SYED SAEEDUDDIN NASIR, J.--The plaintiff has filed present suit for declaration recovery of Rs.31,25,000 and permanent injunction with the following prayer:--
(1) Pass decree against the defendant for the recovery of Rs.31,25,000.
(2) Permanently restrain the defendant not to dispose of, alienate, transfer or convey and/or to create any third party interest over the said property (House No. 1014 Survey No. 1127, M.A.C.I.
Mehmoodabad No.6), Karachi.
(3) Permanently restrain the defendant not to depart plaintiff's daughter Ruqyya Khatoon and her five children from the suit property.
(4) To declare that the plaintiff's daughter Ruqyya Khatoon is owner of House No. 851, Survey No.951, M.A.C.I. Mahmoodabad, Karachi and all claims towards his ownership raised by the defendant are invalid.
(5) Cost of the suit.
(6) Any other relief(s) which this Hon'ble Court may deem fit and proper under the circumstances of this case be granted in favour of the plaintiff. The brief facts of the case as narrated in the plaint are as under:-- The plaintiff's daughter Mst. Ruqyya Khatoon was married to the defendant on 13-9-1985 at Karachi, according to Sunni Muslim Law. At that time the defendant was living at Orangi Town Karachi. Out of the above wedlock six children was born who presently are all majors (except 3). In the year 1986 there was ethnic violence erupted due to which the life of the residence of the area become miserable. Plaintiff decided to shift the newly wedded couple from Orangi Town. The plaintiff purchased a plot of land measuring 111.66 Sq. Yds., bearing No. 851, Survey No. 951, M.A.C.I, Mehmoodabad, Karachi, for his daughter, for a consideration of Rs.50,000 vide Sale Deed made on 8-3-1987. The plaintiff with his own funds and resources constructed double storey building on the plot aforesaid. The plaintiff spend Rs.225,000 on the construction of the building out of loan from Allied Bank Ltd, Karachi which was refunded by the plaintiff. This fact is admitted by the defendant on 31-7-2002 and on 9-8-2008.
Defendant made Sale deed of House No. 1014, Survey No. 1127, measuring 160Sq. Yds, Mehmoodabad No.6, Karachi, with Muhammad Aslam son of Muhammad Hussain on 7-12-1999. It was decided to demolish this old house and reconstruct it. The plaintiff spend on the request of the defendant a sum of Rs.4,25,000 for demolition of the house and constructed two storeyed building.
Ground floor was completed with all necessities, first floor was managed with pillars and linters roof. Out of Rs.4,25,000 the plaintiff adjust Rs.300,000 for repayment of loan of Allied Bank Limited, Karachi, Rs.2,25,000 on the defendant and also for other services rendered by him, Rs.1,25,000 are debt, on the defendant. The defendant who was working in the Allied Bank Limited obtained retirement, under Golden Handshake Scheme in the year 2000. The defendant in 2001 started a Garment factory on three floors in the premises of the plaintiffs second daughter Mst. Maimoona Begum wife of Naveed Akhtar at the monthly rent of Rs.10,000. The Garment business of the factory was running in loss. The defendant requested the plaintiff to provide him loan amount so that the business could be run. Accordingly, the plaintiff provided Rs.250,000 in the year 2001 to the defendant for running the factory. The factory was closed with losses by the end of 2001 and the defendant did not pay the rent of 09 months to Mst. Maimoona Begum being total amount of Rs.90,000 due to him.
The plaintiff gave.Rs.1,50,000 to the defendant's brother Imran Chundrigar son of Abdul Shakoor Chundrigar on the request of defendant to purchase second hand yellow cab in 2003. Imran Chundrigar repaid Rs.50,000 to the plaintiff and Rs.1,00,000 are due to him. The plaintiff arranged for marriage of Suryya Khatoon daughter of the defendant on 25-12-2007 and incurred Rs.5,00,000 in her marriage expenses. The defendant who have six children out of the wedlock did not provide sufficient maintenance to the children and the plaintiff was maintaining them providing education and other comforts of life spending over Rs.20,000 per month from October 2001 to April 2010. Out of six children aged 23 years, 22 years, 18 years, 17 years 16 years and 14 years. Two children obtained B.A. Degree and one of them also completed her study of Aalima Course from Jamia Mohsanaat, Karachi. Out of remaining four, two children are studying in the College other two are studying in School in Matric and Eight Classes respectively. The defendant gave an average amount of Rs.6000 per month from the rent of ground floor of his House No.1014, Liaquat Ashraf Colony No.2 Mehmoodabad No.6, Karachi to his wife Mst. Ruqyya Khatoon during this period. He got a job in a private institution of providing Guards to localities and gave Rs.2000 per month also for 2 years only. The defendant is engaged in an unethical act from November-December 2009 with one, an immoral woman Mst. Azra wife of late Yousuf. Her husband Yousuf expired in June 2009. On objection to this heinous act of defendant, the defendant claimed in March 2010 that he get Nikah with this Azra wife of Late Yousuf. Sometime he tell he performed Nikah two months back, sometime tells 4 months back and other time 6 months back. He did not produce his "Nikahnama" till today.
The defendant joined service in a private company as an Accountant on 1-2-2010. He is getting Rs.10,000 remuneration from it. He is also getting monthly pension of Rs.3000 from Allied Bank Ltd.
He is getting monthly rent of Rs.7000 from ground floor of his house No. 1014 Liaquat Ashraf Colony No.2 Karachi. Total amount comes to Rs.20,000 per month. To the back luck of the plaintiff's daughter Mst. Ruqyya Khatoon the defendant stopped even the meagre payment of Rs.6000 monthly from 1-4-2010 to her.
According to the counsel for the plaintiff, the plaintiff incurred the following amount from October, 2001 to April, 2010 on the defendant as under:--
1. Paid to defendant Rs.
20,000 per month from October, 2001 to April 2010.20,60,000
2. Balance of total amount of Rs. 4,25,000 paid to defendant for demolition and reconstruction of House No. 1014, Liaquat ashraf Colony No. 2, Karachi1,25,000
3. Paid to Defendant to run and meet losses in Garment Factory2,50,000
4. Paid (09) months rent from February, 2001 to October 2001 @ 10,000 per month to Mst. Maimoona Begum wife of Naveed AkhtarRs. 90, 000
5. Balanace of payments made to Imran Chundrigar sonof Abdul Shakoor Chundrigar to purchase second hand yeelow cab on the request of the defendantRs. 1,50,000
6. Marriage expenses incurred by the plaintiff on the daughter Mst. Ruqyya Khatoon in December 2009Rs. 5,00,000 Total: Rs. 312,25,000 The learned counsel for the plaintiff contends that the plaintiff is entitled for a declaration injunction on House No. 1014, Survey No. 1127, M.A.C.I. Mehmoodabad No.6 measuring 160 square yards situated at Sheet MACI Quarter, Chanesar Mehmoodabad, Karachi on which plaintiff incurred a handsome amount as referred to in para 5 above for demolition of the old building and reconstructed double storeyed house. Therefore, the above claimed amount may be recovered from the said property the plaintiff is also entitled for permanent injunction against the defendant not to dispose off, alienate, transfer or convey and/or to create any third party interest over the said property and also entitled for the recovery of Rs.31,25,000.
The plaintiff filed affidavit in ex parte proof on 27-1-2011 wherein he narrated some facts as mentioned in the plaint. In the Examination-in-Chief of the plaintiff, the plaintiff produces Exh.P.W.1/13 to Exh. P.W.1/52. The defendant neither filed his written statement' nor was represented in the present suit, therefore, the defendant was debarred from filing written statement on 1-11-2011 and the suit was ordered to proceed Ex-parte against the defendant.
The learned counsel for the plaintiff has relied upon 2014 MLD 750 and SBLR 2014 Sindh 414 wherein it was held that when plaint in suit as well as affidavit-in-Ex-parte proof filed by the witness of the plaintiff, are not rebutted by anything available on record suit should be decreed. The case-law cited by the learned counsel for the plaintiff is not rebutted by anything available on record suit should be decreed. The case-law cited by the counsel for the plaintiff is indeed relevant to case where the reliefs claimed by the plaintiff are in accordance with express provisions contemplated by the Specific Relief Act, 1877, whereas in the instant suit nothing claimed by the plaintiff is in accordance with law, equity and good conscious. Therefore, I am of the view that the aforesaid case-law is not relevant to the facts of the case in hand inasmuch as the prayers in the prayer clauses of the plaint are against the Specific Relief Act, 1877.
Turning now to the arguments of the learned counsel for the defendant, Mr. Farhan Zia Abrar, it is firstly submitted that there is no acknowledgement of debt of any nature on the part of the defendant and that the plaintiff has not been able to prove that the expenses incurred by him are on account of defendant's liabilities and submitted by him that the suit is directly hit by Section 42 of the Specific Relief Act, 1877 in as much as there is no proof filed by the plaintiff that the alleged amount was given as loan by the plaintiff to the defendant, secondly, the reliefs claimed in the prayer clauses 2 to 4 are in not in, respect of any right to plaintiff's own legal character or property, therefore, the suit is not maintainable. The counsel for the defendant relied upon Ilyas Ahmed v.
Muhammad Munir PLD 2012 Sindh 92, wherein it is held that where the plaintiff did not approach the Court for a declaration of his own right to property or his right to a legal character, but had challenged the defendant's pretension to a legal character and right to property, such suit is not maintainable under Section 42 of the Specific Relief Act, 1877 and the plaint was rejected.
It is admitted position of law that section 42 of the Specific Relief Act, 1877 applies only to cases where the plaintiff files a suit to claim entitlement to any legal character or right to any property which entitlement is denied by the defendants. It cannot apply to cases where only the entitlement of the legal Character or the property of the defendant is denied by the plaintiff.
Section 42 would be attracted only to a case in which the plaintiff approaches the Court for protecting his right to a legal character or property but where the right to his own legal character or property is not involved; the suit is not maintainable, Section 42 does not give an unrestricted right of instituting all kinds of declaratory suits at the will and pleasure of the parties, right is strictly limited.
I have gone through the material available on record and perused the affidavit in Ex-parte proof filed by the plaintiff and the Exhibits produced by the plaintiff along with some of the Examination- in-Chief of the plaintiff thereon and have come to the conclusion that the present suit has been filed on the basis of documents that do not reflects that the defendant is liable to pay an amount of Rs.31,25,000 to the plaintiff. There is no acknowledgment of debt by the defendant, therefore, the relief sought in paragraph 4 of the prayer clause is misconceived and the suit cannot be decreed in terms of the same. There is not even a single document placed on record by the plaintiff to support his contention that the defendant is liable to pay Rs.31,25,000 to the plaintiff, Prayer clause 2 of the plaint can also not be granted inasmuch as the same is in contravention of Article 23 of the Constitution of Islamic Republic of Pakistan, 1973 which confers, right to acquire and dispose off property to every individual of the State. If the Prayer. No.2 is granted, restraining the defendant from disposing, of, alienating, transferring or conversing and/or creating third party interest in his own property, the same shall be in contravention of the aforesaid article, moreover, prayer clause 2 is also barred by Section 42 of the Specific Relief Act, 1877 inasmuch as the relief claimed therein by the plaintiff is seeking declaration not his own right to property or legal character but to the property of the defendant. As far as Prayer clause 3 is concern the same is quite vague and indefinite. It does not identify as to which particular property is the suit property inasmuch as property mentioned in paragraph 2 of the prayer clause, belongs to the defendant and property mentioned in para (4) of the prayer clause belongs to the daughter of the plaintiff, according to his own admission in the plaint, therefore, the prayer clause 3 being vague and indefinite cannot be granted. Furthermore, the same is also barred by sections 54 and 56K of the Specific Relief Act, 1877 inasmuch as the relief sought in this prayer clause is again in respect of properties not owned by the plaintiff. Turning in to prayer clause 4, it is quite interesting to note that the some of the said prayer sought in respect of the house are according to the plaintiff is owned by daughter of the plaintiff Ruqyya Khatoon who is not even a party in the present suit. This relief is again barred by Section 42 of the Specific Relief Act, 1877 inasmuch the plaintiff has no legal right or character in respect of the same.
In my view all the prayer clauses are hit by sections 42, 54 and 56 of the Specific Relief Act, 1877 including the present prayer clause which is admittedly seeking relief in respect of the property, which is not owned by the plaintiff, under section 54 of the Specific Relief Act perpetual injunction can be granted to prevent the breach of the obligation existing in favour of the applicant. Under section 56-K injunction cannot be granted where the applicant has no personal interest in the matter, therefore, I am of the considered view that the reliefs sought in the prayer clause are neither legal nor tenable under the law the same cannot be granted, therefore, I dismiss the suit with no order as to costs.