Find a Lawyer

Criminal Reference No. 160 of 1974, decided on 12^th November 1976. Criminal

‑‑‑ S. 133 Read with S. 561‑A‑Quashnient of proceedings Dispute over vacation of building existing between landlady and tenant for a long time‑Magistrate on application of landlady under S. I33 Cr. P. C. proceeding ex parte and ordering demolition of disputed building, without affording any opportunity to tenant of showing cause against proposed order‑Proceedings under S. 133, Cr. P. C., held, not intended to settle private disputes between parties‑Order set aside, in circumstances.

Nooruddin Surki for Appellant.

Makhdum Sharif for Respondent No. 1.

Rustam J. E. Kaikabad for Respondent No. 2 .

Date of hearing : 3rd November 1976

This is a reference by the with Additional. Sessions Judge, Karachi for quashment of proceedings under section 133, Cr. P. C. and the order dated 28th August, 1974 passed by S. D. M. City, Karachi.

2. The facts in brief are that one Mst. Nazeer Begum resident of Napier Road, Karachi made an application to Deputy Superintendent police, Eidgah that she was owner of premises on Napier Road. That one tenant Abdul Aziz was residing in her building and that he should be made to vacate the premises to enable her to demolish and reconstruct the building. The D. S. P. thereafter sent a written report in the Court of S. D. M. Old Town, Karachi under section 133, Cr. P. C. stating that one Mst. Nazeer Begun had made an application against Abdul Aziz that during enquiry he found the building to be old and orders for the demolition of the building may accordingly be passed under section 133, Cr. P. C. The learned S. D. M, after hearing the arguments of the Advocate for Nazeer Begum passed an order under section 133, Cr. P. C. that the said building be demolished with immedi ate effect to safeguard the life of human beings.

3. It has been argued on behalf of respondent Abdul Aziz that he was transferee of the second floor of that building and he had been residing there for the last 18 years. That these proceedings had been instituted to evict the said Abdul Aziz in a summary manner without allowing him any opportunity to be heard. It has been admitted in the application of Mst. Nazeer Begum that Abdul Aziz was her tenant. It has also been admitted that there was a dispute between her and Abdul Aziz in respect of vacating the said building. This dispute, it appears, is of long standing. There was neither any emergency nor urgency in the matter. The proper course for the parties should leave been to approach the civil Court. Proceedings under section 133, Cr. P. C. are not intended to settle private disputes between the parties. The magistrates should be slow to act when it comes to their notice that the proceedings are taken just to circumvent or avoid civil litigation.

4. In the present case although the original application was made against respondent Abdul Aziz, he was not even heard and no notice was issued to him. On the other hand arguments of the Advocate for Nazeer Begum were heard and the final order was passed by the Learned S. D. M. The learned S. D. M. ought to have passed a conditional order and the same should have been served on the persons claiming any right or interest in the said building opportunity should have been given to respondent Abdul Aziz to show, cause against the proposed demolition of the said building and thereafter the learned S. D. M. should have recorded evidence before passing the final order. The impugned order is accordingly set aside and fresh enquiry may be conduct ed after notice to respondent Abdul Aziz.

3. They reference is accepted accordingly.

Reference accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.