2001 PLP 1225 (SCMR)

MUNAWAR AHMED MIRZA, J.‑‑‑Facts narrated in the petition briefly mentioned are that respondents filed a Civil Suit No.3257 of 1978 in the Civil Court. Karachi East against the petitioners claiming mandatory and prohibitory injunction regarding plot of land bearing No.GRE‑672‑VII AE 663‑G/1‑A measuring 2230 sq. yards situated in Clayton Road, New Town, Karachi. Plaintiffs/respondents had alleged that petitioners unauthorisedly raised temporary construction in the land constituting passage of their house and infringed their basic right besides affecting value and utility of the property. Suit was contested by the petitioners and objections regarding valuation, maintainability of the suit, bar of limitation and locus standi were raised. Record discloses that amended plaint was placed on record whereafter petitioners also filed detailed written statement on 12th May. 1986. Parties were allowed opportunity of leading evidence. Eventually, learned Civil Judge‑VII, Karachi East dismissed the suit by means of judgment and decree dated 22nd April, 1989. Respondents feeling aggrieved from the above decision preferred Civil Appeal No.59 of 1989 before learned Additional District Judge. Karachi East who eventually by allowing the same vide judgment dated 20th January, 1991 decreed the suit as prayed. Petitioners assailed aforesaid judgment and decree before High Court of Sindh through Civil Revision No. 19 of 1991 which after hearing arguments was ultimately rejected by means of judgment dated 12th September, 1997. The above decisions have now been assailed through present petition for leave to appeal.

2. Mr. Akhlaq Ahmad Siddiqui, learned counsel for the petitioners has raised following contentions for challenging the propriety of impugned judgments:‑‑ (1) Amended plaint was filed by plaintiffs/respondents without prior permission of the Trial Court, therefore, proceedings based on the same have no legal effect. (2) Respondents had no locus standi to file the suit pertaining to disputed area of land comprised of lane which had been under physical occupation of petitioners. (3) Respondents have no right or title in the property and without claiming ownership were not competent to file proceedings for mandatory or prohibitory injunction. (4) The respondents could not file suit without impleadment of official authorities such as KDA and KMC because the controversy relates to 'public street'.

3. Syed Viuzarat Hussain, 'respondent 1‑e appearing for himself and other family members opposed the petition asserting that petitioners had encroached upon the lane and blocked the passage leading to their house by raising unauthorised construction. He maintained that impugned judgments were based on sound reasonings and inspection note of Additional District Judge‑cum-Appellate Authority; validity whereof has not been questioned.

4. We have carefully perused the record and considered above submissions. Firstly, it may be seen that question with regard to filing of amended plaint without prior permission of the Court has not been specifically taken while filing written statement on 12th May, 1986, therefore, petitioners are precluded from raising such plea at this belated stage. Similarly, objection regarding non‑impleadment of necessary parties has been' taken for the first time before this Court which under the established principle of law cannot be allowed. Learned Additional District Judge had personally inspected the site in presence of the parties. Correctness of inspection note which formed basis for reversing the judgment and decree of trial Court has not been challenged at any stage. Therefore, both on legal and factual sides, the appellate and revisional forums have appropriately exercised jurisdiction vested in them. There is hardly any substantial reason appearing from the record which may warrant interference in the concurrent findings of impugned judgments. For the above reasons, we find no substance in the petition. Leave is accordingly refused. Q.M.H./M.A.K./I‑23/S??????????????????????????????????????????????????????????? Petition dismissed.