Plea against setting up college at Qasr-e-Fatima dismissed

Karachi: The Sindh High Court (SHC) on Thursday dismissed the applications of old Clifton residents and the Mohatta Palace Gallery Trust against the court order to convert the estate of Mohtarma Fatima Jinnah, Qasr-e-Fatima (commonly known as the Mohatta Palace), into a girls’ medical & dental college.

The residents and the trust had filed applications to become interveners in the lawsuit seeking administration of the estate left by the plaintiffs’ predecessors Quaid-e-Azam Muhammad Ali Jinnah, Mohtarma Fatima Jinnah and Mohtarma Shireen Jinnah.

The residents’ counsel said his clients’ rights and privacy would be infringed upon if the property is converted into a college. He said his clients would also face traffic jams, so they are a necessary and proper party to be arrayed in the present proceedings.

The trust’s counsel said Qasr-e-Fatima is being looked after by the applicant, which is a trust constituted by the provincial government, so it is a proper and necessary party to be arrayed in the proceedings.

A single SHC bench headed by Justice Zulfiqar Ahmed Khan said that it is a well-settled position that only those persons are necessary and a proper party to the proceedings whose interests are challenged in the suit, and without their presence the matter cannot be decided on merit.

The court said that the necessary party is one who ought to have been joined in, and in whose absence no effective decision can take place. The court added that at the cost of repetition, the object of order I, Rule 10, CPC, is to avoid multiplicity of proceedings and litigation, and to ensure that all proper parties are before the court for proper adjudication of the suit.

The bench said that once the court comes to the conclusion that a person who has applied for becoming a party is a necessary party, only then is the court to permit such a person to be impleaded in the proceedings.

The bench also said that 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, 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, added the bench.

Justice Khan said the court is hearing the instant suit of administration since 1971 of the assets of the Quaid-e-Azam at the stage of final arguments.

He said the evidence has already been recorded after framing issues, and as a gesture of goodwill with regards to Qasr-e-Fatima, the legal heirs, after long deliberations, have conceded they would have no objection or claim to the said property if it is used as per the will of Fatima Jinnah for a college.

Regarding the contention that the use of the premises would generate excessive traffic, the court said it can be witnessed that a large number of high-rises are situated or under construction at a stone’s throw from Qasr-e-Fatima, but no objection has seemingly been made by the present applicants on them.

As for the trust’s stance, the bench said the court has already declared that the property was given to the government only for maintaining it, and the government setting up a trust on a private property, for which an administration suit is pending, is ill-motivated and dishonest, to say the least.

Justice Khan said the nation’s father and mother have given some 19.7 million acres to Pakistan’s people, and have let them use this huge chunk of land as per their own discretion and choice.

When only one acre of that in the form of Qasr-e-Fatima is to be used as per the wishes and the will of the founders, one wonders how ungrateful we are to even object to such use, that too for imparting knowledge and education to women, he added.

The court said that neither the trust nor the residents are necessary or proper party in the present lis (legal action) because it pertains to the administration of a private property, so neither have any cause of action.

The bench said the applicants are neither heirs nor have any relation to the deceased who owned the subject property.Justice Khan dismissed the applications of the interveners as devoid of merit.