2007 PLP 1587 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Muhammad Ovais and another seek leave to appeal from the judgment dated 8-3-2007 of learned High Court of Sindh Karachi, whereby, on acceptance of a constitutional petition filed by the respondents Nos.9 and 10, the construction of a multi-storeyed commercial building executed by the petitioners was declared unlawful and violative of the provisions of Regulations, 1979 and Sindh Town Planning Act.

2. A building with a basement, ground floor and upper six 17oors under the came and style "Sans Heights" is being constructed by the petitioners on Plot No.44-A/1 measuring 555.55 sq. yds. In Muhammad Ali Jauhar Memorial Cooperative Housing Society Karachi. Originally the plot numbered as 44-A measured 2000 sq. yds. It was bifurcated into 44-A and 44-A/1 measuring 1444.45 and 555.55 sq. yds. Respectively. Alter such bifurcation, Ministry of Works, Islamabad, on the basis of NOC dated 1-2-1991 issued by the then Karachi Development Authority, allowed its conversion from residential into commercial plot.

3. Aggrieved of both, the bifurcation as well as the commercialization, Mr. Zahid Saeed and Mr. Humayoon Qureshi filed a writ petition aforesaid, challenging both the events.

4. We have heard the arguments on either side at length. First and the foremost objection taken by the learned counsel for the petitioners is, that the arguments concerning impugned judgment were addressed before the High Court on 16-5-2006, 18-5-2006 and 19-5-2006, whereafter, judgment was reserved but subsequently announced on 8-3-2007 i.e. after the passage of ten month. That, being violative of Order XX, rule I, C.P.C., it was no judgment in the eye of-law. The point being seriously raised and contested, deserves prior attention.

5. The proceedings initiated before the High Court involved assertion and enforcement of a civil right and hence would be considered as civil proceedings. Regardless of whether the jurisdiction exercised by the High Court was original, appellate or constitutional, once the proceedings before it arc of civil nature, the provisions of the Code of Civil Procedure shall apply unless any provision is specifically excepted. There cannot be two opinions about it and the matter stood settled long ago by a larger Bench of this Court in Hussain Bakhsh's case PLD 1970 SC 1.

6. With regard to the writing of judgment, the directions can be round under Order XX, rule 1(2) of the C.P.C. It lays down imperatively that, after the case has been heard, the Court shall pronounce judgment in the open Court either at once or on some future date not exceeding thirty days, for which due notice shall be given to the parties or their Advocates. The Code applies to the High Court as well but if its application is relaxed in the exercise of constitutional jurisdiction, one can conclude that the judgment be pronounced on some future date, to be reasonably calculated. Though, strictly speaking, department from thirty days is not justified otherwise. Abdul Aziz, C.J. in Pathana v. Mst. Khandal PLD 1952 BJ 38 had observed that a judgment, with reference to Order XX, rule 1, C.P.C., delivered after five months of hearing arguments is tantamount to delivering judgment without hearing the parties. A Full Bench of this Court in Syed Iftikhar-ud-Din Haider Gardezi v. Central Bank of India Limited 1996 SCMR 669 has maintained that the term "future date" cannot be determined by a Court unreasonably. This was with reference to Order XLI, rule 30, C.P.C. In the case aforesaid, a judgment ,pronounced eight months after hearing of arguments was held to be unreasonably delayed and the case was remanded to the High Court for rehearing and re-deciding the matter. We have given our anxious consideration to the law involved and also. the principle of propriety and hold that when the delay in pronouncement of judgment is not expected to be unreasonable either in the exercise of original or in appellate .jurisdiction, why it should be so allowed and interpreted in case, of constitutional jurisdiction, especially, when Code of Civil Procedure is held applicable.

7. Learned counsel for the respondents placed reliance on Juma Khan v. Mst. Bibi Zenaba PLD 2002 SC 823 where it is held that, if no prejudice has been caused to a party by .reason of delay in pronouncement of judgment, the rule should be interpreted as merely directory and not mandatory. This has certain distinguishing features. Had the Full Bench judgment of this Court in -Syed Iftikhar-ud-Din Haider Gardezi's case (supra) been cited before the learned Division Bench, it would have certainly preferred to fallow the same.

8. Even if, we go to the condition of prejudice caused to a party by delayed pronouncement of judgment, though not provided in law, yet the decision would depend upon the facts and circumstances of each case. It is only adhered to for the sake of argument, whereas, the verdict in 1996 SCMR 669 is to prevail any way. The unreasonable delay of ten months in the instant case in pronouncement of judgment by the learned High Court has caused prejudice as well. In the lengthy arguments addressed before us on merits, we were referred to a bulk of documentary evidence going to the very route of the case which was never found mentioned in the impugned judgment of the High Court. This omission seems to be caused only and only due to the delay of ten months in question.

9. Consequently, this petition after conversion into appeal is accepted, the impugned judgment, dated 8-3-2007 is set aside and the case is remanded to learned High Court Sindh Karachi for rehearing and re-deciding the case in accordance with law, within one month. For a period of one month, no construction shall be done on the spot. M.H./M-62/SC??????????????????????????????????????????????????????????????????????????????????? Case remanded.