' KHALID ALI Z. QAZI, J.---This order shall dispose of both listed-applications viz. C.M.A. No,1227 of 2006 filed by the plaintiff under O.XXXIX, Rules 1 and 2 read with section 151, C.P.C. Seeking restraining order against the defendant from charging municipal charges without first providing basic amenities such as water, sewerage and roads; and from allotting any part of the Boat Building Yard for any purpose other than boat building activity and C.M.A. No,1344 of 2006 moved by the plaintiff for Contempt of Court under O.XXXIX Rule 2(3), C.P.C. Read with section 151, C.P.C.
Against contemnors namely, Khalid Munir, Deputy Estate Manager, KPT and Yawar Saeed, Sub- Engineer, KPT for violation of order, dated 24-2-2006 passed by this Court for maintaining the status quo.
2 .Brief facts of the case requisite for disposal of the instant application are that the plaintiff is in possession of Plot No,C-2/1 measuring 250 square meters on lease for one year situated in the Boat Building Yard area of West Wharf Karachi. From last several years the KPT authorities have been asking the plaintiff to pay lease money at inflated/penal rates i.e, three times the regular lease money for utilizing the allegedly reclaimed land. This change of stance came as a big shock to the boat builders who had expended huge amount from their own resources for reclaiming additional land including the plaintiff. The area of land reclaimed by the plaintiff comes to about 354 square meters. It is the grievance of the plaintiff that defendant has leased out eleven plots to different parties at reasonable rate in category `A' lease. Out of these eleven leases, only one lessee is engaged in the business of boat building, whereas the rest are involved in other business activities not related to boat building. It is further case of the plaintiff that he is entitled for execution of lease for a period of 99 years and not for a lesser period. It is further added that in respect of same controversy viz. Claiming of exorbitant/inflated lease money by the defendant is subject-matter of nine suits bearing Suits Nos.1225 to 1233 of 2005, which are also pending before this Court. In the said matters, vide order dated 3-10-2005 directed the parties to deposit certain dues on tentative basis. The defendant recklessly and taking no care absolutely issued an exorbitant/inflated bill, dated 30-8-2005 in the name of plaintiff's principal which does not pertain to the suit premises but as a matter of fact pertains to some other plot, which is Plot No,C-3 in the sum of Rs,16,65,945.60. It is further alleged that on 18-2-2006 without issuance of any notice the staff of defendant/KPT came to site of the suit premises and dismantled the various equipments and machines installed therein by the plaintiff. Therefore, the plaintiff was compelled to file the instant suit.
3. Conversely, Bashir Ahmed, Manager Legal Affairs of defendant filed counter-affidavit to the listed-application, wherein he denied the various allegations levelled against the defendant and also raised the question of maintainability of the suit as the plaintiff was only a licensee and the license period had already expired since 1997 and the license has not been renewed and the defendant is not going to renew the license as the plaintiff has violated the terms of license by subletting/sold the plot twice being the attorney who has filed the present suit in the garb of general power of attorney. It is further added that the plaintiff is not paying water or sewerage charges to the defendant except fire and conservancy which are paid to the city government and the plaintiff is no exception, these charges are paid by every body. It is further stated that the defendant cannot be cornered to lease their land to one particular kind of people as it will be unconstitutional to put restriction on the use of property as guaranteed under the Constitution. It is further stated that the plaintiff was given license for use of Plot No,C-2/1 admeasuring 250 square meters but the plaintiff is in possession of more than 604 square meters of land perhaps it is more than 1000 square meters which he has encroached illegally after remarking of the plots. Plot No,3 as admitted in his letter dated 9-1-2003 wherein the plaintiff is being asking for lease of Plot No,3 admeasuring 640 square meters, Annexure D-13 with written statement. It is further pleaded that the plaintiff has himself admitted that Plot No,3 is also under his occupation and that Plot C-3 admeasuring 640 square meters may also be leased to him on the terms and conditions as accepted by the plaintiff. Bill dated 30-8-2005 pertains to Plot C-3 which is under occupation of the plaintiff. The plaintiff must pay the charges outstanding against him as use and occupation charges. The plaintiff must hand over the plot to the plaintiff as the license has expired since 1997 and not been renewed till today. It is further submitted that huge sum of Rs,16,23,643 till January, 2006 is also due, out of which the plaintiff has paid to the defendant Rs,3,50,000 and now there is more than Rs,13,00,000 is outstanding which has not been paid and even the yearly renewal of license was not asked for.
The defendant also taken the stand that the suit itself is liable to be dismissed as not maintainable on the ground that no notice under section 87 of the KPT Act, 1886 was given to the defendant before filing the suit. Therefore, the suit is liable to be rejected under Order VII, Rule 11, C.P.C.
4. I have heard Mr. Sabir Hussain, learned counsel for the plaintiff and Mr. Muhammad Sarfraz Sulehry, learned counsel for the defendant.
5. Mr. Sabir Hussain, learned counsel for the plaintiff contended that plaintiff is ready and willing for the payment of rental at a reasonable rate after proper adjudication of size of the plot in accordance with law. He has further contended that the instant suit has been filed for declaration and injunction on various counts.
6. On the other hand, Mr. Muhammad Sarfraz Sulehry, learned counsel for the defendant vehemently contended that since the plaintiff has not cleared the dues in the sum of Rs,1.3 million and has also violated the term and conditions of the license, therefore, he is not entitled for any relief. He further contended that since no notice under section 87 of the K.P.T. Act, 1886 has been given to the defendant before filing of the suit, therefore the plaint itself is liable to be rejected under Order VII, Rule 11, C.P.C. He also contended that the plaintiff has applied for allotment of land admeasuring 500 square meters on 18-8-1996 but the KPT authorities approved only 250 square meters of land. He further contended that the plaintiff was informed vide letter dated 22-10-1996 the terms and conditions of allotment and the plaintiff was categorically informed that his status will be only of a licensee and he was further advised not to raise any pacca construction on the plot. The plaintiff on the same day conveyed his acceptance of the terms and conditions of license.
It was specifically mentioned that there is no road access and the same cannot be provided by the defendant. He further urged that the plaintiff never sought any permission from the defendant for reclaiming any area whatsoever.
7. Learned counsel for the defendant further argued that the land belongs to Federal Government and nobody has a right to reclaim any piece of land. The plaintiff executed an irrevocable general power of attorney in favour of Muhammad Nadeem on 20-2-1997 in utter violation of letter of license dated 22-10-1996 whereunder clause 8 of the said license the plaintiff could not sublicense whereas the plaintiff gave the attorney the power to sell the property and enter all sorts of agreement with respect to the property. Therefore, the plaintiff committed breach of the terms and conditions of license. He conceded that license period has already expired on 9-10-1997, however, without prejudice to the defendant's rights the Estate Department has proposed to convert temporary allotment of the land into five years lease at the rate of Rs,480 per square meter per annum with 7% compound increase every year excluding government and municipal taxes as may be prescribed/levied from time to time, but the plaintiff never bothered to reply the letter and continue occupying the land unauthorizedly. He also contended that no exorbitant amount of money is being asked from the plaintiff. The plaintiff was allotted only 250 square meters of land but he has unauthorizedly taken over land of Plot C-3 and has so admitted in his letter dated 25-11- 2001. The rate of Rs,185.60 has been accepted by him and he is estopped from denying the fact.
The rate is neither exorbitant nor penal. The plaintiff will only be allowed to keep possession of land admeasuring 250 square meters and after proper demarcation of the boundary, the land in access will be taken over by the defendant and to continue to use this piece of land for boat building purpose. The plaintiff is prohibited from reclaiming any land.
8. I have given due consideration to the arguments advanced by learned counsel for the parties.
9. Before I advert to the above grounds raised by the learned counsel for the defendant for the rejection of plaint under Order VII, Rule 11, C.P.C., it shall be pertinent to observe that in prayer clause, the plaintiff has not only sought relief for grant of 99 years lease, but he has also prayed for declaration and injunction in respect of unauthorized or forcible dispossession from his business premises which is in his possession since 1996. It is an elementary principle of law that plaint could not be rejected in piecemeal. Even if one prayer is maintainable, the plaint could not be rejected under Order VII Rule 11, C.P.C. If there is any authority needed for this proposition, it is Younus Textile Mills v. Muhammad Fazal Tayyab 2004 M LD 1081, which has been followed by me in case of Raees Ghulam Sarwar Sadiq v. Mansoor Sadiq Zaidi and others 2008 PLD Kar. 458 and 2008 CLD 1056.
10. The plaintiff is engaged in boat building business and is ready for making the reasonable amount for the renewal of the lease and acceptance of terms and conditions of the defendant in accordance with law. The terms and conditions to be settled are at variance. The plaintiffs contentions are that the same are to be settled mutually whereas the defendants' contention is that the Board of Trustees of KPT/defendant has universal power to settle the terms and conditions.
On tentative assessm ent of the material available on record, I find that the plaintiff is still in possession of the suit property though the lease has expired and the defendant has accepted the annual rental from the plaintiff and also issued the plaintiff offer letter on 5-6-2002 for allotment of Plots Nos.C-2 and C-3 admeasuring 1112 square meters for the five years (hand written mentioned 15 years instead of 5 years) and advised the plaintiff to fulfil requirements as mentioned in the said letter for the allotment of the said plots.
11. Under the peculiar facts and circumstances of the case, I am of the view that the plaintiff has made out a prima facie good arguable case in his favour. Balance of convenience is also lies in his favour and if he is ejected from the premises he cannot be compensated in terms of money. I, therefore, allow the application to the extent that the plaintiff will not be dispossessed from the premises in question, subject to deposit of Rs,5,00,000 (Rupees Five Lacs Only) with the Nazir of this Court within thirty (30) days and pay the municipal charges to the concerned departments within forty-five (45) days from the date of this order. The plaintiff is also directed to deposit the future rent in advance with the defendant on or before 10th of every calendar month without fail.
12. For demarcation and ascertainment of the exact area occupied by the plaintiff, Nazir of this Court is directed to inspect the site after serving notice to the defendant within fifteen (15) days and submit his report. Thereafter on the basis of the actual ' measuring of the plot in possession of the plaintiff, the defendant may calculate the rent in accordance with law. The Nazir's fee is fixed in the sum of Rs,20,000 (Rupees Ten Thousand Only) payable by the plaintiff.
13. C.M.A. No,1344 of 2006: This is an application for Contempt of Court moved by the plaintiff under Order XXXIX Rule 2(3), C.P.C. Read with section 151, C C.P.C. Against contemnors namely, Khalid Munir, Deputy Estate Manager, KPT and Yawar Saeed, Sub-Engineer, KPT for violation of order dated 24-2-2006 'passed by this Court for maintaining the status-quo. The plaintiff has alleged that said officers of the defendant may be punished for contempt of court since the court's ad interim order dated 24-2-2006 has been violated by them on 27-2-2006 at about 11-30 a.m. They visit the site along with their staff and started disma ntling the various superstructure build on the said plot and damaged various equipments installed therein. More particularly, the shed covering the machines installed on the suit plot was completely demolished under the instructions of the alleged contemnors. Generator room and office of plaintiff was also damaged. The front portion was also digged by the defendant's staff on the instructions of the alleged contemnors just to block the excess/transportation of the plaintiff's various supplies on the said plot.
14. In the counter-affidavit, the defendant has denied that they did not commit any contempt as alleged or at all The defendant pleaded that in fact it is the plaintiff who has committed contempt by erecting the cover of chapra and the filling the digged area which was done before filing of the suit. The photographs are being produced which clearly show that the land which was dug by KPT before filing of suit has been filled up on 10-3-2006, which itself constitute contempt under contempt of Court Act read with Article 204 of the Constitution of Islamic Republic of Pakistan.
15. It is correct that vide order dated 24-2-2006, this Court has restrained the defendant from using the said premises for any other purpose except boat building yard. However, a perusal of respective affidavits of parties would show that this is a case of "word against word". There is nothing specific on record to suggest that defendant has violated the court order. As the plaintiff has failed to establish even a prima-facie violation of the court order by the alleged contemnors, hence no interference by the court is warranted. Resultantly C .M . A . No, 1344/2006 is dismissed with no order as to costs.
16. To sum up listed applications C.M.A. No, 1227 of 2006 is granted in the above terms while C.M.A.
No,1344 of 2006 is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.