1. ' MS. RUKHSANA AHMED, J.---Listed application being C.M.A.No,7548 of 2010 is moved by Defendants 'Nos. 1 to 4 under Order XIV, Rule 5, C.P.C. Read with section 151, C.P.C. Wherein it has been submitted that Defendants Nos. 1 and 2 in the present suit filed an application under Order VII Rule 11 read with section 151, C.P.C. On the ground of maintainability in view of non-compliance of the requirement of section 45(v) of the Sindh Local Government Ordinance, 1979 by Defendants Nos. 5 and 6 in grant the lease to the plaintiff in as much as:--
(a) The grant of 200 acres by Defendant No,6 was illegal.
(b) The lease was issued when there was status quo order of the honourable Supreme Court passed between 28th August, 1993 and 27th September, 1993 as annexed XI/a and XI/c to the plaint in Suit No, 1484 of 2008.
(c) Contrary to summary dated 2nd February, 1994 as annexed XII to the Suit No,1484 of 2008.
(d) That the leases were issued contrary to the status quo orders passed by the Hon'ble Supreme Court mentioned in para 1/b above as annexed XIII of pliant of Suit No,1484 of 2008.
2. ' It is further submitted that in view of the above circumstances, it is necessary to add additional issues to the list of issues already framed by this Court vide order dated 4th June, 2010 and further to add an issue "Whether the Plaint in Suit No,768 of 2008 is liable to be rejected under Order VII Rule 11, C.P.C." In support of his contentions, learned counsel has relied upon the following case- laws.
(1) PLD 1992 SC 537.
(2) PLD 1996 Karachi 365 ' Counter affidavit to the present application has been filed by the Plaintiff wherein it has been submitted that Plaintiff is bona fide lease holder of the suit property and has filed present suit for restraining the Defendants from interfering in the development works as the Plaintiff is bona fide owner/lessee of the suit property. It is further submitted that the Annexures annexed with the plaint of this suit as well as with written statement filed in connected Suit No,1484/08 speaks volume of the bona tide of the plaintiff. It is further submitted that the only intention of the defendants is to linger on the matter and thereby deprived of the members of the plaintiff from living a respectable life in their home. Plaintiff in his counter affidavit further submitted that Defendant No,1 SHERI-CBE and its Associates under various litigations has so far consumed more than 17 years from 1993 and submitted a brief overview of the litigations which is reproduced as under:--
(1) That the Defendants first filed a Human Right case No,K-6/1993 (Mrs. Amber Ali Bhai v. KMC and others) before the Hon'ble Supreme Court. That the Hon'ble Supreme Court finally disposed of the case on the basis of order dated 29-5-2003 with the direction to Defendant No,4 to submit compliance report. Following the order of Hon'ble Supreme Court personal hearing was given to all parties in conflict by Defendant No,5 and accordingly a Report dated 14-5-2005 was prepared and submitted to Hon'ble Supreme Court of Pakistan on 18-5-2005.
(2) Defendants Nos. 1, 2 and 3 filed a contempt application numbered as Cr.O.P.40/05 before the Hon'ble Supreme Court. The Hon'ble Supreme Court on 1-11-2006 passed order that "the Criminal original petitions as well as Human right case are disposed of".
(3) That the Defendants Nos. 1 to 3 under mala fide intentions filed a C.P.No,D-17/07 (Shehri-CBE and others v. City District Government Karachi and others Plaintiff being Respondent No,3) in this honourable court raising the same grievances as raised earlier in the contempt application filed before the Hon'ble Supreme Court which was dismissed earlier as the gist of the Petitioners'/Defendants' contention and prayer in the said Petition was similar to the contempt application. The Hon'ble High Court of Sindh passed order dated 13-2-2008 extract of which "We noted that the gist of the petitioner's contention and prayer in this Petition is almost similar to the contempt application before the Hon'ble Supreme Court. Therefore, it cannot be re-agitated again and again before the lower forum The petition has no merit and the same was dismissed by a short order dated 13-2-2008 and above are the reasons.
(4) That the Defendants also filed Civil Review Petition No,210-K/ 2008 i.e, Shehri-CBE and others v.
3. CDGK and others. It is submitted that the Hon'ble Supreme Court vide order dated 19-8-2008 held that the above view clearly refers to the recording of evidence before arriving at a conclusion and applies to the proceedings in a suit between parties.
4. Further it has been asserted that contents of sub-paras (a) to (d) of Para 1 of the application requires evidence hence not fit to be agitated under the provisions of Order VII Rule 11, C.P.C.
5. However, the plaintiff has contended while denying the contents of the application filed by the Defendant No,1 and further the issue proposed by the Defendant No,1 is alleged to be covered under Issues Nos. (v) and (xv) framed by C this Court vide order dated 4-6-2010. In view of the above the application is liable to be dismissed.
6. ' The learned counsel of the Defendant No,1 in rebuttal has stated that the issues are of facts and law and the order passed earlier was not a consent order and the learned Judge had himself framed the issues. As to the present application being supported by the affidavit of the counsel the same is not in any contravention of law. He has further been fortified by the decision taken in PLD 1996 Karachi 365 relevant page 370-B where it has been held that:-- "It is also pertinent to observe that the Courts have always attached much sanctity to an affidavit filed by an Advocate. The reasons as explained in the affidavit of an Advocate are some time treated to be "sufficient case". Further reliance has been placed on PLD 1981 SC 513 and PLD 1966 SC 467 on the same point."
7. ' I am fortified with the case-law provided by the learned counsel for the Defendant No,1 as in the present case the affidavit of the counsel in support of the said application is sufficient and as such set aside the objection of the counsel for the plaintiff on the point that the present application be dismissed as it is not supported by the personal affidavit of the party.
8. ' Counsel for the Defendant No,1 has further fortified his arguments by placing reliance on case-law PLD 1992 SC 537, wherein the Court had allowed the counsel the benefit of honest miscalculation, misunderstanding, mistiming or even misinformation. These human innocent failings if are permitted to be relied upon as explanations by ordinary individuals and litigants, the lawyers are also entitled to due consideration in this behalf as was held in the said judgment.
9. ' On perusal of the Order XIV Rule 5, C.P.C. Which reads:--"Power to amend and strike out issues."
10. ' It is stated that it is the discretion of the court who may at any time before passing a decree amend the issues or frame additional issues on such terms as thought and deemed fit, and all such amendments/ additional issues may be made necessary for determining the matters in controversy between both parties shall be so made or framed. The second part of Rule 5 further grants the Court the authority at any time before passing a decree to strike out any issue that may appear to it to be wrongly framed or introduced. As such the Court has the authority the discretion and the mandatory powers at any stage to act accordingly.
11. ' In the present case the Suit No,768 of 2008 and Suit No,1484 of 2008 stood consolidated by the order of this Court on 4th June, 2010 whereafter the Court framed the consolidated issues. On perusal of the issues framed Issue No,1 reads as follows:-- ' Whether the plaint in Suit No,1484 of 2008 is liable to be rejected under Order VII Rule 11, C.P.C.?
12. ' In the present application the issue to be added is "Whether the plaint in Suit No,768 of 2008 is liable to be rejected under Order. VII Rule 11, C.P.C."
13. ' This Court in the said circumstances allows the said issue to be added/framed alongside the other issues framed by the Court vide order dated 4th June, 2010 and it is being added and be read as Issue No,19.
14. ' The order along with the list of issues be sent to the learned Commissioner Justice Rtd. Ataur Rehman appointed to record the evidence. The said application is disposed of accordingly.