1. ' MUHAMMAD ALI MAZHAR, J.---This application under Order VII, Rule 11, C.P.C. Is brought by the defendants for rejection of the plaint on the ground that the suit is barred by section 87 of the KPT Act, 1886 as the plaintiff had not served the requisite notice upon the defendants before filing this suit, the plaintiff has failed to fulfil the contractual obligations, therefore, no cause of actions accrued to the plaintiff to file the present suit.
2. ' The bare bones of the matter as recounted in the plaint are that the plaintiff was a listed contractor with the defendant Nos.1 and 2 in category "A" and running a partnership firm in the name and style of Jadoon Contractors. The defendant No,3 invited tenders for the work of Maintenance and Repairs to the Transit Sheds at East Wharf Keamari vide Tender Notice No,E/CS- 2(911)/11578 dated 16-11-2000. The plaintiff participated in the tender and was found lowest. The tender was approved by the Tender Committee. Despite the expiry of stipulated completion period i,e, 19-10-2001, the plaintiff had not been handed over clear site, therefore, the plaintiff's labour was sitting idle without work. The plaintiff submitted first running bill in the sum of Rs.4,38,297 which was duly verified by the competent authority and against which approved payment, a sum of Rs.300,000 was only paid. Thereafter second running bill was submitted but no payment was made in spite of repeated requests. However, on 4-2-2002, the defendant No,3 issued a letter in which he informed the plaintiff that the Administration had approved the following remedial actions:
(i) Termination of contract for the work "Maintenance and Repairs to Transit Shed at East Wharf".
(ii) Forfeiture of full 5% Security Deposit amounting to Rs.240,320 for this work.
(iii) Blacklisting of plaintiff's firm for future KPT works.
3. ' According to plaintiff, this action was illegal and contrary to the terms and conditions of the agreement. The plaintiff replied the above letter and lodged strong protest. On 30-4-2003, the defendant No,6 vide letter No,EPIO/WIW/2001 intimated the plaintiff that the KPT Administration has blacklisted the plaintiff and further requested that KPT pass be submitted to the office for cancellation. The plaintiff further stated in the plaint that the act of the defendants is illegal, arbitrary and mala fide with ulterior motives to defame the plaintiff and the plaintiff has suffered mental torture and agony and anguish and also suffered huge monetary losses in the market and business community.
4. ' The defendants filed their written statement in which preliminary objections were taken that suit for declaration and injunction in not maintainable, the plaintiff failed to fulfil his contractual obligations and complete the work and the plaintiff suppressed the material facts and misled the court by not filing the general conditions of the contract.
5. ' Mr. Haroon Shah, the learned counsel for the defendants argued that since the contract awarded to the plaintiff was terminated on account of his own 1efault and breach, therefore, he has no right to file the suit for declaration. He referred to section 21 of the Specific Relief Act, which provides that a contract cannot be specifically enforced for the performance of which compensation in money is an adequate relief. He further added that no cause of actions accrued to the plaintiff to file the present suit and finally argued that the suit has been instituted in violation of section 87 of the KPT Act, 1886 as the plaintiff had not served the requisite notice upon the defendants before filing this suit. In support of his arguments, he relied upon the following judgment:--
(1) PLD 2005 Karachi 645 (Trustees of the Port of Karachi v. Qutubuddin). In this matter, the Divisional Bench of this Court has held in HCA that agreement executed between the parties and the correspondence had left no room for doubt that the material available with the supplier at the taking the contact was not as per specifications. Non-examination of the material at the relevant time could not be attributed to the buyer. Fact was not denied that it was due to non-availability of the labour which was to be arranged by the supplier and lack of proper space available at the place of inspection, the material could not be examined so as to be certified strictly in accordance with the specifications. Supplier when asked to remain present at the time of inspection of the material he failed to be present on the plea that he had to appear on that before the Martial Law Court. When the supplier subsequently appeared the material was examined and was rejected.
6. Evidence from the supplier's side also showed that some other material of substandard nature was shown to the representatives of the buyer for which the supplier expressed his regrets and tried to justify the lapse by stating that his employees had pointed out another lot of the material which was not meant for supply. Sufficient time having expired and after inability of supplier to supply remaining material for various reasons expressed by him, there appeared to be no wrong committed by the buyer by cancelling the contract and purchasing the remaining material from the market after inviting fresh offers from the suppliers of the said material. Supplier having failed to perform his part of the contract as per terms of the contract the buyer was entitled to recover the differential amount which it had paid to the new supplier for the remaining quantity of the material. Buyer, in circumstances was entitled to cancel the contract on the ground of non-supply of the balance quantity of the goods by the supplier as per agreement. High Court allowed the appeal and set aside the judgment and decree passed by Single Judge and decreed the Suit in favour of the buyer as prayed for.
(2) 2002 CLD 77 (Concentrate Manufacturing Company of Ireland and 3 others v. Seven-up Bottling Company (Pvt.) Limited and 3 others). The matter pertains to franchise agreement and termination of agency under section 202 of the Contract Act. In this judgment the Lahore High Court has held that in case of breach of a contract only two remedies are available to the aggrieved person, either to seek specific performance of the contract, or to seek for damages. Where specific performance cannot be granted under the law, as a substitute, the plaintiff is not entitled to file a suit for declaration or for that matter a suit for perpetual injunction.
(3) PLD 1978 Karachi 892 (Muhammad Ismail and Co. Ltd. v. Karachi Port Trust, Karachi). In this judgment the learned Single Judge of this Court has discussed section 87 of the KPT Act, 1886. It is held that it cannot be denied that to grant, or refuse or renew or refuse to renew licences for stevedoring and other work are some of the functions of the Karachi Port Trust and under Bye-Law 32 of the General Bye-Laws no cargo could be loaded or unloaded except under the personal superintendence of Stevedore or Contractor duly licensed by the Board, therefore, when the Karachi Port Trust refused to renew the licence or even if they cancelled the licence they were acting pursuant to the Act and the Bye-Laws framed thereunder and since there is no allegation of mala fide in this case, the court was of the opinion that notice before filing of the Suit was necessary.
(4) PLD 1978 Karachi 1041 (Messrs General Carriers Ltd. Karachi and 2 others v. Karachi Port Trust).
7. This matter also pertains to termination of the Stevedore license and it was held that notice under section 87 of the KPT Act, 1886 was necessary. In the same judgment, reference of Hon'ble Supreme Court's Judgment reported in PLD 1973 SC 49, (State v. Ziaur Rehman and others) has been quoted in which the Hon'ble Supreme Court dilated upon proposition that when a person acts mala fide he cannot be deemed to be acting purporting to act in pursuance of the Act. His lordship Hamoodur Rehman, C.J., (as he then was) observed as under: "It will thus be seen that, so far as this Court is concerned, it has consistently held that the view that a mala fide act done without jurisdiction, because no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act mala fide. I am, therefore, of the opinion that the words "purported to be done or done in the purported exercise of powers" cannot cover acts which were not done by person empowered under the statute or the legislative measure to so act or were clearly beyond the scope of the powers given by the statute or were done mala fide or by practising a fraud upon the statute for a colourable purpose. I, therefore, agree with the majority view which prevailed in the High Court that clause (2) of Article 281 of the Interim Constitution does not validate acts which are coram non judice or without jurisdiction or done mala fide."
8. ' The learned Judge of this Court had held that the notice under section 87 KPT Act, 1886 was necessary as in this case no plea of any mala fide was taken in the plaint.
(5) 2006 MLD 1397 (Messrs Creative Information Services (Pvt.) Ltd. v. Karachi Port Trust). This matter pertains to recovery under the Land Revenue Act read with section 87 of the KPT Act, 1886. In the present case the plaintiff has challenged the notice issued by KPT under section 84 of the KPT Act, 1886 for the payment of arrears of dues and extension fee. The notice impugned in the suit was for recovery of rent fixed under section 18 of the KPT Act, 1886 and this deemed to be served under section 84 of the KPT Act, 1886. It was further held that under section 87 of the KPT Act, 1886 not only the act done under KPT Act, 1886 but the act purported to be done under the said Act was saved.
9. Since the matter pertains to sections 18 and 84 of the KPT Act, 1886, therefore, learned Single Bench of this Court held that without notice under section 87 KPT Act, 1886 the suit was not maintainable and the plaint was rejected.
(6) PLD 2002 Karachi 502 (Khalid and Company v. Cantonment Board, Malir). This case pertains to section 273 of the Cantonment Act. In which it was held that in absence of notice the suit for declaration could not be filed and the plaint was rejected. The matter pertains to award of contract for establishing Cattle Mandi in the area of Cantonment Board. On failure on the part of the plaintiff to fulfil requirements, the Cantonment Board had cancelled the contract and then decided to run itself the Cattle Mandi on partnership basis.
10. ' Mr. Masroor Alvi, the learned counsel argued that the plaintiff has filed the present suit in court for declaration that the letter dated 3-4-2003 is illegal whereby the plaintiff was blacklisted with the directions to return the KPT entry passes. He further argued that vide letter dated 4-4-2002, the contract, was cancelled by the KPT without issuing any show-cause notice and personal hearing.
11. The plaintiff was condemned unheard. In the above letter it was only directed to be present in person on site on 18-4-2002 for the joint measurement of the work. In response to the letter the plaintiff had submitted a representation on 18-4-2002, which was also turned down by the KPT vide letter dated 28-5-2002 without holding any inquiry or affording personal hearing in the matter.
12. Besides the relief of declaration, the plaintiff has also prayed for the damages on account of declaring the plaintiff blacklisted. Learned counsel argued that the entire proceedings against the plaintiff is based on mala fide intention of the defendants, therefore, there is no need of any notice under section 87 of the KPT Act, 1886 as in the law there is no lawful authority vested in the defendants to blacklist the plaintiff. Learned counsel for the plaintiff has also pointed out paragraph 27 of the plaint in which it is clearly mentioned that the act of the defendants are illegal, ultra vires, arbitrary and mala fide with ulterior motives to discredit and defame the plaintiff to force him to leave the KPT. It is further submitted in paragraph 28 that due to nonpayment of bills and declaring the plaintiff as blacklisted, the plaintiff has suffered mental torture, agony and anguish and also suffered huge monetary loss in the market and business community. The learned counsel concluded his arguments that application under Order VII Rule 11, C.P.C. Is not maintainable as for the purposes of deciding the above application, only the averments of the plaint should be looked into keeping aside the defence of the opposite party. In support of his arguments, he relied upon the following case-laws:--
(1) PLD 2008 Supreme Court 650 (Saleem Malik v. Pakistan Cricket Board (PCB). It is held in this judgment that rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his such right therefore, the Court may, in exceptional cases, consider the legal objection in the light of averments of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint. Subject to the certain exception to the general principle, the plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of fact or law, the provision of Order VII, rule 11, C.P.C. Cannot be invoked rather the proper course for the court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law.
(2) 2007 YLR 2252 (Maxim Advertising Co. (Pvt.) Ltd. v. Messrs. Z and J Hygienic Products and 2 others). It is held that contents of plaint would be read as a whole and presumption of correctness would be attached to the averments made therein. Plaint in suit cannot be rejected.
(3) PLD 2009 Karachi 38 (Attaullah and 6 others v. Sanaullah and 5 others). It is held that plaint cannot be rejected in part and even if one prayer is maintainable, the plaint cannot be rejected.
(4) PLD 2001 YLR 2542 (Messrs Falaknaz Builders v. Karachi Building Control Authority and others). It is held that the requirement, to issue statutory notice under section 20-A of Sindh Buildings Control Ordinance, 1979 though was mandatory in nature and the suit could be dismissed in case such mandatory notice was not issued, but that was only the general rule and there were strong exceptions. Despite non service of said notice the suit would be maintainable if the impugned actions were alleged to be mala fide, in excess of or extraneous to or in violation of law or statute, unlawful, illegal, unconstitutional, taken in colorable exercise of power, without jurisdiction and in violation of the principles of natural justice. Bar contained in section 20-A, Sindh Building Control Ordinance, 1979 would. Not apply where the impugned actions were taken not under the Ordinance, but under some other Rules and Regulations. Where in the plaint it was merely alleged that the impugned actions were mala fide, illegal, unlawful, without jurisdiction, in excess of jurisdiction, in breach of natural justice or taken in colorable exercise of power the suit would be maintainable despite non service of said notice and plaint cannot be rejected under Order VII Rule II, C.P.C. Functionaries of the State have to act honestly, fairly, justly and not in arbitrary or capricious manner and have to give reasons for their orders.
(5) 2007 CLC 1757 (Mrs. Zaibunnisa v. Muhammad Saj id). In this judgment, it is held that Court while hearing such application would not consider plea of defence. Plaint would be accepted or rejected on basis of facts disclosed therein. Rejection of plaint in part not permissible. Plaint could not be rejected in part. Plaintiff had claimed four independent reliefs, and even if one relief was permissible, then plaint could not be rejected. Plaint in presence of claim for damages could not be rejected. Application was dismissed in circumstances.
(6) 1998 CLC 1532 (Mrs. Naila Masood and 2 others v. Secretary, Food and Cooperation, Government of Sindh and others). It is held that communication between plaintiffs and defendant prior to filing of suit fulfilled requirements as provided in section 70, Cooperative Societies Act, 1925, therefore plaint was not liable to be rejected on that ground. It is further held that plaintiffs being legal heirs of deceased member of Cooperative Society were not entitled in law to invoke arbitration under section 54, Cooperative Societies Act, 1925, therefore, bar to file suit as contained in section 70-A, Cooperative Societies Act, 1925 was not attracted.
13. After hearing pros and cons of the matter, I have reached to the conclusion that the plaint cannot be rejected in piecemeal. Besides claiming declaration regarding validity of the letter dated 30-4- 2003, the plaintiff has also claimed recovery of dues and damages, therefore, in my view, the suit is not barred under section 21 of the Specific Relief Act. Clause (a) of section 21 itself provides that a contract for the nonperformance of which compensation in money is an adequate relief. Since the plaintiff has also claimed the recovery of amount and damages in the suit, therefore, at this stage this court cannot reach to a conclusion that suit is barred under section 21 of the Specific Relief Act.
14. ' The next point urged was that the plaintiff has no cause of action against the defendant which is also incorrect and contrary to the facts and circumstances of the case. In paragraph 30 of the plaint the plaintiff has described the cause of action and it is also well settled principle that the cause of action is a bundle of ficts and for ascertaining whether the plaint discloses any cause of action or not for that reason the entire plaint is to be seen. The plaintiff has challenged the letter dated 30-4-2003, whereby he was declared blacklisted and the other relief(s) in the plaint are relating to the recovery of money and damages, therefore, I am of the considered view that the plaintiff has disclosed a proper cause of action in the plaint and plaint cannot be rejected on this ground.
15. ' The next point urged by the learned counsel for the defendants is in fact going to the roots of the case which is non-service of notice under section 87 of the Karachi Port Trust Act and makes the plaint liable to be rejected for want of mandatory notice.
16. ' It would be convenient to reproduce Section 87 of KPT Act as under:--- ' Karachi Port Trust Act 1886 ' Section 87 Limitation of Suits, etc. ' No suit shall be commenced against any person for anything done or purporting to have been done in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months form the accrual of the cause of such suit.
17. ' The plaintiff has asserted that the letter declaring the plaintiff blacklisted is illegal, ultra wires, arbitrary and mala fide with ulterior motives to discredit and defame the plaintiff, therefore, it is necessary that before reaching any positive conclusion regarding non service of notice under section 87 Karachi Port Trust Act, it is necessary to see the scope, spirit and purpose of section 87 under which a provision for prior notice has been introduced. The wording of section 87 is very much clear without any shadow of doubt that no suit shall be commenced against any person for anything done or purported to have been done in pursuance of this Act whether the defendant has declared the plaintiff blacklisted in pursuance of this Act. To my understanding of Karachi Port Trust Act, as a principal, the defendants might have powers and authority to cancel the contract, if the contractor was not fulfilling the contractual obligations under the Act, but no powers are conferred upon or vested in the defendants under the said Act to declare the contractor blacklisted. I have seen the letter dated 4-4-2002 whereby the contract was terminated on 14 days notice without providing any opportunity of hearing or show cause. In the letter, it is simply mentioned that the notice is being served and on the expiry of the same the contract shall stand terminated. It was further directed in the same notice that the plaintiff should be present at the site on 18-4-2002 for joint measurement. The plaintiff sent an appeal/representation to the defendants on 18-4-2002 for reconsideration of the decision and in response to this appeal/ representation, Karachi Port Trust informed the plaintiff vide letter dated 28-5-2002 regarding the rejection appeal/ representation and in concluding paragraph, it was mentioned that as for release of payment of plaintiff is concerned, the plaintiff was requested to rectify the defects and attend the office for joint measurement, but he had failed to do so. Article 18 of the Constitution of Islamic Public of Pakistan, 1973 guarantees and secures the fundamental rights of freedom of trade, business or profession, therefore, it is to be seen before declaring the plaintiff blacklist, whether the defendants had fulfilled the principle of natural justice and afforded an opportunity or proper right of hearing to the plaintiff or not. Learned counsel for the defendants relied upon judgment reported in PLD 1978 Karachi 892, the facts are highly distinguishable, this matter was pertained to grant or refuse to grant or to cancel or to refuse to renew licence for stevedoring, therefore, learned Judge of this Court held that the aforesaid activity clearly falls within the scope of powers of Board Trustees and further mentioned in the judgment that no allegation of mala fide made against KPT in this matter.
18. It was further held that in either cases KPT is entitled to notice under section 87 of KPT Act their action even if illegal covered by words (purporting to have been done) under provision of Act. The judgment reported in PLD 1978 Karachi 1041 has the same footing. In this judgment also, the court has held that grant or refusal to grant licence or cancel or refuse to renew the same is within the scope of powers of the Board of Trustees given by statute.
19. ' In the above judgment, the court has considered sections 17, 18 and 87 of the KPT Act. Section 17 relates to the provision concerning Board proceedings while section 18 deals with the competency of the Board to lease, sell and transfer the property of the KPT. There is no specific provision or section under the KPT Act, whereby any powers are conferred upon the Board to declare any contractor blacklisted, therefore, in my view, the act of declaring the plaintiff blacklisted is not purported to have been done under the provision of the Act. Another judgment also reported in 2006 MLD (Karachi), the learned Judge of this court has held that the plaintiff assailed the notice issued under section 18 of the KPT Act deemed to be served under section 84 of KPT Act. The learned Judge of this court has held that the above facts purported to have been done under the said Act, therefore, notice under section 87 was necessary. Again this case is distinguishable to the facts and circumstances of the case in hand. In the present matter neither any notice for recovery of rent or fixation of rent has been challenged nor the action of KPT, either to renew or not to renew the stevedoring license is impugned, therefore, all three judgments relied upon by the learned counsel for the defendant in support of non service of notice under section 87 of the KPT Act are distinguishable and not applicable to the facts and circumstances of the present case. In order to sift grain from the chaff, it is necessary for this court to decide bone of contention between the parties which is emerging from their pleadings, whether the declaration of KPT Administration to the plaintiff as blacklisted was done or purported to have been done under KPT Act, whether the Administration had vested in any powers to declare any contractor blacklisted or whether any contractor may be declared blacklisted by the Administration without conducting any inquiry and affording him a reasonable opportunity to answer the allegations against him, whether the plaintiff has been declared blacklist without fulfilling the requirement and principle of natural justice. All these questions can only be resolved after leading evidence by the parties.
20. ' Judgment relied upon by the plaintiff's counsel reported in 2007 CLC 1757 is quite applicable in the present facts and circumstances in which it has been held that while hearing an application under Order VII Rule 11, C.P.C., the court would not consider the plea of defence, the plaint would be accepted or rejected on the basis of facts disclose therein. Rejection of plaint in part is not permissible. The plaintiff's counsel relied upon another judgment which is reported in PLD 2009 Karachi 38 in which it has been held that plaint cannot be rejected in part and even if one prayer is maintainable the plaint cannot be rejected. Learned counsel for the plaintiff further referred to another judgment reported in PLD 2008 SC 650 in which the Hon'ble Supreme Court has held that rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing legal remedy for undoing the wrong done in respect of his such right. This is a settled principle of law that in case of controversial questions of facts or law the provision of Order 7, Rule 11, C.P.C. Cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence. Finally, the plaintiff's counsel quoted 2007 YLR 252 in which, learned Divisional Bench of this court has held that while rejecting the plaint, contents of the plaint would be read as a whole and presumption of correctness would be attached to averments made therein. Plaint in suit could not be rejected in part. All the aforesaid judgments relied upon by the learned counsel for the plaintiff on the principle of rejection of plaint under Order VII Rule 11, C.P.C. Are quite applicable to the facts and circumstances of the case. The whys and where forces lead me to a conclusion that the controversy involved in the present suit cannot be decided without evidence and in all conscience, I am not convinced to reject the plaint. The application is dismissed accordingly.
21. ' Both the parties are directed to file their proposed issues.