SHAMIM AFZA Versus FRIENDS MUTUAL CO-OPERATIVE HOUSING SOCIETY (REGD.) , Kh. Shaukat Ali, Advocate Supreme Court & Nemo

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.-- -Leave to appeal has been sought; against the acceptance by the High Court, of a Constitutional Petition filed by a Housing Society (respondent No.l).

2. The case has a chequered history. Suffice it to note at this stage that disputes having arisen with regard to the purchase of plot in dispute, the matter had also gone for arbitration. Ultimately orders were passed on the basis of findings of fraud, for criminal prosecution and other action as a consequence of the said findings. In pursuance thereof notices having been issued, the said Society, prima facie, tried to stifle the necessary proceedings and avoid consequences, thereof by challenging the issuance of notice; and for that purpose, Constitutional petition was filed in the High Court.

3. We have heard both the learned counsel at some length; Firstly, prima facie, on merits it is open to serious question; whether Writ could have been issued in favour of respondent No.l. The benefit which has indirectly accrued to other contesting respondents for the same reason, might be unjustified. Not only this another serious question would arise; whether, the entire process of law could have been stifled by challenge to the notice; and whether, the said processes a should not have been permitted to reach their logical conclusions. Another question yet is regarding the plea of mala fide approach to the High Court in its Constitutional jurisdiction. It should have been given due importance. And a further question: whether the relief to the respondents' side should not have been denied in exercise of discretion by the High Court in the circumstances of this case, would arise. Accordingly, for all these reasons and in order to examine the points raised in this petition together with the related questions, we grant leave to appeal.

4. Security Rs.5,000.

5. The appeal shall be prepared on present record with direction to the parties to file all those documents which would be necessary for disposal of the appeal.

6. Stay to continue.

7. Before closing this order, it needs to be noticed that this case having been heard yesterday notice was issued to respondent No.5 on the address given by the Writ petitioner (respondent No.l) in the High Court. Following report has been received with regard to the said notice:--

8. When faced with the above situation and a question; as to whether, the Society was acting bona fide when giving the address of respondent No.5 regarding which the above report has been received, the learned counsel for the respondents/Society has answered that he was not responsible for giving the wrong address in the Writ Petition. This answer has been given on a wrong assumption as if the question was with regard to the counsel who drafted the Writ Petition. He was also not responsible in this behalf; as presumably he must have done so at the behest and asking of respondent No.1 who was the Writ petitioner. The explanation, therefore, in this behalf should be on behalf of the said respondent. The learned counsel showed his inability to do so.

9. AA./S-488/S ?????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.