' MAULVI ANWARUL HAQ, J.- On 26-8-2002 the respondent filed a suit against the petitioner for recovery of Rs.7,30,000. In the plaint, it was stated that parties knew each other since long and hdd .Cordial relations. The. Petitioner requested for loan of Rs. 8,00,000. The respondent, however, arranged only Rs.7,30,000. Out of this amount, Rs.6,00,000 were paid in cash and Rs. 1,30,000 were paid by means of cheque detailed in para.2 of the plaint. On 18-3-2002 the petitioner acknowledged the receipt of the said amount and promised to repay the same by executing a pro note. The repayment date was fixed at 20-8-2002. Upon demand, the petitioner issued a cheque in the said amount detailed in para. 3 of the plaint which was dishonoured upon presentation. A decree was accordingly prayed for. The petitioner put in Appearance. And filed an application for grant of leave to appear and to defend the suit on 10-12-2002. This application was resisted. The learned A.D.J., Sargodha, dismissed the said application on 1-4-2004, and. Directed the respondent to produce the original pro note for his examination. Against this order, Civil Revision No. 1344 of 2004 was filed which came up for hearing on 24-5-2004. It was admitted to regular hearing. In Civil Miscellaneous No.l of 2004 notice was issued and further proceedings were stayed. According to the records on 24-5-2004 which was the date fixed earlier; the suit was decreed. Somehow or the other the learned AD J, Sargodha, observed that the suit is being decreed ex parte. On 27-7-2004 the petitioner 'filed an application for setting aside of the ex parte decree which has been dismissed by a learned ADJ, Sargodha, on 7-7-2005.
2. I am told by . The learned counsel that the earlier Civil Revision No. 1433 of 2004 was withdrawn or disposed of in view of the passing of the said decree.
3. Learned counsel for the petitioner contends that the ex parte decree was passed illegally particularly when a stay order has been issued by this Court on the same date earlier than the passing of the decree. According to him, the application was within time and it did disclose a plausible defence. Learned counsel for the respondent, on the other hand, supports the impugned order.
4. I have gone through the copies of records. So far as the said first contention of the learned counsel is concerned, it is but obvious that the matter was not brought to the notice of this Court in the matter of the alleged violation of the order or otherwise it is to be assumed that the civil revision was disposed of on the assumption that the decree was passed before the issuance of the stay order by this Court. Be that as it may, one thing is absolutely clear that it was not an ex parte decree. As noted by me above, the application filed by the petitioner was considered and was dismissed on 1-4-2004. The suit was adjourned only as the learned trial Court .Wanted to satisfy itself by examining the original pro note. The same was accordingly produced along with the return memos, of the said cheque and the suit was accordingly decreed.
5. I have already noted above the contents of the plaint. In the application filed on 10-12-2002, it was stated that the petitioner has come to know about the suit by means of a notice published in the newspaper. The learned A.D.J. Has. Observed that the notice was published in the daily Wafaq on 21-11-2002 while the application was filed on 10-12-2002. He found the application to be barred by time in absence , of any explanation particularly when the application was not even supported by any affidavit.
6. I have examined the said application. As against the said specific contentions in the plaint with reference to the documents stated to be executed or issued by the petitioner including a cheque and its being bounced upon presentation, it was simply written that the suit has been filed after suppressing the facts and having some forged and fabricated proceedings and that he wants to defend the suit to bring the real facts on record. This hardly constitutes a defence muchless a plausible defence. The civil revision accordingly is dismissed.
Petition dismissed 2607 YLR 2432 [Lahore] Before Jawwad S. Khawaja, J LAHORE DEVELOPMENT AUTHORITY through Director-General and another-Petitioners versus FAIZ MUHAMMAD KHAN through Special Attorney and others-Respondents pending before Authority-Trial Court decreed suit with direction to the Authority to grant adjustment to plaintiff in respect of plot on payment of development and other charges, which decree was upheld by Appellate Court-Validity-Plaintiff's application containing similar relief claimed in suit was prending before Development Authority when he filed Suit- Authority had yet to decide, whether or not plaintiff was entitled to adjustment- Plaintiff had not prayed for an order directing Authority to adjust suit plot- Relief granted to plaintiff was beyond his A prayer in plaint, which could not be granted-High Court modified impugned decrees to the effect that plaintiff was not presently entitled to adjustment of plot owned by the Authority-Authority would decide application of plaintiff in accordance with its regulations. Fpp. 2432, 2433] A, B, C, D, E & Mian Muzaffar Hussain for Petitioners.
Ex parte for Respondents.
Civil Revision No. 1937 of 2001, decided on 20th February, 2007.
Specific Relief Act (I of 1877)- -Ss.42 & 55-Suit for declaration and mandatory injunction-Plaintiff s prayer, inter alia, was to declare him lawful owner of suit plot, which Development Authority had no power to allocate to another person without deciding first his application
JAWWAD S. KHAWAJA, J.-The petitioner LDA impugns the concurrent decrees of the learned trial Court dated 18-5-2000 and' Of the learned Appellate Court dated 18-2-2001 whereby a declaratory suit filed by the respondents- pl'aintiffs, namely, Faiz Muhammad Khan and Tauqeer Fayyaz Bhatti has been decreed. By virtue of the decree LDA has been directed to grant adjustment to. The respondent No.2 in respect of a plot of land measuring 1 Kanal.
2. Learned counsel for LDA has drawn the attention of the Court to the relief which was sought by the respondents plaintiffs. For ease of reference, the prayer is reproduced as under:- "It is, therefore, respectfully prayed that a decree in favour of the plaintiffs and against the defendants may kindly be passed declaring that the plaintiff No.2 is the lawful owner of the above described property and the defendants are not authorized to allocate, the said plot to any other person without decision of the applications of the plaintiffs.
' It is further prayed that the defendants may kindly be permanently restrained from interfering in the ownership or possessory rights of the plaintiff No.2 over the said property in any manner whatsoever.
' It is further prayed that the defendants may kindly be directed to decide the applications of the plaintiffs for adjustment of the land immediately and to allocate the same permanently after receiving the development charges in accordance with the policy and the law.
' Any other relief to which the plaintiffs are found entitled may also be awarded. Costs of the suit may also be awarded."
3. It was argued that the applications, referred to in the prayer clause, which were filed by the respondents and are under consideration of LDA but before the same could be decided the respondent No. l filed his declaratory suit out of which this petition has arisen. Learned counsel stated that LDA would have no objection if, while granting relief to the respondents, LDA is directed to decide the pending applications as has been prayed for by the respondents. However, LDA has serious objection to the decree as presently framed, firstly, because the respondents-plaintiffs had not, in fact, sought an order directing LDA to adjust the land in question and secondly, because it is yet to be determined if the respondents are entitled to adjustment.
4. The submissions of learned counsel for LDA are well founded and are consistent with the record.
5. Learned counsel for LDA also took me through the relief which was granted to the respondents.
The learned trial Court has held that plaintiff No.2 (respondent No.2 herein), namely, Tauqeer Fayyaz Bhatti "is entitle for the adjustment of the property in dispute subject to payment of development charges and other dues prescribed in this behalf." With justification it was argued on behalf of LDA that this relief is beyond the prayer made by the respondents- plaintiffs and could not, therefore, be granted.
6. In view of the foregoing discussion, the impugned decrees are modified. It is held that the respondent No. 2 is not, presently, entitled for adjustment of the property which was owned by respondent No.
1. However, LDA shall decide the pending applications (which have been filed with it by the respondents) in accordance with its regulations after issuing notice to the respondents- plaintiffs .
7, This petition is allowed , in the above terms.