SYED SAEEDUDDIN NASIR, J.---Through C.M.A. No.5019/2016, which is an application under Order VII, Rule 11, C.P.C. read with Section 151, C.P.C., the defendants Nos.1, 3, 5, 6 and 8 have sought rejection of plaint on several grounds. The learned counsel for the defendants at the very outset of his arguments on the instant application has submitted that the present suit filed by the plaintiff is not maintainable, as the defendant No.5 Mr. William Khan, Secretary of Hyderabad Diocese, the Church of Pakistan has passed away; that the defendant No.1 has retired as the Bishop of Lahore Diocese of the Church of Pakistan; that Mr. Wilson Jonson has already retired as the treasurer of Diocese of Hyderabad, the Church of Pakistan; that the defendant No.6, the Rt. Rev. Rafiq Masih, the Bishop of Hyderabad Diocese, Church of Pakistan has also retired; that the defendant No.8, Rev. Qaiser Lal has also retired as Vice Chairman of Hyderabad Diocese, Church of Pakistan; that the defendant No.3 the Rt. Rev, Humphrey Peters does not function as the Secretary of Synod of Church of Pakistan, who is now a Consecrated Bishop of Peshawar, Church of Pakistan, whereas the plaint against defendant No.4, Rt. Rev. Samuel Robert Azraiah, Moderator of Church of Pakistan stands struck off on 25.09.2007; that the suit as framed is not maintainable and the prayers made therein cannot be granted inasmuch the plaintiff has filed the instant suit with false and fabricated averments and even without having any locus standi to file the same; that the title suit of the plaintiff is false and frivolous and it does not disclose any cause of action being accrued to the plaintiff against the Church of Pakistan in respect of whose property the plaintiff is seeking an order for appointment of a receiver by this court, and who is not even a part to the present suit; that the title suit suffers from multi-curiousness; that the Church of Pakistan does not own any property rather it is (i) the Lahore Diocesan Trust Association (ii) The Executive Board of the Methodist Church in Pakistan and (iii) The Church of Scotland who are the owners of the properties in respect of which the plaintiff has sought appointment of Receiver through the instant suit; that the said 3 institutions are fully autonomous and independent in their matters and affairs; that the Lahore Diocesan Trust Association, one of the said property holders, executes Deeds of Power of Attorney in favour of Bishops of the concerned Diocese, where its properties are situated for 3 years for looking after thereof etc. and not for selling or alienating thereof, therefore, the reference to the various properties made in the plaint is entirely irrelevant and inapt as the said properties are neither owned by the Church of Pakistan nor does the Synod of the Church of Pakistan exercise any power or authority whatsoever with respect to the said properties or any other property; that all the properties are owned by the aforesaid entities that are entirely distinct from the Synod of the Church of Pakistan and are in no manner subject to any direction or influence of the Synod of the Church of Pakistan; that the plaintiff repeatedly contested the elections for the office of Bishop of Diocese of Karachi, Church of Pakistan, held under the Constitution of Church of Pakistan on 01.10.1997 and also on 14.02.2002, however, he ultimately lost all elections, whereas on 01.09.2003, through filing of the titled suit the plaintiff has challenged the same Constitution of Church of Pakistan; that the election of the plaintiff for the office of the Bishop of Diocese of Karachi, Church of Pakistan held on 01.10.1997 was challenged through Suit No.1454 of 1997, titled Ashraf Masih and 4 others v. Reverend Ejaz Inayat and 31 others in this Court which was decreed on 13.02.2003 against the plaintiff, and re-election was ordered by this Court. In re-election, plaintiff lost it and Rt. Rev.
Sadiq Denial was declared as the winning candidate. Rt. Rev. Sadiq Denial took oath as Bishop of Diocese of Karachi, Church of Pakistan in a consecration and he took the charge of his office as well; that HCA No.61/2002 filed by the plaintiff against the judgment and decree dated 13.02.2002 passed in Suit No.1454/199.7 was dismissed too vide judgment dated 02.02.2007; that the plaintiff through Suit No.379 of 2002 filed on 27.03.2002 challenged the said subsequent election held on 14- 2-21002, which he had lost. No injunctive order was passed in favour of the plaintiff in the said suit; that no one can himself claim to be a Bishop of any Diocese, Church of Pakistan or can be called as Bishop except a Consecrated Bishop of any Diocese of the Church of Pakistan. The plaintiff is not a Bishop even; that in the year. 1997, the plaintiff was temporarily appointed as Commissary of the Diocese of Karachi until the Consecration Ceremony; that being Commissary plaintiff entered into the premises of the Bishop House, Holy Trinity Cathedral, Abdullah Haroon Road, Karachi, temporarily and started living there, where his illegal occupation is still, continuing, even after losing his election on 14.02.2002; that morally, the plaintiff ought to have vacated the said Bishop House, Karachi for the present Consecrated Bishop but he has never vacated it rather he falsely pretends and misrepresents himself Bishop of Karachi to the public at large and he also falsely states that he resides in the Bishop House, Karachi as Bishop of Karachi; that through his multifarious frivolous litigation including the present titled suit, the plaintiff wants to prolong his illegal stay in the Bishop House, Karachi; that the plaintiff at one hand, while falsely claiming to be Bishop filed Suit No.970/2003 with false averments as to the properties, on the other hand, he and his son, Zeshan Ijaz, in a recent fraud committed with one Iqraruddin, son of Muhammad Ajan vide an agreement of Partnership dated 30.12.2013, have tried to create a Charge over the Bishop House, Holy Trinity, Cathedral Abdullah Haroon Road, Karachi and thereby they have attempted to sell it out, which property is not even owned by them rather they are in the illegal occupation thereof in the circumstances, stated above; that the said Iqraruddin got registered an F.I.R. No.82/2014 dated 10.07.2014 at P.S. Artillary Maidan, Karachi under Sections 420, 468, 471 and 34, P.P.C. against the plaintiff, Rev. Ijaz Inayat and his son Zeshan Ijaz who remained behind the bars in the said criminal case as well; that earlier, Zeshan Ijaz son of the plaintiff vide an agreement to sell dated 21.11.2008, entered into agreement with one Haji Barat Khan for illegal sale of the property belonging to one of the above said property holders, which property was never owned by him. Later on 28.07.2009, an FIR No.140/20098 has been registered against him at P.S. City Quetta in which he is facing trial before the Court.
2. The learned counsel for the defendants has placed reliance on annexure D/2 appearing at page 41 of his application under Order VII, Rule 11, C.P.C., which is an instrument of transfer dated 12-04- 1956 executed between Church Missionary Trust Association Limited and Lahore Diocese Trust Association Limited, whereby the former transferred all the properties of the latter together with all rights, easements and appurtences thereto including the right to sell, transfer, lease or otherwise alienate or dispose of the said properties. At the end of his arguments the learned counsel for the defendants submits that for the reasons mentioned above the plaint is liable to be rejected inasmuch as it does not disclose any cause of action being accrued to the plaintiff against the defendants, and because the properties in respect of which the plaintiff is seeking appointment of a receiver, do not belong to the Church of Pakistan, and no amendments have been highlighted by the plaintiff in the plaint which are apprehended by him to be brought about in the Constitution of Church of Pakistan.
3. The learned counsel for the plaintiff Ms. Benysh Qureshi, while controverting the argument of the learned counsel for the defendants, that since several defendants have either retired or died, therefore, the suit has become infrastructure against them, has submitted that defendant No.1 is acting as Emeritus Bishop of Lahore Diocese, while defendant No.2 is also alive and is officiating as Bishop of Karachi and Deputy Moderator of Synod Church of Pakistan; that the defendants Nos.3 and 4 are also alive and officiating as Bishop of Peshawar Diocese and Moderator of Synod Church of Pakistan respectively; that in place of defendant No.4, one Mr. Imran Joseph Gill has recently filed counter affidavit to pending application being an officer of the Synod while defendants Nos.6 to 8 are also alive and are still connected with Church of Pakistan; that according to the provisions of the Constitution of Church of Pakistan retired Pastors and Bishops remain permanent members of Diocesan Councils, Synod its Committees and Boards etc.; that with regard to the objection that the suit properties are not owned by the Church of Pakistan, it is submitted that the properties vested in the Churches and their property holding bodies which are united to form Church of Pakistan in the year 1970, are owned by the Church of Pakistan. In this regard the counsel for the plaintiff has placed reliance on relevant para from the preface of the Constitution of Church of Pakistan which is reproduced hereunder:- A. Historical statement The Constitution of Church of Pakistan was formally accepted at the Service of Inauguration on All Saints' Day, 1970 by the official delegates from the following churches in Pakistan.
(1)CIPBC (Anglican communion in Pakistan) Diocese of Dacca, Karachi and Lahore; (2)UMPC (United Methodist in Pakistan) Conferences: Indus River Annual Conference, Karachi Provisional An. Conf.
(3)UCNIP (Unjted Church of Pakistan), Church Councils Rejshahi and Sialkot (4)PLC (Pakistan Lutheran Church) and (5)St. Andrew's Church of Scotland, Kirk Session, Karachi
4. The learned counsel for the plaintiff further contends that the Church of Pakistan was formally declared to be the legal and spiritual heir and successor of each and all of the Churches. This act of covenant was declared to be irrevocable and the Union was considered indissoluble; that bare reading of above constitutional clause affirms that all the properties vested in the uniting Churches, prior to Church Union 1970, now vest in the Church of Pakistan, as a result of above said Church Union and the said properties exist for the work generally of the Church of Pakistan. She has further submitted that objects mentioned in the Memorandum of Articles of Association of Lahore Diocesan Trust Association, prior to Church Union 1970 so also the objects mentioned in the Memorandum and Articles of Association of the said trust association, after Church Union 1970 vindicate and affirm the assertion of plaintiff unequivocally, that the properties vested in the said property holding bodies of the uniting Churches, exists for the general benefit of the work of the Church of Pakistan; that further clause 4 of the Instrument of Transfer dated 12.04.1956 in favour of Lahore Diocesan Trust Association, appended as annexure D/2 with the application under reply reads "that the company hereby declares that the trust property exists for the benefit generally of the work of the Church of India, Pakistan, Burma and Ceylon and for any other body, Church or organization by which the same may in future be designated."
5. Learned counsel for the plaintiff further submits that the source of Lahore Diocesan Trust Association is the Church of Pakistan. Bishop of Lahore Diocese is elected by the Synod Church of Pakistan, who holds the position of ex-officio Chairman of Lahore Diocesan Trust Association, while Synod acts as supreme supervisory and legislative body the Church of Pakistan through its region; that it is thus abundantly clear that the suit properties are owned by the Church of Pakistan, being the legal and spiritual heir and successor of above mentioned uniting Churches. However, the learned counsel for the plaintiff candidly admitted that as far as the titles of the suit properties in revenue record are concerned, the same are still in the name of Church Missionary Society in record of rights, while Lahore Diocesan Trust Association claims ownership thereof on the basis of above mentioned Instrument of Transfer in their favour dated 12.04.1956. However, as a matter of fact, after the aforesaid Church Union 1970 all the suit properties and other properties owned by the uniting Churches vested in their property holding bodies are legally owned by the Church of Pakistan; that with regard to holding of meeting dated 5th and 6th June 2003, whereby illegal and unconstitutional Synod was constituted by the defendants, assertion of learned council for defendants that no such meeting was conducted, was strongly opposed by the counsel for the plaintiff. The details of the meeting are duly mentioned in para-7 of the plaint, which fact has been admitted by the defendants in their written statements (annexure A/1 to A/3 to the written statement); that the illegal and unconstitutional amendments in the Constitution of Church of Pakistan (as mentioned in paras 8 to 12 of the plaint) is also a fact duly admitted by the defendants in their written statement. The defendants in complete violation of the constitution of Church and orders passed by this Court dated 08.09.2003, amended the procedure for elections of Bishops (Rules for election and Appointment of Bishops of the Church of Pakistan enacted by the Synod are available on page 905 annexure P to C.M.A. No.10720/2009) while amendment/altered/replaced rules for elections of Bishop enacted by the defendants to plant their persons as Bishops are available on page 025 annexure Q to C.M.A. No.10720/2009). The defendants have also extended the age of retirement of Bishops from 65 years of age to 68 years of age in complete violation of order dated 08.09.2003, besides planting various incompetent persons as Bishops in various Dioceses of the Church of Pakistan including the Bishop of Lahore; that with regard to submission of learned counsel for applicants regarding registration of FIR against the plaintiff it is submitted that the said FIR No.82/2014 and numerous other bogus FIRs had been registered against the plaintiff by the property mafia, with the active support and participation of the defendants, due to the struggle of plaintiff as National Coordinator of Church Bachao Tehrik, Pakistan for the safeguard of Church properties; that upon registration of said false and frivolous FIRs against the plaintiff and his supporters, the plaintiff and his supporters invoked Constitutional jurisdictional of this Court wherein an inquiry to find out correctness of FIRs under reference, was assigned to the DIG, CIA, Karachi, who after thorough inquiry submitted his report dated 05.12.2014 in this Court (annexure R/ 17 to Rejoinder filed by plaintiff to C.M.A. No.12894/2013) therein declaring all the FIRs as bogus and false; that in fact defendants are involved in unlawful activities, numerous FIRs are registered against them (annexure R/25 to R/30 appended to Rejoinder filed by the plaintiff to CMA No.12894/2013), besides misappropriation of Church funds and properties, numerous evidential proofs regarding their corruption and illegal practices are annexed with the Rejoinder. At the end of her arguments, the learned counsel for the plaintiff submits that the application under Order VII, Rule 11, C.P.C. may be dismissed and the Court must afford opportunity to the parties to lead evidence in order to prove their respective case. In support of her arguments, learned counsel for the plaintiff has placed reliance upon the cases of Muhammad lqbal and 3 others v. Mst. Rehmat Bibi through legal heirs reported in 1998 CLC 11 Lahore, wherein it is held that grounds taken in the application for rejection of plaint under Order VII, Rule 11, C.P.C. being not part of written statement could not be looked into; Muhammad Asghar and others v. Hakam Bibi through L.Rs. and others reported in 2015 CLC 719, wherein it is held that existence of cause of action to raise a dispute before the legal forum cannot be denied when parties to the pleadings had directly or indirectly confirmed that there is a dispute between them; Gul Shah and others v. Hafiz Ghulam Muhammad and others reported in 2009 SCMR 1058, wherein it is held that Court must afford opportunity to the parties to lead evidence in order to prove their respective case; Naeem-ud-Din Khan v. Ch. Muhammad Akbar reported in 1998 CLC 1028 Lahore, wherein it is held that grounds taken in the application for rejection of plaint under Order VII, Rule 11, C.P.C. being not part of written statement could not be looked into and Syed Mobashir Raza Jafri and others v. Employees' Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others reported in 2014 SCMR 949, wherein it is held that all the appointments made in violation of the directions/order of this court are nullity in the eyes of law.
6. I have heard the learned counsel for the parties at length, perused the material available on the record of the case and examined the case law with their able assistance.
7. The instant suit has been filed by the plaintiff for declaration, perpetual and mandatory injunction with the following prayers:
(i) To declare that the meeting being conducted and amendments intended to be brought about in the Constitution of Church of Pakistan to be illegal, unlawful and of no legal consequence (ii)To restrain the defendants, their agents, servants, and / or all persons acting through or under them from acting as the Synod of the Church of Pakistan (iii)To appoint a Receiver who should take over the management of the properties and assets of the Church of Pakistan in various Dioceses and to fairly and smoothly conduct the elections as mandated by the Constitution of the Church of Pakistan in existence today and upon election of the electoral body the Receiver should proceed to ensure a free and fair election to the Synod being the apex body of the Church of Pakistan (iv)To grant any other relief or reliefs as deem fit and proper in the circumstances of the case (v)To grant costs of the suit.
8. It may be noted that preponderance of the judicial decisions is in favour of the proposition that no declaration can be issued outside the provision of Section 42. The Court's power to make a outside decree is, therefore, limited to the cases contained in Section 42. No declaration can be allowed unless it can be brought within the four corners of the Section. Reference for guidance can be made to the cases of (1) Miss. Roohi Shaikh v. Board of Secondary Education, Karachi and 2 others reported in 1996 MLD 1190 Karachi (2) (Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others reported in PLD 1978 Lahore 113 (3) Safqatullah Qadir v. University of Karachi through Vice Chancellor reported in PLD 1954 Sindh 107 (4) (Burmah Eastern Limited v.
Burmah Eastern Employees' Union and others reported in PLD 1967 Dacca 190 (5) Al-Haj Abdur Rehman Bhuya and others v. The Commissioners of Narayanganj Municipality and others reported in PLD 1959 Dacca 5 and (6) Commissioner of Income Tax, Punjab, NWFP and Bahawalpur v. Mrs. E.
V. Miller and others reported in DLR 1959 Dacca 430, wherein it is held that "This section does not sanction any and every kind of declaration but only a declaration that the plaintiff is entitled to a specific legal character or to any right as to property."
9. In the case of Ilam Din v. Hassan Din reported in PLD 2006 Lah. 121 it is observed that "the Court will not, therefore, entertain suits in which no direct benefit accrues to the plaintiff or where the plaintiff sets up merely an abstract right to satisfy his ego or satisfy his grudge against another person. Section 42 cannot be invoked in matters of mere sentiments which have no concern with the vindication of the plaintiff's title to status and property. Section 42 of the Specific Relief Act deals with legal right as well as the threat or invasion to it by a person having corresponding duty not to invade it but to respect it. It would, therefore apply only to a case where a plaintiff's suit is for declaration of his own legal right whether to property or legal character provided it is invaded or threatened with invasion by the defendant. It does not deal with the negation of the defendant's rights. Consequently, a declaration that the defendant has no legal right to do something which does not infringe upon any legal right to property or legal character of a plaintiff cannot be given under Section 42. The cause of action should, therefore, be a threat of injury to the plaintiff's own right or removal of cloud cast upon his own title. It does not allow the plaintiff to come to the Court to show hostility only to what the defendant considers his own right and which action does not cast any cloud upon the plaintiff own title.
10.In the case of M.A. Naseer v. Chairman Pakistan Eastern Railway reported in PLD 1965 Supreme Court 83, it was held that under Section 42 where a person is entitled to any "legal character" or to "any right to property", he can institute a suit for a declaratory relief in respect of his title to such legal character or right to property. The Privy Council had taken the same view in the case of Sheoparsan v. Ramand and reported in AIR 1960 PC.78. Preponderance is, therefore, in favour of the proposition that no declaration can issue outside the provisions of this Section. The Courts' power to make declaratory decrees is, therefore, limited to the cases contained in Section 42. No declaration can be allowed unless it can be brought under the four corners of this Section.
11. It is clear from these authorities cited above that section 42 would be attracted only to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved, the suit is not maintainable.
12.It is clear from the plaint that it is not the case of the plaintiff that his entitlement to any legal character or to any property is in jeopardy and he wished to guard against the same by resort to this litigation. The plaintiff only prays for a declaration in the prayer clause of the plaint that the meeting going to be held by the defendants for amendments intended to be brought about in the constitution of Church of Pakistan to be illegal, unlawful and of no legal consequence; that the defendants should be restrained from acting as the Synod of Church of Pakistan; that Receiver be appointed of the property of the Church of Pakistan and to fairly conduct the elections of the Synod of the Church of Pakistan in accordance with its constitution.
13.Upon bare perusal of prayer clause (i), it transpires that the same is vague and indefinite and has no substance at all inasmuch as it neither highlights any amendment being intended to be brought about in the Constitution of Church of Pakistan nor the illegality or unlawfulness of the said proposed amendments is pointed out. The learned counsel for the plaintiff merely submitted in her arguments that certain amendments have been made in the rules and enumerated the same as aforesaid, wherein the prayer clause (i) the plaintiff is impugning the validity of proposed amendments sought to be brought about in the Constitution of Church of Pakistan, however, it is an admitted position, which is acknowledged by both the counsel that no amendment has been made in the Constitution of Church of Pakistan. When a question was put to the learned counsel for the plaintiff by the Court as to what amendments have been made and that she should highlight the proposed amendments in the Constitution, she could not point out even a single amendment in the Constitution of the Church of Pakistan or the date of the meeting alleged to be held by the defendants wherein such amendments have been made.
14.As far as Prayer clause (ii) is concerned, whereby the plaintiff seeks injunction against the defendants restraining them from acting as Synod of the Church of Pakistan, suffice it to say that the same is also misconceived for the reasons that the plaintiff has no legal character to question the same, and that a Synod is an elected ecclesiastical governing advisory council of the church, which is an assembly of Bishops in a Roman Catholic Church, who are in charge of making decisions and formulating laws relating to the church, therefore, the Court is not at all likely to interfere in the smooth functioning of the hierarchy of the Roman Catholic Church, which is a sensitive matter in itself. Moreover, the elections to the Synod of the Church of Pakistan have been held under the constitution of the Church of Pakistan inasmuch as it is admitted by both the parties that no amendments have been made thereto, even otherwise, the elections of the Synod of the Church of Pakistan cannot be called in question by the plaintiff before this Court for the reasons to follow in this judgment.
15.Prayer clause (iii) whereby the plaintiff seeks appointment of Receiver in respect of the properties of Church of Pakistan is totally misconceived inasmuch as no property is owned by the Church of Pakistan in view of the arguments extended by the learned counsel for the defendants and most of the properties mentioned in the plaint are owned by Lahore Dioceses Trust, which is separate entity and not a party to the instant proceedings. Even Church of Pakistan is not a party to the present suit. amendments were being brought about in the Constitution of Church of Pakistan, whereas the counsel for the plaintiff candidly admitted during the course of her arguments that no amendments have been introduced to the same, therefore, the first relief prayed for in the prayer clause was based merely upon an apprehension, which cannot at all be granted as it did not confer any cause of action on the plaintiff. As far as the second relief is concerned, the plaintiff cannot ask for an order against the members of the Synod of Church of Pakistan restraining them from performing their functions inasmuch as the plaintiff neither has any legal character nor any personal right to challenge their authority to act as such. Reference can be made to the case of Uppangala Subraya v. Bedradi Subraya reported in V. Indian Cases 57 (DB) = (1910) wherein the Madras High Court held that Moktesars of a temple do not get any cause of action against a spiritual head of a community merely because he restored to cast a person ex- communicated from the cast. In another case Saifuddin Sahib v. State of Bombay reported in AIR 1962 Supreme Court 853, it was held that a law depriving a religious body of its right to ex- communicate its dissident members from the place of worship, was ultra vires of Articles 25 and 26 of the Indian Constitution. Therefore, I am not convinced by the arguments extended by the learned counsel for the plaintiff extended by her in support of the maintainability of the suit and am of the considered view that the functioning and elections of the Synod of Church of Pakistan, which is a religious body of Roman Catholic Christians, and for the election of which a specific procedure is prescribed in the constitution of the Church of Pakistan, cannot be called C in question before the Civil Court. No Courts are empowered to deal with question purely ecclesiastical, whether arising in the Christian or any other religious community. With such matters, the Civil Courts have nothing to do, until and unless they result in an infraction of civil rights. I am fortified in my view by the Division Bench judgment of Lahore High Court in the case of Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others reported in PLD 1978 Lahore 113, wherein it is held "that a suit to stop defendants from performing their religious rights and from calling their place of worship by a name of a mosque or call Aazan is not competent inasmuch as the plaintiffs did not have any specific personal legal character nor entitlement to any right as to property." It is further held in the same judgment that jurisdiction under Order XXXIX is an equitable jurisdiction; therefore, issuance of injunction is a matter of grace and discretion. Question of irreparable loss, injury and balance of convenience are the elements always considered necessary for satisfaction of the conscience of the Court whether an injunction should be issued or should be refused.
17. As far as the present suit is concerned, the plaintiff cannot complain of suffering any irreparable loss and injury if the defendants are not restrained from performing their religious function as the Synod of Church of Pakistan. The balance of convenience is also not in favour of issuance of injunction inasmuch as injury and loss would be suffered particularly by the defendants if restrained from practicing their religion, and the Christian community at large if such an injunction is issued by the Civil Court.
18.The third relief sought in the plaint is totally misconceived inasmuch as all the properties enumerated in para 14 of the plaint do not belong to the Church of Pakistan, whereas the fact is that no properties are owned by the Church of Pakistan and the same are owned by Diocese Trust of Lahore etcetera. The case law relied upon by the learned counsel for the plaintiff is also distinguishable and not at all relevant to the peculiar facts and circumstances of the present case.
19.It is settled law by the superior courts of Pakistan that a relief of declaration is discretionary in nature and a plaintiff who seeks discretionary relief must come to Court with clean hands. The Plaintiff, whose conduct was unconscionable and against equity would be disentitled to declaratory and injunctive reliefs sought by him. Reliefs of declaration and permanent injunction being discretion of Court could be denied in appropriate cases.
20.From the material available on the record it appears that the plaintiff contested for the election of Bishop of Karachi, which he miserably lost and, thereafter, he continued to occupy the premises of the Church illegally. The plaintiff and his son, on several occasions, tried to illegally and unlawfully dispose of the properties in their possession belonging to different entities, which hold the properties of Christian Community as aforesaid. The plaintiff and his son, Zeshan Ijaz, vide an agreement of Partnership dated 30.12.2013, entered into with one Iqraruddin have tried to create a Charge over the Bishop House, Holy Trinity, Cathedral Abdullah Haroon Road, Karachi and thereby they have attempted to sell it out, which property is not even owned by them, rather they are in the illegal occupation thereof in the circumstances, stated above; that the said Iqraruddin got registered an F.I.R. No.82/2014 dated 10.07.2014 at P.S. Artillary Maidan, Karachi under Sections 420, 468, 471 and 34, P.P.C. against the plaintiff, Rev. Ijaz Inayat and his son Zeshan Ijaz who remained behind the bars in the said criminal case as well. It is also pertinent to mention here that earlier, Zeshan Ijaz son of the plaintiff vide an agreement to sell dated 21.11.2008, entered into agreement with one Haji Barat Khan for illegal sale of the property belonging to one of the above said property holders, which property was never owned by him. Later on 28.07.2009, an FIR No.140/2009 has been registered against him at P.S. City Quetta in which he is facing trial before the Court. 21.It is also settled law that the plaint can be rejected when the averments made therein do not entitle plaintiff to a relief. Provisions of Order VII, Rule 11, C.P.C. can be invoked if there is no possibility for any other approach to the case and no triable issue is made out in the case or when the suit is clearly hit by any mandatory provision of law justifying rejection of plaint. For the purpose of determination whether plaint discloses a cause of action or not the Court has to presume that every averment made in the plaint is true. Besides the plaint, the Court may also take into consideration certain admitted or unconverted material placed on record by the defendant, the genuineness and veracity of which is beyond doubt and upon examining the same, the Court comes to the conclusion that to continue with the suit shall be a futile exercise or the case has been filed by the plaintiff with manifest dishonesty of purpose, oblique object, to retain or claim the benefit of such gain which the plaintiff is not entitled to and to simply cause prejudice and harassm ent to the defendant. Reference can be made in this regard to the case of S.M. Shafi Ahmad Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs reported in 2002 SCMR 338, wherein it is held that bereavements made in the plaint, other material available on the record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. Reference on this point of law can also be made to the case of Jewan and 7 others v. Federation of Pakistan and 2 others reported in 1994 SCMR 826.
22.Provision of Order VII, Rule 11, C.P.C. should be set into motion at the first available opportunity in order to ensure that if a suit is not well founded in law should be laid to rest so that further time is not wasted in futile litigation. Reference can be made in the case of Messrs Noble (Pvt.) Limited, Karachi v. Federal Government Employees Housing Federation) reported in 2002 CLC 1670 Lahore.
The principle involved in this subsection is two fold; in the first place the provision contemplates that still born suit should be properly buried at its inception; secondly it gives plaintiff a chance to retrace his steps at the earliest possible movement so that if permissible under the law, he may file a properly constituted suit. Reference can be made in the case of Messrs Sindh Engineering (Pvt.)
Limited v. OTIS Elevation Company and 3 others reported in 2000 CLC 1524 (Karachi) where conclusion is arrived at that the suit is barred by law, plaint is to be rejected. Reference can be made to the case of Messrs Azeem and Sons v. Ministry of Defence and 3 others reported in 2001 CLC 1339 Karachi. The instrument of transfer dated 12-4-1956 executed between Church Missionary Trust Association Limited and Lahore Diocese Trust Association Limited, whereby the former transferred all the properties of the latter together with all rights, easements and appurtenances thereto including the right to sell, transfer, lease or otherwise alienate or dispose of the said properties clearly demonstrates that the properties in respect of which the plaintiff has sought appointment of Receiver do not belong to the Church of Pakistan.
23.I agree with the arguments of the learned counsel for the defendants that the plaint does not disclose any cause of action being accrued to the plaintiff, no ultimate relief can be granted to the plaintiff, the plaintiff has not come to this Court with clean hands and that the suit is barred by Section 42 of the Specific Relief Act inasmuch as it is not the case of the plaintiff that his entitlement to any legal character or any property is in jeopardy. Under the facts and circumstances of the case as narrated herein above, it can be said that the plaintiff has not come to this Court with clean hands. The plaintiff has filed the instant suit to avenge his defeat in the elections to the office of Bishop of Karachi. He does not want to part with the possession of the house which was temporarily given to him when he was temporarily appointed as Commissary of the Diocese of Karachi until the Consecration Ceremony and being Commissary plaintiff entered into the premises of the Bishop House, Holy Trinity Cathedral, Abdullah Haroon Road, Karachi, temporarily and started living there, where his illegal occupation is still continuing, even after losing his election on 14.02.2002, which morally, the plaintiff ought to have vacated for the present Consecrated Bishop.
24.In view of the above, I am of the considered opinion that no cause of action has accrued to the plaintiff for filing the instant suit. The plaint does not disclose any cause of action for filing the instant suit against the defendants, no ultimate relief can be granted to the plaintiff in this suit which, for the reasons discussed herein above is, even otherwise, not maintainable. I, therefore, reject the plaint of the instant suit and dismiss the same along with all listed applications.