. Respondent No.4 sought permanent injunction restraining K.M.C. from interfering with his plot. He also claimed mesne profits from K.M.C: Said suit was contested by K.M.C. who filed written statement. The trial Court after framing issues and recording evidence, decided the suit on 17‑12-1987 in favour of respondent NoA. K.M.C. challenged aforesaid judgment and the decree in Civil No.37 of 1988, which came for hearing in Court of the Vth Additional District Judge, Karachi. On 27‑2‑1989 said appeal was pending in Court of the Vth Additional District Judge, Karachi, South, when an application for compromise was moved and it was accepted. According to terms of the compromise, the possession of the disputed property was to be given to the respondent No.4 by the K.M.C., and the respondent No.4 agreed not to claim mesne profits from K.M.C. The compromise judgment and decree were challenged in C.P. No. D 1558/91 by Razia Saleem and others. In said Constitution petition, it was contended that an amenity plot was sanctioned and approved and the same could not be allowed to the respondent No.4 in violation of law. The consent judgment and the decree were challenged in the said Constitution petition to be violative of law, without jurisdiction, nullity etc. Said Constitution petition was, however, dismissed in limine on 13‑2‑1992. Present petitioners have not made out, as to, what locus standi they have to invoke Constitutional jurisdiction of this Court. In their petition the present petitioners have suppressed the facts about the previous litigation in respect of the disputed property. The prayers made are vague and even description of the property, over which the public park was said to be standing, was not given in clear terms. By resorting to this Constitution petition, the petitioners appear to be making an attempt to achieve what petitioners of C.P. D.‑1558/1991 failed to achieve. The proper course for the petitioners was to move the Court of Vth Additional District Judge, Karachi South with an application under section 12(2) of C.P.C. if the judgment and the decree of said Court is sought to be set aside. Without challenging the judgment and the decree, dated 27‑2‑1989 the petitioners cannot obtain any of the reliefs claimed by them in this petition. For the aforegoing reasons this petition is dismissed. These are reasons for our short order dated 24‑2‑1992 in identical terms. AA./D‑101/K Petition dismissed.