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Constitutional Petition No. D-300 of 1985, decided on 24th February, 1987.

---S.145--Constitution of Pakis tan (1973),Art.199-Dispute as to possession of property--Constitutional jurisdiction, exercise of Nazir of Civil Court, held, could not seal disputed premises in absence of any specific order of Court in that respect--Dispute between parties being about possession over disputed property, High Court with consent of parties without any comment on merits in respect of possession, directed parties to seek remedy before Civil Court.

Khawaja Sharful Islam for Petitioner.

S. Zamirul Hassan and Asad Ali Bilgrami for Respondents.

Wajihuddin Ahmed A.-G. for the State.

By consent of the learned counsel for the petitioner and respondent and with the assistance of Mr. Wajihuddin Ahmed A.-G. Sind we are disposing of this application as well as the whole petition.

The shop is now in possession of the petitioner in fact in pursuance of the order passed on 18-9-1985. It would be appropriate that the whole matter of right to possession should be decided by the trial Court. The parties do not agree about the interpretation of the order of 18-9-1985. It is not necessary to interpret the same now. Fact is that the petition has been concluded by the handing over the shop to the petitioner and inventories of the goods having been made by the Nazir of the Court. The parties can make use of the inventories according to their submissions. It is not appropriate now that the possession of the shop should again be disturbed at the High Court level, but it should be left to the Civil Court to pass such orders as may be just and proper.

The private respondents claimed to have been in possession of the said shop on 11-5-1984 when it was alleged to have been forcibly taken away by the petitioner and the respondents filed FIR in respect of the same. On the other hand, the petitioner's contention was that he was in possession of the shop in his own right and he had in fact filed suit for injunction against the respondents restraining them from interfering with his possession on 12-5-1984 and he was illegally deprived of the possession of the shop by the Nazir of the Civil Court when he sealed the said shop without the order of the Civil Judge on 14-6-1984. It is therefore, obvious that admittedly the petitioner was in actual possession of the shop, whether as a trespasser or in his own right, on 12-5-1985 and incidentally possession of the shop is again restored to the position which had prevailed till the Nazir of the Civil Court sealed the same after taking the key from petitioner. The question of possession should now be determined by the Civil Court after examining the evidence of the parties. This petition has now become in fructuous to the extent that the possession of the shop has already been delivered to the petitioner. In fact the petition stood automatically allowed in effect.

The learned Advocate-General has correctly taken the position that the Nazir of the Civil Court could not have sealed the premises as there was no specific order of the Court. Therefore, this petition is disposed of as having served its purpose without any comment on A the merits of the right of possession of the shop which we are leaving with the consent of both the parties, for the decision of the trial Court. We understand two suits of the parties have been consolidated together and they should now proceed and be disposed) of at any early date.

The respondent's counsel is worried about the goods of the shop being wasted or fittered by the petitioner. Since we are ending the controversy in the High Court and directing the parties to seek their remedy before the Civil Court. It will be open to the respondent to move the Civil Court for an immediate relief as may be appropriate in the circumstances for the respondents to claim. It is hereby made clear with the consent of Mr. Bilgrami and Mr. Khawaja that the order passed by this Court on 18-9-1985 will not be treated as an order on the merits in respect of the possession of the shop and the Civil Judge would be at liberty to view the contentions of the parties independently of this order. The result is that this Misc. Application No.2059/85 as well as this Constitutional Petition are disposed of in terms of the above order and with the clear consent of the two learned counsel of the above parties.

H.B.T. /Q-7/K Order accordingly.

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