MUMTAZ HUSSAIN vs Dr. NASIR KARIM and 2 others
This criminal revision application challenged an order by the Additional Sessions Judge, Karachi-East, which dismissed a direct complaint filed under the Illegal Dispossession Act, 2005. The applicant alleged illegal dispossession from a property, while the respondents contended that the title to the property was already the subject of pending civil litigation. The core legal question was whether criminal proceedings under the Illegal Dispossession Act, 2005, could be initiated when the title to the disputed property is contested in pending civil suits. The Court held that where civil suits regarding the title, declaration, and injunction of the same property are already pending between the parties, the criminal forum under the Illegal Dispossession Act, 2005, cannot be invoked. The ratio is that the Act is not intended to resolve disputed titles or property ownership claims, which must first be adjudicated by a competent civil court. Consequently, the High Court upheld the dismissal of the complaint, finding no illegality in the lower court's refusal to entertain the matter while the civil dispute remained sub judice.
- Can proceedings under the Illegal Dispossession Act 2005 be initiated when the title to the property is the subject of pending civil litigation?
- Is a criminal court required to dismiss a complaint under the Illegal Dispossession Act 2005 if the parties are already litigating the property's title in a civil court?
- Section 435, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
- Section 4, Illegal Dispossession Act 2005
- Section 5, Illegal Dispossession Act 2005
ORDER
1. Granted subject to all just exceptions.
2. This Revision under Section 435/439, Cr.P.C. has been directed against the order dated 23.6.2007, passed by the learned IV Additional Sessions Judge, Karachi-East, in direct Complaint No, 24/2007 (Mumtaz Hussain vs. Dr. Nasir Karim & another), whereby the direct complaint, filed by the applicant under Section 4 of Illegal Dispossession Act, 2005 hereinafter referred to as the "Act, 2005" has been dismissed.
The facts leading rise to the present revision application in brief are that the applicant and his wife are the owners of plot, Bearing No, B-29 & B-30, admeasuring 135 square yards of Survey No, 83, situated in Kehkashan Housing Project, Deh Ding, Tapo Malir, Taluka & District. Karachi, which is legally owned by them. It is further stated in the complaint that the respondents dispossessed the applicant and his wife from their properties, as such they have committed the offence punishable under Section 4 of the Act, 2005. The learned lower Court held inquiry through the SHO in terms of Section 5 of the Act, 2005 and after appraisal of the evidence available on record dismissed the direct Complaint, hence the present Revision.
I have heard Mr. Attaullah Khan, learned counsel for the applicants, and Miss Afsheen Aman, learned counsel for the State.
Mr. Attaullah Khan, learned counsel for the applicant states that the applicant and his wife have been illegally dispossessed by the Respondents No, 1 & 2 and the learned lower Court did not consider the evidence which was available on record and committed illegality while dismissing the complaint filed by the applicant, as such the order passed by the learned lower Court may be set aside and the matter may be remanded for fresh adjudication on merits.
Miss Afsheen Aman, learned counsel for the State, vehemently refuted the arguments advanced by the learned counsel for the applicant and contended that the civil suits in between the parties are pending adjudication before the competent Court, as such the title of the applicant itself is under clouds and unless the title of the applicant is cleared, no proceedings under Act, 2005 may be taken, as such the learned lower Court rightly dismissed the direct Complaint.
I have considered the arguments advanced on behalf of the parties and have gone through the evidence available on record.
Admittedly, Suit No, 826/2006, filed by the applicant against the respondents for injunction is pending adjudication before the Civil Court, wherein the applicants have prayed for perpetual injunction regarding their dispossession from the property in dispute, whereas Respondents No, 1 & 2 have filed Suit No, 1211/2006 against the applicant for declaration, injunction, cancellation And perpetual injunction against the applicant with regard to the same property. It is, therefore, clear that the dispute in between both the parties with regard to same property involved in the present complaint are pending adjudication before the competent Courts wherein both the parties are required to establish their claim by leading evidence pro and contra to their respective claims and unless the titles of the parties are cleared by the Civil Court, the criminal proceedings under the Act, 2005 could not be initiated. The learned lower Court rightly passed the order by holding that the matter is subjudice before the learned Civil Court, as such the proceedings under the Act, 2005 need not to take any cognizance and I do not find any illegality and irregularity to interfere in the findings recorded by the learned lower Court. The Revision Application has, therefore, no substance and is hereby dismissed summarily.