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Revision. Application No. 155 of 1981, decided on 11th April, 1983

‑‑ O. XXXIX, rr. 1 & 2 and S. 115‑Issuance of ex parte stay order and immediate ex parte recall thereof‑High Court's inter ference in ‑Plaintiff's application for interim injunction dismissed and appeal also failed‑On another application of plaintiff Civil Judge after some time passing ex parte status quo order‑On respondent's application, status quo order immediately vacated ex parte next day mainly on ground of applicant's fraud, mis representation and non‑disclosure of dismissal of earlier application for grant of interim injunction‑Appeal against order of recall dismissed‑Civil Judge nor even looking before passing status qua order into earlier orders ‑ Situation entirely changed at this stage due to passage of time and subsequent events‑Held, proce dure adopted by Civil Judge not proper‑‑Held further, High Court not inclined to interfere with such orders passed by Courts below.

S. Zamirul Haq for Applicant.

Hussain Shaikh for Respondents,

Date of hearing : 11th April, 1983.

The applicant claims to be the owner of property No. 2313 (AK7A 20‑11) situated at Nawabad, Lyari Quarters, Karachi portion of which was rented out to one Sattar Shakoor. It seems that the applicant had filed ejectment application, which was granted. Thereafter, before execution proceedings could be completed, the portion of property in possession of Sattar Shakoor, who has since died, was transferred in the name of his widow respondent No. 2. The applicant, therefore, filed Suit No. 1007 of 1980 against the respondent for cancellation of the lease‑deed granted by the K. M. C. Alongwith the suit the applicant filed an application under Order XXXIX, rules 1 & 2, C.P.C. praying that respondent No. 1 may be restrained from utilising or taking any advantage of lease‑deed dated 5th August, 1980 by way of transfer, mortgage, lease or assignment of the property. This application was dismissed and appeal filed against that order also failed. After some time the applicant made another application under Order XXXIX, rules 1 and 2 praying the respondent No. 1 may be restrained from removing, demolishing or reconstructing the house on the disputed plot of land. 7 he learned Civil Judge passed an ex parte order on 3rd March, 1981 in the following terms :‑

"The learned Advocate has argued that this is a matter of urgency and defendants are demolishing the house, in question. Status quo, till next date. Notice to the defendant. Hearing 12th March, 1981."

It seems that on 4th March, 1981 respondent No. 1 made an application under section 151 for recalling the order, passed on 3rd March, 1981 mainly on the ground that it was obtained by misrepresentation and fraud. The learned Civil Judge again passed an ex pane order on 4th March, 1981 by which he recalled his order dated 3rd March, 1981.

The order of status quo was thus vacated without any notice to the applicant. The applicant filed an appeal against that order which was dis missed.

Mr: Syed Zamirul Haq, the learned counsel for the applicant has contended that the order is bad in law, as it was passed. without any notice of the applicant. The entire history of this litigation presents a sorry state of affairs and orders seem to have been passed without properly applying the mind. The learned Civil Judge had passed the order of status quo and then immediately vacated it on the next day. Both the orders were passed without any notice to the other side.

To start with if the matter was urgent and the horned Civil Judge thought it fit to grant relief then on application made by respondent No. 1 even if be would have come to the conclusion that it was obtained by fraud or misrepresentation, the proper course was to issue notice to the other side for the next date, and after that the order dated 3rd March, 1981 may have been modified. This order had directed respon dent No. 1 to maintain status quo which could not have caused such harm which would have resulted in complete disaster to respondent No. 1. On the other hand, the applicant instead of contesting the matter, at an interim stage, rushed to the appellate Court and then to this Court which was nothing, but an exercise in futility. The appellant should have pressed his application for early hearing and after it was finally disposed of, may have taken further proceedings. At this stage, I may observe that the procedure adopted by the learned Civil Judge was not proper. The main ground taken by the learned Civil Judge, is that the applicant had obtained order dated 3rd March, 1981, by mispresentation, fraud and without disclosing the order of the learned Additional District Judge, by which previous application for grant of injunction had been dismissed.

Mr. Zamirul Haq, the learned counsel has contended that this appli cation was filed on completely different grounds. Whatever may be the merits of the application in which I do not want to enter, the fact remains that the applicant had concealed these facts or at least he had not dis closed it in clear terms or even referred in the affidavit. Although these facts would have been available on record the learned Civil Judge before passing the first order did not even look into the order passed earlier or the appellant order that was passed afterwards. It seems that during this period, the respondent has completed the building, and therefore, Mr. Sheikh the learned counsel has contended that this application has become infructuous. This argument touches on the merits of the appli cation, and therefore, I am not inclined to consider it at this stage. As the very purpose of the order has frustrated' and as the order vaca ting the stay was an interim order, and due to the passage of time, and subsequent events the situation has entirely changed, I am not inclined to interfere with the orders passed by 'the Courts below in the exercise of the Revisional Jurisdiction.

I dismiss this Revision, and direct the learned Civil Judge to dispose of the application within one month.

K. M. A. Revision dismissed.

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