This revision application under section 115, C.P.C. has been preferred by the applicant to impugn the order dated 30th September, 1998 passed by the 1st Senior Civil Judge, Karachi (West), rejecting the plaint in Suit No, 438 of 1994 under Order VII, rule 11, C.P.C., and the other order dated 31-8-1999 passed by the 1st Additional District Judge, Karachi (West) in Civil Appeal No,77 of 1998 whereby appeal preferred by the applicant against the order of rejection of plaint passed by the lower Court was also dismissed.
2. Succinctly, the relevant facts of the case are that the applicant claiming himself to be an old tenant on ground floor of building No,54. Dadoo Manzil, Masjid Road, Keamari, Karachi, filed a suit for declaration and permanent injunction against the respondent challenging their notice dated 7- 7-1994, which reads as under:-- Subject: Building on Plot No,54 KPT Keamari, Karachi.
Whereas in the opinion of the authority the following structure standing on the above mentioned plot are ruinous or dangerous beyond the repair.
Description of structure You are therefore, hereby required:
1. Forthwith to remove the existing ground floor only.
Failing which the Authority shall cause the same to be done at your risk and cost without further notices.
Deputy Controller of Buildings, Zone XV, KBCA/KMC.
3. In the plaint applicant averred that earlier he had filed Suit No,2768 of 1984 old)/No,1308 of 1985
(new) challenging similar action of respondent, which was dismissed having become infructuous on 10-12-1987 on the basis of statement in 'writing submitted by respondent, mentioning herein that the upper floor of the disputed building, which was declared dangerous, has already been removed and no action against the ground floor in possession of applicant is contemplated as it is not dangerous. The applicant further stated in the plaint that the notice impugned in this suit was issued by respondent at the behest of landlord and the same was illegal, unauthorized, colourable, collusive, mala fide and ultra vires. Besides challenging the notice as a consequential relief the applicant also prayed for permanent injunction against the respondent from disturbing his peaceful possession and enjoyment and depriving him of his tenancy rights by enforcing the impugned notice dated 7-7-1994.
4. The plaint in the suit was initially rejected by the order of lower Court dated 16-7-1996. However, by order dated 10-11-1996, passed in Civil Appeal No,45 of 1996 preferred by the appellant, the order of lower Court rejecting the plaint in the suit was set aside and case was remanded with the observations that lower Court will decide the issue of maintainability of suit after framing proper issues regarding maintainability and affording an opportunity of hearing to the applicant. After this order of remand passed by the Appellate Court it seems that the lower Court without making compliance of the observations contained in the order of the Appellate Court again rejected plaint in the suit with the observations that the suit instituted by the applicant was barred under sections 42 and 56 (d) of the Specific Relief Act.
5. The Appellate Court after hearing the arguments of the learned counsel, also recorded its conclusion in the same manner thus dismissed the appeal by its order dated 31-8-1999.
6. Mr. K.B. Bhutto, learned counsel for applicant, vehemently argued that tenancy rights conferred to the applicant are valuable legal rights therefore, the applicant had legal character and right to impugned the notice dated 7-7-1994 issued by the respondent as it has cast clouds over the right of the applicant/tenant. He further contended that the impugned notice issued by respondent was issued at the behest of landlord, therefore, the applicant had levelled specific allegations of colourable exercise of power, and mala fide against the respondent and in such circumstances the Civil Court had jurisdiction to examine the legality of the impugned notice dated 7-7-1994. Mr. K.B.
Bhutto referred the case of M/s. Haji Khuda Bux v. Karachi Building Control Authority and others (PLD 1998 Karachi 307) to show that suit for declaration and permanent injunction instituted by a tenant challenging the notices issued by K.B.C.A. was entertained and found maintainable by this Court in the aforesaid judgment and accordingly relief was granted to the plaintiff/tenant. He urged that the concurrent findings of two Courts as regards holding of no legal character by the applicant/tenant in terms of section 42 of the Specific Relief Act are perverse and liable to be set aside as such.
7. Mrs. Saba Siddiqui, learned counsel for K.B.C.A. was unable to controvert the submission of Mr. K.B.
Bhutto. However, she submitted that whatever action is to be taken by the respondent against the applicant same will be taken by them strictly in accordance with law. Suffice to observe that this is not the point involved in the present revision application which relates to the two impugned orders rejecting plaint in the suit on the ground that the applicant had no legal character as required under section 42 of the Specific Relief Act.
8. Attar examining the case record find that submissions made by Mr. K.B. Bhutto have much force.
The findings of the two Courts below recorded against the applicant are perverse and illegal inasmuch as the notice dated 7-7-1994 impugned by the applicant was a threat of his dispossession from the rented property, which was natural consequence of demolition of ground floor of the disputed building in his possession. In such circumstances the applicant/tenant was well within his rights to challenge the legality of such action proposed to be taken by respondent, by filing a suit for declaration and permanent injunction.. It is pertinent to mention that even the landlord of a property cannot dispossess his tenant from the rented property, except in due process of law. It, therefore, follows that a tenant or lawful occupant has legal character as contemplated under section 42 of the Specific Relief Act to protect his possession and avoid dispossession without due process of law.
9. Besides, the findings of the two Courts below contained in the impugned orders that notice dated 7-7-1994 has not given any cause of action or legal character to the applicant for filing a declaratory suit are also based on misreading of plaint as for the purpose of examining the question of rejection of plaint the prayers made in the plaint are not to be read in isolation to its other contents, but the averments of the plaint, including prayers, are to be examined as a whole.
Keeping in mind that it is the substance rather than from which is material for this purpose. In the present-suit from the contents of the plaint it is evident that challenge to notice dated 7-7-1994 by the applicant was in conjunction to the protection of his tenancy rights in the rented property, which had given cause of action and legal character to the applicant, but this fact was not considered by the two Courts below.
10. The result of above discussion is that the two orders/judgments impugned in this revision application are set aside and the case is remanded to the lower Court for disposal in accordance with law.
11. Before parting with this order it may be observed that this order will not debar the lower Court from examining the question of maintainability of the suit in the terms as specified in the order dated 10-11-1996 passed in Civil Appeal No,45 of 1996.