2021 PLP 1345 (CLC)

This appeal is directed against order dated 16.08.2018 passed by the learned single Judge in the appellant's Suit No.1468/2018 whereby C.M.A. No.11531/2018 filed in the said Suit by defendant No.5 / respondent No.5 containing the following prayer was granted : "It is respectfully prayed on behalf of the Defendant No.5 above-named that this Honorable Court may be pleased to appoint the Nazir as Commissioner for Inspection at the Plaintiff's Office situated in the premises of Taj ul Masajid Mosque, Plot No.ST-13, Sector-14/B, Bufferzone, Karachi in order to ascertain the availability/existence of record of M/s Zaheen Coop. Housing Society Ltd., Karachi including factum of Nomination deed executed by Founder Chairman, details of his shares left in plaintiff's society and relevant Minutes book etc and after preparation of inventory/list submit report before the Honorable Court. It is further prayed that the Nazir may be directed to carry out surprise visit without notice. Prayed accordingly." It was urged on behalf of the appellant-society that the application should not have been considered without notice and without providing opportunity of hearing to the appellant. It was further urged that the appellant has been seriously prejudiced as it has been condemned unheard. On the other hand, it was contended by learned counsel for respondent No.5 that the impugned order is fully justified in the facts and circumstances of the case as the appellant has obtained an ad-interim order in its Suit against inquiry by suppressing material facts relating to the notices issued to it by the competent authority for production of documents mentioned in the above application. It was further contended that the relevant record, which is material for the just and proper disposal of this Suit, has been deliberately concealed by the plaintiff. According to him, except for passing the impugned order, there was no other way to bring the relevant information and documents on record. Regarding passing of the impugned order without notice to the appellant, learned counsel relied upon Syed Ali Gohar Shah v. Province of Sindh and others, 2004 CLC 1875, as well as various orders for inspection passed by this Court in other cases without notice to the other side. Through the impugned order, the above application was allowed without notice to the plaintiff / appellant by observing that the application was primarily for site inspection, preparation of inventory and obtaining record. Perusal of the application and the affidavit filed in support thereof shows that specific allegations were made therein that the original and genuine record of the appellant-society has been concealed despite repeated directives of statutory authorities and the same is not available in the office, and that the said record has either been removed or has been tempered with. It is, therefore, clear that it was not a simple application for inspection or preparation of inventory. In view of the above allegations made by respondent No.5, which were also reiterated by him before the learned single Judge at the time of passing of the impugned order as the same are mentioned therein, the appellant ought to have been granted a reasonable and fair opportunity to defend the said allegations. We are conscious of the fact that applications for inspection etc. are often allowed without notice to the other side. However, we are of the considered view that where the allegations made in an application for inspection are of such nature that they relate directly to the merits or demerits of the case or may affect the case of either of the parties, "due process" as guaranteed by Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, should be followed by granting a fair opportunity to the opposite party to defend such allegations. In view of the above, the impugned order is not sustainable and thus is hereby set aside. The appellant, if it is so advised, may file its reply to C.M.A. No. 11531/2018 in the Suit within fifteen (15) days, whereafter the said application may be decided by the learned single Judge preferably within fifteen (15) days. The appeal and listed application stand disposed of in the above terms with no order as to costs. MH/Z-8/Sindh Appeal allowed.