1. SYED HASAN AZHAR RIZVI,J.---- The defendant has filed the present application bearing C.M.A. No. 869 of 2009 rejection of the plaint in the instant suit filed by the plaintiff for recovery of damages amounting to Rs,10,000,000 (Rupees Ten Million only) with mark up on the ground as stated in para. 59 of the memo of plaint that cause of action accrued to the plaintiff in the year 1995 when the defendants disown the decree passed by this Court in Suit No,2/1993 by challenging the same in J.M. No,1/1995 by filing an application under section 12(2) C,P.C., The plaintiff obtained the compromise decree dated 25-8-1994 in Suit No,2 of 1993 against the defendant (WAPDA).
2. ' Case of the plaintiff in brief as set up in the instant suit is that the plaintiff offered highest bid in public auction of the fishing rights in the Hub Water Area for fishing season from September, 1988 to April, 1988, the plaintiff being successful bidder deposited 1/3 of the bid amount at the fall of hammer as per the terms and conditions contained in the rule. Suddenly on 29/30-6-1988 notice appeared in daily newspaper for re-auction of the fishing rights of the said Hub Water Area for the period of three years commencing from the financial year 1988-89.
3. ' Since the plaintiff was successful bidder in the open auction in respect of said Hub Water Area therefore, the said auction could not be unilaterally and arbitrarily annulled, by the defendants and the plaintiff filed Constitution Petition No,D-735/1988 before this Court challenging the notice of re- auction however, the matter was settled and the plaintiff was awarded the said contract by the defendants. At the time of auction that Hub Dam was fully developed for commercial exploitation as proper fish seed, as per requirement, had been provided to the reservoirs. In 1986 the defendant (WAPDA) PROGRAMMED TO DEVELOP THE SAID Dam by stocking fish in the said Dam, which programme in spite of approval did not implement. Since reserved price for the contract was fixed by the Project Engineer who was Civil Engineer and had no knowledge about stock of the fish and other environment and the said project Engineer was not competent to fix the reserve price as per the rules of the WAPDA, which is clear violation of rules and regulations and according to the plaintiff the contract was assigned to the plaintiff with coercion, undue influence, fraud and misrepresentation coupled with wrong fixation of the reserve price by the unauthorized persons. No bidder was allowed to bid less than the said reserve price and the reserve price was malafidely and dishonestly fixed too much high for getting undue benefits fraudulently by the defendants.
4. ' After assigning the contract to the plaintiff, the plaintiff advanced to the fishermen and skilled staff and purchased boards, nets etc., for catching the fist and spent laces of rupees in that behalf. The defendants, failed to provide protection from theft and illegal fishing, therefore, major quantity of the fist were removed through illegal means. The staff of the defendants were involved in the said illegal activities for which the plaintiff made written complaints to the defendant officials. The plaintiff filed a suit bearing No,305 of 1989 in the Court of IV Civil Judge, Karachi Central for redress of their grievance and stay was granted in favour of the plaintiff and against the defendants, who were restrained from further auction of the assignment of the contract to any third party. In the meantime the compromise reached between the parties i,e,, plaintiff and defendants. As per compromise the lease period was further extended/granted for three years and it was agreed that lease amount would be paid in shape of bank guarantee annually i,e, for first year Rs:5,00,000, second year Rs,7,50,000 and for the third year Rs,7,50,000 all the payments had to be made in the form of bank guarantee. It was further agreed that the defendants would stock 1-00 million finger lings and 0.5 million finger lings were stocked by the plaintiff as such total stock would be 1.5 million finger lings apart from annual development programme by the defendants which has to be carried out in the presence of the plaintiff representative. As per compromise the plaintiff had to withdraw his Suit bearing No,305 of 1989 on 25-5-1989 which was withdrawn in pursuance of the contract/agreement.
5. ' Due to violation/non-performance of the contract by the defendants, the plaintiff suffered huge monetary losses to the tune of Rs,50,00,000 (Rupees Fifty Lacs only) as the finger-lings purchased by the plaintiff were spoiled due to non-stocking in the reservoir in time and also plaintiff suffered heavy losses of non-fulfilment of their commitments with the buyers of the fishes. The plaintiff has suffered huge losses and therefore, the plaintiff filed a suit bearing No,827 of 1990 in this Court for recovery of damages of Rs,35,00,000 (Rupees Thirty Five Lacs only), which suit was admitted for regular hearing and the defendants filed their written statement.
6. ' During the pendency of Suit No,827 of 1990 the defendants approached to the plaintiff and started negotiation. Ultimately a fresh draft agreement was prepared on 7-9-1991 and was signed by the parties. However, said draft agreement was revised by another draft agreement dated 10-10-1991, according to which the plaintiff was granted fishing rights for the period of three years and the date of the commencement of the draft agreement had to be started on the completion of fish seed by the WAPDA Authority and on the issuance of fishing licence. Neither formal agreement was signed as stated above nor fishing licence was issued or the liability to store the fish seed was completed. Since it was a specific condition of the aforementioned draft agreement that the plaintiff would withdraw the Suit No,827 of 1990 but the defendants did not come forward to complete the formalities of the said draft agreement despite repeated requests of the plaintiff knowingly well the plaintiff had spent huge amount on the salaries or in purchasing of the articles as well as fish seeds.
7. ' In December, 1992 it had come to the knowledge of the plaintiff that the defendants under the pressure of then Central Minister, was trying to assign the contract to a third party, therefore, the plaintiff filed a suit bearing No,2 of 1993 on 4-1-1993 and obtained stay order from awarding contract of the said Hub Dam to any other party. The defendant No,2 the Project Director KIP WAPDA, who was defendant No,4 in Suit No,2 of 1993 had filed a statement dated 21-2-1994 on behalf of all the defendants that the contract of commercial fishing would not be assigned to any person except plaintiff and the said agreements dated 7-9-1991 and 10-11-1991 would be implemented as soon as ban on the commercial fishing will be lifted by N.C.C.W., that Suit bearing No,2 of 1993 was also compromised on the basis of that statement and the compromise decree was passed by this Court on 25-9-1994 whereby the plaintiff withdrawn Suit No,827 of 1990 as it was the condition in the draft agreement that plaintiff would withdraw Suit No,827 of 1990, the plaintiff fulfilled his commitment.
8. ' Instead of admitting the consent decree passed in Suit No,2 of 1993 the defendants challenged the same by filing application in January 1995 under section 12(2), C.P.C. Bearing J.M. No,1 of 1995 on the ground that the compromise decree has been obtained by the plaintiff on the ground of misrepresentation and fraud. The plaintiff withdrawn the Suit No,827 of 1990 subject to the terms and condition in the decree passed in Suit No,2 of 1993 and on the basis of implementation of aforesaid draft agreement. Since the defendants disowned the decree and challenged the same, therefore, the plaintiff claims to be entitled to recover the damages by filing the present suit on 3- 5-1997 in this Court.
9. ' Learned counsel for the defendants Mr. Badar Alam Advocate submits that admittedly application under section 12(2), C.P.C. Bearing J.M. No,1 of 1995 was allowed vide judgment dated 18-5-2001 by setting aside alleged compromise decree dated 25-9-1994 in Suit No,2 of 1993 and the order is reported in 2002 M LD 19. He further contended that it is well-settled law that the provision of Order VII, Rule 11, C.P.C. Are not exhaustive of the situation mentioned therein and this Court is competent to reject the plaint as according to learned counsel in para-59 of the memo of plaint in the present Suit the cause of action accrued to the plaintiff in the year 1995 when the defendants disown the decree and continuously when the plaintiff approached to the defendants and finally on 27-3-1996 when execution Application was filed by the plaintiff. Learned Counsel for the defendants has placed his reliance upon 1981 SCM R 878 (Muhammad Akhtar and others v. Abdul Hadi and others.
10. ' Learned Counsel for the plaintiff Mr. Ali Mumtaz Shaikh Advocate has drawn the attention of this court towards paragraphs Nos.31 to 38 of the memo of plaint in the present suit wherein it is specifically stated that in the compromise decree passed in Suit No,2 of 1993 on 25-9-1994 there is a condition for withdrawal of Suit No,827 of 1990 filed by the plaintiff against the defendants in this Court for recovery of damages and since the defendants disown the decree, therefore, the plaintiff is entitled to recover damages by filing instant suit. Learned counsel for the plaintiff has relied upon 2000 CLC 63, 1999 YLR 991, 1999 YLR 436.
11. ' I have heard' Mr. Ali Mumtaz Shaikh learned counsel for the plaintiff and Mr. Badar Alam learned counsel for the defendants, perused _ the relevant record with the assistance of learned counsel for the parties.
12. ' It is admitted position that the plaintiff filed C.M.A. No,4380 of 1994 under Order XXIII, Rule 3, C.P.C. In Suit No,2 of 1993 in this Court duly signed by the counsel for the plaintiff and counsel for the defendant namely Mr. Siddiq Mirza. According to condition No,2 of that application that "the plaintiff achieved the relief claimed in the suit due to aforesaid statement, therefore, the plaintiff has no intention to further proceed with the suit" the said compromise decree admittedly has been set aside by the orders of this Court dated 18-5-2001 in J.M. No,1 of 1994 wherein this Court has observed that the counsel for the defendants by signing the compromise application has exceeded the authority given to him and misled the Court in passing the decree, therefore, the decree was set aside.
13. ' A plaint would be rejected in following cases:--
(i) where it does not disclose a cause of action,
(ii) where relied claimed is under-valued.
(iii) where court-fee of full valuation has not been paid and
(iv) where the suit on the face of averments of the memo of plaint and relief claimed is barred by any law.
14. A plaint can be rejected in a suit when Court in addition to memo of plaint can look into admitted/disputed documents such as regards of previous litigations, reading of plaint for such purpose should not be formal but practical, meaningful, realistic and rational, so as to regarding correct conclusion from pleadings rather than giving same artificial and fanciful meaning. Court while doing such exercise has to keep in mind true spirit of such provision.
15. The dispute between the parties in the present suit cannot be resolved unless evidence be recorded in the matter. In the instant case the parties are in litigations since long and it is admitted position that Suit No,827 of 1990 filed by the plaintiff against the defendant before this Court for damages was withdrawn on the basis of consent decree dated 25-9-1994, which has been challenged by the defendant in J.M. No,1 of 1995 and the compromise decree has been set aside on 18-5-2001 by this Court. The plaintiff has already filed the present suit on 3-5-1997 within the period of three years whereas the defendant challenged the consent decree dated 25-9-1994 in Suit No,2 of 1993 passed by this Court. Hence, unless evidence of the parties be recorded issue involved in the matter cannot be resolved effectively.
16. In view of the above circumstances, the application filed under Order VII, Rule 11, C.P.C. Is not maintainable and the same is hereby dismissed.