1. ' Ms. RUKHSANA AHMED, J.---C.M.A. No,3144 of 2010 has been filed under Order VII, Rule 11 of the Code of Civil Procedure by Advocate for defendant No,1 whereby he has prayed for rejection of the plaint filed by the plaintiff on the ground that as the plaintiff has failed to disclose a lawful cause of action arising against defendant No,1 in the averments of the pleadings, and has further submitted that suit is barred under sections 42 and 56 of the Specific Relief Act (I of 1877) since the plaintiff is not a person entitled to any legal character or has any right as to the property in question.
2. ' Defendant No,1 is the lawful owner of the officially sub-divided Plot No,1597E/3, measuring 547.34 square yards, Block 3, PECHS, Karachi and have no concern with the other officially sub-divided plot Nos.159-E/1, and 159-E/2, and has contended that there is no triable issue of law involved in the case and the plaintiff has no personal interest in the premises, and the plaint has been filed with ulterior and mala fide reasons to satisfy a grudge held by the plaintiff.
3. ' Before taking up the application the brief facts of the case are, that the plaintiff is residing at House No,160-L, Block-3, PECHS, Karachi having purchased the same to live a peaceful life free from obstructions and scarcity of amenities like, sui gas, electricity and water. It is stated by the plaintiff that Plot No,159-E, Block-3, PECHS is residential plot admeasuring 2000 sq. Yds. Defendant No,5 is the Electric Corporation who works under the Electricity Act and provides Electricity according to the schedule of commercial and residential units and not otherwise. Defendant No,3 is the authority created by the Presidential Order under Ordinance 2001 is known to be City District Government Karachi and are primarily responsible to ensure that the development of the city of Karachi for which purpose the said authority launches development schemes by way of housing scheme etc. In accordance with the master plan and the zonal blocks in such housing schemes all the functionaries providing amenities, fall under the jurisdiction and control of the above said defendant. Defendant No,8 is the Registration Authority under the Registration Act 1908, who is responsible to register the sub-license, Sale-deed and all other documents in respect of properties subject to the approval of the defendants Nos. 2, 6 and 7 the said authorities are responsible to ensure that the plot in question of which any document is registered is properly stamped and whether the authority has transferred such a plot from residential to commercial and /or a residential bungalow and or commercial house if so transferred/commercialized to commercial nature is to be seen in accordance with the instruction laid down in the approved plan and its approval letteRs, ' Defendant No,6 is the housing society which has flouted the housing scheme under a license agreement which was earlier executed in 1958 between the said defendants Nos.6 and 7 and the approval of the defendant No, 2 who are mainly responsible for the development and other schemes of PECHS Society who have developed the PECHS area in accordance to their scheme duly approved. Defendant No,6 who is the body created and constituted under the Cooperative Societies Act, 1925. The said body primarily function is to ensure development of the PECHS for which purpose the said body launches development schemes by way of housing schemes etc. In accordance with the Master Plan and Zonal blocks in such housing scheme. It is further submitted that the defendant No,7 is the Government of Pakistan who are the lessor of the land and the defendant No,1 owner/Attorney of the Plot No, 159-E Block No,3, PECHS who has converted the residential house for commercial purposes and is selling the building on flat/floor wise basis which is restricted by the defendants Nos. 2, 6 and 7 as the plots of the said defendants are residential bungalows and could not be converted or used other than it has been allowed nor the character of the original plots could be converted without permission of defendant No,7.
4. ' Defendant No, 2 who. Have granted approval of the plan for a residential Bungalows of defendant No,1 imposed conditions on the said defendant that flats shall not be constructed and as such the conversion of the residential bungalow to commercial and or sub-dividing the said bungalow is not permissible under the Karachi Building and Town Planning Regulations 2002, the plot could only be sub-divided under the approval of the defendant No, 2, on the recommendation of defendants Nos. 6 and 7 and not otherwise. The plots in Block Nos. 2 and 3 of PECHS including the plot of defendant No, 1 are not sub-divided plots and under the circumstances the same could not be converted to flats and or sub-divided for floor wise as it is a violation under the Karachi Building and Town Planning Regulations 2002 and the defendant No,8 having no authority to register the subleases/sale deed or any other documents creating third party interest in any manner for the defendant No, 1 's plot for which the permission of sub-division of plot having not been obtained and the restriction imposed by defendant No,2 that no flats would be constructed was binding on defendant No,1.
5. ' The status of the plot is of the residential bungalow ground plus upper floor as one unit bungalow and it could not be sub-divided and or allowed to be sold on floor wise basis ground floor plus upper flooRs, However, plaintiff has emphasized on Regulations 18-3.1 to 18-3.1.4 and 18-3.1.8. It is further argued that original plot No,159-E, was subdivided into four Plots bearing Nos. 159-E/1, 159- E/2, 159E/3 and 159-E/4. The sub-division plan was illegally unlawfully approved'by the defendant No,4 vide its letter dated 30-5-2006 through its Architect N.D. Khan having licence from competent Authority. The above said subdivision plan was unlawfully, illegally approved without proper scrutiny and mathematical calculation of areas and dimension and such dimensions are wrong in the subdivision plan. It is further submitted that the creation of Plot Nos.159-E/1 to 159-E14 is absolutely not logical and from front the required area and excess to all the plots are neither shown nor available at the site. The sub-division plan having been approved in goss violation of Karachi Building and Town Planning Regulations 2002 and the serious violations of the same has been committed by defendant No,4, who allowed construction at the compulsory open space on both sides, front side and rear side and further the same is to be left open as per the respective Regulations 18-3.1.8 and 25-2.1. Therefore, the .Defendant No,1 covered 100% of the compulsory open space in gross violation of the Regulations. It is further submitted that plan is approved in violation of the relevant Regulations and further that the defendant No,1 have committed violation of Section 6 of the Sindh Building Control Ordinance 1979 as he occupied the area of plot more than is allowable foot print for illegally subdivided plots. The basement plan is also illegal along with construction raised thereon. It is further submitted that the approval as well as bifurcation of the said plots by the . Defendants is contrary to the relevant provisions of law. Therefore, he has filed present suit for Declaration, Permanent Injunction, Cancellation and Demolition.
6. ' In response to the Application under Order VII, Rule 11, C.P.C. Filed by the defendant No 1 the plaintiff has filed counter-affidavit whereby the plaintiff vehemently denied the contents of the said application and has stated that defendant No,1 has violated the existing law of section 6(2) of Sindh Buildings Control Ordinance, 1979 and the contract of the defendant No,1 and other defendants are defective under section 23 of the Contract Act, 1872. It has further been argued that said provision is enforceable on the defendant/builders as the construction raised is in violation of the approved plan and occupied by the occupants having not issued any occupancy certificate. It is further submitted that the building in question comprising of 8 units instead of 4 units have constructed in serious violation of approved plan of KBCA which was for 4 units only. It is further submitted defendants having purchased independent bungalow of 8 units are without the approved plan and as such defeat the provision of Sindh Buildings Control Ordinance, 1979 and no balance of convenience lies in their favour. It is further submitted that building illegally comprising of 8 units is liable to be sealed without any further notice to the occupants as the title is defective and the same is without the occupancy certificate. It is further submitted that occupants have now come to know that the title is defective and the construction raised is in violation of the approved plan which is for 4 units only and is liable to be removed and brought to the original position of the approved plan i.e. To the 4 units instead of 8 units. It is further submitted that as per Report of the Architect it clearly reflects that there are 8 units having independent living and that the amenities provided at the suit plot is of 8 electricity meters and the report of the architect which is exhibited comprising of 22 pages along with the photographs and the sketches the 8 units construction standing thereon is illegal, unauthorized and liable to be demolished as the one unit is divided to two units which is unlawful, illegal and no such bifurcation or subdivision could be allowed by the City District Government.
7. ' It is further submitted that defendant No,1 have further bifurcated and sub-divided the plot from 547.34 sq. Yards to 273 sq. Yards approximately which is reflected from the report of the architect. It is lastly submitted that the instant application moved by the defendants for rejection of plaint is not maintainable in the circumstances mentioned above and hence the same is liable to be dismissed.
8. ' In the affidavit in rejoinder to the counter affidavit the defendant No,1 has submitted that he is lawful owner of the officially sub-divided Pbt No,159-E/3, measuring 547.34 square yards, Block 3, PECHS, and have no concern with the other official sub-divided Plots No 159-E/1 and 159-E/2. It is further submitted by defendant No,1 that contents of para 2 of the counter affidavit are false, misconceived and are denied. It is vehemently denied that the defendant No,1 has violated the existing law or section 6(2) of the Sindh Buildings Control Ordinance, 1979. It is submitted that relevant law requires the approval of a construction plan and the grant of a No Objection Certificate, the same having been duly obtained from the CDGK and KBCA which are attached with his written statement. It is further stated that written statement filed by defendants Nos.2, 3 and 4 wherein they stated that defendant No,1 has not violated any law in the construction of the suit plot which has been carried out in accordance with the plans approved by the defendant No,2. It is further argued that defendant No 1 is the lawful owner of the officially subdivided Plot No,159-E/3, measuring 547.34 square yards, Block 3, PECHS, Karachi and has no concerned with the other officially subdivided plots on Plot No,159-E.
9. ' That contents of para 3 of the counter-affidavit are false, misconceived and denied except to the extent of the report of Nazir dated 6-4-2009 as defendant No,1 is the lawful owner of the officially subdivided Plots No,159-E/3 only and is not concerned with the other officially sub-divided plots on Plot No,159-E and therefore the contents of report of Nazir in respect of the alleged other units have no bearing on the defendant No,
1. It is further submitted by defendant No,1 that the construction was commenced for his own use and the use of his brother but due to financial and personal reasons the defendant No,1 had no option except to sell one part of the privately partitioned house to a third party. It is further asserted that contents of para 4 of the counter affidavit are incorrect, misleading and are denied. It is reiterated that the defendant No,1 had privately partitioned his plot for his own private use and that use of his brother and for financial reasons was compelled to sell one part of the privately partitioned plot to a third party. Any insinuation that such private partitioning of the premises was illegal is vehemently denied. It is further categorically denied by the defendant No,1 that the plaintiff has any cause of action against the defendant No,1 since the plaintiff has no legal or personal interest in the suit property and has not suffered, nor is likely to suffer, any harm as a result of any action of the defendant No,1 pertaining to the suit property in question and suit filed by the plaintiff discloses no legal cause of action against the defendant No,1 as it is clear that the suit has been filed for ulterior and mala fide reasons to satisfy a grudge held by the plaintiff. Defendant No,1 further asserted that contents of para 5 of the counter affidavit are denied as the same are incorrect and misconceived. Defendant No,1 stated that if he has violated any provision of the SBCO 1979 and KB&TP Regulations 2002 then plaintiff is put to strict proof in respect thereof. It is further submitted by defendant No,1 that plaintiff has no locus standi to bring this suit and no cause of action against him. It is further submitted by defendant No,1 suit is barred by the law under sections 42 and 56 of the Specific Relief Act (I of 1877) therefore he has prayed for rejection the plaint tiled by the plaintiff.
10. ' After hearing the counsel for the parties, I would like to read prayer clause of the plaint, wherein this suit having been filed for declaration, permanent in junction, cancellation and demolition and the plaintiff has prayed for the proposed sub-division plan on plot No,159-E, block-3, PECHS, Karachi admeasuring 2000 sq. Yards dated 30-5-2006 granted by defendant No,3 as illegal, unlawful and contrary to the Town Planning Regulations 2002 and for demolishing the entire illegal structure from raising any further construction and for restraining the defendant No,5/ KESC from providing any load sanction to the four subdivided plots and from restraining the defendants Nos. 6 and 7 from carrying out the transfer or mutation of the subject plots and finally from restraining defendant No,8 the Sub-Registrar Jamshed Town-I from creating any third party interest in respect of the suit plot.
11. ' The plaintiff is not living residentially in close approximately with the suit property, and as such I don't see any nexus of his claim that his easement rights would be or are being infringed with the suit property's construction. The defendant No 1 has agitated that there is absolutely no lawfui cause of action against him and further the said suit is barred under sections 42 and 56 of the Specific Relief Act wherein the plaintiff has no status or right or any legal character to file the present suit and has further contended that in para 15 of the plaint the plaintiff himself has said that a private nuisance is being caused by the defendant No,1 to the plaintiff as well as the neighbourhood wherein it is argued by the defendant Advocate that the utilities such as supply of water, gas, sewerage system, electricity, do not fall in the definition of private nuisance. Further the plaintiff has allegedly taken cause of action from 17-8-2007 when the notices were sent to the defendants but the same were not replied which is a feeble cause at the onset.
12. ' As perused the defendant No, 1 in his written statement in para 2 + 4 has alleged that the plaintiff who is in possession of Plot No,160-L, Block 3 PECHS has himself unlawfully constructed various town houses without legal sub-division or approval of building plans and the defendant No, 1 in construction of suit property has not violated any law. The plaintiff has filed the present suit having not complied with the mandatory requirement of section 91 of the C.P.C. (Public nuisances) by seeking permission from the learned A.A .-G. Before filing of suit.
13. ' The learned defendant Advocate has fortified his arguments by placing reliance on 2007 SCMR 1157 wherein it was held mandatory that first sanction of the Advocate-General before filing the suit has to be obtained and the sanction prescribed under section 91, C.P.C. Was essential and the suit was not competent with out the same, while in 2003 CLC 1156 it has been held that when the suit is incompetent it is the duty of the parties to draw the Court's attention to same by way of an application to reject the plaint. The principles involved are two folds. In the first place it contemplates that a still born suit should be properly buried at its inception, secondly, it gives the plaintiff a chance to retrace his steps at the earliest possible moment, so that, if permissible under law he may file a properly constituted suit.
14. ' One of the objects of exercise of powers in terms of Order VII, Rule 11, C.P.C. Is that an incompetent suit should be laid to rest at the earliest moment so that no further time is wasted on the.Matter which is bound to collapse being not permitted by law.
15. ' In PLD 1978 Lahore 113 it has been held as to what is the requirement of a person seeking declaration, and whether the plaint has disclosed a cause of action, question necessarily to be decided at least, provisionally to find out whether plaintiff had established prima facie case and it was further held that the suit was not maintainable where right to plaintiffs own legal character or property not involved or where other right hypothetical or abstract or mere statement was involved. Further in the same case law the definition of public nuisance has been elaborated and it has been determined that the suit only become competent after permission of the Advocate- General has been taken.
16. ' The essentials of relief under section 42 of the Specific Relief Act are four which should be satisfied for a mere declaration.
17. ' The plaintiff must be entitled to:--
(a) A legal character at the time of the suit.
(b) To a right to property.
(c) Defendant should have been denied these or been interested in denying this character or right and;
(d) The plaintiff should not be in a position to ask for relief consequential upon declaration sought.
18. ' The Court will therefore, not entertain suits in which no benefit accrues to the plaintiff or where the plaintiff sets up merely an abstract right to satisfy his ego or satisfy his grudge against another person. In this case the plaint was rejected on account of non applicability of section 42 of the Specific Relief Act and it was held that the plaintiffs had no right nor any correspondence obligation to urge Zthe plaint cannot be said to disclose any cause of action and it is accordingly rejected.
19. ' In 2003 CLC 799 it has been held where suit was not based on legal character or a legal right, discretionary relief of declaration could not be granted. In PLD 1982 Karachi 940 it was held that a mere violation of a certain provision of law by any authority it was held does not entitle an individual to file suit against it unless any personal interest or damage is proved and while in 1989 MLD page 1966 it was held that it was a well settled law that mere violation of Building Regulations or plan is not actionable per se unless an injury real or apprehended is established by the persons in whose interest and for whose protection the regulation or rules are framed.
20. ' In rebuttal the counsel for the plaintiff has stated that the present application is a counter-blast to the contempt application filed by plaintiff earlier and though on 10th November, 2008 the Court had passed order to maintain status quo and further the Architect Report along with the Nazir Report which is filed in the suit, the Report reaffirms the contentions raised by the plaintiff, wherein it was stated that the defendant has constructed suit property in violation of mandate and plan and not approved by the Government's Competent Authority. The plaintiff has further argued that the suit should be decided on the basis of the Report and if such violations are allowed it would be a shame and a mockery of law. It is further argued that the suit pertains to the illegal construction made by the defendant No,1 and the averments made in the plaint are to bring the truth on record and there was no objection filed to the Architect Report by the defendant No, 1 and thereafter a contempt application was filed by the plaintiff and then the defendant filed the present application in rebuttal as alleged. The Advocate has placed reliance upon 2004 CLC 1029 wherein it is held that the traditional view that for rejection of plaint, only plaint to be looked at, observed that undisputed documents on record may also be looked at for this purpose. It has further been discussed in detail the expression of legal character or status conferred by law on an individual viewed as a unit of society and not shared by generality of the community but only by individuals placed in the same category of character. The character itself must be conferred by law on persons viewed from the stand point of membership of the community. It is a status or character conferred by law. Further section 42 has been discussed where it merely gives statutory recognition to a well recognized type of declaratory relief and subject it to a limitation but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside section 52.
21. ' In 2005 CLC 856 the averments of plaint are to be considered while applying the provisions of Order VII, Rule 11, C.P.C. The other case laws cited by the learned Advocate are distinguished to the present case. The plaintiff therefore prayed for dismissal of the said application filed by the defendant No 1.
22. ' Mr. Arif learned counsel for the defendant No 1 to sum up his arguments has argued that the plaintiff is not even the neighbour of defendant No,1 as can be seen by looking at Annexure-A to his written statement and as such the plaintiff does not have any legal character to file the said suit as defined under section 42 of the Specific Relief Act. He has further argued that permission under section 91 of the C.P.C. Which is a mandatory requirement has not been obtained by the plaintiff and in its absence alone the present suit can be dismissed and further frivolous cause of action has been agitated by the counsel for the plaintiff when filing the suit on not having received reply of legal notice. The defendants Nos. 2, 3 and 4 through the contents of their written statement support the contention advanced by the defendant No,
1. The Annexure B to D are the documents pertaining to the defendant's suit plot wherein No Objection Certificate has been given in defendant No,l's favour by the competent Government authorities for construction. It is further argued that the defendant No, 1 has built according to site plan and if there have been any minor changes the same have been regularized as per law.
23. ' After hearing the arguments advanced by the learned Advocates of the parties and on perusal of the documents filed, I am inclined to agree with the arguments advanced by the learned counsel for the defendant No, 1 in support of his application under Order VII, Rule 11, C.P.C. One of the main objections raised being that the plaintiff advocate has failed to disclose a lawful cause of action arising against defendant No,1 and has failed to explain how this suit is maintainable and not barred under sections 42 and 56 of the Specific Relief Act. Next the plaintiff has failed in fulfilling the mandatory requirement under section 91 of the C.P.C. And the Court is not liable to entertain suits where no permission has been obtained prior to the filing of the suit by the plaintiff and lastly the court has to look into each case individually and see where in no benefit accrues to the plaintiff or here the plaintiff sets up merely an abstract right to satisfy his ego or satisfy his grudge against another person a suit cannot be allowed to proceed. The defendant No 1 has produced all the relevant documents before this court pertaining to his suit property and even the competent Government Authorities who the plaintiff has made party in the suit have submitted in their written statements that the defendant No 1 has observed all the legal formalities in construction of his suit property has not violated any law or rule. To sum up my findings as discussed above I am fortified by the ase laws referred by the advocate of the defendant No, 1 which are relevant to the present case. I therefore reject the plaint on account of non-applicability of section 42 of the Specific Relief Act and further the plaintiff has failed to show any right nor any correspondence obligation to urge the plaint and has not been successful in disclosing any cause of action against the defendant No, 1 the application is granted and the plaint is accordingly rejected with no order as to costs.