1. JUDGMENT RAHMAT HUSSAIN JAFFERI , J.-- The presence revision application is directed against the concurrent findings of two Courts below, by which the suit of the applicants for declarations that letter dated 5.5.1997 issued by the Respondent No.4 for demand of enhanced rate from Rs. 51/- to Rs. 102/- per square foot in respect of plots bearing Nos. B-57 and B-58, each measuring 1000 sq. Feet situated in Sindh Small Industries Estate Area, Larkana, may be declared as illegal, was dismissed.
2. The brief facts giving rise to the present revision are that the applicants has paid the entire amount of the plots in question at the rate of Rs. 51/--per square foot to the Respondent No.4, who were allotting the plots to the persons. On 5.5.1997 the Respondents No.4 issued letter to the applicants, in which he demanded enhanced rate from Rs. 51/- to Rs. 102/- per square foot. The applicants challenged the, enhanced rate on the ground that the Respondent No.4 had no right to enhance the rate When the entire amount of the plots was paid including other relevant charges. Hence, they filed the suit for canceling the said letter.
3. The Respondent No.4 filed the written statement in which he admitted the receipt Of amount from the applicants at the rate of Rs.51/- per square foot and other relevant charges for the plots in question. However, he took the plea that because the government had enhanced the rate, therefore, he had issued the letter dated 5.5.1997 demanding the rate at the rate of Rs. 102/- from Rs. 51/- per square foot. He further pleaded that the suit was not maintainable and took some other legal pleas.
4. Out of the pleading of the parties, the trial Court framed the required issues. The parties led evidence in support of their respective claims. The Court after going through the material available on the record and hearing the parties Counsel dismissed the suit of the applicants vide judgment and decree dated 7.11.200I and 14.11.2001 respectively. The applicants challenged the said judgment and decree before the District Court. The learned VI- Additional District Judge heard appeal, but dismissed the same vide judgment and decree dated 7.11.2002. The applicants were dis-satisfied with the said Judgment and decree, therefore, they have preferred the present revision application.
5. I have heard the advocate for the applicants, advocate for Respondents 1 to 4 and Additional Advocate General for the Province of Sindh.
6. The learned advocate for the applicants has stated that the suit for declaration was maintainable but both the Courts below dismissed the suit on the ground that the suit for only declaration was not maintainable, In support of his' arguments he has relied upon Ramehandra v: Beero Pallai (Air 1936 Maddrass 531) and Muhammad Khaliq v. Abdullah Khan (P.L.J 1987 A.J.K. 78). He has further stated that the Respondent No.4 did not produce any evidence to show as to on what grounds the rate was enhanced, As such, the said rate is illegal and unlawful.
7. On the other hand, learned advocate for Respondents 1 to 4 has stated that the suit was not maintainable as the suit for mere declaration was not permissible under Section 42 of the Specific Relief Act. He has further stated that the suit should have been for Specific Performance of Contract, but the same was not filed, therefore, the suit was not maintainable, In his support he has relied upon Muhammad Yousuf v. Munawar Hussan (2000 SCMR 204), Fakir Abdullah , v.
8. Government of Sindh (PLD 2001 SC 131), and Miss Roohi Shaikh v. Board of Secondary Education (1996 MLD' 1190). He has further stated that Government had enhanced the rate therefore, the rate was increased in a Board of Directors meeting, as such, the enhanced rate was claimed in accordance with law.
9. The learned Additional A.G. Has stated that the plaintiff No.1 had no right to file suit on behalf of applicant No.2 as no power of attorney was filed; that the applicants had alleged that the rate was enhanced so as to extract money from, them, which is not proved; and that the applicants had no claim to file-the suit.
10. I have given due consideration to the arguments, case law cited at the bar and material available on the record. I find that the admitted facts are that from the year #1992 to 1996 the applicants had paid the required amount of the plots in question at the rate of Rs.51/- per square foot and paid the other required charges. The dispute between the parties arose when on 5.5.1997 the Respondent No.4, issued a letter to the applicants for payment of rate of plots at the rate of Rs.102/- per square foot The applicants challenged the said letter before the Court, as such the suit would be covered under Section 39 of the Specific Relief Act. Under that provision of law the suit is maintainable on the ground that the document was void or voidable.
11. I have gone through the evidence of Respondent No.4 , under which he has admitted all the facts of the case, but stated that the Board of Directors had enhanced the rate from Rs.51/- to Rs. 102/- per, square foot, therefore, notice was issued for enhancement of rate. No minutes of meeting of the Board of Directors have been produced to' substantiate the plea taken in the written statement or.
12. Evidence: No notification or any other document issued by the Govt, has been produced to show that at any point Of time the Govt, had enhanced the rate from Rs. 51/- to Rs. 102/- per square foot of plots of Small Industrial Estate. As such the Respondents ha\?e failed to prove their claim.
13. I have perused the plaint and find that the plaint has been filed by both the applicants in their individual capacities. Both the applicants had signed the plaint, as such the argument of learned Addl. A.G. Is without any force.
14. As no proof has been filed to substantiate the plea- taken in, the impugned letter dated 5.5.1997 to justify the enhancement of rate, as such the said letter is not in accordance with law.
15. Consequently, the said letter is declared to be illegal, therefore, the applicants are entitled to the relief claimed in the plaint.
16. After considering the material available on the record I am of the considered view that both the Courts below have misread the evidence and did not take the evidence ~ available on record in its true perspective, as such they arrived at a wrong conclusion. The impugned judgments and decrees of both the Courts below suffer from material illegality and irregularity. Consequently, the said judgments and decrees are set aside. The suit of the applicants is decreed as prayed. The revision application is allowed.