1. C.M.A.No,6031 of 2001 ' NADEEM AZHAR SIDDIQUI, J.---By this order I intend to dispose of application under Order VII Rule 11 bearing C.M.A. No,6031 of 2001 filed by defendant No,
1. The grounds taken in the application are that no cause of action has been accrued to the plaintiff against the defendant and suit as per statement contended in the plaint is barred under section 87 of KPT Act. The plaintiff has not filed any counter-affidavit and objection to the application. The plaintiff has filed the suit challenging the letter, dated 2-6-2001 by which the plaintiff was asked to pay the following dues.
1. Arrears of KPT Dues Rs,19,96,800
2. Extension Fee Rs,45,29,231 ' The learned counsel for Defendant No,1 submits that plaintiff has no cause of action as on its failure to pay rent dues in accordance with the terms of allotment of land impugned notice was served. He further submits that according to standard form of Agreement/Lease of "C" Group warehouses plots the plaintiff has to erect the construction within eighteen (18) months and on failure to construct the same within the stipulated period it has to pay the extension fee. He further submits that the plaintiff has committed breach of terms of allotment of land. He further submits that all fees and sum due on account of property for the time being vested in the board may be recovered invoking section 84 of the KPT Act. He further submits that in accordance with section 87 of KPT Act no suit is maintainable without serving one month's prior notice in writing upon the defendant. He further submits that first notice under section 84 of KPT Act was served upon the plaintiff on 29-11-2000 which was not challenged within six months from the date of accrual of cause of action. The learned counsel for Defendant No,1 relied upon the following reported cases.
(1) Haji Allah Baksh v. Abdul Rehman (1995 SCMR 459).
(2) Messrs Muhammad Ismail & Co. Ltd. v. Karachi Port Trust, Karachi (PLD 1978 Karachi 892).
(3) Messrs General Carriers Ltd., Karachi and others v. Karachi Port Trust (PLD 1978 Karachi 1041).
2. ' Mr. Kh. Shamsul Islam has submitted that there is a genuine dispute between the parties with regard to payment of rent and extension fee and the cause of action has been explained in para 24 of the plaint and that for ascertaining cause of action whole plaint is to be considered.
3. ' He further submits that provisions of Land Revenue Act cannot be invoked unless the amount is determined. He further submits that section 84 can only be invoked for recovery of amount imposed under KPT Act. He further submits that the impugned notice was issued beyond the provisions of KPT Act and notice under section 87 of KPT Act is not necessary and that the impugned notice was issued with mala fide intention. He has relied upon the following reported cases:--
(1) Province of Punjab v. Muhammad Azam (1989 SCMR 1419).
(2) Ark Ocean Lines Ltd., Karachi v. Director Industries & Mineral Development (PLD 1976 Karachi 610).
(3) Agricultural Development Bank v. Sanaullah Khan (PLD 1988 SC 67).
4. ' In rebuttal the learned counsel for Defendant No,1 submits that notice under Land Revenue Act was issued only in respect of rent which is not disputed and the same was deemed to be issued under section 84 of the KPT Act.
5. ' I have heard the learned counsel for the parties, perused the record and the reported cases cited by the learned counsel.
6. ' As far as cause of action is concerned the plaintiff has disputed the amount of rent as well as extension fee and this give cause of action to the plaintiff to file the suit for determination of amount. For determining the cause of action the entire plaint has to be seen and the A contents therefore have to be taken at their face value to be true. On examination of the contents of plaint, on the above touchstone, it appears that plaintiff has a cause of action against the defendant.
7. Although while hearing the application under Order VII, Rule 11, C.P.C. The defence cannot be considered but in this case the defendant has failed to justify that under what law or contract extension fee was demanded. No document to this effect has been filed by the defendant.
8. Furthermore, unless the amount is determined coercive action under Land Revenue Act cannot be initiated as held in the judgments cited by the learned counsel for the plaintiff. I, therefore, hold that the plaintiff has a cause of action against the defendants.
9. ' The other contention of the learned counsel for defendant No,1 is that the suit is barred for want of statutory notice under section 87 of the KPT Act which reads as under:-- "(87) Limitation of suits, etc.-No suit shall be commenced against any person for anything done or purporting to have been done; in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit and of the cause, thereof, nor after six months from the accrual of the cause of such suit.
10. ' And, in the case of a suit for damages, if tender of sufficient amends shall have been made before the suit was brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender."
11. ' From the reading of above provision it appears that no suit shall be commenced against any person for any thing done or purporting to be done in pursuance of KPT Act. It is an admitted position that no notice under section 87 of KPT Act was served before filing the suit. Now the plaintiff has challenged the issuance of notice, dated 20-2-2001 (Annexure 'LW of Plaint). It has to be seen whether the notice wasissued in pursuance of KPT Act or not. It cannot be disputed that the land was allotted to the plaintiff by the defendant in exercise of their powers conferred by subsection (1) of section 18 of KPT Act and the rent was also fixed by the defendant in exercise of such powers. The impugned notice was for recovery of rent fixed under section 18 of the KPT Act and is deemed to be served under section 84 of KPT Act. Furthermore, under section 87 not only the act done under KPT Act but the act purported to be done under the said Act was saved. In the reported case of Messrs Muhammad Ismail and Company v. KPT and Messrs General Carriers v. KPT the learned Single Judge of this Court while examining the provision of section 87 of KPT Act has referred quotation from the reported case of Samanthala Koli Reddi v. Pothuri Subbiah and others (AIR 1918 Madras 62) which read as under:-- "An act done by public officer would 'purport' to be an act done in his official capacity, not only if it was properly and rightly done by him in such capacity and within his powers, but also if it has such a reasonable resemblance (though a false or pretended resemblance) to a proper and right act that ordinary person could reasonably conclude from the character of the acts and from the nature of his official powers and duties that it was done in his official capacity."
12. ' In the above cited Indian Judgment it was held that "whether the police officer's act complained of is legal or illegal, deliberate or inadvertent notice under section 80 C.P.C. Is necessary before a suit is instituted. The learned Judge of this Court in the case of Messrs Muhammad Ismail and Co.
13. Relying upon the reported case of Province of W.P. v. Ghulam Qadir and others (PLD 1963 Karachi 337) held that provisions of section 80 C.P.C. Equally applicable to the requirement of notice under section 87 of KPT Act. In the above Indian case the word "Purporting" was defined and interpreted as follows:-- "Word "purporting" covers a profession by acts or by words or by appearance of which is true as well as of what is not true".
14. ' The learned Single Judge in Messrs Muhammad Ismail and Co. Case has held that suit without notice is not maintainable.
15. In the instant suit no doubt the plaintiff has cause of action to approach the Court for determination of dispute with regard to the period of rent and extension 'fee but since the act of defendant in issuing notice, dated 2-6-2001 is covered by word "purporting to have been done" the suit is not maintainable without first serving notice under section 87 ofthe KPT Act. The plaint is, therefore, rejected under Order VII, Rulelc 11, C.P.C. With costs.
16. Plaint rejected.