' MUHAMMAD TASNIM, J.---Through this order, I shall dispose of both applications (C.M.A.No,2883 of 2005 and C.M.A. No,4470 of 2005) filed by defendants Nos.1 and 2 respectively under order VII Rule 11, C.P.C., praying therein for rejection of plaint mainly on the ground that present suit is time barred.
2. The plaintiffs filed the present suit with the following prayers:-- "(i) Declare that the grant of subsequent lease to the Defendant No,2 in respect of the Plot No,110 Khayaban-e-Hafiz, Phase VI, Defence Housing Authority, Karachi by bifurcating it into two portions is illegal and having no legal effect.
(ii) Declare that the lease granted to Mansoor Alum on 17-8-1974 which was duly registered vide Registration No,4047, Pages 89 to 91 Vol. 422 of Book Not Addl. Is subsisting and having binding effect and the defendants have no right to cancel the same or in alternative grant the decree of Rs, 3 crore with 14-1/2% mark up per annum being the value of the property in possession and Defendant No,2 from the date of filing of the suit till its realization as the compensation of the plot acquired by Defendant No,2 with the connivance of Defendant No,1.
(iii) Grant damages to the tune of Rs, 1 crore for mental torture and agony and for wrongful act with 14-1/2% mark up per annum from the date of filing of the suit till its realization.
(iv) Grant decree for possession the plaintiffs be also put into vacant possession of the demised premises which is in illegal possession of the defendants.
(v) Restraining the defendants or any person claiming through them to Not to claim any title or right over the property in question and further restrain them from dispossessing the plaintiff from the property which shall be obtained through this Decree.
(vi) Grant mesne profit at the rate of Rs,2500 per day from the date of filing of the suit till its realization.
(vii) Grant any other relief as may be deemed fit and proper under the circumstances of the case."
3. The facts, leading to the present suit, are that plaintiff No,1 is son of late Mansoor Alam, who was allotted a piece of land of 2000 square yards by Defence Officers Cooperative Housing Society on 20-5-1970 and plaintiff No,2 is widow of deceased Mansoor Alam. It is claimed that sublease in Form-A was executed in favour of plaintiffs' predecessor-in-interest by the defendant No,1-Society.
It is further alleged that on 24-4-1990 defendant No,4 served a show-cause notice alleging that allotment of the plot was made in contravention of the bye-laws. The plaintiffs predecessor-in- interest replied the show-cause notice on 16-5-1990. However, defendant No,1 Society vide its letter dated 22-7-1990 informed the plaintiffs' predecessor-in-interest that executive board has cancelled the allotment of the plot in question so also sublease in Form-A of the suit plot has been cancelled. The plaintiffs' predecessor-in-interest challenged the said cancellation /order through C.P.No,D-810 of 1990 before this Court, but such petition was dismissed for non-prosecution on 29- 9-.1990. Thereafter present plaintiffs filed suit being Suit No,1205 of 2003 seeking same relief as has been prayed for in the present suit".
4. Mr. Khalid Javed, learned counsel for the defendant No,2 in support of application (C.M.A. No,2883 of 2005) has submitted that Plot No,110 Khayaban-e-Hafiz, Phase-VI, D.H.A Karachi, measuring 2000 Square yards was allotted to predecessor-in-interest of the plaintiffs on 20-5-1970 and after serving show-cause notice such plot was cancelled per letter dated 22-7-1990. In the circumstances, plaintiffs' predecessorin-interest challenged the aforesaid order through C.P. No,D- 810 of 1990, but such petition came to be dismissed on 29-9-1999. Thereafter present plaintiffs filed Suit No,1205 of 2003 before this Court on 4-11-2003. After service of summons of aforesaid suit upon the defendants, defendants filed C.M.A. No,8609 of 2004 under Order VII Rule 11, C.P.C. Seeking rejection of plaint on the ground that suit was time barred. Learned counsel further submitted that aforesaid C.M.A. Was heard by learned Single Judge of this Court (Now Judge of honourable Supreme Court of Pakistan), who after hearing the parties' counsel, vide order dated 5-4-2005, allowed the application and rejected the plaint holding the suit time barred. Learned counsel further submitted that against the aforesaid order dated 5-4-2005 present plaintiffs filed H.C.A.
No,159 of 2005, which was dismissed by the learned Division Bench of this Court per order dated 15- 12-2006. He further submitted that againt the aforesaid appellate order plaintiffs filed C.P.L.A No,617-K of 2007 before the honourable Supreme Court of Pakistan. The honourable Supreme Court of Pakistan heard the parties and dismissed the above C.P.L.A. Vide judgment dated 26-2-2008.
Learned counsel further submitted that Plot No,110 Khayaban-e-Hafiz, Phase-VI, D.H.A Karachi, measuring 2000 Square yards was originally allotted to the predecessor-in-interest of the plaintiffs.
However, after cancelling the same on 22-7-1990 same was bifurcated into two plots being Plot No,110/I Khayaban-e-Hafiz, Phase-VI, D.H.A Karachi, measuring 1000 Square yards and the other plot was numbered as 110/II Khayaban-eHafiz, Phase-VI, D.H.A Karachi. He further submitted that.
Plot No,110/I was allotted to one Farhat Rashid against whom Suit. No,1205 of 2003 was filed and the other plot, being Plot No,110/II, was purchased by defendant No,2 from its allottee Lt.-General Tariq Waseem Ghazi on 10-7-2003. Learned counsel further submitted that prior to rejection of plaint in Suit No,1205 of 2003, plaintiffs had filed present suit on 22-4-2004 and along with suit an application under Order XXXIX Rules 1 and 2, C.P.C. Was also filed. Learned counsel further submitted that on 10-5-2004 while issuing the notice to the defendants it was ordered that in the meantime defendants are directed to maintain status quo and such order is still operating.
Learned counsel further submitted that after filing of the above suit the plaintiffs also applied for amendment of plaint through an application under Order VI, Rule 17, C.P.C., which was allowed subject to all just exceptions per order dated 15-12-2008. He further submitted that after the aforesaid order amended plaint was filed on 16-12-2008 which containing only one paragraph 14-A in the plaint, but no other changes were brought about in the plaint and the prayer-clause.
Learned counsel for defendant No,2 further submitted that since the plaint in the earlier suit was rejected on the ground being time barred, this suit was filed about one year of filing the earlier Suit No,1205 of 2003 on the same cause of action and for the same relief is also barred by law and the plaint in this suit is also liable to be rejected.
5. Mr. Munawar Malik, learned counsel for defendant No,1 in support of application (C.M.A. No,4470 of 2005) has adopted he arguments of learned counsel for the defendant No,2 in support of application (C.M.A. No,2883 of 2005) and has submitted that the application be allowed and the plaint be rejected under Order VII, Rule 11, C . P. C .
6. On the other hand Mr. M. Junaid Farooqui, learned counsel for plaintiff has submitted that suit is within time and the question of limitation cannot be decided unless the evidence of the parties is recorded. Learned counsel for plaintiff further submitted that certain observations were made in the appellate order in the earlier round of litigation in Suit No,1205 of 2003, which gave fresh cause of action to the plaintiff for filing of present suit. Learned counsel for plaintiff admitted that prayer clause in Suit No,1205 of 2003 and in the present suit are verbatim. Learned counsel for plaintiff further admitted that earlier suit on the same cause of action and for the same relief was held to be barred by time he further admitted that earlier suit was presented in Court on 4-11-2003 and the present suit was filed in Court on 22-4-2004. Learned counsel for plaintiff finally prayed for dismissal of both these applications.
7. I have heard the learned counsel for the parties and have perused the record.
8. From the perusal of record, it appears that in Suit No, 1205 of 2003 learned Judge while allowing the application under Order VII, Rule 11, C.P.C. After considering the facts and circumstances of the case and the case-law on the subject has held as under:-- "The Court is bound to reject a plaint where it appears to be barred by time or barred by some law. The object is not only to bury the case on its inception, but also that the party may avail remedy available in law rather than pursuing the matter in a Court having no jurisdiction the cause of action accrued to the plaintiff in the year 1990, when the cancellation of Allotment/Sub- Lease in form 'A' was communicated to him. The suit, on the fact of it, is barred by time.
' In the case of The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v.
The Secretary to Government of West Pakistan, Communication and Works Department, Lahore (PLD 1975 SC 355) the Hon'ble Supreme Court held that the lease cannot be cancelled otherwise than provided in the term of the Lease Deed is not permissible.
' In the case of Mrs. Zaibun Nisa v. Karachi Development Authority (PLD 1998 Karachi 348), a 99 year lease was executed in favour of the plaintiff, duly registered before the Sub-Registrar was cancelled by the defunct . Karachi Development Authority and it was held that where a document stood registered governing rights and obligations of parties to registered document same could only be cancelled by declaration of Court of competent jurisdiction and not unilaterally by the authority by condemning petitioner unheard.
' In the instant case although the Sub-Lease in Form 'A' was a registered document, but clause (2) of the said Sub-Lease clearly provided that the plaintiff had not acquired any right, title or interest in the plot in question and the 99 year Lease in form "B" is yet to be executed. It was further provided that the Lessor has right to terminate the Sub-Lease in Form 'A' in its discretion in case of breach of any term by Licensee.
' In the case of Dr. Zahir Ansari and others v. Karachi Development Authority (PLD 2000 Karachi 168), it was held that the subsequent order passed on a void order passed by same authority or by, other authority would fall to the round because such order has a little legal foundation.
' In the case of Yousuf Aziz v. Mst. Aqeela Begum PLD 1978 Kar. 205, it was held that an order being ab initio void and nullity, question of limitation of time for appear against such order could not rise. None of the case-law cited by the learned counsel for the plaintiff can in any way support the case of the plaintiff The suit, on the face of it, after 13 years of the cause of action is barred by time and accordingly the plaint is rejected. "
9. Against the aforesaid findings of learned Single Judge (as he then was) the present plaintiffs filed H.C.A. No,159 of 2005 before this Court and learned Division Bench of this Court after hearing the parties dismissed the appeal with the following observations:-- " It is nowhere stated in the plaint that either the appellants were not aware about the pendency of C.P. No,D-810 of 1990, filed by Mansoor Alam or about the cancellation of entitlement of their predecessor in interest of disputed plot by respondent No,1 in the year 1990 this being the position, the suit instituted by the appellants after lapse of more than 13 years from the date of such order cannot be saved from the clutches of limitation either on the pretext of order dated 22-7-1990, being illegal or for the reason that on legal advice received they deemed it more appropriate to file a suit, than to seek restoration of the petition earlier instituted by their predecessor. As rightly concluded by the learned Single Judge in the impugned order, from no stretch of imagination a period of more than 13 years from the date of passing of order dated 22-7-1990 can be over looked, which makes the filing of suit hopelessly time barred. It will be seen that to examine the nature of cause of action accrued in favour of a party the contents of the plaint in the suit are to be read as a whole and then it is to be ascertained that when the cause of A action has actually accrued in favour of a party for filing the suit, and for this purpose reading of plaint is required to be informal and practical rather than notional. Keeping in view this legal principle one can easily gather from the facts of the present case that if any cause of action has accrued in favour of the appellants/their predecessor for filing of suit against the respondents, such cause of action has accrued in the year 1990 upon cancellation of entitlement in respect of disputed plot and not on 7-10-2003 when allegedly appellant No,1 saw the respondent No,2 carrying out construction work over the plot in dispute. Once the entitlement of the appellants/their predecessor in the disputed plot was cancelled on 22-7-1990 it cannot be said that any fresh cause of action has accrued in favour of the appellants on the demise of their predecessor viz: 3-8-1999 or on 7-10-2003 when allegedly construction work was seen by appellant No,] over the disputed plot. This being the position, the findings of the learned Single Judge contained in the impugned order that the suit instituted by the appellants was hopelessly time barred are un-exceptionable."
10. Against the aforesaid appellate order, the present plaintiffs also filed C.P.L.A No,617-K of 2007 before the honourable Supreme Court of Pakistan. The honourable Supreme Court per order dated 26-2-2008 dismissed the above petition with the following observations:-- " (6). On examination of the material on ,record we find that the arguments advanced on behalf of .The petitioners are in contravention of the averments of the plaint and the documents annexed to the plaint, as such are devoid of force. The perusal of the averments made in the plaint reveals that the petitioners have mentioned therein the fact about issuance of show cause notice to their predecessor-in-interest, submission of its reply and ultimate cancellation of the plot by the decision of executive board of respondent No,1 vide order dated 22-7-1990. All such documents are available on record. Learned counsel for the petitioners has 'admitted that the predecessor- in-interest of the petitioners has challenged the above decision through Constitutional Petition No, D-810 of 1990 against the cancellation of his entitlement in respect of disputed plot by respondent No,1 in the year 1990 which was ultimately dismissed in default. The argument that the present petitioners were unaware of filing of that petition as the litigation was being pursued by deceased Mansoor Alam is also not sustainable in law, as the petitioners could not claim lack of knowledge on this count. The facts make it abundantly clear that the action in respect of cancellation of allotment and the lease was taken by respondent No,1 in the year 1990. In the circumstances, the suit instituted by the petitioners after the lapse of more than 13 years from the date of such order was patently barred by time."
11. The learned Division Bench in its order dated 15-12-2006 passed H.C.A.No,159 of 2005 on page-8, paragraph-10 has observed as under:-- " It is nowhere stated in the plaint that either the appellants were not aware about the pendency of C.P. No,D-810 of 1990, filed by Mansoor Alam or about the cancellation of entitlement of their predecessor in interest of disputed plot by respondent No".1 in the year 1990.
12. It appears that after going though the above observations the present plaintiffs became wiser and filed an application under Order VI, Rule 17, C.P.C. Being C.M.A. No,11668 of 2008 on 12-12-2008 in this suit for amendment of plaint. As pointed out above, aforesaid application was granted by the Court on 15-12-2008 subject to all just exceptions. No doubt paragraph-14-A has been added in amended plaint in consequence to the grant of above application but it will be noted that in paragraph-14-A the plaintiffs have only stated that they were neither aware about the date of cancellation of the allotment of their predecessor-in-interest in respect of suit plot nor about the pendency and subsequent dismissal for non-prosecution of C.P.No,D-810 of 1990 and such fact came to the plaintiffs knowledge after 7-10-2003 upon enquiry subsequently made by the plaintiff No,1. If it is believed that above facts came to the knowledge of the plaintiff on 7-10-2003 but from the perusal of record it appears that such facts were neither incorporated in the, High Court Appeal No, H.C.A. 159 of 2005 filed on 11-5-2005 arising from Suit No,1205 of 2003 nor such facts were mentioned in the C.P.L.A No,617-K of 2007 filed by the plaintiff nor aforesaid facts were mentioned in present suit, which was filed on 22-4-2004. Mere incorporation of paragraph-14-A in the plaint shall not change the complexion of the suit and bring the same within time. The plaint in earlier suit filed by the plaintiffs on the same cause of action for the same relief has already been rejected by this Court per order dated 5-4-2005, which was confirmed by learned Division Bench per order dated 15-12-2006 and finally by the honourable Supreme Court of Pakistan per order dated 26-2-2008.
Plaintiffs have failed to make out any distinguishing aspect in the earlier suit with the present one. It will further be noted that prayer in the earlier suit and in the present suit are one or the same. On the basis of same facts the earlier suit was held to be time-barred per order dated 5-4-2005. The present suit on the same facts and cause of action filed on 22-4-2004 is also beyond the period of limitation as the present suit was filed after 14 years of alleged cause of action and the plaint is liable to be rejected.
13. In the earlier round of litigation in Suit No,1205 Of 2003 the learned Single Judge (as he then was) while rejecting the plaint has rightly held that Court is bound to reject the plaint where it appears to be time barred or barred by some law. The object is not only to bury the case on its inception, but also that the party may avail remedy available in law rather than pursuing the Matter in a Court having no jurisdiction. The cause of action accrued to the present plaintiff if any was accrued to him in the year 1990 and the present suit was filed on 22-4-2004 the suit on the face of it is barred by time. No evidence is required to be recorded in the circumstances of the case.
14. Following the earlier decisions passed by learned Single Judge in Suit No,1205 of 2003, learned Division Bench of this Court in H.C.A. No,159 of 2005 and the honourable Supreme Court of, Pakistan in C.P.L.A. No,617-K/2007, both these applications (C.M.A. No,2883 of 2005 and C.M.A. No,4470 of 2005) are allowed and the plaint in the suit is rejected.
Suit rejected.