1. S'YED HASSAN AZHAR RIZVI, J. --- By this application, under Order VII, Rule 11, C.P.C., the defendant No. 2 has prayed for the rejection of the plaint on the ground that the suit discloses no cause of action in respect of property bearing Nos. A-3 and A-4 on Plot No. ST-4A, Munawar Centre, Block-14, Nasirabad, F.B. Area, Karachi.
2. Plaintiff has filed counter-affidavit to the present application and stated that the application has been filed by the defendant with male fide intention, ulterior motive and the defendant has no locus standi to file the said application and the same is filed only to harass the plaintiff and waste the precious time of this Court. It is further stated that defendant No. 2 is benami owner and was never in possession and lessee was removed from M.C.B. Bank unauthorizedly by the husband of the defendant and thereafter the defendant No. 2, through her husband and sons trespassed the premises and started business therein.
3. The plaintiff has filed this suit seeking declaration, restoration of possession and permanent injunction with the following prayers:--- Declare that the defendant No. 2, in collusion with the defendant No. 1, unlawfully took over the physical possession of the Shop bearing No. A-3, situated on Plot No. ST-4A, Munawar Centre, Block-14, Naseerabad, F.B. Area, Karachi, which they are lawfully bound to hand over to the plaintiff, the legal heir of the deceased proprietor.
(ii) Grant perpetual injunction restraining the defendants Nos. 1 and 2, their agents, servants, employees, etc. And/or any other person(s) acting on their behalf from renting out, leasing out, creating third party interest and/or encumbering in any way the shops bearing Nos. A-3 and A-4, ST-4A, Munawar Centre, Block-14, Naseerabad, F.B. Area, Karachi.
4. (i.e) Direct the defendant No. 1 to deliver the possession of 135 or thereabouts units/sets of imported sanitary wares pledged with the defendant No. 1 by the defendant proprietor, to the plaintiff or alternatively to pay the price at the rate of Rs. 20,000/- per unit/set and restore physical possession of Shop Nos. A-3 & A-4, situated on Plot ST-4A, Munawar Centre, Block 14, Naseerabad, F.B. Area, Karachi or pay Rs. 50,00,000/- for each shop.
(iv) Costs of the proceedings, and .
(v) Any other relief in the alternative which this Court deems fit and proper in the nature and circumstances of the case."
5. The brief facts for disposal of the listed application are that the plaintiff is one of the legal heirs of Late Hafiz Munawwar, who was in the business of importing sanitary goods under the name and style of M/s. Munawar Coconut and Poultry Farms. The defendant No. 1 is a Banking Company, being in the business of offering financial facilities/services and produces to its customers through its Branch U.B.L. Vault Branch. The defendant No. 2 is the lessee in respect of four shops, within two shops, bearing Nos. A-3 & A-4, Plot No. ST-4A, Munawar Centre, Block-14, Naseerabad, F.B. Area, Karachi and is related to the plaintiff being the were of real uncle of the plaintiff and sister-in-law of the deceased proprietor. On 23.7.1978, a Sanction Advise bearing No. 37/1276 was approved by the defendant No. 1 in favour of the deceased proprietor against pledged of 250 sets/units of imported sanitary were, which were kept at the shops under the lock and key of the defendant No. 1 of which the deceased proprietor was the actual owner. In the year 2000 the defendant No. 1 filed a suit before the Banking Court No. 1, Karachi bearing No. 1525/2000 against Munawar Coconut & Poultry Farms for recovery of Rs. 840,801.42 on the basis that the deceased proprietor had obtained cash credit facility from the defendant No. 1 in 1993. In that suit the defendant No. 2 made an application for impleading her as party on the basis that she is the owner of the one of the shops bearing No. A-4 with the prayer that plaintiff's father pledged goods be stored elsewhere and the possession of the shop be handed over to her, but no details were made in the application about the other shops bearing Shop No. A-3 and the plaintiff learnt on 15.12.2004 that the possession of the shop bearing No. A-3 had been taken by the defendant No. 2 apparently in collusion with the defendant No. 1. The plaintiff also served a legal notice dated 16.12.2004 upon the defendant No. 1, copy of which has been forwarded to defendant No. 2 informing them of illegal possession/handing over of the shop A-3 by/to the defendant No. 2 and requesting them to restore the possession in its previous position and to keep the pledged goods therein intact. The plaintiff also filed Suit No. 32/2005 in the Banking Court No. V, Karachi, which was returned to the plaintiff under Order VII, Rule 10, C.P.C. With direction to file the same in Civil Court having jurisdiction.
6. The defendant No. 1 has filed written statement wherein it nas been stated that the plaintiff has no cause of action to file the present suit and the suit is liable to be dismissed with special cost as the suit is not maintainable in law. It is submitted that defendant No. 1 is the banking company incorporated under the Companies Act, 1913 from where the deceased Hafiz Munawar had obtained various loan facilities. It is stated that possession of the shop was already with the heirs of the deceased borrow and as such question of handing over the said shop by the bank to the defendant No. 2 does not arise. It is also stated that the plaintiff and defendant No. 2 are relatives and the plaintiff with his ulterior motive and tried to implicate the bank in the family dispute of shop. It is further submitted that bank was not having any possession of the shop as alleged by the plaintiff. The lock and key of the bank was there till the time bank released the pledged goods and at present no sanitary items are in bank's control. It is further submitted that plaintiff has not shown how cause of action accrued to the plaintiff after 30 years. It is prayed that the suit of the plaintiff be dismissed with costs.
7. The defendant No. 2 has filed written statement in which it is denied that the defendant No. 1 kept the goods at the Shop No. A-4 on Plot No. ST-4A, Block-14, Nasirabad, F.B. Area, Karachi and has further denied that the possession of the shop was handed over to the defendant No. 1 by deceased proprietor. It is also denied that any illegal possession/handing over to shop No. A4 has occurred by defendant No. 1 in collusion with defendant No.
2. It is also denied that there is any sort of relationship between the defendants Nos. 1 and 2. It is further stated that defendant No. 2 is the sole and absolute owner of Shop No. A-4 and no cause of action has accrued to the plaintiff in any manner whatsoever against the defendant No. 2 for filing the present suit, therefore, the suit discloses no cause of action and is liable to be dismissed.
8. It is an admitted fact that there is relationship between the plaintiff and defendant No. 2. The plaintiff has failed to raise plea of benami ownership in the memo. Of plaint and such plea has been taken by him in the counter-affidavit filed against the application under Order VII, Rule 11, C.P.C. The plea of Benami ownership of the subject shops is afterthought. The plaintiff has failed to establish that the defendant No. 2 is in illegal possession of the shop wherein the alleged pledged goods are lying. This fact has been denied by the defendant No. 1 and has made reference to letter dated 6.8.1996 wherein the mother of the plaintiff had admitted that majority of the good sanitary wares items had already been sold out by them and at present no any sanitary items are in bank's control. In this case Nazir was appointed as Commissioner, who submitted his report on 8.4.2010 wherein it has been stated that parties are at liberty to obtain a clear order from the Court in respect of pledged goods and possession of shop to whom be given and pledged stocks-4o whom be handed over as the above Court's order does not clarify the said position. It has been further stated that officer of defendant No. 1 was present and submitted that letter dated 3.3.2010 was filed by. Them and they have nothing to do the said stock lying in the shop. The plaintiff is well-aware of the fact that the subject property is in the name of defendant No. 2 as per indenture of, lease dated 1.7.1975. The plaintiff claimed that original sub-lease of subject shop is in his possession but neither he has filed suit for declaration or cancellation of the document and no efforts were taken by him for the last more than 30 years.
9. It is settled principle of law that purpose of rejection of plaint is that stillborn suit ought to be buried at its very inceptions and no time be consumed on fruitless litigation and that plaintiff would have a chance to retrace his steps at the earlier possible time. The plaint can be rejected in four cases i.e. Where it did not disclose a cause of action; where relief claimed had been undervalued; where Court-fee of full value had not been paid; and where suit appeared on face of plaint to be barred by any law. The case in hand does not disclose any cause of action in favour of the plaintiff as according to the averments of the plaint the defendant No. 2 is the lessee in respect of the two shops on Plot No. ST-4A, Munawar Centre, Block No. 14, Naseerabad, F.B. Area, Karachi and the plaintiff has no concern with the aforementioned shops. Hence the plaintiff has no legal character under Section 42 of the Specific Relief Act over these shops. It is not the case of the plaintiff in present suit that the above shops were mortgaged with defendant No. t The suit is also time- barred and no application under Section 5 of the Limitation Act has been filed for condonation of delay.
10. To strengthen the above observations reference can be made to the case of Mst. Hajiani Khatija Bai and 8 others v. Haji Dawood & 11 others (2003 M LD 828), wherein it has been held that apart from averments of plaint, admitted/undisputed documents such as record of previous litigation can also be looked into and the Court while doing so has to keep in mind the true spirit of this provision of law that incompetent suit should be buried at its inception without any delay.
11. As regard to the Nazir Report dated 7.4.2010, it is submitted that since the defendant No. 2 is the owner and holder of registered Sub-Lease of the subject shop therefore Nazir is directed to handover the possession of the said shop to the defendant No. 2 or her authorized representative.
12. With regard to stock lying in the said shop, none of the party claiming the ownership of the same, therefore Nazir is directed to auction the same and retain the sale proceeds with him and if any party come forward to claim the same the Nazir shall move reference before this Court for appropriate orders.
13. Application under Order 7, Rule 11, C.P.C. Allowed.