1. ' GHULAM DASTAGIR A. SHAHANI, J.---The above mentioned applications arise out of one and the same subject matter, hence they both are being disposed of by this common order. Suit is filed by the plaintiff on the ground that a permission was allowed to him for running a Tea Stall on a portion of Nala viz. 86 sq. Feets opposite Amricano market, Abdullah Haroon Road, Saddar, Karachi by the District Officer (Revenue) C.D.G.K., for one year, at the rate of Rs.1000 per month and by virtue of its allotment his vested interests has been created. However, challan for payment of said Tea Stall, subsequently refused to him with mala fide intention, as he challenged the allotment of one Haji Abdul Ghani, in respect of Nala space in Survey No.PRQ-2, adjacent to Plot No. 22 PR-2(2/15)
2. Abdullah Haroon Road, Saddar, Karachi. Further, case of the plaintiff is that, prior to the present suit, FC Suit No. 662 of 2005, was filed by him with the Court of learned Senior Civil Judge Karachi, South, against C.D.G.K. For declaration and injunction with a prayer that he may be declared as a tenant of said Nala space of Tea Stall, and defendants have no authority to eject him, without due course of law, and also prayed for relief of injunction. City District Government Karachi through their learned counsel, submitted an application under Order VII Rule 11, C.P.C.Which was rejected according to him. Being dissatisfied, civil revision was filed by the C.D.G.K., which was transferred to the Court of learned Ist Additional District Judge Karachi South. However, the case of plaintiff is that, while pendency of aforesaid revision, as well as main suit No.662 of 2005, C.D.G.K., officials namely Naseer Tamuri and others, on the instance of somebody else, thrown his articles on the floor of Nala and took all belongings of the plaintiff with them, by destroying Tea Stall, purposely, in order to give wrongful loss to the plaintiff.
3. ' Processes were issued and written statement was submitted by the C.D.G.K., defendants Nos. 3, 4, 10, 11, 12, 13 and 14, respectively, as well as by the defendant No.2, who adopted same written statement already filed by the defendants Nos. 3, 11 and 12. The case of the C.D.G.K. And others is that, plaintiff was temporarily allowed to install a Tea Stall, on a space of 8 x 6 = 48 sq. Feet, near American dry-clean, Abdullah Haroon Road, Saddar, Karachi, only for one year w.e.f. 1-1-2004 to 31- 12-2004 at a rate of Rs.1000 per month, both plaintiff install Sugar cane crush machine and started his juice business, instead of Tea Stall, and that particular period expired a long back and that has not been extended and plaintiff is not in its possession, nor allotted to anybody else, and plaintiff has no locus standi and cause of action to file a present suit.
4. ' However, C.M.A. No.9185 of 2006, under order VII Rule 11, C.P.C. Was moved by the learned counsel appearing for C.D.G.K. On the ground that suit is not maintainable and barred under sections 42 and 56 of the Specific Relief Act, so also a hit by section 11 of C.P.C., as prior to this admittedly suit No.662 of 2005 was filed in the Court of learned Vth Senior Civil Judge Karachi South, against same defendants on same cause of action, in respect of same subject-matter, which was dismissed as withdrawn. However, injunction application, as well as application moved under Order VII Rule, 11, C.P.C. By the other side, both were dismissed.
5. ' Learned counsel appearing for private defendants, as well as by the learned State counsel states that plaintiff was a licensee and was allowed for a particular period of one year, w.e.f. 1-1-2004 to 31-12-2004 and thereafter same was not extended and plaintiff is no more in possession, and act has already been done, as stated himself by the learned counsel appearing for the plaintiff.
6. ' Learned A.A.-G further states that FC Suit No.662 of 2005 filed by the plaintiff, was dismissed as withdrawn with permission to file a fresh vide statement, dated 31-1-2006 and orders were passed on 2-2-2006. Order passed is reproduced as under:-- "In view of contents of application under section 151, C.P.C. filed by learned counsel for plaintiff, to withdraw the suit of plaintiff with permission to file fresh, and no objection raised by the counsel for defendants, the suit of plaintiff stands dismissed as withdrawn accordingly with no order as to costs. As such in view of State Counsel, present suit is hit by section 11 of C.P.C. Learned counsel has referred a case of KMC v. Moosa M. Adam and others (PLD 1972 Karachi 571), but facts of above case are distinguishable, and will not help to the plaintiff, and the contrary same, will favour to the defendants".
7. ' On the other hand Mr. Shahab Sarki, learned counsel for plaintiff states that, application under Order VII Rule, 11, C.P.C. Is to be decided on a legal issues, as such filing of counter affidavit is not necessary. Further, he states that non-extension of such permission is the result of mala fide on the part of C.D.G.K., as allotment of Nala space to one Haji Abdul Ghani was challenged by his client, whereas FC Suit No.226 of 2005 was not decided on merits, but same was dismissed as withdrawn.
8. So far application under Order VII Rule, 11, C.P.C. Is concerned, that is to be decided on the basis of averments of the plaint and no further material is to be considered. He further states that Nala in- question is being rented out by the C.D.G.K., to different persons and said Nala is used as a motorcycle parking, Juice and Chat Stall, as well as for other purposes, then why plaintiff has been refused and dispossessed on 16-1-2006.
9. Heard learned counsel for the parties, and perused the relevant record particularly memo. Of plaint. The settled principles of law are that plaintiff has to prove his own case and he cannot be benefited on the weakness of other side if any. Whereas for disposal of application under Order VII Rule, 11, C.P.C, only averments of plaint are to be considered and be admitted to be true and correct. Though presently and latest view is that other material may also be considered. As decisions of Sr. Judges will prevail contents of memo. Were considered, looking to the memo. Of plaint, it appears that plaintiff was a licensee and temporary permission for one year w.e.f. 1-1-2004 to 31-12-2004 was granted to him in order to run a Tea Stall and that has not been extended, nor a single document is produced in respect of extension if any, nor document is produced to show his possession, on the contrary case of the plaintiff is that he has been dispossessed with other encroachers on 16-1-2006. Not only this but plaintiff's own case is that C.D.G.K. Officials have illegally allotted Nala premises to different people and they are receiving license fees from them.
10. (para. 3 of the affidavit of C.M.A. No. 110 of 2007). The other grievance of the plaintiff is that, a challan has not been issued to him for the purpose of extension by C.D.G.K., for which he moved a number of applications time to time..
11. In view of above facts and circumstances, it has been established that plaintiff has no right or locus standi, nor he can claim restoration of possession. Even otherwise, illegal act if committed, by C.D.G.K., can not be regularized/permitted. Not only this, but from record it also appears that even extension of area viz. 15 11, instead of 6 8 of said Nala, has been refused to him by the District Officer (Revenue), C . D :G. K.
12. ' It has also come on record, particularly notice, dated 1-3-2005, issued by the learned counsel on behalf of the plaintiff addressed to the Chief Secretary Sindh and others that removal of Tea Stall was made as a result of usual removal under the Encroachment Act, which cannot said to be an illegal act, on the part of C.D.G.K. Not only this, but Criminal Miscellaneous Application 87 of 2006 was also moved under section 22-A, Cr.P.C. And decided by the learned VIth A.D.J. Karachi South, with direction to record the statement of present plaintiff and if cognizable offence is made out, F.I.R. Be registered under intimation to the Court.
13. ' Nazir was also appointed in order to visit the site and to report, as to whether there exists any other shop or business on the site and, if there are, under what capacity such shops have been constructed and what is their business. In compliance of the order inspection was carried out and report was submitted which is reproduced as under:- "The Nala is situated opposite Amricano Dry-clean Abdullah Haroon Road, Saddar, Karachi. The Nala is old covered with cement flooring. On left side where the Nala is covered, first building is a Electric Market of Haji Ghani Usman and its shops facing towards Abdullah Haroon Road and then there is back side of Odean Centre on the left side of Nala and some shutters of Odean centre were facing towards Nala and scaffold were fixed for its repair of building and at corner there is substation of KESC. There was no shop on the Nala and some Motor bikes were parked on upper portion of Nala. The Photographs of site were taken which are annexed P/1 to P/8. The place which claims by the plaintiff is shown in photographs Nos. P/1, P/2 and P/3."
14. In view of aforesaid facts and circumstances, prima facie it appears that above-named plaintiff was a licensee for a particular period up to 31-12-2004, but same was not extended, as no fresh order has been produced in respect of extension. As such plaintiff has no right, title and legal character, locus standi and cause of action, for filing present suit, even on a particular date of dispossession. Even otherwise illegal act cannot be protected, as stated above, and no fruitful result will achieve even if matter proceed, as damages cannot be claimed, because plaintiff was not in possession on a particular date, as such application moved under Order VII Rule, 11, C.P.C., is allowed. Plaint is rejected, with other Miscellaneous applications including C.M.A. No. (sic) of 2006, being in fractious on rejection of plaint.