' NISAR MUHAMMAD SHAIKH, J.---This appeal is directed against the order dated 22-5-2008 passed by learned Single Judge in Suit No, 437 of 2007 whereby he dismissed the application under Order XXXIX Rules 1 and 2, C.P.C. Of the plaintiffs/appellants and while allowing the application under Order VII Rule 11, C.P.C. Of defendant No,3/respondent No,3 rejected the plaint of the suit of the plaintiffs/appellants, with special compensatory cost.
2. The relevant facts of the case, briefly stated, are that the plaintiffs/appellants filed a suit on 12-4- 2007 for declaration, cancellation and injunction in original side of this Court, stating that the subject Plot No,GK-1/9 situated at Ghulam Hussain Kasim Quarters, (Kharadar), Karachi, was entitled as 'Ejector' when such area was planned in the year 1885. The entire Site/plot was dedicated for the sole purpose of an Ejector which may be classified as an amenity use or in the alternative, it would create a customary right recognized by section 2 of Easements Act, 1882 to use the same for that purpose. Karachi Water and Sewerage Board (defendant No,2/respondent No,2) who has been regulating the sewage facilities in Karachi city has developed an extensive system of sewage, dealing with the problem of sewage and rain water which is severely exaggerated in the area where the water could not flow due to gravity and accumulates therein to store into a pit under the subject plot known as SUMP and thereafter through a system, known as an Ejector system, the water will be thrown into a Nallah/storm water drain and then will eventually find their way to the sea. The subject plot is marked as Ejector No,14 in the plans which indicate the entire sewage system for Saddar Town including the area in question. It was alleged by the plaintiffs/appellants that Karachi Municipal Corporation, now the City District Government Karachi (defendant No,1/respondent No,1), in a desperate attempt to earn money, tried to grab the subject plot and convert it into a commercial building site but the defendant No,2/KS&WB wrote a letter dated 27-4-2000 informing them of the current system of sewage arid restrained them from auctioning the subject plot, to which they restrained themselves from doing so. But again in 2004, the defendant No,1 attempted to auction this plot as a commercial plot sub-dividing it into three halves as Plot No,9-A admeasuring 316.66 sq. Yards and Plot No, 9-B admeasuring 429.72 square yards and subsequently Plot No,9-B was allotted on 30-9-2005 to Muhammad Salim and Abdul Qadir and such lease was issued in their favour on 6-5-2006. The defendant No,2/KW&SB objected before the defendant No,1 and others against the illegal auction of the said plot and its illegal construction. Subh complaints were also made by the defendant No,2 to the S.H.O. Of Police Station Kharadar and the Governor of Sindh and others. The said allotees/auction-purchasers namely Muhammad Salim and Abdul Qadir, realizing that We Plot No,9-B was going to be lost cause for them, sold it to defendants Nos.7 and 8/respondents Nos.7 and 8 vide transfer/ mutation order/letter dated 30-6-2006. It was further stated hi the plaint that the construction of Plot No,9-B was started in December, 2006 and during such construction, it was seen that underneath the plot a SUMP was discovered in line with position taken by defendant No,2. Again many residents of the area wrote to the defendants Nos.1 to 3 and Nazim, Saddar Town about the illegal construction being carried out on the subject plot and the same letter dated 7-1-2007 was also issued to the Chief Minister of Sindh on 10-1-2007. But no action was taken by any authority nor they were willing to initiate litigation against the defendant No,1 and thereafter the defendant No,2 who had also been objecting for the same, provided all documents in their possession to the plaintiffs in February, 2007. The plaintiffs, in para 18 (i) to (vi) of their plaint, also pointed out various violations in the building plan approved by KBCA/defendant No,3 stating that such construction involves direct removal of sewage system without any corresponding measures being taken by the defendants and the same will result in a tremendous nuisance for the citizens of Kharadar. The plaintiffs therefore, prayed as under: "DECLARE
(A) That the Plot No,9 Ghulam Hussain Kasim Quarters, Karachi is the sole property of the Karachi Water and Sewage Board who are a separate legal entity operating under the Karachi Water and Sewage Board Act.
(B) That the City District Government Karachi has no right to auction property that belongs to the Karachi Water and Sewage Board Act, 1996.
(C) That the auction conducted by the City District Government, Karachi in respect of Plot No,9B/1, Ghulam Hussain Kasim Quarters Karachi is void.
(D) That the transfer of Plot No,9B/1, GHK 1, Ghulam Hussain Kasim Quarters Karachi to the Defendants Nos.7 and 9 is void
(E) That the construction on Plot No,9B/1, GHK 1 Ghulam Hussain ' Kasim Quarters, Karachi will create a nuisance in respect of the area known as Kharadar.
(F) That there exists a customary right in terms of section 2(b) of the Easements Act, 1882 that ensures that the plot will remain to be used for the purpose of providing for sewage facilities for the area known as Kharadar.
IN THE ALTERNATIVE:
(G) That the approved plan in respect of the construction on the subject property is in violation of subsection (1) of section 6 of the Sindh Buildings Control Ordinance, 1979 and is as such void.
(H) That the defendant No,1 cannot construct a structure of more than ground + 1 on Plot No,9B/1, GHK 1, Ghulam Hussain Kasim Quarters, Karachi.
DIRECT
(A) the defendants jointly and severally to demolish all building works being carried out on the subject Property.
CANCEL
(A) the lease issued by the defendant No,1 in respect of Plot No,9B/1, GHK 1, Ghulam Hussain Kasim Quarters, Karachi RESTRAIN
(A) the defendant No,1 from constructing on Plot No,9B/1,GHK 1, Ghulam Hussain Kasim Quarters, Karachi.
(B) the defendants Nos.2, 5 and 6 from issuing any electricity, gas, and sewage connections to the building on Plot No,9B/1, GHK 1, Ghulam Hussain Kasim Quarters, Karachi.
(C) The defendant No,4 (iii) from registering any conveyance or interest in respect of any part of the Building being constructed on the Impugned Subject Property in favour of any person whatsoever.
GRANT
(A) Costs.
(B) Grant such other relief as this honourable Court deems just and proper in the circumstances.
3. On the other hand, the defendant No, 1/respondent No,1 (CDGK) submitted in their written statement that the Plot No,9- GK-1 is the absolute property of KMC (defunct) from its creation. As per old Enquiry Register of 1919-20, maintained by Revenue Department, this plot is shown unnumbered and open place under the ownership of Karachi Municipality having old Sheet No,C-7, subsequently numbered as GK-1/9. In re-survey the planning of Ejector was shown without reservation of area but after re-survey in 1920 the total area of plot was ascertained by City Survey Department as 990 sq. Yards while Ejector was shown on near about 50 square yards which was limited to its allocated space and was not disturbed during the auction. To protect plot from encroachment, it was placed in open auction after getting approval of the then administration of KMC. Such auction took place six times from 1997 to 2003 but no one offered reasonable bid as the plot had a big area which was therefore, sub-divided saving existing installation of Ejector and more area of 150 square yards was left open for its future use. The Plot No,9-A was disposed of on 24-1-2003 at Rs,62,000 per square yards and Plot No,9-B was disposed of on 28-9-2005 at Rs,86,000 per square yards. It was further stated that nothing is so far transferred to KW&SB who is not able to produce any title document. The existing Ejector No,14 is only maintained by KW&SB as per present arrangement and its installation is never disturbed during auction of the property of defunct KMC which is now a property of City District Government under section 180 of SLG Ord.
2001. Therefore, the KMC/CDGK being the owner of the property was competent to dispose of its property and KW& SB has no concern to it as Plot Nos.9-A and 9-B is not the part of Ejector nor any part of installation of Ejector is ever included in the plots auctioned under section 124 of SLGO, 2001.
The defendant No,1 further stated that the Ejector along with installation is secured and in no way disturbed as was earlier established and developed on a portion of a Plot No,9 which was purely a KMC tenure property and all kinds of installations of the Ejector are prior to KW&SB who never made any requisition about this plot before any authority after Separation of KW&SB responsibility from KMC in the year 1982. The defendant No,1, therefore, prayed for disposal of suit as, according to them, no cause of action has accrued to the plaintiffs who have tiled this suit without any legal vested rights.
4. The contesting defendants Nos.7 and 8, in addition to the plea raised by defendant No,1, also submitted in their joint written statement that they have acquired the plot from CDGK who was the owner of it and the same neither belonged to KW&SB nor they used it for the purpose of Ejector and as such no easement or any other right was accrued to plaintiffs or any other person. They further stated that KW&SB has installed separate lines for Ejector and the plot in question has no concern with such lines laid down by KW&SB which are away from the plot in suit. They also stated that on the objections of' KW&SB, a meeting was held on 5-4-2007 at the office of Nazim, Saddar Town which was attended by all concerned and after a detailed deliberation the same was concluded with the observations that since no sewerage line exists on the plot in question and all participants have agreed to the version of Chief Engineer of KW&SB Saddar Town, therefore, the matter may be deemed to have been settled. They further stated that the answering defendants have legally acquired the Plot No,9-B after completing all formalities and spent crores of rupees for acquiring the plot and raising construction thereon. They submitted that there is no violation of building plan and there is no violation of any kind in construction of the building on the subject plot by the answering defendants and that there will be no nuisance for the citizens of Kharadar and as such the plaintiffs, who have no personal legal right, are not entitled to any relief.
5. Whereas the defendant No,3/KBCA submitted their written statement that the plot in question has not been, classified as amenity, the definition of which is given in Regulation No,2.7 of KBTP Regulations, 2002 and that the KBCA has granted approved plan strictly in accordance with law, therefore, the construction cannot be termed as illegal unless it is in violation of approved building plan. They further stated that there is no single violation on the part of the KBCA, however, the violations found in the construction and the action taken by them, pointed out in para B-(b) of their written statement are as under:-- VIOLATIONS "(i) Construction in right side COS (instead left on road side.).
(ii) Eight shops constructed instead of five shops..
(iii) Excess covered area
(iv) Premises occupied without occupancy certificate ACTION
(i) Notice dated 24-3-2007 issued.
(ii) Show-cause notice dated 26-3-2007.
(iii) Demolition action taken on 3-4-2007 and removed the partition walls in COS on ground + first floor (which have been reconstructed).
' The defendant No,3 therefore, prayed that the suit may be dismissed with costs and with the direction to the owners to remove the violation at their own otherwise the KBCA maybe allowed to demolish the same at the cost of owner/builder.
6. Whereas the KW&SB/defendant No,2, while admitting most of the assertions of plaintiffs, submitted in their written statement that it is to be determined by the Court as to whether the defendant No,1 has legally or illegally sold the subject property. Whereas a simple statement was filed on behalf of the defendant No,4/Govt. Of Sindh, to the effect that the land in question is the property of CDGK and no interest of the Government of Sindh is involved and as such no written statement is needed.
7. In their application under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A. No,2905 of 2007) the plaintiffs/appellants prayed for restraining defendants Nos.7 and 8 from raising construction on Plot No,9-B/1 GHK-1 Ghulam Hussain Kasim Quarters, Karachi. While the application under Order VII; Rule 11, C.P.C. (C.M.A. No,799 of 2008) was filed on behalf the defendant No,3/KBCA for rejection of plaint on the ground that the suit is hit and barred under sections 16, 20 and 20-A of Sindh Buildings Control Ordinance, 1979 and sections 42 and 56(b) of Specific Relief Act, 1877. Both these applications were heard and decided by learned Single Judge through a common order as mentioned above. The concluding para of such order, relating to application for temporary injunction, which is appearing at page 34, reads as under:-- "In the present case the plaintiffs have failed to bring any document on record to establish their case that the subject plot is an amenity plot or that the plot does not belong to CDGK or the KBCA has approved the construction plan on Plot No,9-B in favour of defendants Nos.7 and 8 in violation of any rules and regulations of KBCA, as such, they do not have a prima facie case.
' All this above shows that the plaintiffs have no prima facie case nor they have any vested interest in the subject plot nor they have any balance of convenience in their favour not any irreparable loss will be caused to them and all the three ingredients are in favour of the defendants Nos.7 and 8.
' With utmost respect, the citations relied on by the learned counsel for the plaintiffs are not applicable to the facts of the present case.
' In light of the above, the application under Order XXXIX, Rules 1 and 2, C.P.C. Bearing C.M.A.No,2905 of 2007 stands dismissed and earlier interim order passed by this Court stands vacated."
' Whereas the concluding para of the impugned order, relating to the rejection of plaint, which is appearing at page 48, is reproduced below:-- "In the light of the above discussion it is crystal clear that plaintiffs have no legal character nor they have any legal right vested in subject suit and the very suit which cannot be filed under section 42 of the Specific Relief Act and also defeated by the section 56(d) of the Specific Relief Act. It is also crystal clear that plaintiffs have no cause of action to file present suit and very suit is barred under sections 16, 20 and 20-A of Sindh Buildings Control Ordinance, 1979 as well as under section 80 of Civil Procedure Code and plaint is liable to be rejected.
' C.M.A. No,799 of 2008 application under Order VII Rule 11, C.P.C. Stands allowed and the plaint is rejected."
8. We have heard learned counsel for the parties and perused relevant record which reveals that there are various points under controversy between the parties and the same, almost, depend upon the nature /status and the title in respect of the Plot No,GK-1/9 situated at Ghulam Hussain Kasim Quarters, Kharadar, Karachi as to whether it is a amenity plot or otherwise and whether it belongs to respondent No,1/CDGK or the respondent No,2/KW&SB. In this regard, no relevant documents are yet produced by the parties, however, it appears from available record that originally the plot in question belonged to the State/government and then devolved upon the Karachi Municipality. The photocopy of the extract of an old entry dated 13-7-1922 of the Form VII (Register of enquiry in connection with re-survey of Karachi) filed with written statement of respondent No,1/CDGK as annexure-D, shows that the land/plot bearing Old No,C-7, New No,1/9 was marked as a unnumbered open space with no mention of its area and the same was entered in the sole name of "Municipality Pump Ejector No,14", as its holder. The photocopy of another extract from the Property Register of Karachi District, filed with the same written statement as annexure B-1, however shows that the land/Plot No,GK-1/9 (old No,C-open space) with its entire area 990 square yards was entered in the name of "Karachi Municipality, Municipal Ejector No,14" as its owner. While the photocopy of Layout Plan of the area filed with the same written statement as annexure B-II indicates that the entire Plot No,9 was marked/named as an "Ejector". Apparently, these documents produced and relied upon by the respondent No,1/CDGK themselves, prima facie support the contention of appellants that the entire Plot No,9 was dedicated to the public use of an Ejector and was designated as an amenity plot which is being used since long as a pumping station for the disposal of sewerage of the area. There appears no material on record to show that the plot in question was ever treated as residential, commercial or industrial and, on the contrary, it appears from the above documents that such plot was being used and utilized by the Government and the Municipality just like an amenity plot as per the need of the area and therefore, the contention of appellants that the same can be classified as an amenity plot, carries force in circumstances of the case. However, this controversy, due to the contrary claim of contesting respondents, needed determination after due trial of the case.
9. As regards the title of the plot in question, the respondent No,1/CDGK has placed reliance upon sections 13, 121 and 180 of Sindh Local Government Ordinance, 2001 the relevant provisions of which are as under:--
13. Composition of District Government.--(1) The District Government shall consist of Zila Nazim and District Administration.
(2) The District Government shall be competent to acquire, hold or transfer any property, moveable and immovable, to enter into contract and to sue or be sued in its name, through District Coordination Officer.
121. Ownership of immovable property.--(1) Subject to any reservations made, or any conditions imposed by the Government, the property specified hereunder shall vest in the respective local government if it is-
(a) vested in a local government through succession as provided in section 180;
(b) transferred to the local government by the Government or any other authority, organization or an individual; and
(c) constructed or acquired by a local government with its title.
(2) The properties of the Government in possession of the local councils established under Sindh Local Government Ordinance, 1979 (XII of 1979) shall pass on to their successors as provided in section 180 all varied by the Government.
(3) The successor local governments shall, subject to policy of the Government or contractual obligations, make bye-laws for the use, development and management of the local government properties.
(4) The Government shall not, except with the prior consent of the local government concerned, reallocate or in any other manner divest title of properties vested in that local government under this Ordinance.
180. Succession of the properties, assets and liabilities.--
(1) Subject to section 123, on commencement; f this Ordinance, the properties, assets and liabilities of the Local Councils, namely, Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees, Union Councils under the Sindh Local Government Ordinance, 1979 (XII of 1979), shall be succeeded by the following local governments under this Ordinance:--
(a) City District Government in the case of Metropolitan Corporation or Municipal Corporation in the concerned City District, as the case may be; (b)
' On the other hand, the appellants have placed reliance on Sections 3, 19 and 20 of Karachi Water and Sewerage Board Act, 1996, the relevant provisions of which are reproduced below:--
3. Establishment of Board.---(1) There shall be established a Board called the Karachi Water and Sewerage Board for carrying out the purpose of this Act.
(2) The Board shall be a body corporate, having perpetual succession and common seal with power subject to the provisions of this Act to acquire and hold property, both movable and immovable, and may by the said name sue and be sued.
19. The provisions of this Act shall have effect notwithstanding anything to the contrary contained in the Sindh. Local Government Ordinance or any other law for the time being in force.
20. Repeal.---(1) Sections 121 to 147 contained in Chapter XVI of the Sindh Local Government Ordinance, 1979 are hereby repealed.
(2) Notwithstanding the aforesaid repeal:--
(i) All properties, movable and immovable, including all water works and installations held by the existing Karachi Water and Sewerage Board (hereinafter referred to as the old Board) shall vest in the new Board; (ii)
10. It appears to be an admitted position that since creation of Karachi Municipality it was solely responsible for the maintenance and development of the sewage system of Karachi and subsequently the bifurcation in the control and management led the promulgation of the Sindh Local Government (Amendment) Ordinance, 1983 (Sindh Ordinance No,II of 1983) which amended the Sindh Local Government Ordinance, 1979 in which a new Chapter XVI with sections 121 to 148 was inserted and by its section 121(1) the Karachi Water and Sewerage Board, was established.
Thus, a separate legal entity was given to this Board by enactment of the Karachi Water and Sewerage Board Act, 1996, the relevant provision of which i.e, section 20(2)(i) provides that all movable and immovable properties, including all water works and installations, held by the said old Board, shall vest in the new/present KW&SB. Accordingly, the contention of the learned counsel for the appellants carries force that no title, document is required to be produced to prove the ownership of respondent No,2/KW&SB who by the operation of law, has become the owner of the entire plot including its all water works and installations, designated for the purpose of an Ejector having been held by it since long. In view of the above provisions of sections 19 and 20 of. KW&SB Act, 1996 which were not discussed in the impugned order, the respondent No,1/CDGK has to prove its claim and title over the plot in dispute under subsequently promulgated Ordinance i.e, Sindh Local Government Ordinance, 2001 to justify their act of disposing of the subject plot by way of auction and its subsequent transfer/mutation in favour of respondents Nos.7, 8 and others.
11. Although the controversy relating to the construction of the building at the plot in question, also depends upon the determination of the title, yet it also needs to be established as to whether (a) the Plot No,GK-1/9 was an amenity plot and could not be converted for residential or commercial use (b) it was illegally sub-divided into three parts; (c) the approval of building plan was, in violation of relevant Rules and Regulations; (d) the construction of the building was in violation of such approved plan; and whether (e) such construction is liable to be demolished. Al! These controversial factors can be resolved after affording full opportunity to the parties including all auction purchasers of the said plot to adduce such evidence in the suit. However, till such time the application for grant of temporary injunction against such construction, deserved consideration within the parameters of well known principle of equity.
12. So far as' the legal points on the bar of suit are concerned, it appears that there is no order passed by respondent No,3/KBCA so as to attract the provisions of section 16 of Sindh Building Control Ordinance, 1979. Though the suit was not merely against the Government and the KBCA only, who were also not the main party to the suit, yet the acts claimed to have been done by them in good faith, are alleged by the appellants to be mala fide, illegal etc. Therefore, such controversy relating to the mixed question of law and facts, is required in circumstances of this case to be dealt with together with other related issues so as to decide the same after such evidence is made available on the record of the suit and, accordingly, the suit as claimed by the respondents, cannot be said at this stage to be barred under sections 16, 20 and 20-A of Sindh Building Control Ordinance, 1979 or under section 80, C.P.C.
13. Apart from above, the contention of learned counsel for the contesting respondents is that the plaint was rightly rejected by learned single Judge as the very suit was not maintainable and barred under sections 42 and 56(d) of the Specific Relief Act, as the appellants had no locus standi or cause of action to file the Suit nor they had any legal character or right in the Suit property. Since the finding/conclusion that the suit is barred by law, is required to be based on the case as set out in the plaint assuming that all the averments made therein are true, therefore, a perusal of its contents shows that the plaintiffs/appellants who had prayed for various reliefs against different defendants/ respondents, stated in first para of their plaint that they are working actively to preserve the physical and built up environment of Karachi and that the plaintiffs Nos.2 and 3 are residents of the area i.e, Ghulam Hussain Kasim Quarters/Kharadar which is one of the oldest areas of Karachi. In para 20 of the plaint, the plaintiffs further stated that they, despite pursuing the matter diligently at every forum, have brought before this Court all the facts and issues pertaining to the subject construction and they are left with no other course than to bring this Suit in the public interest and in respect of public rights being a Representative Suit which involves many issues, of disputed questions of facts. The Para 12(i) to (ix) of the plaint furnishes the detail of the letters moved by the officials of respondent No,2/KW&SB to various authorities including the S.H.O.
Of Police Station Kharadar and the Governor of Sindh, complaining about the illegal actions of respondent No,1 and others Para 16(i) to (iii) further shows the detail of the complaints made by the Councilor and Nazim of the area and so also the residents of the area to various authorities including the Chief Minister of Sindh about the illegal construction being carried out by the respondents Nos.7 and 8 on the plot in question. All these letters and complaints were filed with plaint as annexures I/1 to I/11 and M/1 to M/8 which no doubt indicate the matter to be one of public interest litigation for a public right as it appears that the respondent No,2/KW&SB who initially protested very much against the illegal actions of respondent No,1 and others, right from their first protest vide letter dated 27-4-2000 addressed to Administrator KMC, (annexure "F" of the plaint), could not dare subsequently to approach the Court for redressal of their grievance as well as of the residents of the area, apparently, due to pressure being exerted upon their department and it was therefore, the plaintiffs/ appellants came forward and filed the Suit in representative capacity together with such an application under Order I Rule 8 C.P.C. (C.M.A. No,2906 of 2007). The notice of such application was ordered by Addl. Registrar on 12-4-2007 to be published in two leading newspapers but on 16-4-2007 when the matter was placed before the learned single Judge, he passed the following order:-- "Since the order has been passed on this application by learned Additional Registrar, the same stands disposed of."
' The record indicates that on account of disposal of such application, nothing could be done by, the plaintiffs/appellants though the said order was an implied permission under the rule for issuance of required notice and the same also, did not cause any prejudice to the defendants/ respondents. Since the plaintiffs/appellants having sufficient interest in the matter, appear to have been trying to enforce their constitutional right through the Suit on account of disputed questions of facts arising in such Suit filed by them in representative capacity being a public interest litigation, therefore, its plaint could not be rejected outright when the mixed questions of law and facts raised therein, had to be gone into. Accordingly, the case-law as cited by learned counsel for the parties in their written arguments, is not helpful to them at this stage in view of the distinguishable facts and peculiar circumstances of this case.
14. Consequent to the above, we set aside the order of rejection of plaint and remand the case with direction that all the mixed questions of law and facts involved in the suit be determined with other issues of factual controversy after recording evidence of the parties. The order of dismissal of application for temporary injunction, is modified to the extent and in the terms that the construction in question, which as per the initial report of Nazir dated 21-4-2007 had already reached upto 3rd floor, shall be at the risk and cost of respondents Nos.7 and 8, subject to final decision in the Suit. The additional order for payment of special compensatory cost of Rs,10,00,000 imposed upon the appellants, being connected to the final decision of the Suit, is also set aside with direction to the appellants to deposit the cost for publication of the notice of the application under Order I Rule 8, C.P.C. In the newspapers as already ordered in the Suit.
' Accordingly, this appeal is allowed in the above terms, with no order as to costs.