Find a Lawyer

Constitutional Petition No.766 of 1977, decided on 12^th August, 1986.

---Art.199--Sind Public Property (Removal of Encroachments) Ordinance (V of 1975)--Suit of petitioners under Ordinance dismissed by Deputy Commissioner for non-prosecution Common counsel for three suits including that of petitioners on date of hearing making a joint application for adjournment because he had to proceed to Sukkur to attend another case but the Tribunal (Deputy Commissioner Karachi) disallowing application--High Court on petitions of parties of other two suits having remanded their cases for fresh decision, Tribunal setting aside notices of K.M.C. for removal of encroachments served on them--Petitioners' counsel submitting that by unreasonably disallowing application for adjournment by Tribunal, petitioners had been deprived of opportunity of leading their evidence Contentions raised by petitioners not controverted by respondent in their counter-affidavits--Absence of counsel of petitioners on date of hearing, held, was justified in circumstances of case and petitioners should have been allowed adjournment and since it was not, granted, a prejudice was caused to them and they did not have fair opportunity of leading their evidence--Similar other persons having been granted opportunity of hearing, it was not reasonable to make a distinction between petitioners and those persons having similar rights--Petition allowed and case remanded back for decision on merits.

Ghulam Ghous for Petitioners.

Muhammad Muslim Naqvi and M.I. Memon, Addl. A.G. for Respondents.

Date of hearing: 12th August, 1986.

--The petitioner have left aggrieved against the order of dismissal of their suit passed by the Deputy Commissioner, Karachi West for non prosecution on 13-5-1976. The said suit had been filed by the petitioners challenging the not, served by M.K.C. upon Niazi Nursery on 15-9-1975. The petition claimed to be the successors of one Suleman Khan who was allotted 410 square yards of land in Lalu Khait (now Liaquatabad) Karachi on 8-1-1964 by K.M.C. and thereafter he made. construction over the said plot after seeking permission from the K.D.A., K.M.C. and the Deputy Commissioner. The petitioners also claimed to have paid taxes to the K.M.C. as well as to the Excise & Taxation Department and they have filed receipts of those payments.

12. The notice of 15-9-1975 was issued on the basis of encroachment and it was issued under Sind Public Property (Removal of Encroachments) Ordinance, 1975. The encroachment was ordered to be removed. The petitioners filed a suit on 20th November, 1975. The suit was dismissed by the Deputy Commissioner Karachi West on 13-5-1976 on the ground that the petitioners had no evidence to produce in support of their suit and in spite of several adjournments having been granted to them, they and their advocate were absent.

3. On the day when the suit of the petitioners was dismissed, there were three more suits pending before the same officer of a similar nature in which the same advocate was appearing. Some of the parties in the other suits had filed a petition in the High Court being No.372 of 1976 which was allowed by consent on 7-7-1976 by Division Bench of this Court and the matter was remanded for decision by the Tribunal. The Tribunal has thereafter proceeded to decide the suits of those persons namely Kubra Begum and Shaishta Begum and has set aside the notices of the K.M.C. by his order dated 17-8-1976.

4. Mr. Ghulam Ghous has submitted that the petitioners have been deprived of the opportunity to lead their evidence because there was a common counsel for suits Nos.11, 14 and 15 of 1975 before the same respondent No.2 and common evidence was required to be given. Witnesses had been summoned for 5-5-1976 in the matter of Mst. Kubra Begum and the same witnesses could have been examined in the case of the petitioners but the Tribunal did not examine them and adjourned the matter to 13-5-1976. On 13-5-1976 the petitioners' counsel had gone to Sukkur and had submitted a joint application in all the suits for adjournment because he had to proceed to Sukkur to attend another case but the Tribunal respondent No.2 unreasonably disallowed the said application and therefore the petitioners have been deprived of a fair opportunity of hearing. The contentions raised by the petitioners in paragraphs 18 and 19 have not been controverted as such by the respondents in their counter--affidavits except to the extent that the petitioners did not produce their documents. In these circumstances it appears to us that the absence of the counsel of the petitioners on 13-5-1976 was justified as the counsel had gone to appear at Sukkur and the petitioners should have been allowed adjournment and since it was not granted to them, therefore a prejudice was caused to them and they did not have fair opportunity of leading their evidence. Moreover similar other persons against whom the same order had been passed by the respondent No.2 have been granted an opportunity by the respondent No.1 to the extent that their counsel had consented to the granting of petition No.372 of 1976 and the cases of those persons in that petition namely Kubra Begum and others were sent back for decision on merits. It does not appear to be reasonable to us as to why the respondent No.1 should make a distinction between two persons having similar rights.

Consequently we allow this petition and remand the case back to the respondent No.2 for decision of the application/suit of the petitioners on merits.

4. Mr. Muslim Naqvi has submitted that a notice under M.L.O. 202 had been issued against petitioner No.10. However the other petitioners have not been issued any such notice and therefore they cannot be burdened with the responsibility of petitioner No.10 in the matter. Mr. Muslim Naqvi has expressed his apprehension that the petitioners may not misuse this order by making constructions over the area which has been demolished. The petitioners' counsel ha made a statement that no such effort will be made by the petitioners. In view of this statement at the bar it is clear that the status quo should be maintained till the hearing of the suit of the petitioners by the Tribunal: The petition is therefore allowed in the above terms.

S. Q. /I-8/K Petition allowed.

Find a Lawyer Near You

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