' SYED HASAN AZHAR RIZVI, J.--- This is a suit filed by the plaintiff against the defendants for declaration, cancellation, permanent and mandatory injunction with the following prayers:- "(a) Declaration that the plaintiff is the owner of the flats situated at TOKYO TERRACE, Sub-Plot No,28, of Plot No,CM-1, Block-7, KDA Scheme No,36, Gulistan-e-Johar, Gulshan-e-Iqbal Town, Karachi purchased from one Umer Haleef son of Muhammad Hussain (defendant No,5) through lease deed and is in physical possession of the below mentioned flats:- S. No.Flat No. Date of Registration of Sub-Registrar- II Gulshan-e- lqbal, KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. B/3-103 24-10-2007 31-10-2007 83660
2. B/4-403 24-10-2007 31-10-2007 83661
3. B/4-404 24-10-2007 31-10-2007 83659
4. C-105 24-10-2007 31-10-2007 83666
5. C-206 24-10-2007 31-10-2007 83665
6. C-209 24-10-2007 31-10-2007 83663
7. C-305 24-10-2007 31-10-2007 83662
8. C-402 24-10-2007 31-10-2007 83664
(b) That the plaintiff is the Attorney of the following flats owned by MRs, Farhana Kausar wife of Mr.Shahid Hasan Shahid (defendant No,6) situated at TOKYO TERRACE, Sub-Plot No,28, of Plot No,CM-1, Block-7, KDA Scheme No,36, Gulistan-e-Johar, Gulshan-e-Iqbal Town, Karachi, through General Power of Attorney, the plaintiff is in the physical possession of the same:- S. No.Flat No. Date of Registration of Sub-Registrar- II Gulshan-e- lqbal, KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. A-402 24-10-2007 31-10-2007 83675
2. B/3-405 24-10-2007 31-10-2007 83674
3. B/4-302 24-10-2007 31-10-2007 83673
4. C-201 24-10-2007 31-10-2007 83676
(c) That the plaintiff is the attorney of the following flat of MRs, Maria Maqbool Choudry daughter of Choudry Maqbool Ahmed Mehmood (defendant No,7) situated at TOKYO TERRACE, Sub-Plot No,28, of Plot No,CM-1, Block-7, KDA Scheme No,36, Gulistan-e-Johar, Gulshan-e-Iqbal Town, Karachi, through General Power of Attorney and is in the physical possession of the same:--- S. No.Flat No. Date of Registration of Sub-Registrar- II Gulshan-e- lqbal, KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. C-104 24-10-2007 31-10-2007 83670
(d) That the plaintiff is the Attorney of the following flats of Mr. Maqbool Ahmed Nasir son of Choudry Ameer Ahmed (defendant No,8) situated at. TOKYO TERRACE, Sub-Plot No,28, of Plot No,CM-1, Block-7, KDA Scheme Gulistan-eJohar, Gulshan-e-Iqbal Town, Karachi, through General Power of Attorney and is in physical possession of the same:-- S. No.Flat No. Date of Registration of Sub-Registrar- II Gulshan-e- lqbal, KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. C-301 24-10-2007 31-10-2007 83677
2. C-302 24-10-2007 31-10-2007 83678
(e) That the plaintiff is the attorney of the following flats of Choudry Bilal Maqbool son of Choudry Maqbool Ahmed Mehmood (defendant No,9) situated at TOKYO TERRACE, Sub-Plot No,28 of Plot.
No,CM-1, Block-7, KDA Scheme No,36, Gulistan-e-Johar, Gulshan-e-lqbal Town, Karachi, through General Power of Attorney and is in physical possession of the same:--- S. No.Flat No. Date of Registration of Sub-Registrar- II Gulshan-e- lqbal, KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. C-303 24-10-2007 31-10-2007 83672
2. C-409 24-10-2007 31-10-2007 83671
(f) That the plaintiff is the attorney of the following flats of MRs, Sajida Maqbool Choudry wife of Choudry Maqbool Ahmed Mehmood (defendant No,10) situated at TOKYO TERRACE, Sub-Plot No,28, of Plot No,CM-1, Block-7, KDA Scheme No,36, Gulistan-e-Johar, Gulshan-e-lqbal Town, Karachi, through General Power of Attorney and is in the physical possession of the same:--- S.No. Flat No. Date of Registration of Sub-Registrar- II Gulshan-e- Iqbal KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. B/3-401 24-10-2007 31-10-2007 83668
2. B/3-404 24-10-2007 31-10-2007 83669
3. B/4-203 24-10-2007 31-10-2007 83667
(g) Perpetual injunction restraining the defendants from registration/ transferring/selling/alienating, mortgaging the below mentioned flats and interfering in peaceful and lawful possession of the plaintiff in respect of the flats as under:-- S.No. Flat No. Date of Registration of Sub-Registrar- II Gulshan-e- Iqbal KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. B/3-103 24-10-2007 31-10-2007 83660
2. B/4-403 24-10-2007 31-10-2007 83661
3. B/4-404 24-10-2007 31-10-2007 83659
4. C-105 24-10-2007 31-10-2007 83666
5. C-206 24-10-2007 31-10-2007 83665
6. C-209 24-10-2007 31-10-2007 83663
7. C-305 24-10-2007 31-10-2007 83662
8. C-402 24-10-2007 31-10-2007 83664 S.No. Flat No. Date of Registration of Sub-Registrar- II Gulshan-e- Iqbal KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. A-402 24-10-2007 31-10-2007 83675
2. B/3-405 24-10-2007 31-10-2007 83674
3. B/4-302 24-10-2007 31-10-2007 83673
4. C-201 24-10-2007 31-10-2007 83676 S. No. Flat No. Date of Registration of Sub- Registrar-II Gulshan-e- lqbal, KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. C-104 24-10-2007 31-10-2007 83670 S. No. Flat No. Date of Registration of Sub- Registrar-IIDate of Registration of Photo Registrar, KarachiM.F Role No. Gulshan-e- lqbal, Karachi
1. C-301 24-10-2007 31-10-2007 83677
2. C-302 24-10-2007 31-10-2007 83678 S. No. Flat No. Date of Registration of Sub- Registrar-II Gulshan-e- lqbal, KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. C-303 24-10-2007 31-10-2007 83672
2. C-409 24-10-2007 31-10-2007 83671 S. No. Flat No. Date of Registration of Sub- Registrar-II Gulshan-e- lqbal, KarachiDate of Registration of Photo Registrar, KarachiM.F Role No.
1. B/3-401 24-10-2007 31-10-2007 83668
2. B/3-404 24-10-2007 31-10-2007 83669
3. B/4-203 24-10-2007 31-10-2007 83667
(h) Mandatory Injunction requiring defendants Nos.7 and 8 to cancel the Sub Leases of the Flats Nos.C-105, C-201, C-301 & A-402, which are illegally, unauthorizedly registered in favour of the defendants Nos.1 to 4 and restore the prior position of the plaintiff.
(i) That the defendant No,12 be directed to take legal action against the defendants Nos.7, 8, 10 and 11 under the Constitution of Pakistan and under the law.
(j) Costs and
(k) Such further and other reliefs as the nature and circumstances of the case may require.
' On 18-2-2009, this Court while granting status quo order directed the learned counsel for the plaintiff to satisfy the Court as to the maintainability of the suit. For Convenience sake, order dated 18-2-2009 is reproduced below:--- "18-2-2009: ' Mr. Muhammad Ashraf Kazi, Advocate for the plaintiff.
(1) Granted.
(2) Granted subject to all just exceptions.
3 & 4. Notice for 25-2-2009. In the meantime the parties shall maintain status quo. The learned counsel for the plaintiff shall satisfy this Court as to how one suit would, lie against four different properties, on the next date.
(Sd.) Judge"
' Mr. Muhammad Ashraf Kazi, learned counsel for the plaintiff in response to the above question has argued that all persons may be joined as defendants against whom any right to relief in respect of same act or transaction is alleged to exist. He made reference to section 17 of the Court Fees Act and Article 1, Schedule I of Court Fees Act.
"17 Multifarious suits.--- Where a suit embraces two or more distinct subjects, the platEt or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act."
' He has also made reference to Order I, Rule 3 and Order II, Rule 3, C.P.C. , which are reproduced as under:- "1(3). Who may be joined as defendants. All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts' or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise."
"2(3) Joinder of causes of action.--- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendants, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit."
' Learned counsel in support of his submission has placed reliance on the cases of Alam Khan and others v. Pir Ghnlam Nabi Shah and Company (1992 SCMR 2375), Sahibzada Azhar Saleem v.
Muhammad Hanif (2002 MLD 696), and Umeed Ali and 12 others v. Government of Sindh and others (PLD 2007 Karachi 224).
' I have heard the arguments advanced by the learned counsel for the plaintiff and minutely examined the case-law cited at the bar.
A bare reading of the provisions of Order I, Rule 3 and Order II, Rule 3, C.P.C. And Article 17 of the Court Fees Act clearly indicate that court fee has to be calculated in a manner that the court fee of every individual cause of action is to be then added upto together into an aggregate amount and then affixed with the plaint. The same question regarding multifarious causes of action is thoroughly discussed by the Full Bench of this Court in the case of Umeed Ali (Supra), with reference to plethora of judgments and question was answered in affirmative by the Full Bench.
Therefore, in view of the pronouncement of the Full Bench, the suit is competent. However, in order to avoid technicalities and delay in the disposal of the case, the plaintiff is directed to sue the original owners of the property through attorney and not the attorney in his individual capacity.
(1) C.M.A. No,1439 of 2009: This is an application, filed by the plaintiff with the prayer to restrain the defendants Nos.1 to 5, their attorneys, agents and any other person from dispossessing the plaintiff from the suit properties pending disposal of the suit as the defendants threaten and intend to remove and dispossess the plaintiff from his property fraudulently.
' Mr. Muhammad Ashraf Kazi learned counsel for the plaintiff has argued that the plaintiff is lawful owner in possession of the suit properties and defendants have no authority to extend threats to the plaintiff of dire consequences and to sell the properties to any one. He therefore argued that defendants be restrained as prayed in the application.
' Mr. S. Amir Ali learned counsel for the defendant No,2 filed counter-affidavit to the listed application and contended that plaintiff has no lawful cause of action as he has not approached to this Court with clean hands and has filed the present suit with mala fide intention to take wrongful gain from the lawful and legal rights of the defendant No,
2. He further contended that suit is barred by misjoinder or non-joinder of necessary party as the plaintiff has not joined the partners of Gul Builders who are the lessee of suit properties. He also contended that causes of action are so disconnected to each other and the same cannot be tried together by this Court. He urged that plaint pertains to many properties and different causes of action therefore the suit is bad in law for multifariousness and liable to be dismissed with special cost.
I have heard the arguments advanced by the learned counsel for the plaintiff and defendant No,2 and perused the material available on record, which goes to show that plaintiff has purchased several flats situated at Tokyo Terrace, Sub-Plot No,28 of Plot No,CM-1, Block-7, KDA Scheme No,36, Gulistan-e-Johar, Gulshan-e-Iqbal Town, Karachi from defendant No,5 through lease deeds and enjoying physical possession thereof. The contention of the defendant No,2 regarding maintainability of the suit has been thoroughly discussed above while holding that the suit is competent. The plaintiff has made out a prima facie case and balance of convenience is also lies in his favour. Therefore, the present application is granted as prayed for and interim order granted on 18-2-2009 is hereby confirmed.
3, 4 and 5: ' C.M.A. No,5778 of 2009 (Yasmeen Solangi), C.M.A. No,5779 of 2009 (Muhammad Riaz) and C.M.A.
No,5780 of 2009 (Sultana Begum) have been filed under Order I, Rule 10 read with section 151 C.P.C.
With the prayer to implead them as defendants in the above noted suit. The intervenor Yasmeen Solangi is claiming to be owner of Flat No,404, Block No,III, 4th Floor, Tokyo Terrace on the basis of sub-lease executed between Intervenor and Builders before Sub-Registrar, T-Division XVI, Karachi, Registration No,7047 dated 25-1-2004, M.F. Roll No, U-77336/2151 and after that builder issued No Dues Certificate and possession was also handed over to the intervenor. It is further urged that intervenor also availed facility of the House Building Finance Corporation and loan was granted to the intervenor in her name. Invenor Muhammad Riaz is claiming to be owner of Fiat No,405, Type-B, Block No,III, 4th Floor, Tokyo Terrace, Karachi, on the basis of sub-lease executed between Inervenor and Builders before Sub-Registrar, T-Division XVI, Karachi vide registration No,7045 dated 25-10- 2004, M.F. Roll No,U-77334/2151 dated 2-11-2004 and also availed facility of HBFC Loan. Sultana Begum is also claiming to be owner of Flat No,C-409, Block No,III, 4th Floor, Tokyo Terrace, Karachi. It is urged that she booked the flat in question and paid total consideration to the Builder and Builder issued No Dues Certificate on 3-3-2008 and also possession certificate.
' Mr. Muhammad Irfan learned counsel for the Intervenors argued that the intervenors are lawful owners in possession of the flats in question vide registered indentures of sub-lease executed between the intervenors and the builder. He also urged that the plaintiff intentionally and deliberately did not implead the intervenors as parties to the present suit only in order to get the decree behind the back of the intervenoRs, He further argued that since the plaintiff in the memo of plaint and in prayer clause seeking declaration of the flats in question as owner of the said flats, therefore, the intervenors are necessary party for proper adjudication of the case.
' Counter-affidavits of the above applications have been filed by the plaintiff and denied the contents of the same. Learned counsel for the plaintiff argued that the plaintiff is lawful owner of the flats in question by way of General Power of Attorney executed by Mst. Sajida Maqbool the first owner of the property, which she purchased from the first builder namely Choudhry Amir Ahmed through sub-lease dated 5-8-2004 thereafter she executed General Power of Attorney in favour of the plaintiff on 24-10-2007. He also contended that the intervenors have no title or right in respect of the flats in question and also have no locus standi to pose themselves as owners of the flats in question. He mainly argued that he has already filed C.M.A. No,1439 of 2009 at the time of filing of present suit with the prayer that this Court may be directed the defendants Nos.1 to 5 and any other to be the claimant of the suit property to produce lease sub--leases/General Power of Attorney in respect of the suit property constructed in the building known as Tokyo Terrace before the Nazir of this Court and the same may be kept in custody till disposal of the suit. He, therefore, argued that the intervenors are not necessary parties to be impleaded in the present suit and the applications have been filed by them with ulterior motives with the connivance of defendants are liable to be dismissed.
' I have heard the arguments advanced by the learned counsel for the Intervenors, learned counsel for the plaintiff and have examined the available record. It is an admitted position that plaintiff purchased many flats in the project known as Tokyo Terrace through General Power of Attorney executed by the first owner of the property. It is apparent from the record that the claim of plaintiff and intervenors are based on sublease as they are claiming ownership of the flats in question through Registered sub-leases. The intervenors are in physical possession of the flats in question.
This fact is also appeared from the contents of counter-affidavit filed by the plaintiff to C.M.A.
No,5780 of 2009, wherein he himself stated that intervenor with mala fide intention, occupied the flat in question and he has lodge F.I.R. No,140/2009, which clearly indicates that plaintiff was fully aware that intervenor is in possession of the flat in question and he has not arrayed the intervenors as defendants in the present suit. Therefore, in order to cut short the controversy and in order to avoid multiplicity of litigations, I allow the applications of the intervenros. The plaintiff is directed to array the intervenors as defendants and file amended title of the plaint within two weeks, thereafter the newly added defendants will file their written statements.
2. C.M.A. No,1439 of 2009: This is an application moved by the plaintiff under Order XI Rule 14 read with section 151, C.P.C. Seeking directions to defendants Nos.1 to 5 and any other to be the claimant of the suit property to produce lease/sub-leases/General Power of Attorney in respect of the suit property constructed in the building known as Tokyo Terrace before the Nazir of this Court and the same may be kept in custody till disposal of the suit.
It appears from the contents of the application that the relief sought through the instant application is premature as at the parties to the suit have to submit their original document in the Court before recording of evidence therefore submitting the same at this stage before the Nazir is not justified. Therefore, the present application is dismissed.
6. Parties are directed to file their proposed issues.