GHULAM MUHAMMAD vs Maj. Dr. WAHEED RIND and others

ORDER

' ZIA PERWEZ, J.--- Applicant is aggrieved by the order dated 14-12-2006 of IInd Additional Sessions Judge, Malir in Criminal. Complaint No,36 of 2006, whereby after taking cognizance of the offence, the complaint was dismissed summarily without recording of evidence.

2. The applicant claims to be the owner of a Plot of land bearing No,16, Row No,A, Block No,II, Area 146.66 Sq. Yds. Situated at Sindh Jamait Cooperative Housing Society, Karachi. In support of hiS contention, the applicant has placed on record the sub-lease dated 21-9-1995, in respect of above mentioned plot along with Resolution of - Sindh Jamait Cooperative Housing Society Ltd., dated 26-7-2005, Deh Form dated 7-7-1.988, Site Plan, two receipts, dated 15-6-2006, Allotment Order, dated 2-11-1995, Possession Order of commercial plot dated 30-4-1992, seven receipts issued by Sindhi Jamait Cooperative Housing Society Ltd., dated 3-2-1992, 28-7-1992, 8-10-1995, 10-10-1995 , 5-12-1995, 20-11-1998, respectively, certificate dated 21-5-2006, receipt dated 28-5-2006, report dated 23-7-2006. It appears that before approaching the Court of Additional District Judge, applicant also instituted Suit, bearing No,148 of 2006 in the Court of 1st Senior Civil Judge, Malir, however, suit was withdrawn with permission to file afresh on the ground disclosed in the application. No subsequent suit was filed. Proceedings were initiated by way of complaint under sections, 3, 7 and 8 of the Illegal Dispossession Act, 2005. Pre-admission notice was issued to the parties. Mr. Chandio Munir Ahmed, Advocate appeared for respondents Nos.1 and 2.

3. Mr. Mehmood A. Qureshi, learned counsel for the applicant has contended that the applicant is owner of the property. He has the title documents. He was placed into possession by the Society under valid Possession Order on payment of price of the land together with lease of the property in his favour. That the applicant has been illegally deprived of his possession attracting the provisions of sections 3, 7 and 8 of the Illegal Dispossession Act, 2005. That simple institution of the suit and subsequent withdrawal does not debar the applicant from pursuing his remedy under the provisions of Illegal Dispossession. Act, 2005. That the respondents are encroachers over the property having no title to the same.

4. Mr. Qazi Wali Muhammad, learned counsel for the State, has contended that after institution of the suit and withdrawal of the same from Civil Court, the applicant is not entitled to pursue his remedy before criminal Court in pursuance to the provisions of sections 3, 7 and 8 of the Illegal Dispossession ,Act, 2005. That the applicant having approached the trial Court without institution of fresh civil suit is not entitled to any remedy AP the order does not call for any interference.

5. Mr. Chandio Munir Ahmed, learned counsel for the respondents Nos.1 and 2, has candidly conceded that the respondents have no title to the property of the applicant, however, he claims that the respondents have some other property in an other survey numbers. As the learned counsel have advanced their arguments in detail. The only point of law involved in the case is maintainability of the application, which is being disposed of. Suit No,148 of 2006, seeking declaration and injunction was withdrawn with the permission to file afresh suit. Such withdrawal with permission does not create any legal bar against the applicant from pursuing remedy available to him under the law. Applicant has placed on record all the documents of his title together with receipts of payment. Learned trial Court instead to proceed according to law after taking cognizance of the matter, disposed of the same merely on the basis that civil suit was filed and withdrawn. To arrive at the finding on this point there should be some substance to show that the applicant is barred by any law from pursuing his remedy before the Court of Sessions Judge under the provisions of Illegal Dispossession Act, 2005. As no bar is attracted, the impugned order passed by the learned trial Court after taking cognizance of the matter without any legal bar against the applicant cannot be sustained. Accordingly, order, dated 14-12-2006 is set aside.

Learned trial Court is directed to proceed according to law and dispose of the same expeditiously.

' Revision application is disposed of.