' MUNIB AKHTAR, J.---This application has been filed by the defendant No,4 seeking to have the plaint rejected under Order VII, Rule 11, C.P.C. Learned counsel for defendant No,4 stated that by means of the present suit, the plaintiff sought to obtain declaratory and injunctive relief against the said defendant in respect of lease deed dated 27-4-2010, whereby a piece of land as identified therein, had been leased out to the said defendant by the defendant No,1, the Federation of Pakistan. Learned counsel submitted that the plaintiff was a welfare association (herein after "the Association"), which is registered under the Voluntary Social Welfare Agencies (Registration & Control) Ordinance, 1961. The first basis on which, according to learned counsel, the plaint ought to be rejected was that the suit filed by the Association was beyond the scope of the aims and objects as set forth in its constitution. Learned counsel referred in particular to Article 4 of the Constitution and stated that the aims and objects were of a specific character and nature and did not entitle the Association to generally look after the welfare and protect the legal rights of its members. In other words, the case put forward by learned counsel was that the filing of the present suit was ultra vires the powers of the Association. Learned counsel also referred to the prayer clause of the plaint and submitted that the Association was not entitled to the relief being sought by it. In particular, he submitted that the Association did not have the necessary status to seek a declaration pursuant to section 42 of the Specific Relief Act, and he also contended that the Association could not seek cancellation of the lease deed pursuant to section 39 of the said Act.
The reason put forward by learned counsel was that an instrument could only be cancelled in terms of section 39 on the suit of a person against whom the instrument was void or voidable, and the Association could not assert any such right against the defendant No, 4 with respect to the lease deed. Learned counsel further submitted that it was well-settled that the various clauses of Order VII, Rule 11, C.P.C. Were not exhaustive and that the plaint could be rejected even if the case did not strictly come within the ambit of any of the clauses. He therefore contended that the plaint was liable to be rejected.
2. Learned counsel for the plaintiff opposed the application. He submitted that the plaintiff was a welfare association that had been registered as such in 1987 and its members were the allottees of flats and apartments in a multi-storeyed project known as "Society Apartments" in Block-II, P.E.C.H.S. Karachi. Learned counsel submitted that the said project was to comprise of three blocks of flats and apartments, and that the project in fact dated back to the mid 1970s. His case as set out in the plaint was that the defendant No,4 had been unlawfully and unauthorizedly, under cover of the lease deed, handed over a portion of the common open area of the building project on which the said defendant had raised an unauthorized construction. Learned counsel submitted that precisely because the unlawful activity was being carried out on a common area that the Association, which looked after the common interests of the allottees/owners of the flats and apartments, had filed the instant suit. He referred to some of the annexures to the plaint to show that the members of the Association were indeed the allottees of and/or holding properties in the building project, and that' therefore the Association was entitled to bring the instant suit. Learned counsel stated that the factual averments in the plaint had to be deemed to be true for purposes of an application under Order VII, Rule 11, and when read on such basis, the plaint disclosed a proper cause of action and that therefore it could not be rejected.
3. 1 have heard learned counsel as above and examined the record with their assistance. As to the first point taken by the learned counsel for the defendant No,4, namely, that the filing of the plaint was ultra vires the powers of the Association, I invited learned counsel for the plaintiff to show me any specific Article of the constitution on which he relied for purposes of filing of the present suit.
Learned counsel referred to a provision under Article 8 of the Constitution, .Which conferred a power on the executive committee "to act and represent the organization in all matters and execute the policy and decisions of the General Body". He also referred to certain Indian authorities for the proposition that an association such as the plaintiff could sue and be sued as such. He also referred to Muntizma Committee, Al-Mustafa Colony (Regd.) and others v. Director Katchi Abadis Sindh and others PLD 1992 Kar 54 (SB) to the effect that a society could sue or be sued in the name of its president, chairman or other such office holder. I have gone through the constitution and the particular Articles relied upon by learned counsel for the defendant No,4 on the one hand, and learned counsel for the Association on the other. It appears to me, on a reading of the aims and objects for which the Association has been constituted, that those aims and objects do not include anything that can be relatable to the subject matter of the present suit. Learned counsel for the defendant No,4 is correct in asserting that the aims and objects of the Association are specific and particular in nature, and their scope is limited. Article 4 is as follows: "Article (4): Aims and Objects.
' The Organization has the following aims and objectives:--
(1) Help residents in field of education, health and other social activities.
(2) To acquire, hire, exchange equipment required for welfare of residents.
(3) Arrange exhibitions, seminars, workshop etc. For benefit of residents.
(4) Provide healthy entertainments to children of the locality.
(5) To establish Libraries, Handicraft Centers, Adult education centers etc
(6) Provide financial assistance to Handicapped persons, needy students etc."
' I may note that the constitution of the Association was not annexed along with the plaint.
However, since it is the constitutive document of the plaintiff itself, in my view, it can be looked at for the purposes of considering, in the context of an application under Order VII Rule 11, whether the Association has any standing to file the instant suit. A perusal of Article 4 shows that its aims and objects are not such as would enable it to institute the present suit and pursue it for and on behalf of its members. The Article relied on by learned counsel for the Association is procedural in nature, and only relates to establishing who can act for the Association. The case-law relied upon is also directed towards this end. The objection taken by learned counsel for defendant No,4 however, is more fundamental. It is directed not towards how a particular act is to be done by the Association, but whether that act can be done at all. The Association can certainly file a suit in respect of anything that comes within the ambit of its aims and objects, and if such a suit were to be filed, the modalities of how it is to be filed would be regulated by, Article 8. However, if the subject matter of the suit falls outside the scope of the Association's aims and objects, then it cannot file such a suit at all, unless otherwise permissible by or under any law, which does not appear to be the case here. It would be ultra vires the Association. In my view, the present suit, even if all the factual assertions made therein are regarded as true (which of course, they must be in the present context) does not come within the scope of the Association's aims and objects.
4. In my view, the other points raised by learned counsel for defendant No,4 are also not without force. If at all there is a grievance in respect of the lease deed that could constitute a cause of action, such cause of action would vest in the allottees or owners of the flats and apartments in .The housing project and not the Association. The reason for this is that such a cause of action would necessarily require, as an essential element thereof, that the plaintiff be able to claim that the portion of land allocated or leased to the defendant No,4 belongs to him, or that he has some legal right or interest therein or thereto.. An allottee or owner of a flat or apartment in the housing project would easily be able to assert such a right, claim or interest. However, the plaintiff, being admittedly nothing more than a welfare association with limited aims and objects, cannot lay claim to any such right or interest. It follows that the Association is unable to assert it right or interest that would entitle it to seek an appropriate declaratory or other remedy under section 39 or 42 of the Specific Relief Act. In other words, even if the plaint, on the basis of the assumption that all factual averments made therein are true, discloses a cause of action, such cause of action would not vest in the Association but rather in the allottees or owners of the flats and apartments.
5. Learned counsel for the Association submitted, relying on Ali Nawaz v. Azizullah PLD 2007 Karachi 347 (SB) that a plaint could not be rejected on account of vagueness in the pleadings or want of better particulars. However, this principle does not apply in the present case, since the problem is more fundamental than that, and goes to the very root of whether the Association can at all institute the suit. Learned counsel also submitted, relying on .Zaibunnisa v Muhammad Sajid and another 2007 CLC 1757 (SHC; SB), Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi PLD 2008 Karachi 458 (SB), Attaullah and others v. Sanaullah and others PLD 2009 Karachi 38 (SB) and other cases that a plaint cannot be rejected in part, and in particular, not where there is a claim for damages.
Learned counsel referred to the prayer clause, in which a claim for damages of Rs,50 million has been made against a number of defendants, including the defendant No,4. The principle referred to is not in doubt. However, a relief sought in the prayer clause must be based on an averment made in the plaint itself. An examination of the plaint in the present case shows that the Association has raised the claim for damages in para. 35, where it is averred that the plaintiff "have suffered mental torture, agony and distress". It is difficult to see how such a claim can be made by a welfare association, since mental torture, agony and distress are caused to individuals. In my view, a claim for damages on a basis that, on the face of it, is legally unsustainable is not such as comes, within the scope of the principle relied on by learned counsel for the Association.
6. Learned counsel for the Association was, in my view, unable to rebut the various grounds taken by learned counsel for the defendant No,4 as noted above. Ordinarily, this would have meant that the defendant No,4 would be entitled to an order rejecting the plaint. However, during the course of submissions by learned counsel, one point did arise that, for purposes of completeness, must also be mentioned. This was in relation to Order I, Rule 10, C.P.C., sub-rule (1) of which provides as follows: "Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just."
' As is clear from the foregoing provision, if a suit has been instituted in the name of the wrong plaintiff or if it is doubtful that the suit has been instituted in the name of the right plaintiff and it is shown that such institution has been through a bona fide mistake, the court may at any stage either substitute the correct person as plaintiff or at least join the correct person as co-plaintiff. As I have already noted above, in the specific context of an application under Order VII, Rule 11, all the factual averments made in the plaint must be deemed to be true and on that basis the plaint does disclose a cause of action, but one that vests in the allottees or owners of the apartments or flats in the housing project, and not in the Association. The membership of the Association of course comprises such owners and allottees. It could therefore be at least arguable that the present suit has been filed in the name of the wrong person on account of a bona fide mistake. The question therefore is whether the facts and circumstances of the present case are such that the provisions of sub rule (1) can be invoked or not. Having considered the matter, I have in the end come to conclusion that the provisions cannot be invoked directly. This is so for two reasons. Firstly, it is well settled that a person cannot be made plaintiff without his consent. Secondly, as pointed out by learned counsel for the defendant No,4, although the plaint was presented on 25-11-2010, and the application presently under consideration was moved shortly thereafter on 26-1-2011, none of the allottees or owners have come forward to join the present proceedings as co-plaintiff(s).
7. In view of the foregoing, I am satisfied that the defendant No,4 has been able to make out a case for the rejection of the plaint. This application is accordingly allowed and plaint in the present suit is hereby rejected. However, this is entirely without prejudice to the right of any allottee or owner of any property in the housing project to bring an appropriate suit, which shall be decided on its own merits. Needless to say, if such suit is filed, any defendants therein shall also be entitled to raise all such defences as are available to them under law.