Maulvi ABDUL HAMEED Versus UMAR QURESHI

ORDER.

This an application under section 151, C.P.C. filed by one Abdus Saeed Khan through his son and attorney Muhammad Ishaque, requesting that he may not be dispossessed from the premises situated at plot No. 43‑H, Block No. 6 P.E.C.H.S., Karachi, and that he be allowed to continue his residence in the aforesaid property.

It may be pointed out that one Moulvi Abdul Hameed has filed a suit (Suit No. 337/1988) in this Court against Umer Qureshi and two others for specific performance, etc. in respect of the aforesaid property, claiming that the defendant No. 1 namely, Umar Qureshi, had agreed to sell the property to him but after signing an agreement of sale, the defendant No. 1 had handed over the physical possession of the Plot in question to the defendant No. 2 for transferring the same in favour of the Plaintiff. The plaint was presented before this Court on 1988 and thereafter the matter proceeded on the original side of this Court. The plaintiff in the suit had also filed an application under Order 39, rules 1 and 2, C.P.C. for interim orders on which ad interim order had been passed on 27‑4‑1988 by a learned Single Judge of this Court, granting an ad interim injunction in favour of the plaintiff. This order appears to have been modified by another order passed on 24‑5‑19&S and the plaintiff in the suit was restrained from parting with the possession of the suit property and/or creating any right in favour of any third party in respect of the same. This order was later followed by another order, dated 13‑6‑1988 and the Nazir of this Court was appointed Receiver in respect of the property in question with direction to take possession of the Plot from the person found in possession of the property and with a power to appoint a Chowkidar of his own for the purpose of keeping it intact until disposal of the suit.

The present Application (C.MA. 3475/1988) has been riled on 20‑6‑1988 that is to say, after passing of the aforesaid order, dated 13‑6‑1988. This application has been filed by Muhammad Ishaque who claims to be the son and attorney of Abdus Saeed Khan who according to him, had originally been appointed a5 Chowkidar by the defendant No. 1 to lock after this premises, and long before the litigation had started in respect of the suit property. It may be pointed out that after the services of the intervenor had been terminated by the defendant, he still reoccupied the property with the result that an F.1.R., dated 8‑5‑1988. was also lodged, by the defendant No. 1 against Abdus Saeed Khan, alleging that he had illegally trespassed into the premises in question on 24‑4‑1988 without the permission of the defendant No. 1 and [words missing] before the competent Court for disposal.

I have heard Mr. Niamat Moulvi, learned counsel for the Intervenor and M. Sajid Zahid, learned Counsel for the defendant No. 1 and Mr. Z.U. Ahmed, learned counsel for the Plaintiff.

The main contention of Mr. Niamat Moulvi is that, the order passed by the learned Single Judge of this Court, dated 13‑6‑1988, needs to be modified, since the right of the intvervenor, who admittedly is in possession of the property, to remain to occupation of the same, is also affected by the order. Reference in this respect has been made to Order XL, rule 1(2), C.P.C which provides that "nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove." The argument of Mr. Niamat Moulvi further is that since according to the own admission of the defendant No. 1 the intervenor is a trespasser, only the Criminal Court would be competent under section 522, Cr.P.C. to restore possession to the defendant No. 1, if it ultimately finds the intervenor guilty of the offence alleged against him. The learned counsel has also placed reliance on the case of Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan Mokal and 7 others (PLD 1975 Lah. 492) wherein it was held that possession of persons who are bona fide in occupation of the property should not be disturbed unless there are allegations of wastage or dissipation of property or apprehension of irreparable loss and injury.

Without going to the question, whether an order passed by one Judge can be modified or reviewed by another (O. 47, R. 5 C.P.C.) it may be pointed out that the intervenor was throughout aware of the proceedings pending before this Court in the suit as admittedly he had been filing affidavits on behalf of the plaintiff in the case, however, he failed to take steps earlier either to get himself impleaded as a party in the proceedings in the suit or to approach the Court with a similar request as has now been made in the instant application. It may further be pointed out that the intervenor as per his own admission is only a Chowkidar who has now been engaged by the plaintiff for the purpose of the plaintiff. The question which consequently arises for consideration is, can he claim an interest in the property, separate and distinct from that of the plaintiff. According to Mr. Sajid Zahid, he could claim no such interest in the property, but the argument of Mr. Niamat Moulvi is that since admittedly, the defendant No. 1 had lodged an F.I.R. against the intervenor, wherein he has been shown as a trespasser, consequently, he has acquired an interest in the property which was different, from being merely a Choukidar. Although the argument is ex facie fallacious, but even if it is assumed that the learned counsel is right, the request made by the intervenor in his application is very much belated and cannot be considered now.

As far as rule 1(2) of Order XL, C.P.C. is concerned, the Court while passing an order under Rule 1 has to take into consideration only the rights of such persons whom a party to the suit has no right to remove from possession or, custody of the property. The rule is clearly not attracted in the present case as no such right has been established by the intervenor to exist in his favour. The reference to the provisions of section 522, Cr.P.C. is also misconceived firstly, because such provisions in no way restrict the powers of the Civil Court to pass an appropriate order under Order XL, Rule (2), C.P.C. and secondly, because the lodging of a complaint with the police in respect of an offence of trespass as defined in the Pakistan Penal Code does not confer any such rights on the offender as argued by Mr. Moulvi. The provisions of section 522 Cr.P.C. are only enabling~provisions enabling the Criminal Court to restore the possession to a person who has been wrongly dispossessed of any immovable property after the; offender has been found guilty and convicted of an offence relating to trespass, etc. Consequently, reference to the provisions of section 522, Cr.P.C. by Mr. Moulvi is absolutely misconceived. The case cited by Mr. Moulvi is also not attracted under the circumstances enumerated above as the intervenor has failed to prima facie establish any bona fide right in his favour to remain in possession of the suit property, separate and distinct from that of the plaintiff. The respective rights of the plaintiff and the defendants inter se have already been considered by the Court at the time of passing of the order, dated 13‑6‑1988. If the intervenor had any genuine claim to put forward, I am certain, he would have done so before passing of the order, dated 13‑6‑1988 and the fact that he did not do the same until the passing of such order, clearly shows that the object of filing of this application only is to create further complications and to modify the effect of the aforesaid order.

Consequently, I do not find force in this application and the same is, therefore, dismissed.

However, it may be clarified that the intervenor is at liberty to make an application for being impleaded as a party to the proceedings in the main suit which can be disposed of on its own merits.

AA./A‑375/K

Application dismissed.