1. ' GHULAM DASTAGIR A. SHAHANI, J.---Through C.M.A. No,938 of 2003 moved by the plaintiff under Order XXXIX, rules 1 and 2 has prayed to restrain the defendants Nos. 1 to 8 from allotting, transferring, alienating the ownership of the land or disposing him from the land in suit in any way directly on indirectly.
2. ' Brief facts of the suit are that a piece of land measuring 15-0 acres was Naclass No,24 of Deh Dih, Taluka and District Karachi East was leased out for poultry farm purpose by the then Deputy Commissioner, Karachi East vide order No,Rev/5685/1983 dated 7-8-1983 to one Khalil Masood son of Muhammad Yakoob for a period of 30 years with effect from 1983-84, which was, subsequently, on his request, transferred in the name of Messrs Agro/Live Stock Development Corporation (Plaintiff) for same purpose vide Order No, Revenue 5177 dated 31-10-1985, by the then Deputy Commissioner, Karachi East for a remaining period subject to payment of lease money of 30 years and in addition to terms and conditions laid down in a Government Notifications issued time to time. With main suit. C.M.A. No,938/2003 also submitted by the plaintiff.
3. ' On receiving process, written statement and counter-affidavits were filed by the defendants Nos.2 and 3 adopted by the defendants Nos. Vi) to (iii) as well as by the defendants Nos.5 and 7 adopted by the defendant No,4 vide statement dated 8-11-2004 respectively. Some documents were also submitted by the learned Additional A.-G. As per directions of the Court. The case of the defendants is that present suit is barred under the principle of res judicata, as well as by limitation and filed without cause of action. Further that a Suit No,1720/93 was also filed in the Court of learned Senior Civil Judge-I, Karachi, East, and that was dismissed for non-prosecution so also Appeal No,15 of 2001 filed by the plaintiff, was also dismissed by the learned Vth Additional District Judge on 29-4-2000. The case of there defendants Nos.1 to 3 is that, defendant No,1 (deceased) was leased out 37-04 acres of land out of Naclass No,24 Deh Dih, Taluka and District, Karachi vide Order No, Revenue 4507 dated 2-11-1980 on WahiChahi terms and its possession was handed over to him in terms of Ijazatnama dated 2-11-1980. Such sketch was also prepared showing the area in question and physical possession of entire land was also handed over to defendant No,
1. Sketch shows a Pacca mettled road built by Pakistan Refinery Limited 100 feet width and maintained by Pakistan Refinery Limited. However, the position, which has been disclosed in the written statement by the defendants Nos.2 and 3 is as under:-- ' Defendant No,1 16-0 acres.
4. ' Defendant No,2 11-04 acres.
5. ' Defendants No,3 10 acres ' They have further stated that measurements were also made and the predecessor-in-interest of the plaintiff was also associated at the time of demarcation made by Survey Department and Plaintiff being successor in interest of the above named Khalil Masood, is said to be bound by the demarcation and site plan prepared in his presence. It is also a case of defendants Nos.1 to 3 that Cantonment Board, Korangi does not enjoy Municipal powers in respect of said area an Plaintiff admittedly holds temporary lease for 30 years for Poultry farming and no Building Plan could lawfully be approved in respect of such land and actual dispute is in relation to a settlement of Boundaries between Plaintiff and defendant No,
1. Further case of the defendant Nos.1 to 3 is that Plaintiff has encroached upon the portion of the land belonging to the defendant No,1 whereas the case of defendant Nos. 4 and 5 is mostly same and raised a similar legal issues, in respect of the maintainability of the suit etc. ' Learned counsel for the plaintiff mostly repeated same facts as disclosed by him in a memo. Of plaint. However, he further added that cancellation is made without notice and defendants are in collusion with each other and demolished his well on its land in an attempt to dislocate and dispossess him from part of his land in order to change the Boundaries of their respective land. He referred to cases reported as Mst. Hajiran Begum v. Muhammad Yousaf and legal heir (2005 MLD 592), Muhammad Munir v. Muhammad Yousaf and 7 other (2005 MLD 1797), Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer, (Revenue) Kharian, District Gujrat and 6 others (2005 MLD 814) and Mian Muhammad Aslam and another v. Sher Afgan Additional Deputy Commission General Collector (City), Lahore and 5 others (2004 CLC 1320 respectively.
6. ' On the other hand Mr. Ahmed Pirzada, learned Addl. A.-G. Admitted that same was leased out in favour of one Khalil Masood in the year 1983 subsequently transferred in the name of plaintiff in the years 1985, respectively by the then Deputy Commissioner Karachi East, demarcation was also made in presence of above named Khalil Masood. He further added that such lease has been cancelled on 28-11-2006 by the District Officer Revenue City District Government Karachi, due to the violation of the terms and conditions. So far non-service of notice is concerned, learned Addl. A.-G.
7. Submits that process were issued and affixed on the outer door of the Plaintiff by the Mukhtarkar and thereafter, the orders were passed. Not only this, but he also raised a plea of res judicata, limitation etc; Reliance is placed upon a case reported as Anwar Club and another v. Muhammad Sarwar PLD 1992 Lahore 63. Whereas Mr. Muhammad Ali Hakro a partner of Mr. Mushtaq A. Memon, learned counsel for the respondent Nos. 1 to 3 states that defendant Nos.1 to 3 have nothing to do as they are in possession of their own property as demarcated by the competent authority in presence of the parties.
8. ' Heard learned counsel for the parties at length and perused the relevant material available on record. For grant and refusal of injunction is concerned, there are three ingredients i.e, good prima facie case, balance of convenience and irreparable loss, respectively. Admittedly, land in question was leased out in favour of one Khalil Masood for Poultry Farming purpose for a period of 30 years on 7-8-1983, which was subsequently, transferred in the name of plaintiff by the then Deputy Commissioner, Karachi East vide order dated 31-10-1985. The terms and conditions were signed by the parties and 30 days lease money has also been transferred and prima facie no personal service has been effected before cancellation of such lease, violation of the terms and conditions, if any, is a complicated question requires framing of issues and recording of evidence. Not only this, but it is also to be seen, whether, cancellation order is legal or illegal and orders passed by the competent person, and what was material before him for cancellation of such lease, and further that demolition, as alleged was proper or not, so also demarcation if any made time to time in presence of the parties respectively, all requires framing of issues and evidence and that cannot be decided at this stage. So far FCS No,1720/93 filed with the Court of learned Senior Civil Judge-I Karachi East in concerned, admittedly, dismissed for non-prosecution, so also an appeal being time barred, and no issues were framed nor, evidence was recorded, as such same cannot be said to have been decided on merits, and under such circumstances, party can repeat a suit. Even otherwise, land has not been granted to any one. It has also been observed that DDO in his report has also suggested that directions be issued to Survey Department plus Manager, Pak Refinery to submit the report of ground position whereas jurisdiction is concerned, civil Court is a Court of ultimate jurisdiction even if, jurisdiction is barred, civil Court can see an illegality and malafides, if any done by the forum, tribunal or authority. Reliance is placed on the cases reported as, Hamid Hussain v. Government of West Pakistan and others (1974 SCMR 356) and Mian Muhammad Latif v.
9. Province of west Pakistan through the Deputy Commissioner, Khairpur and another (PLD 1970 Supreme Court 180), respectively. So for law referred above by the learned Counsel, is distinguishable, as the facts of present matter are not similar and identical.
10. ' In view of the above discussion and circumstances of the case, in all fairness, plaintiff has made out a case for grant of an injunction, though, at this stage, it is not necessary for the plaintiff to have a good prima facie case but arguable case is a sufficient, and will be inconvenient to the plaintiff and will suffer an irreparable loss, which cannot be compensated in terms of money. As such defendants Nos.4 to 8 are directed to maintain same position in respect of possession, and are restrained from transferring or alienating the land in question and from creating third party interest during pendency of the suit.
11. ' With above observation C.M.A. 938/03 is dispose of.