2002 PLP 468 (CLC)

Area of courtyard = 54.6 sq. yards Total area 216.3 sq. yards or 180.84.sq. meters

11. The case set up by the defendants was that in order to carry out the construction the defendant No.2 through her son defendant No.

1. Khalid Yasin intended to demolish old structure. However, before demolition of her tenement No.G‑13, plaintiff was contacted who was unauthorized in possession of small portion of tenement No. G‑

13. After lot of persuasion and on defendants' proposal to bear the costs, the plaintiff agreed for the demolition and removal of unauthorized construction on the tenement No.G‑13 on the condition that an area of 1 foot width occupied by him on which beam supporting his hotel's roof is erected will be left untouched, for which the defendant will not charge any amount. The parties as such agreed and consequently, the said unauthorized portion was vacated by the plaintiff and the same was removed/demolished in the presence of the plaintiff. However, the unauthorized construction of one foot width on the defendants' land was left untouched. It was further pleaded that the plaintiff became greedy and started demanding exaggerated amount as compensation. On refusal of the defendants to meet his demand the plaintiff filed the present suit. The site plan on which he has relied upon is not authenticated and hand made by him having no legal sanctity only to camouflage the factual position, in order to misguide the Court to obtain prohibitory order and has twisted the facts. The extension of threats to the plaintiff for demolition of the back portion by force or with the help or influence of his brother was also denied. It was pleaded that the plaintiff, in order to exploit the position of the defendant No.2's son, who is Deputy Inspector‑General of Police and posted at Mirpur Khas, has given false news item in various newspapers levelling false and frivolous allegation in order to harass the defendant and to damage the reputation of her son and to cause embarrassment. They have denied site visit on 2‑12‑1998 or any other day to threaten the plaintiff in order to remove the structure, which was already removed. On 29‑11‑1998 as such there was no question of advancing the threats to the plaintiff.

12. The plaintiff, in support of his applications, C.M.A. No.11262, of 1998 and C.M.A. No.11263 of 1998 injunction application and contempt application, have filed separate affidavits with same averments, wherein it has been asserted that by order, dated 4‑12‑1998, the defendants Nos. 1 and 2 were restrained by this Court in the above suit from damaging his hotel premises. The defendant avoided the service of the interim injunction order through the bailiff. However, the defendant was intimated of the said order on the same day viz. 4‑12‑1998. Thereafter, on 5‑12‑1998 at about 7‑00 p.m. the defendant No.1 accompanied by gang of hired criminal trespassed into his hotel and started demolishing the back portion of his hotel forcibly by criminal intimidation to him and his employees. He rushed to make complaint against the defendant No.1 and reported the matte: to Jackson Police Station, but police took no action being malafidely in collusion with defendant No.1 under the influence of his brother, the D.I.‑G. Police. Since 6‑12‑1998 being Sunday, he made an application under Order 26, Rule 9, C.P.C, on 7‑12‑1998, for urgent inspection of the said demolition work which, was being carried out by defendant No. 1 The Nazir was directed to make site inspection on the same day. The Nazir made the inspection and found demolition work was still continuing by the defendants Nos. 1 and

2. It was maintained that even after the said inspection and full knowledge of injunction order, dated 4‑12‑1998, the defendants Nos. 1 and 2 continued the demolition work of his hotel till 9‑12‑1998 and have started cleaning the debris of such demolished portion of his hotel for the purpose of construction of building on the back portion of his hotel demolished by them.

13. The defendants also filed separate counter‑affidavit to the applications referred to above with the same facts and denied the allegations and maintained that after the parties reached to a consensus whereby the plaintiff was permitted to occupy one foot space of the defendants' land, the unauthorized temporary construction was removed on 29‑11‑1998 in presence of the plaintiff, however, the plaintiff, thereafter, became greedy by asking for exaggerated amount of compensation and on refusal, filed the present suit. The plaintiff obtained the order from the Court on 4‑12‑1998 but deliberately no attempt was made to get the process issued/served on the defendants till 7-12‑1998, on which date the plaintiff moved an urgent application for inspection of the premises by levelling false allegations and got premises inspected. It was maintained that on 7‑12‑1998, neither any work of construction nor removal of waste material was carried out by the defendants pertaining to the property which was unauthorizedly occupied by the plaintiff. There were other old tenements on her plot as well which were also demolished and some remaining work pertaining to that portion was in process. They have also maintained that neither the plaintiff intimated them about the injunction order on 4‑12‑1998 nor with the help of so‑called hired criminal gang, the defendant trespassed to the hotel of plaintiff on 5‑12‑1998 or forcibly demolished any portion. The collusion of the Jackson Police Station was also denied, on the contrary F.I.R. No.11 of 1999 on 12‑1‑1999 at about 11‑50 a.m. was lodged. The application has been filed with mala fide intention in order to usurp her valuable property. They have also denied that the demolition was carried out on 7‑12‑1998 or the construction work pertaining to the racing of cement block wall or any other work was going on 7‑12‑1998 or thereafter. It was also reiterated that unauthorized construction was removed in the presence and with his consent on 29‑11‑1998. In order to cut short the controversy they have shown their willingness to get the property measured in accordance with the site plan issued by the Settlement Department as to the entitlement of either party iii respect of disputed portion through the concerned authorities of the Settlement Department or the K.P.T. and unconditionally assured to vacate and hand over the, portion of the plot to plaintiff if the report of the authorities favours him or his legal entitlement is found.

14. The allegation of violation of the Court orders was also denied and they maintained that it is absolutely false, frivolous and baseless that they have disregarded the order of this Court or has committed the unlawful breach of interim order. It was reiterated that the order, dated 4‑12‑1998 was never communicated to them. After the inspection by the Nazir, they came to know as to the institution of this suit and made appearance through their counsel on 9‑12‑1998 obtained the copies from the bailiff on 10‑12‑1998. They further reiterated that they being law abiding citizen and have great respect and regard to the orders of the Court and cannot think of disobeying the order passed by this Court. They maintained that the application has been filed with sole motive and intent to pressurize and harass the defendants to achieve malicious motive.

15. The plaintiff through separate rejoinder denied the removal of the construction with consensus and maintained that it amounts to admission that the demolition was arbitrarily, unilaterally and unauthorizedly.

16. I have heard Mr. K.B. Bhutto, learned counsel for the plaintiff and Mr. Sajjad Ali Shah, learned counsel for the defendants Nos. 1 and 2 as well as Mr. Muhammad Arif Khan, learned counsel for the defendant No.3.

17. At the very outset Mr. K.B. Bhutto, learned counsel for the plaintiff has not pressed the C.M.A. No.10550 of 1998 on the ground that the same has become infructuous and in changed circumstances C.M.A. No. 11262 of 1998, has been filed by the plaintiff, therefore, the C.M.A. No. 10550 of 19.98 is dismissed as not pressed.

18. Mr. K.B. Bhutto, learned counsel for the plaintiff has vehemently contended that the plaintiff is in occupation of the hotel premises bearing Nos.G‑5, 6 and 7 for which he has applied for allotment to the K.P.T. and the matter is under process and contended that the defendants have admitted the demolition, which according to him was illegal and under the influence of Muhammad Yamin Khan, the D.I.‑G., brother of defendant No.1 and son of defendant No.

2. He further contended that the police of the area was under the influence of the defendants and have not come in rescue of the plaintiff and the order passed by this Court was also violated which was brought to the notice of the defendants. He further contended that the question to be determined by the Court is whether the demolition work was carried on after he grant of injunction on 4-12‑1998. He further contended that the defendants plea is that the demolition work was done on (sic) 1998 with the consent of the parties this requires evidence. He vehemently argued that the defendants not only trespassed over the portion of‑the plaintiff but demolished the same under influence of the D.I.‑G., the son of the defendant No.2 and contended that even the F.I.R. was lodged on the intervention of this Court when the writ petition was filed, which was vehemently contradicted by the defendants' counsel, who maintained that the F.I.R. was lodged on the basis of telex and telegram sent by the plaintiff to the various authorities. Petition filed by the plaintiff was dismissed when the registration of F. I. R. was brought to the notice of the Court. Mr. K.B. Bhutto has not controverted these facts on the contrary, Mr. Bhutto conceded that the direct complaint, filed by the plaintiff was dismissed by the learned Magistrate and the revision filed before this Court was also dismissed. The learned counsel for the plaintiff contended that the plaintiff's property has been damaged and the defendants have encroached over the portion if they are not restrained, the plaintiff's interest would be seriously prejudiced, who has established a prima facie case and balance of convenience lies in his favour and a case for grant of injunction is made out restraining the defendants from raising construction over the disputed portion.

19. The plaintiff's case that his tenements size/area is 107 sq. yds. or meter is based on Annexure "H", the sketch. Except the sketch, the document produced by the plaintiff do not contain the area of the plaintiff's tenement. The authenticity of sketch has been challenged by the defendants Nos. 1 and 2 and the counsel for the K. P. T. has also not accepted its authenticity. The learned counsel for the defendants vehemently contended that the defendants are the allottee of G‑8, G‑9, G‑14, G‑11, G‑12 and G‑13 from the Settlement Department and also got allotment of courtyard from K.P.T. thus, the area of tenement allotted to the plaintiff is 214.53 sq. yds. and contended that the defendants allowed the plaintiff to remain in possession of the portion of defendants' land, to the extent of one foot width and the demolition was done much before the filing of the suit. They have also maintained that even the plaintiff has not come to the Court with clean hands. He also maintained that the plaintiff has no right in respect.of the property on the basis of agreement of sale in terms of section 54 of Transfer of Property Act. He contended that the order, dated 4‑12‑1998 was not communicated by the plaintiff purposely though there was urgency and obtained ex parte order of inspection without notice to the defendants only to prejudice the mind of the Court against the defendants. He has also contended that‑even the inspection carried out by the Nazir without notice to the defendant has no value and has to be excluded from the consideration. He further contended that the plaintiff is exploiting the position of Yamin Khan, D.I.‑G. only to gain sympathy and maintained that he had no role in the affairs. He further maintained that though the F.I.R. was registered at the behest of the plaintiff against the brother of sitting D.I.‑G., which was found by Courts below to be false and frivolous. The plaintiff by maligning a reputed officer wants support to his mischievous and greed desire. He contended that it was easy for D.I.‑G. to got cases registered 'against the plaintiff at various police stations of Sindh if the D.I.‑G. would have been of such nature, which is very common to police hierarchy but not a single counter‑F.I.R. or F.I.R. has been lodged against the plaintiff, which is reflective of the fact that the; defendants art knot of the type of persons as the plaintiff tried to depict.

20. The plaintiff's counsel has mainly based his case on the report submitted by Nazir in pursuance of the order passed by this Court on 7‑12‑1998, it would be proper to dispose of the objection taken by the defendants on such report.

21. Before dilating the objections, it would be advantageous to reproduce the provisions of C.P.C. governing the appointment of commissioner for site inspection, which are contained in Rules 9 and 18 of Order 26, C.P.C. Rule 7 of Order 39, apart from Rule 18 of Order 18, C.P.C. more particularly provisions of Rules 9 and 18 of Order 26 and Rules 7, 8 of Order 39, which reads as follows:‑‑ "26(9) Commissions to make local investigation:‑‑‑ In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the (Provincial Government) has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. 26(18) Parties to appear before Commissioner.‑‑‑ (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders. (2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence. 39(7) Detention, preservation, inspection, etc., of subject‑matter of suit.‑‑‑ (1) The Court may, on the application of any party to a suit and on such terms as it thinks fit,‑‑ (a) make an order for the detention, preservation or inspection of any property which is the subject‑matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. (2) The provisions as to execution of process shall apply, mutates mutandis, to persons authorized to enter under this rule. (8) Application for such orders to be after notice.‑‑‑ (1) An application by the plaintiff for an order under Rule 6 or Rule 7 may be made after notice to the defendant at any time after institution of the suit. (2) An application by the defendant for a like order may be made after notice to the plaintiff at any time after appearance."

22. The perusal of the above provisions would show that the Court cannot appoint the Commissioner for inspection without notice to the defendants except in cases where the issuance of notice may frustrate the purpose of the appointment of Commissioner but the Commissioner has JA to execute the commission with notice to the opposite‑party.

23. In the present case, admittedly the defendant was not served with the order dated 4‑12‑1998 even the inspection carried by the Nazir was without notice to the defendants. '

24. The counsel for the defendants has vehemently contended that such a report is to be excluded and cannot be considered. He has referred in this regard two decisions first from Indian jurisdiction of Madras High Court, second of this Court. In Modalvasam Latchan Naidu and another v. Rana Krishna Ranga Rao Bahadur Bobbili Samasthanam AIR 1934 Mad. 548, Madras High Court examined the similar situation and concluded as follows:‑ "The Court granted the petition and issued a warrant to the Commissioner returnable on 3rd August, 1932. The Commissioner completed his inspection on 31st July, 1932 and signed his report on 2nd August, 1932. No notice was given to defendants of this second petition, nor was any notice given to them of the issue of the commission, nor had they any opportunity afforded to them of being present when the Commissioner made his inspection. The whole thing was done behind their backs. It must be remembered' that Rule 10(2), Order 26, C.P.C. makes the report of the 'Commissioner's evidence in the suit. Therefore, it is of importance that the report should not be founded on representations made to the Commissioner or on matters brought to his notice, by one party to the suit alone. Indeed, it is so manifestly improper that one party to a suit should be given a commission and the advantage of a report by the Commissioner without the knowledge of the opposite‑party that I think this alone would be sufficient to justify the interference of a Revision Court. But there is Rule 18, Order 26 which says that when a Commission is issued under this order the Court shall direct that the parties shall appear before the Commissioner in person or by their agents or pleaders. Sub‑rule (2), Rule 18 says that where all or any of the parties do not so appear the Commissioner may proceed in their absence. Rule 18 is mandatory, and is intended to ensure that the parties have notice of the appointment of the Commissioner and that they must attend his investigation. There is no power in the Court to issue an ex parte commission. "

25. In Barkat Ali and another v. Mst. Fatima Bai and 2 others 1995 CLC 1012, the learned Single Bench of this Court observed that the Court can in appropriate cases, where issuance of notice may defeat the very purpose of such application, can order inspection without prior notice of the application of the other side. However, a distinction is to be made between grant of application without notice and inspection to be conducted by the Commissioner appointed for the purpose. If it be conceded that the Court has the powers to grant such application without prior notice to the opposite side under the given circumstances of the case, for example, where the very purpose of inspection may be defeated if the notice is ordered the Commissioner appointed for the purpose of inspection of the property or local investigation, is not absolved from his duty to conduct the inspection only after notifying date and time of the inspection to the parties concerned so that they have reasonable notice.

26. On the basis of above observations, a Commissioner's report in respect of the inspection conducted without reasonable notice specifying the time and date of inspection and prepared in violation of the mandatory provisions is liable to be excluded from consideration. In the present case as observed earlier, the inspection conducted by the Commissioner/Nazir of this Court was without notice to the defendants. The Rule 18 being mandatory and is intended to ensure that the parties have notice of the appointment of the Commissioner and they must attend the, investigation, thus, the inspection without notice to the defendants notifying the time and date of inspection has to be excluded from the consideration. Therefore, I am of the view that the inspection report, dated 7‑12‑1998 cannot be considered for contempt application. Second ground taken for initiation of contempt proceedings is based on verbal notice to defendant of the order, which has been vehemently disputed by the defendants' counsel that order, dated 4‑12‑1998 was not brought to the notice of the defendants. He further contended that the plaintiff with purpose has not brought said order to the notice of the defendants. He further contended that even the verbal assertions cannot be the basis of a contempt proceedings, more particularly, when the criminal proceedings initiated by the defendants on the same facts have been dismissed up to this Court.

27. The defendants' counsel in this regard has referred Syed Ahmad Shah and Feroze Din v. The State and Malik Abdul Aziz PLD 1967 SC 42, wherein the view taken was that mere verbal assertion of rival party is hardly enough to obtain conviction for contempt. The contempt jurisdiction a "short handed" method to punish the contemners must be exercised with circumspection only in extreme cases upon clear proof of a willful disregard. The following observation was made:‑‑ "It is no doubt true that for justifying a committal for breach of a prohibitory order it is not necessary to actually prove service of the order upon the party against whom it has been granted but, we regret, we are unable to accept the contention that any kind of report of such an order will be sufficient to fix the party with notice of such an order. In a proceeding of a criminal or quasi- criminal nature it is a fundamental rule that before a person can be saddled with the penal consequences of a breach of an order he must at least be shown to have had some definite and authentic information of the nature of the order which he is alleged to be violated. What amount of proof will be sufficient to fix a person with such knowledge will of course depend on the facts and circumstances of each case but this much can safely be stated that the mere verbal assertion of a rival party can hardly be regarded as sufficient for this purpose. In our opinion, it would be placing a party in a very difficult position if he is not held to be entitled to insist that the information conveyed should be of an authentic nature which he ought to accept as reliable. Otherwise valuable rights of parties under decrees or orders of Courts may well be defeated by mere oral assertions of any man in the street that the order sought to be executed has been stated by a superior Court. It cannot, therefore, be said that the appellants had acted in any unreasonable manner in refusing to, accept the ipse dixit. of the opposite‑party or in insisting upon the production of authentic proof of the order having been made. It is significant that in this case as soon as the learned Advocate, who appeared to obtain the stay order in the High Court, gave the information that such a stay order had been made and offered to make such an endorsement on the back of the warrant, the appellants immediately stayed their hands and did not proceed any further with the execution. This does not show that they were minded either to deliberately flout the stay order granted by the High Court or to show any contumacious disregard thereof."

28. The inspection report which was conducted without notice to the defendants cannot be basis of an action for contempt as the report was in violation of the mandatory provision of law and has to be excluded from consideration, secondly on verbal assertion, the proceedings cannot be initiated with the background when the plaintiff himself has not made any attempt to get the order, dated 4‑12‑1998 passed by this Court, to be served through bailiff. The plaintiff got the injunctive order served on 8‑12‑1998, after getting the inspection of the site on 7‑12‑1998. Therefore, in my view, the plaintiff has failed to make out the case for initiation of contempt proceeding on alleged violation of order, dated 4‑12‑1998 passed by this Court, therefore, C.M.A. No. 11263 of 1998 is dismissed.

29. Through C. M. A. No. 11262 of 1998, the plaintiff seeks an order restraining the defendants from raising any construction on the portion demolished by them on the ground that the portion is part of G‑5, 6, and

7. The plaintiff has based his case regarding the size of his tenements on sketch Annexure "H", authenticity of which has been disputed by. the defendants. On comparison of Annexure "H" with the plan produced by defendants, prepared by Settlement Department would show that the shape of tenements of G‑5, 6 and 7 is "L" type (Settlement Department sketch produced by the defendants certified copy), whereas, as per sketch Annexure "H" produced by the plaintiff, .his tenements is of stair‑case shape. Here it may also be mentioned that K.P.T. no doubt is the owner of Plot No.74, (Old 4) but the building was divided into various tenements by the Settlement Department after its survey and was demarcated into various tenements as such any admission made by the K.P.T. would not be binding on the defendant No.2 and the sketch prepared by the Settlement Department on the basis of survey of the tenements would be relevant and binding on all the parties, who are claiming through allotment by Settlement Department. The sketch produced by plaintiff cannot be termed to be authenticated on more than one reasons, the same is not in accordance with sketch prepared by Settlement Department. Secondly, it shows Yamin Khan as allottee of tenement 9/74 (in two portions) when Yamin Khan is not an allottee of any portion from Settlement Department or K.P.T. It appears that plaintiff got the same prepared and produced with his application to K.P.T. for allotment showing area of the tenements as 107.28 sq. yds. which is not supported by the plaintiff's own documents.

30. The defendants Nos. 1 and 2 in their counter‑affidavits have stated in clear terms that in case the defendants are found in possession of excess area than the area of the tenement allotted to them and leased by K.P.T. they are ready and willing to vacate the possession. The second inspection was conducted by the Nazir of this Court by order, dated 28‑2‑2000 with notice to the parties and site was inspected by the Nazir which has been objected by the plaintiff on the plea that the Nazir exceeded his authority by conducting the investigation 'by taking the documents. The Nazir has given the measurement of the tenements in possession of the plaintiff and the defendants. According to the Nazir's report, area in possession of the defendants was found to be 214.53 sq. yards, whereas the area of the defendant according to K.P.T. record Annexure "F" is 216.53 sq. yards, less than the area of their allotment. The actual area of the plaintiff tenements G‑5, 6 and 7 has not been brought on record through any authenticated document. According to Nazir's report, the area of plaintiff tenements G‑5, 6 and 7 was found to be 70.75 sq. yards. In view of the defendants undertaking that in case the defendants are found in excess of their area allotted to them, they are ready and willing to vacate the same. The plaintiff has failed to establish the area of his tenements, through authenticated documents, therefore, I am of the view that the plaintiff has failed to make out a case for injunction. In such circumstances, the defendants cannot be restrained, by injunctive order as prayed for, restraining them from raising the construction within the area allotted to her in terms of approved plan. Therefore, the application C.M.A. No.10550 of 1998 is dismissed, however, with no order as to costs.

30. This brings to me to the application for amendment of the plaint which has been opposed by the counsel for the defendants that the amendment sought is based on cause of action subsequent to the filing of the suit and the same cannot be allowed by amendment though plaintiff can bring a suit on subsequent cause of action. In my view, the view taken by the superior Court are well‑settled that to avoid multiplicity of proceedings, to shorten the litigation and to do complete justice between the parties, the. Court can permit the amendment according to the changed circumstances in interest of justice. The amendment can be allowed at any stage of the proceedings, the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Mst. Amina Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220 referred by the learned counsel for the plaintiff supports this view. The amendment sought is based on subsequent happening as alleged by the plaintiff. The relief has also been claimed on that basis, therefore, in my view, in order to avoid the multiplicity of the proceedings, suit is at the stage of issues, amendment sought cannot be refused by directing the plaintiff to file a suit for relief on the cause of action which has accrued subsequent to the filing of the suit, therefore, in my view the amendment sought will not change the nature of the suit. The same is necessary for the determination of the real question. Therefore, the plaintiff is entitled for the amendment of the plaint as detailed in C.M.A. No.2311 of 1998 which is allowed accordingly. Resultantly, the applications C.M.A. No.10550 of 1998, C.M.A. No.11262 of 1998 and C.M.A. No.11263 of 1998 are dismissed, whereas C.M.A. No.2311 of 1999 is allowed. The amended plaint be filed within two weeks. The parties are allowed to bear their own costs. S.A.K./A‑266/K Order accordingly.