' The dispute in this case relates to a building bearing No, 83-A., G-1 New Queens Road, opposite Hindu Ghat, Karachi. On 9-9 1976 the petitioner filed a suit from which the present revision arises, in the Court of Senior Civil Judge, Karachi for permanent injunction. The case of the petitioner as disclosed in the plaint was that the property in question vests in the Evacuee Property Trust (South Zone), Karachi and the petitioner was its tenant in occupation paying rent to the former. However the respondent No, 1 Karachi Port Trust (hereinafter referred to as the K. P. T.) had issued notices dated 20-2-1961 and 22-3-1961 calling upon the petitioner to vacate the building. He further alleged that on 6-9-1976 the K. P. T. Through their employees accompanied with a Magistrate came an started to demolish the huts near the building and also attempted to demolish the wall of the property. After the protests of the petitioner we ignored the petitioner complained to the Magistrate and eventually aft some discussion of the K. P. T. Employees went away threatening that the building will be demolished on 10-9-1976. On these allegations the petitioner sought the relief of perpetual injunction against the K. P. T. And it employees to restrain them from interfering in his possession. The petitioner simultaneously requested for grant of temporary injunction f which notice was issued to the K. P. T. Who filed a counter affidavit I which it was disclosed that the K. P. T.
Had no intention to demolish t house of the petitioner but the encroachments in front of the same hour on the K. P. T. Land were being removed as a bridge was being construct to replace the old N.
M. Bridge constructed in 1864 which had outlived I utility and was the only link connecting the Karachi Port with the city An application was moved at this stage on behalf of the petitioner seeking implead under Order I, rule 10, C. P. C. The Evacuee Property Trust Board.
2. At the hearing of the application for temporary injunction it w contended on behalf of the K. P. T.
That the suit was barred for was of notice under section 87 of the Karachi Port Trust Act, 1886.
Uphold the objection the learned civil Judge by his order dated 28-10-1976 refused to grant injunction and simultaneously dismissed the suit. The petitioner challenged the order in appeal which was heard and disposed of by the learned Vth Additional District Judge, Karachi. In the Appellate Court the case set up on behalf of the K. P. T. Was that the petitioner had illegally occupied the peon quarters and was, therefore, served with two notices to vacate the same.
Instead of complying with the notices the petitioner further encroached upon some more land around the said quarters and, therefore, action was taken to remove the unauthorised encroachments. It was conceded in the Appellate Court on behalf of the K. P. T. That the impugned action was not taken in pursuance of the provisions of the K. P. T. Act and, therefore, the bar contained in section 87 was not attracted. But the order in appeal was supported on further legal grounds, namely, (i) that no cause of action had accrued to the petitioner, (ii) that the suit was barred under sections 54 and 56 of the Specific Relief Act, and (iii) that the jurisdiction of the civil Court was barred under sections 16 and 17 of the Land Control (Karachi Division) Act, 1952 (hereinafter referred to as the Act). The learned Additional District Judge on these averments came to the conclusion that it was established on record that the K. P. T. Was only trying to remove the excess area encroached upon by the petitioner around his house and, therefore, he had no cause of action. It was further found by the learned Judge that the Evacuee Property Trust Board had no interest in the case. In conclusion the learned Judge observed as follows :- "In fact it is horrible state of affairs that the proceedings are being dragged on for an indefinite period though work of national importance is being seriously affected. Once the K. P. T. Assured in writing that it will not evict the appellant from his house covering an admitted area by the Trust as 230 square yards, there was no justification for continuing these proceedings. If the Trust Board is aggrieved in any manner by the act of the K. P. T., it is for the Board to proceed against K. P. T. In accordance with law but appellant cannot invoke the jurisdiction of the civil Court in regard to the area which was never rented out to him by the Board as he becomes an unauthorised occupant and the jurisdiction of the Court is clearly barred so far as this unauthorited occupation is concerned, in view of the provisions of Act of 1952. As stated above, the appellant cannot be said to have any cause of action against K. P. T. So far as the rented house covering an area of 230 square yards is concerned, as K. P. T. Has repeatedly stated that it was not removing him from this area otherwise then in due course of law."
' In the aforesaid findings the learned Additional District Judge by his judgment dated 6-1-1979 dismissed the appeal of the petitioner. The stationer now seeks to challenge in this revision the aforesaid judgment.
3. Mr. N. A. Farooqui made serious grievance of the fact that the earned Appellate Court had maintained the order of the dismissal of unit on totally different grounds. The trial Court had dismissed the suit in the sole ground of the bar contained in section 87 of the K. P. T. Act hitch was not sustained by the Appellate Court. Mr. Farooqui rightly contended that the order passed by the trial Court without giving opportunity to the petitioner to produce evidence in support of his case as in substance an order rejecting the plaint under Order VII, rule 11 it the legal ground of the bar of jurisdiction. According to his submission the Appellate Court was not justified in giving findings of fact on the basis of affidavits filed in connection with the injunction application and to reject the plaint on such findings without there being legal evidence on questions of fact.
' Mr. Qamrul Abbas, on the other band, supported the order and contended that the suit was barred under section 16 of the Act as according to him the impugned action was being taken in pursuance of the provisions of section 11 of the Act to dispossess the petitioner who was a person unauthorisedly occupying or wrongfully in possession of the land in the controlled area declared under section 3 of the Act. In this connection be referred to the two notices of the year 1961 mentioned in the plaint which have been placed on the record of this case as Annexures 'C' & Both these notices are by the Chief Engineer, Karachi Port Trust and make no reference to any of the provisions of section 11 of the Act. They purport to pertain to a "building opposite Hindu Bathing Ghat at New Queens Road for Hindu Charitable Bathing Ghat Association". In the first notice the petitioner was called upon to show the authority under which the building had been unauthorisedly occupied by him and he was directed to vacate the same. Prima facie the notices in question have no reference to the powers vesting in an Authorised Officer competent under section 11 of the. Act to direct the removal of unauthorised occupation or wrongful possession of any land or building in the controlled area. It is apparent that no immediate action was taken in pursuance of these notices until the impugned action in the year 1976. These are, therefore, disputed questions of fact and an adjudication was, therefore, called for after framing proper issues. It is apparent that the case of the K. P. T. I the trial Court was not based upon the provisions of the Act and the plaint does not refer to these notices as notices contemplated by section 11 of the Act. It was, therefore, premature for the Court to have come to the conclusion with no evidence on record that the proceedings were taken under the provisions of the Act and to reject the plaint as barred under section 16. It was urged by Mr. Qamrul Islam Abbas that a question on jurisdiction can be raised at any stage, but as pointed out above it has first to be shown by proper evidence that the action in question was being taken in pursuance of the powers available under the Act, which is obviously a question of fact. I am, therefore, of the confirmed opinion that in the circumstances of this case the question raised is not a purr question of law so as to enable the Court to entertain the same at th appellate stage without there being evidence available on record. It was held in Suriya Bano v.
Government of West Pakistan (1) that where the plain discloses prima facie cause of action, the suit cannot be dismissed under Order VII, rule 11 but the proper procedure is to frame the issues on whit the parties are at variance and then to proceed under Order XV if the occasi so warrants. But the suit cannot be dismissed without framing any issue.
' The other findings of the Court of appeal as to the questions of f have not been supported before me and rightly so as no evidence w recorded on any issue arising between the parties. It is well established that for the purposes of Order VII, rule 11 the allegations made in the plaint are to be taken as true and then if no cause of action is made out the plaint can be rejected. That is, however, not the position in this case. Looking at the plaint alone it discloses prima fade a cause of action.
(1) PLD 1973 Lab. 572
6. Mr. Mubarak Hussain, learned counsel for respondent No, 2 argued that the said respondent is a necessary party to the suit on the K. P. T.'s own showing as conflicting claims were made by them as to the area vesting in the Evacuee Trust Board. He contended that the trial Court ought to have allowed the application of respondent No, 2 to be impleaded as a party but no orders were passed thereon.
7. For the foregoing reasons, the order dismissing the suit of the: petitioner or rejecting his plaint cannot be sustained.
8. The only question that remains to be considered is whether the refusal of the prayer for temporary injunction by the same order was justified or not. In this connection Mr. Qamar Abbas strongly contended that the balance of convenience leans in favour of the. K. P. T. Who are undertaking a work of national and strategic importance. Any interference with that will obviously delay the completion of the bridge which, as already pointed out, will provide the only link between the city and the port in place of the old bridge. Counsel further submitted that the K. P. T. Has no intention for the present to take any action for demolition or otherwise interfere with the enjoyment and possession of the petitioner so far as the main house is concerned. The intention was only to take over 360 square yards in the vicinity of the main building of the house for the purposes of the construction. It was pointed out that after the filing of the suit a fresh notice under section 11 of the Act of 1952 was served on the petitioner on 28-10-1976 (Annexure 'I') by the authorised Officer. Mr. Farooqui, on the other hand, stated that the aforesaid area forms part of the area comprised in the house in occupation of the petitioner and some of the domestic conveniences are located on this area. Consequently, if the petitioner is dispossessed of this area he would suffer irreparable injury. It is mentioned in the memo. Of this petition that the aforesaid notice under section 11 of the Act was handed over to respondent No, 2 who filed appeal before the Commissioner, Karachi under the provisions of section 17 of the Act. The learned Commissioner after hearing the parties including the petitioner in connection with the request for stay found that the original building of the temple and the building attached to it stands on an area of 230 square yards. He, therefore, gave a finding that the remaining area was not attached to the temple. In this connection in his order dated 10-12-1976 he made the following observations :- "The latter letter is also signed by the Deputy Administrator, Evacuee Property Trust Board (Exh. 4). It is also interesting to note that in Letter No, 715 dated 29-11-1976, the Deputy Administrator had claimed that the rest of 170 square yards is open. In case the rest of 170 square yards is really open then there is no question of demolishing any building on these 170 square yards. The fact, however, is that these 170 square yards have also been encroached and a temporary structure has been built. The K. P. T. Is well within its right to demolish the temporary structure over these 170 square yards marked as blue in Exh.
3."
' In this Court the K. P. T. Has stated that for the present purposes of the bridge it will only require the aforesaid 170 square yards of the allegedly encroached land and will not disturb the petitioner from his house on the remaining 230 square yards.
9. Although for the purposes of rejection of plaint all the aforesaid circumstances could not be taken into consideration, there is nothing improper to take them into consideration so far as the question of temporary injunction is concerned. In my considered opinion, prima facie, the petitioner does not have the right to object to the taking over of the aforesaid area of 170 square yards. But so far as the remaining area and the main building of the house is concerned, he is entitled to the protection of the Court. Another reason for withholding injunction as regards the aforesaid 170 square yards is the fact that public works of great importance and utility would seem to be interfered with if injunction is issued as regards', the said area. Balance of convenience, therefore, lies against the grant for injunction in respect of the aforesaid area.
10. In the result, I accept this revision so far as it relates to the order of the dismissal of the suit of the petitioner and I set aside the same. The case shall be remanded to the trial Court to proceed with the same according to law. As to the order relating to the injunction, it shall be modified so that temporary injunction shall issue against respondent No, 1 restraining them as prayed so far as the 230 square yards of land on which the house stands, but as regards the area of 170 square yards as shown in the order of the Commissioner dated 10-12-1976, the respondent No, I shall be free to take over its possession after giving the petitioner at least 15 days' notice in writing. This revision petition is disposed of in the aforesaid terms with no order as to costs.