Mrs. ALBA D?SA and others (Plaintiff) VS Ms. Naheed Pabani and Ali Allarakia (Defendants 1 and 2) (Defendant)

23/06/2013 This case is coming up for the evidence of the Plaintiff but despite strict directions of 29

IN THE HIGH COURT OF SINDH AT KARACHI

Date of he aring 0 1 . 1 1. 2 0 0 6 .

Date of Judgme nt 1 1. 2 0 0 6 .

Plaintiffs: Mrs. ALBA D’SA and othe rs through Mr. Abdul Re hman, Advocate .

De fe ndants Nos.1 & 2: Ms. Nahe e d Pabani and Ali Allarakia through Mr. Mansoor-ul-Arfin, Advocate .

De fe ndants Nos.3 to 9: Calle d abse nt. .

Inte rve nor: SHEHRI CBE through Mr. Abdul Re hman,Advocate .

O R D E R

On CMA NO. 7350 of 2006

MUNIB AHMED KHAN, J.- CMA NO . 7350 of 2006 has be e n file d unde r orde r 1 rule 10 CPC by SHEHRI: CBE for be coming a party in the suit on the ground that it is a NGO and is active in prote cting natural and built e nvironme nt, misuse of land and watching the construction, so it may not be raise d contrary to the Building Laws and De ve lopme nt Sche me . It has furthe r be e n submitte d that Inte rve nor has gre at de al of knowle dge in re spe ct to working of KBCA and is aware about the lacunas and proble ms in its working and that it has re pre se nte d public inte re st litigation in so many case s and have assiste d the court and its e fforts have be e n appre ciate d by the Courts and some time court itse lf has calle d upon the Inte rve nor to assist the court. The Inte rve nor has also re fe rre d ce rtain suits numbe rs and orde rs passe d the re in and has also re fe rre d some case s to show that it has re maine d and conside re d he lpful to the cause of promoting Building Laws in justifiable manne r and has assiste d the court in this re spe ct. The Inte rve nor has spe cifically re fe rre d the following suits and date s of orde rs:

531 of 1999 10.12.1999 Annexure 3 a 1079 of 2000 15.09.2000 Annexure 3 b 1645 of 1998 05.12.2000 Annexure 3 c 327 of 1999 05.12.2000 Annexure 3 c 118 of 1999 05.12.2000 Annexure 3 c 1655 of 1999 26.5.2000 Annexure 3 d 1545 of 1998 30.08.1999 Annexure 3 e 341 of 1996 26.09.1996 Annexure 3 f 869 of 1997 12.03.1999 Annexure 3 g

Copie s of the orde rs in those suits have also be e n anne xe d, be side s, Mr. Abdul Re hman, le arne d counse l for Inte rve nor has also re fe rre d the case s of Karachi Play House v. City District Gove rnme nt, 2006 CLC 578, Arde shir Kawasji v. KBCA 1999 SCMR 2883. Afte r re fe rring the se authoritie s, as we ll as copie s of the orde rs, re fe rre d in the application, the le arne d counse l has submitte d that Inte rve nor will be ne ce ssary party to assist this court to re ach a de cision and since public inte re st is involve d, the re fore , it may be made a party.

O n the othe r hand, Mr Mansoor-ul- Arfin, le arne d counse l for the de fe ndants Nos.1 and 2 has submitte d that Inte rve nor is 202.61.43.34:8077/caselaw/engine/media?id=145&file=WEB_FILE&ct=text/html 1/6

23/06/2013 This case is coming up for the evidence of the Plaintiff but despite strict directions of 29 se lf-praising body and that it has no spe cial/e xpe rt knowle dge and had it be e n the situation, the n Inte rve nor may take advisory position to assist De fe ndant No.4 inste ad of including itse lf in civil suits whe re it has no inte re st. He has furthe r submitte d that if such type of applications from NGO s are e nte rtaine d the n the re will be no e nd for such type of applications by othe r NGO which may be poppe d up for various re asons. It has furthe r be e n submitte d that nothing has be e n state d in the application or in its anne xe d affidavit to show as to what right or inte re st it has in the suit and how it is a ne ce ssary party and that write -up and posture of NGO has not be e n re pre se nte d prope rly as it is not indispe nsable for a suit. It has furthe r be e n submitte d that the court itse lf, if de e ms ne ce ssary, can call for assistance any pe rson but to be come a party in a suit is to be judge d within the crite ria laid down unde r se ction 9 and unde r orde r 1 rule 10 CPC and that the factual position, spe cially in suits diffe r from file to file . It has furthe r be e n submitte d that application has be e n file d with mala fide inte ntion at the be he st of the plaintiff, as one and the same le arne d counse l is re pre se nting both and in such a situation, the same le arne d counse l can e qually assist this court e ve n if he re mains for the plaintiff. To support his argume nts on the point of ne ce ssary party, as we ll as right of a party to be come a party in probono publico status, he has re fe rre d, Islamic Re public of Pakistan v. Abdul Wali Khan, PLD 1975 SC 463, Sanaullah Khan v. Lahore Municipal Corporation, 1979 CLC 891, Riaz Ahme d v. Dr. Umtul Hame e d Kose r, 1996 CLC 678, Fate h Raj v. Suraj Roop, AIR 1969 Rajistan 252, Sanpatbai v. Madhu Singh, 1960 MP 64.

To de cide the above controve rsy, it is to be se e n as to whe the r Inte rve nor fulfills crite ria laid down unde r orde r 1 rule 10, spe cially, whe n application has be e n made in the suit, as we ll as se ction 9 PPC as to what right or inte re st of any party is involve d. Le arne d counse l for the inte rve nor has re fe rre d and e ve n me ntione d in its application ce rtain suits numbe rs and has also place d copie s of orde rs the re of, the re fore , the se are to be discusse d se parate ly.

In Suit No. 531 of 1999, this court has passe d orde r whe re by application unde r orde r 1 rule 10 of the Inte rve nor has be e n allowe d. The basis for the grant of application as appe ars from the orde r is re produce d as unde r:

“It has been stressed that there is cut line on Nicol Road (Aiwan-e-Tijarat) which has been suppressed by the Defendant and which find support from chronology of the event attached to the application as Annexure”.

From the above obse rvation in that orde r, it appe ars that the Court has conside re d some factual position, which we re suppre sse d but in the instant case , the application and affidavit of Inte rve nor is sile nt in this re spe ct. In anothe r orde r passe d in Suit No. 1079 of 2000 following obse rvation has be e n made :

“Gentleman, who appeared for NGO has given a detailed affidavit wherein, in depth violation of the various rules of KBCA has been shown. They also shown the violation of KBCA rules by some builders in connection with several other buildings”.

In othe r suit No. 1645 of 1998 (327/99 and 118/99) it has be e n re corde d by the court as follows:

“It has further been argued that builder in collusion with the KBCA has unlawfully and illegally managed conversion of residential plot situated in PECHS into commercial plot/area, on the clear violation of Karachi Town Planning Regulation”.

In othe r suit No. 1655 of 1999 and 1545 of 1999, application of Inte rve nor has be e n grante d with conse nt. In suit No. 341 of 1996, the application of the inte rve nor was grante d on the ground that Inte rve nor has file d CP No. 699 of 1994 in re spe ct of the same plot and construction the re on, while in Suit No. 869 of 1997, the Hon’ble Judge has re corde d violation by the builde rs which was pointe d out by the Inte rve nor and that the le arne d Judge has obse rve d:

“When need be arose then court itself can call any person or body to assist it”.

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23/06/2013 This case is coming up for the evidence of the Plaintiff but despite strict directions of 29 Anothe r orde r in CP No.D-1970 of 1998 has be e n file d. In the said orde r court itse lf issue d notice to SHERI to appe ar and e xplain the ir vie ws.

The orde rs, re fe rre d above by the Inte rve nor in its application, are re le vant whe n violations have be e n pointe d out in the Inte rve ning application or application has be e n allowe d by conse nt or the court itse lf has opte d to issue a notice .

The re porte d authoritie s re fe rre d to by Mr. Abdul Re hman, le arne d counse l for Inte rve nor i.e . 2006 CLC 578 is in re spe ct to High Court Appe al. The orde r in the said appe al has also pointe d out that the re we re pe nde ncy of othe r litigation in re spe ct to some prope rty which was pointe d out by the le arne d counse l for Inte rve nor. In 1999 SCMR 2283 re fe rre d to by the le arne d counse l for Inte rve nor is in re spe ct of Constitution Pe tition, the le arne d counse l has spe cifically re fe rre d para 12 of judgme nt which is re produce d as unde r:

“12. In our view, the appellants have the right to use the Park with all amenities as was envisaged under the approved K.D.A. Scheme No.5. The use of the Park involves enjoyment of life which is covered by the word life employed in Article 9 of the Constitution as interpreted by this Court in the above-quoted extract from the judgment in the case of Ms. Shehla Zia and others v. WAPDA (supra). The appellants, therefore, have the right to ensure that the official respondents do not grant approval of a plan in respect of the Plot which may be violative of the provision of the Order and the Regulations and which may impinge on their right of enjoyment of life”.

The Hon’ble Supre me Court in the above authority has discusse d the conce pt of locus standi in re lation to the Constitution Pe tition and in para 13 of the said judgme nt, it is obse rve d:

“13. We may also refer to the following judgments of this Court in which the concept of locus standi has been dilated upon in relation to a Constitution petition and, inter alia, it has been held that for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he had a personal interst in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise-

Afte r going through the above authoritie s, it appe ars that a pe rson having inte re st or knowle dge in re spe ct to factual position involve d and that too normally in probono publico capacity in constitutional matte r can appe ar as Inte rve nor.

O n the othe r hand, the authoritie s re fe rre d to by Mr. Mansoorul Arfin is on the point as to what is the crite ria for joining an outside r as a party to a suit. AIR 1969 Rajistan 252 is on the point that a party cannot be come Inte rve nor to ove rlook as to whe the r the matte r has prope rly be e n de fe nde d or not. It has be e n obse rve d in the said authority that: “No one can open doors and windows on Khalsa land as of right. Khalsa land means the land belonging to the State. The State has the same rights over its land as any private owner. The applicants have thus failed to show that they have any legal interest in the subject-matter of the suit. In other words, they have not shown that if the plaintiff of the suit is granted the relief claimed by him the legal rights of the applicants will be directly affected. It appears that the applicants want to be impleaded in the suit merely with the object of enabling them to see that it is properly defended. As was held in Amon v.

Raphael Tuck and Sons Ltd., 1956-1 All ER 273 the applicants cannot be impleaded as defendants for such a purpose”.

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23/06/2013 This case is coming up for the evidence of the Plaintiff but despite strict directions of 29 In PLD 1975 SC 463, it has be e n obse rve d as follows:

“Now a proper party is a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all question involved in the proceedings. The terms “questions involved” include all matters, material to a proper decision of the case but the object of making such persons parties is to prevent multiplicity of proceedings. The person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him. This does not, therefore, extend to persons who have no interest, which is likely to be affected by the proceedings nor does it embrace persons only generally interested in common with others nor can persons be added as parties so as to set up a new cause of action which does not concern the original parties”.

In 1979 CLC 891, the Lahore High Court has obse rve d as follows:

“Under order I, rule 10 a person who only acts as one probono publico or wants to be added as a party only as a matter of prestige, is neither a necessary nor a proper party. Similarly, a person who wants to introduce a new cause of action in the suit is not also a necessary or a proper party”.

In 1996 CLC 678, this court in High Court Appe al has he ld as follows: “The learned single Judge disallowed the request of the appellant to be joined on the short ground of the appellant being neither a necessary nor a proper party. In that the learned Single Judge appears to have been right because neither the appellant “ought to have been joined” on the ground that in his absence no effective decree could have been passed, as a necessary party, nor the appellant’s presence was requisite to effectively and completely adjudicate upon and settle all points involved in the suit, as a proper party”.

Ke e ping in vie w above authoritie s, it will also be ne ce ssary to quote orde r 1 rule 10 CPC unde r which the application has be e n made :

“10. Suit in name of wrong plaintiff.--- Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

Court may strike out or add parties.—(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to 202.61.43.34:8077/caselaw/engine/media?id=145&file=WEB_FILE&ct=text/html 4/6

23/06/2013 This case is coming up for the evidence of the Plaintiff but despite strict directions of 29 adjudicate upon and settle all the questions involved in the suit, be added.

From the Plaint, it is be ing obse rve d that the plaintiff has alle ge d that the approve d plan issue d by Controlling Authority to the De fe ndant No.1 is ultra vire s, the Town Planning Act 1915 as we ll as to Sindh Building Control O rdinance , 1979 as we ll as to the Town Planning Re gulation, the re fore , KBCA cannot be allowe d to commit violation. The De fe ndant has de nie d that the construction is in violation of law including Karachi Building Town & Planning Re gulations while Town Planning Act 1915 is not applicable . It has furthe r be e n submitte d that the building, ground plus thre e is in accordance with approve d building plan and no right of the plaintiff is affe cte d as the re side nce of the plaintiff is not adjace nt to the plot on which building is be ing constructe d nor the construction of the building will incre ase stre ss on infra structure of the ame nity provide d for, nor it will affe ct the parking e tc. The KBCA has also file d writte n State me nt and counte r affidavit and has state d that the re are some violation but the y are re gulariz able unde r the KBCA Re gulation.

From the pe rusal of the application, made by the inte rve nor, it appe ars that no additional factual position has be e n pointe d out nor it has be e n state d that some re le vant factual position has be e n conce ale d by the plaintiff. The application is full of se lf boasting praise s and nothing. The knowle dge of the inte rve nor can be he lpful to the court if ne e d be arise n and in such situation, it can be re quire d as a witne ss by the plaintiff or the Court itse lf can call any pe rson from the inte rve nor to assist it. Ke e ping in vie w that the KBCA is full fle dge d organiz ation, e ntruste d with the dutie s to ove rlook construction in whole of Karachi, e xce pt Cantonme nt are a, with hundre ds of officials, te chnically e xpe rt in the ir job. The KBCA has also powe r unde r its law as we ll as re gulations to approve the building plan and to re gulariz e violations, which are re gulariz able and in pre se nce of that authority, the re may be ne e ds for its improve me nt but it cannot be pe rmitte d that in e ve ry suit file d by or against the KBCA, some one should be pe rmitte d to e nte r in the ple adings as an e xpe rt to provide guide line to KBCA or le ad the court in a way that judgme nt / orde r on the re quire d issue s be obtaine d. It has be e n obse rve d that in the KBCA matte r any mashoom growth of se lf motivate d conce rn have starte d inte rve ning and some time the proce e dings are droppe d abruptly and the court has to issue notice s to the pe titione r; what is the re ason for abrupt lack of inte re st by the inte re st organiz ation can be gue sse d. Anyhow, if in e ach and e ve ry case , the NGO is take n as inte rve nor the n it will cause substantial incre ase in the litigation and this cannot be pe rmitte d by adopting a principle that inte rve nor is to be take n le nie ntly and made party to the case . No doubt, that the knowle dge on the part of SHEHRI CBE and its pe rformance during the past, has be e n appre ciate d and it can be utiliz e d at any time whe n the court ne e ds its assistance in a particular case . If as a routine NGO is made a party the n this will ope n the gate for othe r so calle d NGO s, which cannot match e xpe rtise of the inte rve nor.

The issue in the suit is in re spe ct to the plaintiffs and De fe ndants and the praye r made in the suit cove rs e ach and e ve ry aspe cts, while le arne d counse l re pre se nting the inte rve nor is also the counse l for the plaintiff, the re fore , all the mate rial issue s, which have be e n raise d can be de cide d in accordance with KBCA Laws and Re gulations, which is alre ady available and court can asse ss the status of the building through inspe ction and e ffe ctive orde r can be passe d. The inte rve nor might have re pre se nte d in the case s whe re KBCA is a party but in most of the case , pointe d out by it, are not suits while in some suits, it has be e n adde d with 202.61.43.34:8077/caselaw/engine/media?id=145&file=WEB_FILE&ct=text/html 5/6

23/06/2013 This case is coming up for the evidence of the Plaintiff but despite strict directions of 29 the conse nt of conte sting partie s. He re in the matte r in hand, since all factual positions have be e n give n and the matte r is pure ly in re spe ct to the De fe ndants and plaintiffs who must be claiming right or title in accordance with se ction 9 of Code of Civil Proce dure , he nce in the se circumstance s the inte rve nor is not a ne ce ssary party in te rms of orde r 1 rule 10 CPC and e ve n in its abse nce as a party, the conte ntions be twe e n the partie s can be de cide d e ffe ctive ly and prope rly. The ve ry purpose of orde r 1 rule 10 CPC is that to avoid multiplication of litigation by way of filing of ne w suit or by filing of application unde r orde r 12(2) CPC by a ne ce ssary party so the inte re st of that party may be de cide d in a single suit by taking it as additional party and a que stion in re spe ct to it as we ll as othe r partie s to suit be de cide d e ffe ctually. The authoritie s cite d by the le arne d counse l for Inte rve nor do not fit in the pe culiar circumstance s of the facts of the case .

In the se circumstance s, I do not find any me rit in the application, which is accordingly dismisse d.

JUDGE

SAMIE

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