2009 PLP 1064 (MLD)

Mr. Abdul Wajid Wyne Advocate undertakes to file power on behalf of respondent. Let him do so in the office. Learned counsel for the appellant has pointed out the order, dated 21-4-2008 passed by the then Hon'ble Chief Justice (Mr. Muhammad Afzal Soomro). He has further pointed out that Suit No.1438 of 2007 was filed for cancellation, specific performance, permanent injunction and damages but the plaint was rejected on the ground that the plaintiff did not approach the Karachi Building Control Authority. He further submits that the plaint is rejected on the ground that there is some remedy under the Karachi Building Control Authority Regulation but that approach is not proper as the said Regulation does not say that it is compulsory for the plaintiff to take up the matter to the authority nor, at the moment, there is any committee or sub-committee constituted for such specific purpose while numerous suits are being entertained in the High Court. Perusal of the order it appears that the order lacks on various aspects hence it is ordered that the respondent to maintain status quo in respect of subject property i.e. Plot No.230 measuring 400 sq. yards in the project Garden City situated in Taisar Town Scheme No.45 Karachi till further orders. This is an application moved by the Intervenor (C.M.A. No.1118/08) under Order 1 Rule 10, C.P.C. on the ground that he is one of the purchaser of Garden City plot and has filed his civil suit being No.585 of 2007 in the Court of Vth Senior Civil Judge, Karachi West but the plaint of said suit was rejected by similar order as passed in Suit No.1438 of 2007 by the High Court. Learned counsel submits that it is very strange that the order of the Vth-Senior Civil Judge as well as order of High Court passed in Suit No.1438 of 2007 are similar nature to some extent. Learned counsel states that he has filed Civil Appeal bearing No.13 of 2008 in the Court of VII Additional District Judge, Karachi West but in that appeal the order of Suit No.1438 of 2007 has been filed and the learned Additional District Judge is bent upon to dismiss the appeal without hearing only on the ground that similar order towards rejection of plaint has also been passed by High Court. In such a situation, he states, that the order in the said suit, which is in personam, has to be dealt with in this suit (1438 of 2007) only while it should have no impact on the intervenor and his appeal has to be decided on its own merits without any recourse to the order, dated 21-4-2008 passed in suit No.1438 of 2007. Learned counsel has further pointed out that the case of Ramdas v. Mst. Bernadat (PLD 1998 Karachi 42) relied upon by the Senior Civil Judge as well as High Court is in respect of family matter and that is not applicable. We have gone through both the orders of High Court and Civil Court mentioned above which shows that to some extent the wordings of these order is same, especially the following paras;-- "I have come to the conclusion that a Court must decide at first the issue of jurisdiction and then proceed further .with the case/matter, when Court having no jurisdiction proceeded with matter the entire proceedings would be illegal and without jurisdiction. The Civil Court has the ultimate jurisdiction to examine the legality and illegality in the order passed by the concerned authority after all the remedies provided under the said law...." Learned counsel further submits that he will be satisfied and will not press the application mentioned at Serial Nos. No.1 to 3, if simple direction shall be passed to the learned Additional District Judge, Karachi West, that he should dispose of his appeal according to the merit and its proper hearing. In the light of above and keeping in view that the order of the learned single Judge, dated 21-4-2008 passed in Suit No. 1438 of 2007 is taken up by this Court and status quo has been ordered, therefore, the learned Additional District Judge, Karachi West to deal with the appeal of the intervenor bearing No.13 of 2008 in accordance with law strictly on merit. After the said observations, there is no need to retain listed application mentioned at Serial Nos. 1 to 3, which with the consent of the learned counsel for the Intervenor are disposed of 4 and

5. Adjourned to 18-9-2008. H.B.T:/S-63/K Order accordingly.