2003 PLP 1016 (CLC)

Law leans adjudication of dispute on merits. Mustafa Lakhani for Plaintiff. Abbas Ali, Add1.A.-G. Mr..Irfan for Defendant No.5. The plaintiff through C.M.A. 9357 of 2000 seeks restraint order against the defendants from dispossessing him from the suit land till disposal of the suit. The case of the plaintiff is that he purchased a Katcha hotel from one Dost Muhammad son of Sahib Khan on 30-1-1999, on 2000 sq. yds. In Naclass 309 in Deh Jorgi, Karachi, Malir, for consideration of Rs.1,40,000 vide Sale Agreergent (Annexure-A). It is also the case of the plaintiff that said Dost Muhammad was paying remokal which is regularly paid by the plaintiff. Said Dost Muhammad had applied in the year 1987 for regularization of the said land. The application was forwarded to the Deputy Commissioner. Defendant No.3 submitted report to the Deputy Commissioner admitted possession of the plaintiff and value of the plot was assessed at Rs.6 lacs per acre. The plaintiff's case is that he is ready and willing to pay the price, whereas defendants Nos. 1 and 2 are not ready and willing to lease the land. The plaintiff now seeks an order of injunction against the defendants. I have heard the learned counsel for the parties. Learned counsel for the defendant has contended that the plaintiff has no prima facie case nor balance of convenience lies in his favour. He submitted that the plaintiff's own case is that he had purchased the structure from one Dost Muhammad, who himself was an encroacher. He further maintained that the land, according to the plaintiff, is commercial which has to be disposed of by open auction in terms of scheme prepared by the Government for disposal of the said land under the Colonization of Government Lands Act, 1912 applicable to the Province of Sindh. Learned counsel for the plaintiff contended that the plaintiff is in possession of land since it is purchased from Dost Muhammad and is running a hotel by spending huge amount and he should not be dispossessed except in due process of law. The position of the plaintiff admittedly is an encroacher, except he being owner of the structure raised by Dost Muhammad. The encroacher has no right to approach the Court for grant of discretionary A relief. The plaintiff, therefore, has failed to establish a prima facie case for grant of injunction nor balance of convenience lies in his favour. The application-is, therefore, dismissed, with no order as to costs.

2. This application for recalling the ex parte order dated 24-9-2001 against defendant No.2. The ground taken for recall of the order is that H the non-filing of the written statement was neither deliberate nor intentional, as sanction to defend the suit has been received late from the Solicitor Department. This application has been opposed by the plaintiff through counter-affidavit with the assertion that no case for recall of the order is made out. The law leans adjudication of dispute on merits. The suit is still at the stage of hearing interlocutory application and has. not, even, reached to the stage of issues. Therefore, order dated 24-9-2001 is recalled and the defendant is allowed to file written statement. The plaintiff is directed to file amended title to the plaint by arraying proper parties in view of change in administration set up viz. City District Government within two weeks.