KARACHI: The Sindh High Court (SHC) on Thursday struck down a petition by residents of old Clifton and the Mohatta Palace Gallery Trust against the conversion of the Mohatta Palace into a girls’ medical & dental college.
In October 2021, the SHC had ruled that Qasr-i-Fatima, commonly known as Mohatta Palace, would be used to set up a medical and dental college for girls. The order had come on a long-standing dispute over the heritage property of the late Fatima Jinnah in Clifton.
The order was subsequently challenged by the neighbouring residents of Fatima Jinnah’s heritage property, the provincial government and the Mohatta Palace Gallery Trust.
In a court order issued on Thursday for an August 15 hearing, a copy of which is available with Dawn.com, Justice Zulfiqar Ahmad Khan dismissed the petition, saying that the “inclusion of any new party is devoid of merit”.
According to the order, the lawyer for the old Clifton residents, Arshad Tayyebaly, argued that their rights and privacy would be infringed upon if the property was converted into a college since it would cause excessive traffic and traffic jams.
Meanwhile, Abid Hussain advocated the case of other interveners in the case on the grounds that his clients were a “necessary and proper party to the proceedings because the applicants/interveners are also one of the legal heirs of the original plaintiff but the present plaintiff have filed the amended title concealing the real as well as the legal heirs”.
Appearing on behalf of the trust, Faisal Siddiqui argued that it was constituted by the Sindh government and was looking after the property, therefore, the trust was also a “proper and necessary party” to be arrayed in the proceedings.
The court order added that after hearing the arguments, Justice Khan observed: “It is a well-settled position that only those persons are necessary and proper party to the proceedings, whose interests are under challenge in the suit and without their presence, matter could not be decided on merits. The necessary party is one who ought to have been joined in and in whose absence no effective decision can take place.”
He added that the objective of Order 1, Rule 10 of the Code of Civil Procedure, which enables the court to add any person as a party at any stage of the proceedings, was to avoid multiplicity of proceedings and litigation and to ensure that all proper parties were before the court for proper adjudication of the suit.
The order further pointed out that once the court came to the conclusion that a person who applied to become a party was indeed a necessary party, only then the court could permit the person to be impleaded in the proceedings.
“The general rule with regard to impleading the parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief but a proper party is a party who, though not a necessary party but is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made,” the court order reads.
It added that the court was also hearing another case of Quaid-i-Azam’s assets since 1971 which was in its final arguments. The court order said that the legal heirs, in that case, had already conceded that they had no objection or claim if Mohatta Palace was used as a medical or dental college as per the will of Fatima Jinnah.
Regarding the argument that the college would cause access traffic, the court order stated: “It could be witnessed that a large number of high-rise buildings at a stone’s throw distance are situated or under construction from Qasr-i-Fatima, but seemingly no objection has been made by the present applicants on such an activity.”
On the argument that a trust was being managed at the property, the order said that the court had already declared that the Mohatta Palace was only given for maintenance to the Sindh government and the establishment of a trust by the government on private property, for which an administration suit was pending, was “ill-motivated and dishonest, least to say”.
“Once father and mother of the nation have given an area of approximately 19,700,000 acres to the people of Pakistan and had let them use this huge chunk of land as per their own discretion and choice, out of that millions of acres of land, when only one acre in the form of Qasr-i-Fatima is interested to be used per the wishes and will of the founders, one wonders how ungrateful we are to even object to such a use, that too for the spread of knowledge and education amongst womenfolks,” the court order reads.
Justice Khan said that neither the trust nor the residents were a necessary or proper party in the present lawsuit because it pertained to the administration of private property so neither had any cause of action.
“Neither they are heirs nor have any relationship with the deceased who owned the subject property and if the interveners are arrayed as a party whether necessary or proper would not get any fruit in the present lis (lawsuit) which is administration of estate in its nature.
“As stated earlier, evidence in the matter has already been recorded and the matter is being heard for final arguments, thus inclusion of any new party is devoid of merit,” the order concluded.
