C.M. A. No,4332 of 2008.
'KHALID ALI Z. QAZI, J.-This is application, filed by defendant No,2 Karachi Port Trust, under Order Vll, Rule 11, C.P.C, for rejection of plaint on the ground that plaintiff has no legal right or title on the suit- land i.e, Plot No, 16/2, Old Survey Nos.32, 32-A and 38, Keamari Township, Karachi,, no cause of action has been disclosed against defendant No,2, hit by the principle of res judicata and not maintainable under section 42 of the Specific Relief Act.
2. The brief facts giving rise to the present case are that the plaintiff has claimed to be the owner along with his brother of the premises No,G/11 situated in the building bearing Old Survey Nos.32, 32A and 38, (new No, 16/2) Keamari Township, Karachi through a registered Conveyance Deed dated 1-9-1980. The plaintiff has applied for a joint lease to the defendant. No,2. The Estate Manager of defendant No,2 suggested to Board of Trustees through its note dated 4-10-1981 that a joint lease may be granted to the all five persons for 25 years w.e.f, 1-7-1980 and the plaintiff along with others agreed to this proposal but the same was not accepted by the Board of Trustees for the reasons best known to them. However, in the identical circumstances lease in respect of Plot No, 16/1 (which is a part and parcel of suit plot) was granted in favour of one Samandar Khan and many other plots. After writing several letters it appears that the plaintiff filed a Suit No,2352/1985 for direction against defendant No,2 but thereafter he was informed by defendant No,2 vide letter dated 4-6-1986 that no action can be taken as the matter is sub judice because of pendency of Suit No,2352/ 1985 hence the plaintiff informed the defendant No,2 vide letter dated 10-2-1987 that he is ready to withdraw suit if the lease is executed on the analogy of Plots Nos.56,74,93, 96 and 16/1 of Keamari Township but all in vain,. In the meanwhile brother of the plaintiff gifted their share to the plaintiff and the plaintiff again approached the defendant No,2 for grant of lease in his favour as none other occupant was coming forward for a joint lease despite passage of more than two decades. The plaintiff also shows his willingness to make entire payment of defendant's dues and accept standard terms and conditions of defendant No,2. After taking hectic efforts the instant suit has been filed for declaration and mandatory injunction.
3. I have heard Mr. Ziaul Makhdoom learned counsel for the plaintiff, Mr. Safdar Mehmood learned counsel for the defendant No,2, perused the record of the case, relevant law and case law on the subject.
4. Mr. Safdar Mehmood learned counsel for the defendant No,2 has contended that the plaintiff has admittedly no title oh the subject Plot No, 16/2 for which it has made a prayer (a) in the plaint. He has contended that it has one Shop No,G/11 in the building constructed on Plot No, 16/2 which building contains many shops on ground floor, and flats on upper floor and which are in the possession/occupation of more than forty persons/families who are not parties to this suit and plaintiff is praying for demolition of the subject building constructed on the plot not belonging to him vide prayer (b). He has further contended that before filing this suit, plaintiff had already filed a Civil Suit No,2352/1985 before IInd Senior Civil Judge, West, Karachi, against the answering defendant on the same cause of action as stated by him in this plaint though the plaintiff has lied to this Court that previous suit was withdrawn by him, but actually it was dismissed for non- prosecution a per order dated 26-3-1998 2009 and subsequently application for restoration of the suit was also dismissed. He has also contended that the last dismissal order remained unchallenged and attained its finality therefore this suit is hit by the principle of res judicata. He has further added that plaintiff has not come before this Court with clean hands as the plaintiff has suppressed the true and real facts from this Court. Learned counsel lastly contended that plaint in the subject suit does not disclose any cause of action against defendant No,2 and it is also barred by law of res judicata as well, hence the plaint is liable to be rejected with costs. In support of his submission, learned counsel has placed reliance upon the cases of Anwer Hussain Surya v. Sumari Builders (2008 CLC 418) and Ardeshir R. Cowasjee and others v. CDGK and others (2008 CLC 1166).
5. Conversely, Mr. Ziaul Haq Makhdoom learned counsel for the plaintiff has contended that plaintiff has a legal right and title to the suit property which was admitted by the defendant No,2 itself in view of letter dated 4th October, 1981 (Annexure D-l to the plaint) and it was also proposed by Estate Department, KPT for execution of lease in favour of the plaintiff. He has contended that the sale-deed in respect of the subject property was also executed by the previous owner i.e, Muhammad Sharif son of Muhammad Shafique as far back in 1980 in favour of the plaintiff and his brothers who later orally gifted their share to the plaintiff. He also contended that plaint also shows cause of action which is specifically mentioned in Para-19 of the plaint and also in Annexure K&L-l.
He has further contended that the suit is also not barred by principles of res judicata in Suit No,2352/1985 which was filed before the IInd Senior Civil Judge Karachi West, seeking following prayers:~ "(1) To declare that the defendant No,l has illegally, malafidely and without lawful authority rejected the proposal of lease submitted to them by the Estate Department as contained in their letter dated 4-10-1981.
(2) To declare that the proposal of lease submitted by the defendant No,1 Estate- Department as contained in their letter dated 4-10-1981 be accepted by the Board of Trustees of KPT.
(3) To declare that the plaintiff is entitled to the grant of lease by the defendant of Plot No, 16/2 Keamari Township on usual terms and conditions as offered in their public notice dated 9-4-1981.
(4) To grant any other relief or declaration as this Honourable Court may be pleased to grant in the circumstances of the case.
(5) Permanently prohibiting and restraining the defendant No,l their servants and agents from granting lease of their Plot No, 16/2 Keamari to any other person or persons except the plaintiffs or to dispossess or interfere with the plaintiff possession of premises No,G-11 on Plot No, 16/2, Keamari Township, Karachi.
(6) Cost of the suit and any other relief that this Honourable Court may be pleased to pass."
Whereas in the present suit the plaintiff has prayed as follows:- .
"(a) To declare that the plaintiff is owner of the suit plot and direct the defendant No,2 to execute lease in favour of the plaintiff in respect of Plot No, 16/2, Old Survey Nos.32, 32-A and 38, Keamari Township, Karachi at the rate prevailing in the year, 1981.
(b) To direct the defendant No,2 to allow the plaintiff to demolish the structure on the suit Plot No, 16/2, Old Survey Nos.32, 32-A and 38, Keamari Township, Karachi.
(c) To direct the defendant No, 2 to scrutinize and forward proposed construction plan of the plaintiff to Karachi Building Control Authority for final approval strictly in accordance with law.
(d) Grant such other relief that this honourable Court may deem fit and proper in the circumstances of the case."
He has contended that if the prayers in both the suits are examined, they are entirely separate and distinct from each other, hence the instant suit is not barred by principles of res judicata. He prayed that the application is liable to be dismissed with compensatory cost. In support of his contentions, learned counsel has placed reliance upon the case of Ghulain Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344).
6. I have given due consideration to the arguments advanced by the learned counsel for the parties. On the tentative assessm ent of the material available on the record, it would be seen that all the le.Gal and factual issues raised by the parties counsel only be taken into consideration after the evidence has been recorded, the matter was thoroughly examined with regard to the controversy in two proceedings and it was not possible for the Court to reach the conclusion that the present suit involving the same controversy as well as whether in the identical circumstances in respect of Plots Nos. 56, 73, -74, 76, 94, 95 and 16/1, Keamari Township, Karachi, leases were granted to the claimants/occupants of the above mentioned plots by the defendant No,2.
Reference can be made to the case of Jearem and others v. Federation of Pakistan and 2 others (1994 SCM R 826).
7. In the case of General Sales (Pvt.) Ltd. v. Mrs. Daulat (