MUHAMMAD MOOSA K. LAGHARI, J.--- This is a suit for declaration and perpetual injunction.
Brief facts as unfolded in the plaint are that the plaintiffs are joint owners of bungalow constructed on plot No. 12-A/1, situated in 3rd Gizri Street, Phase-IV, Defence Housing Authority, Karachi, by way of inheritance on account of the death of their mother Mrs. Akhtar Amanullah and father Amanullah Sardar.
2. It was stated that one Mst. Razia Bashir entered into an agreement on 10.9.1981 with the plaintiffs' mother late. Mst. Akhtar Amanullah and purchased the bungalow in question for a total sale consideration of Rs. 22,50,000/- and in all paid Rs. 20,00,000/-. The purchaser made payment of sale consideration on various occasions and through different modes. Accordingly the possession was also landed over to her. The transfer of title documents in her favour was to be made on payment of remaining balance. However, the purchaser disapproved without paying the remaining sale amount of Rs. 2,50,000/-. Since the transaction could not be completed, as, according to the pleadings in . The plaint, the whereabouts of the lady were not known, plaintiffs' mother filed Suit No. 129/1982 for recovery of balance amount of Rs. 2,50,000/- plus Rs. 2,00,000/- as penalty, however, the said suit was ultimately decreed ex parte in the sum of Rs. 2,50,000/- with interest. However the said ex parte decree could not be executed due to non-availability of the aforesaid lady/purchaser. It is pleaded that thereafter on an application moved the plaintiffs' mother to Deputy Martial Law Administrator, vacant possession of the suit property was delivered to her on 9.6.1984 through Deputy Director, F.I.A., Special Investigation Cell (Commercial Banks), Karachi.
Since then the plaintiffs have been residing in the said bungalow, though in the meantime plaintiffs' mother expired. It is further pleaded that since no sale-deed/conveyance deed was over written or executed or registered, in respect of the said bungalow, the plaintiffs and their father being legal heirs of Mrs. Akhtar Amanullah rescinded from the sale agreement and sent a letter at the last known address of Mst, Razia Bashir but the same was returned undelivered. The plaintiffs and their father also got published a Rescission Deed in newspapers. Thereafter the Military Estates Officer, Karachi Cirote effected mutation in the names of plaintiffs and their father in the records of his office.
3. It is further pleaded that the Assistant Vice- President and Zonal Head, National Bank of Pakistan, Zone 'D', Karachi (NBP, defendant No. 2) moved an application/complaint against one Sajid A.I Siddiqui, Grade-II Officer, NBP alleging therein misappropriation of 12L/Cs by him in collusion with one Muhammad Arif. The said Sajid A.I Siddiqui and Muhammad Arif were tried and convicted by Special Military Court No. 6, Karachi in absentia and sentenced to imprisonment of 14 years and to pay fine of Rs. 50 Iacs. Besides their properties were also ordered to be confiscated. After lifting of Martial Law the F.I.A. Again submitted charge sheet u/Ss. 420, 468, 471, P.P.C., against the said Sajid All Siddiqui and Muhammad Arif in Special Court (Offences in Banks) where they were declared proclaimed offenders u/Ss. 87 and 88, Cr.P.C. And the case against them was kept on dormant file. The defendant No. 2 (National Bank) also filed an application u/S. 516-A, Cr.P.C. Before defendant No. 1, Special Court (Offences in Banks}, praying therein for selling of the property of accused Sajid A.I Siddiqui and Muhammad Arif, upon which notice was-issued to the plaintiffs' mother. On receiving such notice the plaintiffs' father intimated the defendant No. 1, about the death of the plaintiffs' mother. However, the defendant No. 1, vide order dated 30.9.1990 allowed the application of defendant No. 2 u/S. 516-A, Cr.P.C. And it was ordered that either the amount of Rs. 20,00,000/- (twenty lacs) paid by Asadullah the absconding accused to deceased Mrs. Akhtar Amanullah, be refunded by her heirs to the Bank with interest @ 14% or in the alternative they receive the balance of sale price amounting to Rs.
2,50,000/- with interest as directed by the High Court, and give possession of the house to the Bank, within two months, in case of their failure the Bank shall apply for possession of the house in question. The plaintiffs and their father challenged the said order of defendant No. 1 before this Court in C.P. No. D-1230/1990 which was dismissed on 1.1.2002, against which the plaintiffs approached Hon'ble Supreme Court in Petition for Leave to Appeal No. 314-K/2002 but the same was withdrawn vide order 24.6.2002. The plea of the plaintiffs to seek their remedy by filing civil suit, hence this suit with the following prayer:--
(i) Declaration that the plaintiffs are co-owners of the suit property.
(ii) Declaration that the order dated 30.9.1990 passed by the learned defendant No. 1 (Criminal Court), in respect of the plaintiffs' immovable suit property, is without any lawful authority, without jurisdiction, void and nullity in the eyes of the law.
(iii) Declaration that the judgment dated 10.9.2002 passed by a Division Bench of this Hon'ble Court dismissing C.P. No. D-1230/1990 filed by the present plaintiffs and upholding said void order of the Criminal Court/defendant No. 1 is not maintainable in respect of the plaintiffs' immovable suit property, and set it aside.
(iv) Perpetual injunction, restraining the defendants , their agents, and employees from interfering with the plaintiffs' peaceful possession of the suit property, or claiming any right, title or interest therein, or dealing in any manner with it.
(v) Award of cost of the plaintiffs.
(vi) Any other relief deemed fit and proper by this Hon'ble Court under the circumstances of the case.
4. Despite service having been effected on 26.9.2002 the defendants failed to file written statement.
Vide order dated 24.2.2003 defendant No. 1 was ordered to proceed ex parte, whereas defendant No. 2 was given last chance. Since no written statement was filed by defendant No. 2, he was debarred from filing written statement vide order dated 30.5.2003, and the case was fixed for final disposal.
5. Arguments of Mr. Ghulam A.I Khokhar, Advocate for plaintiffs have been heard, while the defendants opted not to appear and argue.
6. It was mainly argued by the learned counsel for the plaintiffs: (i) that the order of Criminal Court in determining the title was not conclusive; (ii) that the agreement to sell does not create any right, title or interest in the immovable property; (iii) that the sale of immovable property exceeding the value of Rs. 100/-could only be made by registered deed. It was next argued that the question of title to property had to be decided by the Civil Court. Additionally it was contended that the pleadings made in the plaint were not rebutted as no written statement was filed, the plaintiff was entitled to the decree as prayed. In support of the above arguments learned counsel relied upon case-law reported in: (1) The Calcutta Weekly Notes, Vol. XVIII, page 1146(DB), (2) The Indian Law Reports Vol. XVII, page 293, (Bombay Series) (D.B.), (3) AIR 1971 Supreme Court 385, (4) PLD 1970 SC 343, (5)
1968 SCMR 509, (6) PLD 1966 Lahore 953, and (7) PLD 1986 Karachi 74.
7. The above arguments advanced by learned counsel for the plaintiffs with ease and equanimity, prima facie appeared to be glitteringly convincing and persuasive. However, having gazed it in juxtaposition of the facts of the case arguments were found to be absolutely irrelevant and preposterous.
So far as the case-law referred by the learned counsel is concerned, there can be absolutely no quarrel with the same, as it is based on established principles of law, yet to the hard luck of the plaintiff, the case-law is alien to the facts of the case in hand, thus most patently inapplicable.
8. Now coming to the facts of the case, it may be observed that according to pleadings of the plaintiffs the suit property was sold by their mother to Mst. Razia Bashir against a sale consideration of Rs. 22,50,000/-, out of which she admittedly received a sum of Rs. 20,00,000/-. The purchaser lady was put in possession of the property. For the recovery of remaining sum of money the plaintiffs' mother, herself filed a suit which was decreed. However at a subsequent stage she appeared to have taken a somersault. She, admittedly obtained the possession of the property through Martial Law Authorities by adopting apparently illegal and dubious mode, by manoeuvering the situation presumably by using her connections in the corridors of power and taking undue advantage of absence of the purchaser lady. Subsequent recession of the sale agreement, as pleaded in the plaint was evidently next step to manipulate the situation. The circumstances under which the order was passed by the learned Judge Special Court (Offences in respect of Banks) (defendant No. 1) make it abundantly clear that the plaintiffs'. predecessor-in-interest was afforded ample opportunity to put forward his/their case before the Court.
9. From perusal of order dated 30.9.1990 passed by defendant No. 1, viz. Special Court (Offences in Banks), Karachi, it transpires that absconding accused Asadullah alias Arif was infact son of the purchaser lady Mst. Razia Bashir. It is further evident from the said order that evidence was produced during the proceedings of the said Banking case that sale price of the property in question to the extent of Rs. 20,00,000/- was, infact, paid by the said Asadullah himself by way of several pay orders which had been produced in the said proceedings by PW.6 Abdul Habib Khan as Ex.6/A, B, C, D and E. The plea of the plaintiffs that the said Asadullah had no connection with Mst.
Razia Bashir is belied by the above said observations of defendant No. 1 which were based on the evidence produced during the trial of the said case. The contents of the above order further reveal that it was ordered that, "either the amount of Rs. 20,00,000/- which was paid by Asadullah, absconding accused, to Mrs. Akhtar Amanullah deceased, be refunded by her heirs to the Bank with interest at the rate of 14% or in the alternative they receive the balance of sale price amounting to Rs. 2,50,000/- with interest as decreed by High Court and give possession of the house to the Bank for sale".
The above order was admittedly challenged before this Court in C.P. No. D-1230/1990 which was dismissed vide judgment dated 10.2.2002. Civil Petition for Leave to Appeal No. 314-K of 2002 impugning the above judgment was dismissed as withdrawn vide order dated 24.6.2002.
The facts and circumstances patently speak that the hands of plaintiffs are soiled, they have approached this Court with zippy and catty faces. From the beginning they took unfair advantage as they/their predecessor-in- interest manoeuvered and manipulated the situation in their favour. They want to eat a cake and have it too which clearly displays glaring malice on their part. The plaintiffs are not entitled to any of the relief prayed. Admittedly the mother of the plaintiffs appropriated the larger portion of the sale consideration, consequently they could not be declared the owners of the suit property. The judgment passed by the Special Court (Offences in respect of Banks), attained finality, thus could not be questioned in Civil Suit.
It is well-settled that no declaratory relief is a discretionary relief. It could not be granted to the plaintiffs approaching the Court with unclean hands or it will clothe a suitor with an undeserving advantage, or will inflict unjustified loss on the defendant.
The declaration if granted to the plaintiffs in the instant suit will definitely clothe them with an undeserving advantage which the equity does not permit. Even otherwise the plaintiffs have no legal character to maintain the suit.
As a result of the above discussion the dismissal of suit is the only option. The suit is accordingly dismissed. .