' MUHAMMAD TASNIM, J.--- This is an application (C.M.A.No,7703/1999) under Order VII Rule 11, C.P.C.
Read with section 151, C.P.C. Filed by defendant-Karachi Port Trust for rejection of plaint in view of law laid down in the cases of Messrs Hyesons Commercial and Industrial Corporation Ltd. v. The Trustees of the Karachi Port Trust (1986 CLC 2229) and Trustees of the Port of Karachi v. Messrs Hyesons Commercial and Industrial Corporation (1987 CLC 1932).
2. For the disposal of the above application, facts in brief are stated as under:
3. That the plaintiff is engaged in the business of providing warehousing and storage facility for iron and steel scrap and allied products and for this purpose the plaintiff claimed to have invested a considerable amount for the construction of the storage sheds and installation of weighing bridge at Plots bearing Nos.3 and 9 in terms of lease deeds executed by defendant in favour of plaintiff's plots. Both plots are measuring about 13356 square meters and 8167 square meter respectively. It is the case of the plaintiff that defendant on 14-11-1984 granted lease in favour of plaintiff in respect of Plot bearing No,3 Industrial Area, West 1-7-1976 to 30-6-2001 against rental of Rs,19.25 per square meter per annum excluding the KMC and Government taxes payable in two half year instalments. It is further case of the plaintiff that defendant on 19-11-1976 executed lease in favour of plaintiff in respect of Plot No,9 Industrial Area, West Wharf, Karachi for further period of 25 years commencing from 1-7-1975 expiring on 30-6-2000 on rental of Rs,14.79 per square meter per annum, excluding the K.M.C. And Government taxes payable in two half year instalments vide registered lease dated 19-11-1976. It is further case of the plaintiff that both the leases contained clause relating to extension of further lease for the same period or any other period agreed on the terms and conditions as agreed by the parties. Plaintiff has stated in the plaint that after investment of considerable amount for raising necessary construction and installation of necessary machinery in order to utilize the plots under the long terms of lease with a valid legitimate expectations that the lease would be renewed on reasonable terms after expiry of the existing lease period. Accordingly vide letters dated 30-12-1999 and 30-12.2000 plaintiff made request to the defendant to renew lease for further period of 25 years on the same terms and conditions. The defendant in response to the above request addressed a letter dated 21-11-2001 in respect of Plot No,3 and other letter of the same date in respect of Plot No,9 claiming that lease would be renewed in respect of aforesaid plot on which the plaintiff is running his business as aforesaid w.e.f. 1-7-2001 and 1-7-2000 respectively at the enhanced rate i.e. Rs,274.95 per square meter per annum excluding KMC and Government Taxes with 4% increase compound every year for Plot No,3 and Rs,241.20 per square meter per annum excluding KMA and other taxes with 4% increase every year in respect of Plot No,9. Plaintiff on reasonable terms and conditions as the increase demanded by defendant was unreasonable, arbitrary, unjust, harsh and disproportionate and requested the defendant to renew the lease on the rate prevailing in the market. The plaintiff also invited the attention of the defendant to other lessees, who have been given lease on the lower rental. Defendant instead of acceding the said request of the plaintiff addressed a letter stating therein that in case no positive response is received within seven days from the receipt of the letter, legal action for ejectment of plaintiff from the suit plots will be taken. In the circumstances present suit for declaration, specific performance and permanent injunction was filed along with application under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A.No,2378/2003), which was taken up by the CQurt on 25-4-2001 and while issuing notice to defendant, it was ordered that till then defendant shall not evict or dispossess the plaintiff without taking due course of law. Subsequently aforesaid application was heard and while disposing of the aforesaid application per order dated 9-10-2006, it was observed that till the disposal of the suit defendant shall not interfere with the plaintiff's peaceful enjoyment of the suit properties nor shall create any third party interest. Against the order dated 9-10-2006 a High Court appeal being HCA No,457 of 2006 was filed by defendant. Such appeal appears to have been dismissed by learned Division Bench of this Court vide order dated 2.3.2009. Against the appellate order the defendant approached the Hon'ble Supreme Court of Pakistan by means of CPLA No,380- K of 2009 which was also dismissed by the Hon'ble Supreme Court of Pakistan per order dated 30- 6-2009.
4. Defendant in their written statement has stated that suit is not maintainable under section 87 of the Karachi Port Trust Act, 1886 and the suit is not maintainable under the provisions of Specific Relief Act. The defendant has stated that since plaintiff has not accepted the latest terms offered by the board vide its letter dated 21-6-2003 in respect of plot No,3 the rent has been reduced from 274.95 to Rs,100.61 per square meter per annum with 4% escalation each year. The plaintiff had to pay rent of Rs,274.95 from 1-7-2001 to 30-6-2003 and thereafter on reduced rate. Similarly in respect of Plot No,9 defendant offered reduced rate of Rs,100.61 per square meter per annum from 1-7-2003 to 30-6-2005 instead of Rs,241.20 and plaintiff was asked to pay rent at the rate of Rs,241.20 from 1-7-2001 to 30-6-2003. It was further pleaded by the defendant that plaintiff did not accept offer made by the defendant hence has exposed himself to the conditions provided in the expired lease deed and Karachi Port Trust Act, 1886 and Recovery of Land and Possession Ordinance, 1960.
5. From the perusal of record it appears that issues were framed in the suit on 3-9-2007 but the present application was filed by the defendant on 5-8-2009. Counter affidavit has been filed by the plaintiff to this application, wherein it has been pleaded by the plaintiff that none of the provisions of Order VII, Rule 11, C.P.C. Are attracted in the circumstances of the case and the application merits dismissal. It was further pleaded by plaintiff in the counter affidavit that application under Order VII, Rule 11, C.P.C. Has been filed mala fidely just to prolong the matter and six years of institution of the suit has already elapsed till filing of the application under disposal.
6. Mr. Safdar Mehmood, learned counsel for defendant in support of this application has submitted that plaint is hit by provisions of sections 42 and 55 of Specific Relief Act. He further argued that relief prayed for by the plaintiff in this suit cannot be granted in view of judgment quoted in the application under disposal. Learned counsel further submitted that provisions of Order VII, Rule 11, C.P.C. Are not exhaustive and in certain cases where provisions of Rule 11 of Order VII, C.P.C. Are not attracted still plaint can be rejected. He submitted that plaint in the suit be rejected. In support of his above contentions learned counsel has placed reliance on the following case-law:--
(1) Messrs Hyesons Commercial and Industrial Corporation Ltd. v. The Trustees of the Karachi Port Trust (1986 CLC 2229),
(2) Trustees of the Port of Karachi v. Messrs Hyesons Commercial and Industrial Corporation (1987 CLC 1932),
(3) Ghous v. Bux v. Muhammad Suleman and others (2001 M LD 1159),
(4) Bank Alfalah Limited v. Iftikhar A. Malik (2003 CLD 363),
(5) Begum Hafizunnisa Qureshi and others v. Shaikh Muhammad Hussain and others (2003 CLC 1156),
(6) 2004 CLC 799
(7) Noor Begum v. Muhammad Boota and others (PLD 1995 Lah.
344)
(8) Raja Ali Shan v. Messrs Essem Hotel Limited and others (2007 SCM R 741)
7. Conversely Mr. Malik Naeem Iqbal, learned counsel for plaintiff has submitted that no provision of Rule 11 of Order VII, C.P.C. Is attracted in the-circumstances of the case and plaint cannot be rejected. He further submitted that plaint in the suit is not hit by the provisions of section 42 of Specific Relief Act so also section 55 of Specific Relief Act. He further submitted that plaintiff being the lessee in possession has not violated the terms of lease and plaintiff had applied for renewal of lease prior to the expiry of the earlier lease and has approached the Court in time hence plaint cannot be rejected in view of the facts that none of the Rule 11 of Order VII, C P.C. Is attracted in the circumstances of the case. He further submitted that suit is maintainable under the law and defendant has failed to point out any illegality in the pending suit. He submitted that since issues have already been settled on 3-9-2007 present application is an afterthought and the same be dismissed. Learned counsel for plaintiff further submitted that plaintiff is holding the possession of suit plots under the lease and prior to expiry of lease period made request to the defendant to renew the lease on the same terms and conditions but defendant in response threatened the plaintiff that if enhanced rent is not acceptable to the plaintiff action for ejectment shall be taken.
In the circumstances suit was filed.
8. I have heard learned counsel for the parties and have gone through the record and the case law cited by learned counsel for the defendant.
9. Now taking up the first submission of learned counsel for defendant that plaint is hit by provisions of section 42 of the Specific Relief Act, 1877. It will be advantageous to reproduce hereunder the provision of section 42 of the Specific Relief Act, 1877: "42. Discretion of Court as to declaration of status or right.--- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: ' Bar to such declaration. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
10. From the perusal of above quoted section, it would be seen that no person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief, provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
11. A bare reading of the plaint shows that plaintiff was handed over two plots under the lease of 25 years and a request for renewal of the lease was made by the plaintiff much before the expiry, but in response to the request of the plaintiff, defendant showed their willingness to renew the lease for further period of 25 years, subject to enhanced rent mentioned in their letter. It is the case of the plaintiff that defendant had acted arbitrarily, capriciously and that terms which are highly discriminatory, not reasonable, disproportionate and have no nexus with the reality. It is further case of the plaintiff that disproportionate increase in rate of rent as demanded by the defendant is also excessive and it amounts to denial of lease under the garb of increased rent. Plaintiff has further pleaded in the plaint that defendant is discriminating against the plaintiff and has given lease to other lessees on much lower rent hence plaintiff has sought a declaration that defendant cannot charge such excessive amount and that charging the same is unlawful, arbitrary, excessive, illegal and void. Since plaintiff is in possession and there is threat for their ejectment from the suit plots they have right to approach the Court for the relief claimed.
12. It has been the consistent view of the Superior Courts that where a plaintiff is in possession and there is threat to his dispossession he can, always approach the Court for protection and his suit shall not be hit by section 42 of Specific Relief Act. It is also settled law that where the plaintiff has not been dispossessed by act of the defendant and only a cloud has been thrown on his title by the defendant's conduct the plaintiff can sue for a mere declaration of his title and has no need to ask for any further relief. In the present case plaintiff has not only sought a declaration but has also prayed for mandatory injunction. The plaintiff made request for renewal of lease in respect of both the plots under their possession vide letter dated 19-3-2003, such request of the plaintiff was responded to by the defendant vide their letter dated Nil, stating therein that in case no positive response is received within seven days from the receipts of the notice a legal action for ejectment of the plaintiff will be processed. In these circumstances present suit for declaration and mandatory injunction was filed. In view of above settled legal position and circumstances of the case plaint of the plaintiff is not hit by provisions of section 42 of the Specific Relief Act 1877.
13. Now taking up the other submission of learned counsel for defendant that plaint of the plaintiff is hit by provisions of section 55 of the Specific Relief Act, 1877, a bare reading of section 55 of the Specific Relief Act, 1877 provides that when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite act. In the present case since demand for enhancement of rent was questioned by the plaintiff through this suit on the ground that demand of defendant is unreasonable, excessive, unlawful, arbitrary, illegal and void and there was a threat to plaintiff's dispossession from the suit properties. It is to be noted that as per plaint open plots were leased out to the plaintiff, who had invested considerable amount for raising necessary construction and installation of necessary machinery in order to utilize the plots under the long terms of lease with a valid legitimate expectations that lease would be renewed on the reasonable term, consequent upon expiry of the lease in respect of suit plots but when request was made by the plaintiff for renewal of lease it was responded to, but on very exorbitant rent which according to plaintiff was discriminatory, excessive, arbitrary, illegal and void and there was also threat to the plaintiff for his ejectment from the suit properties. In the circumstances interim relief to plaintiff was granted by the Court per order dated 9-10-2006 whereby defendants were directed not to interfere with the plaintiff's peaceful enjoyment of the suit properties nor shall create any third party interest. Such order was upheld by learned Division Bench of this Court and finally maintained by the Hon'ble Supreme Court of Pakistan. In the circumstances of the case the plant in the suit is not hit by provisions of section 55 of the Specific Relief Act 1877.
14. The other submission of the learned counsel for the defendant that provisions of Order VII, Rule 11, C.P.C. Are not exhaustive and in certain case where provisions of Rule 11 of Order VII, C.P.C. Are not attracted, still plaint can be rejected. To deal with provisions of Order VII, Rule 11, C.P.C. It will be advantageous to quote the same as under-- "11. Rejection of plaint.--- The plaint shall be rejected in the following cases---
(a) where it does not disclose a cause of action,
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law."
(The clauses (b) and (c) of rule 11 of Order VII are not applicable to proceedings before the High Court in cases of its ordinary or extraordinary civil jurisdiction).
15. It is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application. 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 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. It appears from the language of Rule 11 of C Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what has been bound to collapse as not being permitted by law.
16. So learned counsel for defendant is right in arguing that provisions of Order VII, Rule 11, C.P.C. Are not exhaustive. But plaint can be rejected by the Court only if it is found that the suit is "incompetent" but in the present case nothing has been brought on record to point out that the suit is not maintainable under the law. In the circumstances this submission of learned counsel for defendant has no force which is accordingly repelled.
17. With regard to the judgments cited by the learned counsel for defendant in the case of Messrs Hyesons Commercial and Industrial Corporation Ltd. (supra), the facts of the case are distinguishable because in the reported judgment, the defendant Karachi Port Trust had filed a suit being Suit No,678/1983 for recovery of amount being the charges for using the occupation of plot which was leased out to the plaintiff in that suit. After service of the notice of aforesaid suit Messrs Hyesons Commercial and Industrial Corporation filed a suit for permanent injunction against the Karachi Port Trust restraining them from ejecting the plaintiff from the disputed premises. Both the suits were consolidated. Issues were framed, the evidence was recorded in the suit filed by Karachi Port Trust, same was adopted in the suit of Messrs Hyesons Commercial and Industrial Corporation and accordingly both the matters were disposed of. The facts of both the cited judgments are distinguishable because both the judgments were passed after recording of evidence of the parties and it does not deal with the application under Order VII, Rule 11, C.P.C. Hence they are of no consequences.
18. With regard to other judgment cited by learned counsel for the plaintiff all the judgments are in respect of provisions of Order VII, Rule 11, C.P.C. And in all the cases it has been held that provisions of Order VII, Rule 11, C.P.C. Are not exhaustive in nature and even plaint can be rejected if it is found that suit has been "incompetently" filed. There is no cavil with the proposition laid down in the above reported judgments cited by learned counsel for defendant, but same are not applicable to the circumstances of the present case on the ground that the defendant has failed to point out any illegality in the proceedings for which present suit will ultimately fail. Other arguments raised by the parties can be decided only after recording of evidence of the parties.
19. On 13-1-2011 following order was passed:- "Mr. Malik Naeem lqbal, Advocate for the plaintiff. Mr. Safdar Mehmood, Advocate.
(1) For the reasons to be recorded separately, this application (C.M.A. No,7703/2009) is dismissed.
(2) From the perusal of record, it appears that issues have already been settled in the matter on 3- 9-2007, but subsequently cause remained pending due to pendency of the applications. From the perusal of record, it shows that no counter-affidavit has been filed to this application. Plaintiff has prayed that some Commissioner may be appointed for recording of evidence of the parties. In the circumstances, this application (C.M.A. No,4649/2009) is allowed and at the request of learned counsel for plaintiff Mr. Dilawar Hussain, Advocate is appointed Commissioner to record evidence of the parties. Fee of learned Commissioner shall be Rs,10,000. Learned counsel for plaintiff agrees to bear costs of entire commission. However he will pay the cost of only one witness of Karachi Port Trust. If Karachi Port Trust wants to examine more witnesses, they shall bear their own costs. Parties will be free to lead their evidence by means of affidavit-in-evidence along with all original documents, on which they intend to rely. Learned Commissioner shall not grant adjournment to any party more than once. After availing the facility of one adjournment all subsequent adjournments shall be subject to payment of cost of Rs,10,000, 50% of such cost shall be retained by learned Commissioner and other 50% shall be deposited in the account of High Court Employees' Benevolent Fund. Commission shall be returned within three months from receipt of this order by the learned Commissioner. Office to communicate this order at the earliest."
20. In the circumstances, application filed by defendant under Order VII, Rule 11, C.P.C. Was dismissed by above short order and these are the reasons for the same.