SHAKILA IFTIKHAR Versus MUHAMMAD YAHYA QURESHI
ORDER
MUHAMMAD FAISAL KAMAL ALAM, J.--- This application being C.M.A. No. 6495 of 2016 has been filed by Defendant No. 1 (Muhammad Yahya Qureshi) with the prayer that this Court directs the Plaintiff or tenants to deposit the monthly rents in this Court, in respect of the subject multistoreyed building constructed on Plots Nos.9/18 and 9/18-A, total measuring 80 Square Yards.
1. Mr. Naveed Ahmed Khan, the learned counsel representing the Defendant No.1 (Applicant) argues that eviction proceeding has been successfully culminated upto the Hon'ble apex Court. He has referred to an order of the Hon'ble Supreme Court appended with his application, It is further contended by the Applicant (Defendant No.1) that Plaintiff should start paying the rents or deposit the same with the Nazir of this Court or to handover the possession of the afore referred subject property in terms of the decision of Hon'ble Supreme Court. It is not disputed that the present Defendant No.1, who is real brother of Plaintiff at present has a Sale Deed in respect of the above property in his favour, which is available at Page-109 of the Court file.
2. The above arguments of Defendant No.1 have been seriously controverted by Plaintiffs counsel. He has relied upon an earlier order dated 02.12.2011 of this Court, whereby, an injunctive relief was granted to Plaintiff and the said order has also been referred to in the above decision of Hon'ble apex Court.
3. Mr. Arif Khan, the learned counsel representing the Plaintiff further submits that it is not a simple case of tenancy, but the present case falls within the purview of section 88 of the Trusts Act, 1882 and in this regard he has relied upon the case law mentioned supra.
4. Arguments heard and record perused.
5. Primarily through present suit proceeding, the Plaintiff is also seeking, inter alia, a relief of ostensible (benami) ownership in respect of the subject property. It is an admitted fact that Plaintiff and Defendant No.1 are real sister and brother. Various aspects of this case has been aptly considered and dealt with in the afore-mentioned order of this Court while granting injunction to Plaintiff. No doubt the said order has been passed on the interlocutory application, but the same is still holding the field, which shows that Plaintiff at least has an arguable case for a trial. In the said order of 02.12.2011, this Court has specifically directed that if the Defendant No.1 succeeds in his eviction proceeding then the said Defendant No.1 before invoking the implementation of the same: or institute any execution proceeding before the learned Rent Controller, he should first make an appropriate application in this suit. This portion of order was also reproduced in the decision of Hon'ble Supreme Court (Annexure A/4 with instant Application). This further shows that the dispute is not as simple as it is argued by Defendants' side.
6. A better course would be that proceeding in this matter should be expedited and parties should get the evidence recorded through a Commissioner, instead of making interlocutory application of the nature which has an element of creating complexity and causing delay. Accordingly, the C.M.A. No.6495 of 2016 is dismissed.
MH/S-29/Sindh Application dismissed.
ANNEXURE
Case-law cited by the Plaintiff's counsel.
PLD 1969 Supreme Court Page-342
(Bejoy Ranjan Kanungo and others v. Khan Bahadur Khalifur Rahman)
PLD 1963 Dacca Page-269
(K.B. Khalilur Rahman v. Bijoy Ranjan Kanungo and others
Case-law relied upon by Defendant No.1's counsel
-----
Under discussion: (1) Trusts Act, 1882 Section 88.
(2) Code of Civil Procedure, 1908 [CPC]