AMIR HANI MUSLIM, J.--- This High Court Appeal has been preferred against an order dated 1.12.2003 passed by the learned Single Judge of this Court in Suit No. 1617 of 2001, filed by the appellant against respondents, allowing the application of the respondents pos. 3 to 5 by appointing Nazir as Commissioner to inspect a project Basera Towers and submit his report in regard to its stage of construction.
2. It appears from the record that the appellant has filed Suit No. 1617 of 2001 in this Court against the respondents seeking following relief:--
(a) Grant injunction restraining defendants his employees, officers, persons claiming through them from taking any action on the basis of alleged notice dated 24.11.2001 or on the basis of alleged minutes recorded on 26.11.2001.
(b) Grant injunction restraining defendants their employees from interfering in the peaceful possession of the plaintiff and enjoyment of his property constructed on Plot No. FL-5, Block 17, Gulistan-e-Johar, known as Basera Towers & Shopping Mall, Karachi.
(c) Any other and further relief for which the plaintiff is entitled may also be granted.
(d) Cost of the suit.
3. It further appears from the record that the controversy in the said suit was confined to the minutes of meeting of the respondent No. 1, pursuant to a meeting held in the office of respondent No. 1 on 26.11.2001. The record further reveals that the appellant, inter alia, impugned the minutes of meeting on the ground that the signature of their Manager, Suleman obtained thereon was unauthorized as the said Manager was neither Director nor the Secretary of the appellant nor had the said Manager voluntarily signed it. The appellant has pleaded that the signature of their Manager was obtained under duress by the respondent No. 1 and, therefore, the appellant was not bound in law by the arrangement between the parties as recorded by the respondent No. 1 in its minutes of meeting
4. The respondents filed their written statement in the said suit denying and disputing the - averments made in the plaint. It further reveals from the record that in Suit No. 1617 of 2001 subsequently an application (C.M.A. No. 6627/2003) u/Order XXXIX, Rule 7 read with Section 151, CPC was made by the respondents Nos. 3 to 5 praying therein to appoint Official Assignee as Commissioner to inspect the project 'Basera Towers' and report the stage of construction so also whether the shops in the project and Shopping Mall were occupied and whether the appellant had handed over physical possession of the shops in the aforesaid project to any third party. This application was allowed by Honourable Single Judge of this Court without notice appointing Nazir of this Court as Commissioner to visit the site and submit his ,report in regard to the stage of construction, which order has been assailed by the appellant in these proceedings.
5. It has been contended by the learned counsel for the appellant that the impugned order falls outside the scope of the suit as framed by the appellant. The controversy in this suit was confined to the minutes of the meeting dated 26.11.2001 of the respondent No. 1 and question of construction of the project Basera Towers and Shopping Mall or its occupation or possession to any other third party was not at all relevant. He, therefore, contends that passing the impugned order on an application of the respondents Nos. 3 to 5 for inspection of the project and stage of its construction by appointing Nazir as Commissioner without notice to the appellant, was ex facie contrary to law.
According to the learned counsel, the appellant did not seek any relief in regard to the construction of the project, therefore, order of inspection was not warranted by law.
6. On the other hand, Mr. Nazar Akbar, learned counsel for respondents Nos. 3 to 5, has opposed the Appeal on the ground that the learned Single Judge was justified in ordering inspection as the respondents Nos. 3 to 5 in their written statement have disputed the legality of the construction of the project of the appellant, inter alia, on the ground that the project was constructed in violation of, the app'roved building plan. According to the learned counsel as the respondents Nos. 3 to 5 have challenged -the construction of the appellant's project in their written statement, therefore, the Honourable Single Judge was justified even without notice to the appellant to pass the impugned order in order to tentatively determine the stage of construction of the project. The learned counsel further submitted that inspection has already taken place and the Nazir has submitted his report to which the appellant has also filed objection. Mr. Nazar Akbar, therefore, submits that the present appeal has become infructuous. The learned counsel has further contended that subsequent to the suit filed by the appellant, the respondent No. 5 has filed a Suit No. 1266 of 2003 in this Court, with the following prayers:-
(a) Declare that the construction of the project namely Basera Tower and Shopping Mall by the defendant No. 1 is terms of illegally approved building plan by the defendant No. 3 is illegal and unauthorized and is liable to be demolished.
(b) Declare that the certificate of completion dated 13.11.2000, issued by defendant No. 3 without compliance of the requirements contained under Clause 7 of the approval of building plan dated 28.9.1993 and clauses 12 and 13 of the so-called Revised Building Plan dated 26.1,1996, is premature, illegal, unauthorized and of no legal effect and is liable to be withdrawn/cancelled.
(c) Declare that the orders passed by the then Chief. Minister of Sindh on the application of the defendant No. 1 dated 4.12.1995 was illegal without any authority and application of the mind and as such the same has no legal consequences and is nullity in the eyes of law.
(d) Direct the defendant No. 2 to issue directions to defendant No. 3 to cancel the certificate of completion of the building plan of Basera Tower and Shopping Mall on Plot No. FL-5, situated at Block-17, Gulistan-e-Jauhar, Karachi, as the same has been granted fraudulently without observing proper procedure and requirement of law and in violation of rules and regulations.
(e) Declare that the structural changes made by the defendant No. 1 inside and in front of the demised shop, without the intimation or consent of plaintiff in violation of the approved building plan dated 28.9.1993 has reduced the utility and value of the demised shop.
(f) Declare that the cancellation of the demised shop by letter dated 7.5.2002 by the defendant No 1 is mala fide, illegal, unjustified and is of no legal consequences.
(g) Direct the defendant No. 1 to hand over possession of the demised shop in its original shape, size and form as it was proposed at the time of contract dated 1.4.1994 in accordance with the approved building plan dated 28.9.1993 or in the alternative provide another shop of the similar shape size and location in the same project.
(h) Declare that non-delivery of possession of the demised shop by the defendant No. 1 to the plaintiff in terms of contract dated 1.4.1994, within the stipulated/agreed period has cause heavy financial loss of earning of a sum of Rs. 15,000/- per month to the plaintiff from the date of delivery of possession.
(i) Direct the defendant No. 1 to pay compensation to the tune of Rs. 18,25,000/- at the rate of Rs. 25,000/- per month from the date of last payment made by the plaintiff till to date and also future compensation at the rate of Rs. 25,000/- per month from the date of filing of the suit till disposal of the suit and/or delivery of physical possession of the demised shop is handed over to plaintiff.
(j) Direct the defendant No. 3 to pay a sum of Rs. 50,00,000/- (Rupees fifty lacs only) to the plaintiff as compensation and damages to the plaintiff as the failure of the defendant No. 3 in discharging his duties in accordance with law has caused serious mental torture, loss of trust in the officials of defendant No. 3.
(k) Grant injunction against the defendant No. 1 restraining him, his agent or any person acting on his behalf from doing any further construction work on the project under the cover of illegally revised building plans and Cantonment Laws pending disposal of this suit.
(I) Grant injunction restraining defendant No. 1 from transferring or re-allotting and executing any document for transfer of rights in the said shop to any third party and handing over possess of the demised shop to any other person pending final disposal of suit.
(m) Grant injunction restraining defendant No. 1 from transferring or re-allotting and executing any document for transfer of rights in the said shop to any third party and handing over possess of the demised shop to any other person pending final disposal of suit.
(n) Cost of the suit.
(o) Any other relief/relief(s) this Hon'ble Court may '-teem fit and proper under the 9nce::, of the case.
7. It was submitted by Mr. Nazar Akbar that in the said suit the respondent No. 5 has challenged the construction of the appellant's project. He, however, conceded that no application for inspection of the project has been made by him in the said suit, though the Honourable Judge has ordered his suit to be flagged with Suit No. 161 of 2001, filed by the appellant.
8. We have heard the learned counsel and have perused the record. From the perusal of the contents of the plaint in Suit No. 1617 of 2001 filed by the appellant, it is clear that the entire controversy raised by the appellant in their suit was confined to the challenging of the minutes of the meeting dated 26.11.2001 recorded by respondent No. 1 which the appellant claims that their Manager, who was present in the meeting, was compelled to sign though the said Manager did not have the authority to sign such minutes on behalf of the appellant besides the fact that the appellant claims that signatures of the Manager were obtained under duress. The controversy of construction of Basera Towers and Shopping Mall was foreign to the relief sought in the suit filed by the appellant.
9. It appears from the record that the respondents Nos. 3 to 5 had obtained ex parte order from the learned Single Judge on their application under Order XXXIX, Rule 7, CPC without pointing out act that the scope of the suit of the appellant was limited. This is an established law that the Courts would not travel outside the scope of the suit to grant either final or interim relief of the nature, when such relief has no nexus with the facts pleaded in the plaint and or relief sought in the suit.
The denial of facts in the written statement and pleading additional grounds in the written statement would not authorize the Court to enlarge the scope of the suit when the plaintiff has not pleaded any such fact nor has sought relief of the nature . The Courts are bound in law to confine themselves to the reliefs sought and/or which flow from the facts pleaded in the plaint. The question of legality or otherwise of the construction of the project of the appellant was not subject- matter of the suit filed by the appellant and if the Court finally either dismiss or decree the suit of the appellant such judgment would neither legalize the construction of the project of the appellant nor would hold that the appellant's construction of the project was illegal. Contention of the learned counsel for the respondents Nos. 3 to 5 that he has disputed and challenged the construction of the appellant's project in their written statement would not authorize the Court, in law, to give findings on the issue of construction raised in the written statement as this would amount to enlarging the scope of the suit, which the law restricts. A party is at liberty to file a suit and or a counter-claim in a suit in order to obtain a relief but by mere filing of a written statement the respondents Nos. 3 to 5 had no legal right to seek declaration in regard to legality or otherwise of the construction of the appellant's project, which was not subject-matter of the proceedings initiated by the appellant.
10. It is also an admitted position that the respondent No. 5 has already filed a suit against the appellant in this Court in which he claims to have challenged the construction of the appellant's project, inter alia, on the ground of violation of approved building plan alleged to have been committed by the appellant in raising construction of the project. The respondent No. 5 was within his rights to approach the Honourable Single Judge in the suit filed by him with an application of inspection. But as far as the suit filed by the appellant is concerned, there was no occasion, in law, which could permit respondents Nos. 3 to 5 to obtain an ex parte order of inspection by making application.
11. Irrespective of the fact that inspection is not substitute of evidence, the inspection undertaken by the Nazir and the objections filed by the appellant would not make an order lawful if the impugned order of inspection was outside the scope of the suit. We, therefore, are of the considered view that the impugned order was unwarranted in law as the issue of construction was not raised by the appellant in Suit No. 1617 of 2001. Consequently, the impugned order and all the subsequent proceedings on the strength of the said order are nullity in law and this Appeal is allowed. It will, however, be open for the respondents to make an appropriate application for inspection in Suit No. 1266 of 2003, which he has filed, which application would be decided by the Honourable Single Judge in its own merits.
12. For the aforesaid reasons, we by our short order passed on 13.4.2004 had allowed the above appeal. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.