1999 PLP 461 (CLC)

Being aggrieved by the findings of the Honourable Ombudsman, the, respondent No. l seems to have invoked Constitutional jurisdiction of this Court by filing Constitutional Petition No.678 of 1997. Such petition was dismissed in limine by a Division Bench of this Court, headed by the Chief Justice, vide order, dated 26‑3‑1997. Things do not appear to have settled here. It further seems that tile respondent No. l had yet filed petition before the Honourable Supreme Court of Pakistan being Civil Petition for Leave to Appeal bearing No. 124‑K of 1997. The learned counsel has placed a copy of the order passed on 3‑6‑1997 by a Bench of the Supreme Court of Pakistan‑ in the said petition, wherein the respondent No. l sought permission to withdraw the said petition before the Supreme Court of Pakistan. For the purposes of ready reference, order passed by the Honourable Supreme Court of Pakistan in Civil Petition No. 124 of 1997 is reproduced in extenso hereinunder:‑‑ "Order Mr. Farooq H. Naek, learned counsel for the petitioner after addressing for some time, sought permission for withdrawal of the petition for approach competent forum. The petition is dismissed as withdrawn. (Sd.) Munawar Ahmed Mirza, J. (Sd.) Khalil‑ur‑Rehman Khan, J." The respondent having failed before the Honourable Ombudsman Sindh, before this Court and having withdrawn their petition before the Supreme Court of Pakistan appear to have agitated the same issue by way of filing a Civil Suit No.567 of 1997 in the Court of the learned VIth Senior Civil Judge, Karachi‑East, without joining the present applicant as a necessary party to the proceedings. In the said proceedings an application under Order 39, Rules 1 and 2, C.P.C. was also filed seeking an injunction in favour of the respondent No.

1. The said suit was resisted by the present applicant on factual as well as legal plain. At the very out set, it appears that the learned Civil Judge had granted an order of status quo, ex parte, and thereafter, when the application under Order 39, Rules 1 and 2 came to be dealt by the Senior Civil Judge, the same stood dismissed. Aggrieved by the order of dismissal; the respondent No. l seems to have filed Civil Appeal bearing No.21 of 1998 before the Court of the learned 1st Additional District Judge, Karachi East. Upon hearing, the learned Additional District Judge, Karachi (East) had set aside the order, dated 19‑3‑1998, passed by the learned Senior Civil Judge, Karachi (East) and allowed the application filed by the respondent under Order 39, Rules 1 and 2, C.P.C. The applicant feels aggrieved by the order passed in the appeal, which is impugned in the present revision application. It has been contended by the learned counsel for applicant that the matter having gone right up to the apex Court of this Country and thereafter, stood resolved. No proceedings could either have been entertained or for that matter adjudicated by the Court of Civil Judge specially in the light of the Bar contained under section 29 of the Sindh Ordinance IX of 1991. For the purposes of ready reference Article 29 of the Sindh Ordinance is to the following effect;‑‑ "

29. Bar of jurisdiction.‑‑‑ No Court or other authority shall have jurisdiction‑‑‑ (1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Ordinance; or (2) to grant an injunction or stay or make any‑interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Ombudsman." Consequently, the learned counsel for the applicant contended that an appeal, which is provided under the Statute had also been filed by the respondent before the Governor of Sindh. Such appeal is said to have been dismissed by the Governor of Sindh. In compliance of section 32 of Sindt. Ordinance No.l of 1991, this aspect of dismissal of appeal by the Governor of Sindh stands confirmed and fall in line with the submissions made by the learned counsel, vide correspondence, dated 25‑9‑1998 addressed to the office of this Court. The said correspondence is also accompanied with an order of rejection by the Governor of Sindh. The learned counsel further submitted that the order of the Ombudsman had been totally disregarded and once such an order had been passed and once finality had been attained in respect of the said order, a suit in relation to the same controversy would be barred by law and, therefore, the learned . 1st Appellate Court ought not to have passed an order, which is impugned in this revision. He further canvassed that the principles for grant of injunction were not satisfied so as to warrant an order of a nature that has been passed by the Appellate Court. The said order was canvassed to operate in deprivation to the applicant in respect of his properties, which, according to the learned counsel, defeats the principles of natural justice, as well as mandate of the Constitution. Having considered the submissions made by the learned counsel and having ascertained that the orders passed by the Honourable Ombudsman attained finality. Having further examined the aspect that the controversy in issue had attained finality at the level of the apex Court of this country. The orders passed by the Appellate Court in terms of granting an injunction was not warranted by law. ) 1,~ ‑ Keeping in view the findings arrived at by the Honourable Ombudsman in respect of the respondent No. 1, the Appellate Court ought to have been careful, especially when the same was being resisted by the applicants on the strength of the orders firstly passed by the Honourable Ombudsman Sindh, then passed by a Division Bench of this Court headed by the Chief Justice followed by an order of the Supreme Court of Pakistan as well as rejection of an appeal against the order of the Honourable Ombudsman by the Governor of Sindh. These proceedings appear to be nothing short of but an instrument of black mail so as to subject the applicant to harassment in terms of deprivation of their property. Having said as much, the present revision application succeeds. The impugned order passed by the Appellate Court is set aside. At this stage, the learned counsel for the applicant contends that in view of the order passed, the suit, which has been initiated may also be ordered to be dismissed. I would be reluctant to dismiss the said suit in the present proceedings. It will, however, be open to the learned counsel to place this order before the learned Trial Court seeking such dismissal as is being sought herein. The learned Trial Court is expected to deal with such application at an appropriate time in accordance with law. This disposes of the aforesaid revision application alongwith the listed application. Q.M.H./M.A.K./S‑189/K Revision accepted