AZIZ-UR-REHMAN, J.---By means of this High Court Appeal section 3 of Law Reforms Ordinance, 1972, read with section 15 of Ordinance X of Law Reform s Ordinance, 1980, filed on 29-12-2014 , the Appellants [Plaintif fs in Suit No,549 of 2008], have challenged, the Impugned Order dated 09.12.2014 , passed by the learned Single Judge of this Court in Suit No,549 of 2008 , filed by the plaintif fs against the defendants [Amir Hameed and another v. Messrs Alloo and Minocher Dinshaw Charitable Trust and others] whereby , the suit filed by the appellants for, seeking declaration , grant of permanent injunction, cancellation of document i,e, registered Sale Deed dated 03.12.1980, and damages / compensation in the sum of Rs,20,000.000/- with markup / interest at the Bank's prevailing rate and costs, was dismissed on the ground of maintainability . The appellants feeling 'aggrieved' themselves, have thus filed the instant High Court Appeal [In short HCA], bearing No,06 of 2015 , with the prayers as follows:-- "a]. To set aside the impugned order dated 09.12.2014 and restore the Suit No,549/2008, filed by the appellants Nos,1 and 2 and appeal may be allowed as prayed. b]. To call R&P of Suit No,549/2008 from the respective branch and if this Hon'ble Court deem fit and proper may also called R&P of J.M. No,14/1990 and Suit No, 250/2010 from the respective branches. c] To restore the possession of the appellants, who have been illegally dispossessed from the suit property .
[Underlining is ours] d]. To declare the so called Sale Deed to be null and void being not executed in accordance with law . e] Ad-interim order be passed restraining the defendants Nos,2 and 3 from creating third/fourth party interest in the properly bearing Plot Nos,26/1, 26/2, 26/2-A, 26/3, 26/4 and 26/5, Sheet No,SB-5, Saddar Bazar Quarters, Karachi. f]To grant cost throughout. g] Any other relief(s) that this Hon'ble Court may deem fit and proper in the circumstances of this appeal.
2. Precisely , the facts leading to the filing of the above High Court Appeal are that Respondent No,1, is a charitable, endowment and religious trust by name and style of M/s. Alloo and Minocher Dinshaw Charitable [of Parsi Community], at Karachi, having been created/established, as stated, on the basis of a registered Settlement duly executed on 19.03.1958 and registered subsequently , on 20.5.1958 at Sr. No,129, Pages 01 to 11, Vol. 104, Book No, IV by District Registrar of Deed and Assurances, City Court, Karachi.
3. The Trust viz. Messrs Alloo and Minocher Dinshaw Charitable ,Trust [of Parsi Community], since then, is engaged and conducting itself as a free Institution through its' Trustee is/was owner of several properties, located in Saddar , Karachi . Per Appellants' [Plaintif fs] stand, out of the properties owned by the Trust, six J6] immovable properties have been sold by the four [04] trustees viz. [i] Mr . Eddie M. Dinshaw ,
[ii] Mr. Khorshed J. Kharas, [iii] Mr. Mehr oo Eddie Dinshaw and [iv] Mr. Russie Minocher Dinshaw to Respondent No,2 herein. The description of the said Six [6] sold out immovable properties [suit plots] to Respondent No,2 [Defendant No,2] viz. Messrs Standard Hotel [Pvt.] Limited, are as follows:--
1. Survey No. 26/1 Sheet No.S.B - 5, 1 161 Sq. Yds.
2. Survey No. 26/3 Sheet No.S.B - 5, 827 Sq. Yds.
3. Survey No. 26/4 Sheet No.S.B - 5, 277 Sq. Yds.
4. Survey No. 26/5 Sheet No.S.B - 5, 543 Sq. Yds.
5. Survey No. 26/2 Sheet No.S.B - 5, 519.6 Sq. Yds.
6. Survey No. 26/2 Sheet No.S.B - 5,1 1383.3 Sq. Yds.
4. The two Appellants [Plaintif fs in Suit No,549 of 2008], amongst others stated to be in occupation and possession of the said pieces of land in question, as claimed, for the last more than four [04] decades and thereon, since then, they running their business in an orderly manner . Per Plaintif fs' assertions, by efflux of time, the two plaintif f's and other occupiers of the said land thus have revamped to the position of owners by virtue of adverse possession , hence, Suit No,549 of 2008 [Amir Hameed and another v. Messrs Alloo and Minocher Dinshaw Charitable Trust and others] was filed on 27.06.2006 , with prayers as follows:-- a). It be declared that the defendant No,1 have had no locus standi to transfer the six on visages Trust Properties for any consideration to any person in violation of the provisions contained in Section 92, C.P.C. and registered Settlement Deed. b). It be declared that the Defendant No,2 was still Not the owners, valid Transfe rees and/or vendees of the six Immovable Properties recorded in the Sale Deed dated 9.9.1980. c). That the Defendant No,1 (viz. The Trust and Trustees) as well as Defendants Nos,2 and 3 have played fraud throughout in the sale and purchase of the Six properties. d). That the Suit properties belong to the Government in terms of Article 172 of the Constitution of the Islamic Republic of Pakistan, 1973. e) That the acts of demolition, renovation, domain over the Six Trust Properties, administration, control and Management etc. by the defendants Nos,2 and 3 was a biotic void, illegal, bad in law and based on principles of antinomy . f). It be declared that the responsible officers/personel and institutions have not performed their functions and duties in perspicuous manner . g). It be declared that the sub-registrar under the active control, administration and supervision of the District Registrar , Karachi registered as Sale Deed in respect of Six immovable. h). It be declared that the plaintiffs have the Legal right as defined under section 126 of the Qanun--e-Shahadat, 1984. i) Order be passed for the grant of compen sation, damages and costs throughout against the defendants to be reimbursed and paid to the plaintiffs with bank rate interest from the day of the institution of suit until realization together with such other relief(s) and benefit as this Honorable Court be pleas ed to give and grant under the circumstances. j). Grant permanent injunction to the plaintiffs against the defendants to keep themselves away and divested from the business and corpus of the Six Immov able Properties and take no action, charge, domain over and existence etc. of the Six Immovable Properties and properties surrounded in the vicinity on any pretext until disposal of the suit and termination of the proceedings. [Underlining is ours]. k) The Sale Deed dated NIL of Six T rust Properties be cancelled."
5. Per record, it appears that the Respondent No,2 viz. Messrs Standard Hotel [Pvt.] Limited, long ago that is to say, in the year, 1979, had filed a civil suit before a civil Court at Karachi, for possession and mesne profits which suit was later on, re-numbered as a Civil Suit No,2826 of 1979 [Messrs Standard Hotel (Pvt.) Limited v. Muhammad Ibrahim son of Hussain through his legal heirs/widow Zeenat Bibi and 7 others] and transferred to the Court of VIth Civil Judge , Karachi vide order dated 02.02.2002 , passed on a Civil Transfer Application No,05 of 2002. The said suit bearing No,2826 of 1979 , was contested by the Defendants therein, by way of filing written statement' [s], whereby , the Defendants therein, had not only denied the 'assertions' and 'averm ents' made in the Plaint of Suit No,2826 of 1979, but also had seriously controverted the plaintif f's stand therein i,e, Respondent No,2 herein, specifically . The operative part of Judgment dated 31st day of Octobe r, 2003, passed by the VIth Civil Judge, Karachi South, in Civil Suit No,282 of 1979 reads as follows:-- ..."On the basis of assessment of various case-law and the legal position cleared, I am of humble opinion that not only the plaint had been signed and verified in defective manners not curable but also that the evidence was defectively led in the matter . Both the persons who verified the plaint and adduce d evidence were incompetent in legal sense.
Before parting with this judgment, again I feel it my duty to pay thanks to Mr. Zafar Iqbal Dutt, advocate and equally to Mr . Imtiaz A. Ansari, advocate for rendering their valuable assistance to this Court in reaching this decision.
The ultimate result of the discussion and findings recorded earlier is that the suit of the plaintiffs is hereby dismissed. [Underlining is ours] Parties are left to bear their own costs. "
6. The Appellants [Plaintif fs], somehow , feeling aggrieved have/had questioned the authority of the trust and sale of the aforesaid six [6] immovable properties through a registered sale deed dated 15.08.1980 executed in favour of Respondent No. 2 herein, by the four [4] Trustees of Messrs Alloo and Manocher Dinshaw Charitable Trust. The Appellants [Plaintif fs] in Suit No,546 of 2008, claim that the 'cause of action' in their favour , for filing of the suit in hand, has arisen at Karachi. The Suit No,546 of 2008 , filed long ago on 27.06.2006 , is for Declaration, Permanent Injunction, Cancellation of Document i,e, Registered Sale Deed dated 03.12.1980 and damages by way of compensation in the sum of Rs,20,000,000/- [Rupees Twenty Million only] with markup / interest at the prevailing Bank's rate with costs. Regarding 'limitation ' and 'cause of action' , Plaintif fs in Paras 8 and 9 of 'plaint' of Suit No,549 of 2008, have asserted as follows: - "8. That the suit is within the time of limitation because fraud does not prescrib e any specific duration for the institution of proceedings.
9. That the cause of action arose at-Ka rachi on various dates which do not attract the mischief of the law of limitation. The cause of action arose against the lot of defendants as explained within the Memo of Plaint under the concept facts portrayed specifically"
7. On presentation of the plaint on 27.06.2016 , the of fice raised the following objections:-- [1]. It appears that plaintif fs have no legal character or rights in respect of the suit properties; suit is hit under Article 115 of the Qanun-e-Shahadat Order , 1984 ; and barred under Sections 42 and 56 of the Specific Relief Act, and the plaintif fs have not stated in the plaint on what basis they have filed the suit. [2] Let the separate Court fees to be paid as provided, under Section 17 of the Court Fees Act as the six immovable properties are disputed and relief for declaration of the above-noted prope rties as averred in para 2 of the plaint and the three shops being shops Nos,3, 4 to 10 of Plot No, SB-5-26/2-A, Saddar Karachi in, the name of the plaintif fs as mentioned in the title page of the plaint. [3] Let the nomenclature of defendant No,6 to be corrected. [4] Let the section: 79, C.P.C. to be complied with in respect of defendants Nos,9 to 11 and 14. [5] Let the list of legal heirs of the plaintif fs to be filed as provided under Order VII, Rule 26, C.P.C. [6] Separate affidavits in support of each application to be filed. [7] Let the blanks to be filled in para No,4 of the plaint and para 6 of the affidavit. [8] Annexures to be proper marked. [9] Paging to be done. [10] Cost, copies and draft summons to be supplied."
8. The aforesaid office objections , on hearing of the learned counsel for the parties and in view of plaintif fs' reply , were OVER RULED vide Order dated 09.04.2008 and consequently , office was directed to assign/allot number to the then Suit No, 'NIL' of 2006 [now Suit No,549/2008]. The relevant part of order dated 09.04.2008 , reads as follows:- Mr. Zafar lqbal Dutt learned counsel for the defendants Nos,2 and 3 stated that two trustees signed in Rome Embassy and one has given authority to execute in Karachi and plaintiff has come after 27 years he has no legal right with the property . Mr. Zafar has relied upon the case of Anjuman Araian, Bhera v. Abdul Rashid and others (PLD 1982 SC 308).. Mr Zafar stated that Plaintiff is neither in possession nor any interest is involved in the property .
Mr. Ahmed Pirzada A.A.G. stated that it is in respect of public charity in Section 92, C.P.C. Advocate General permission is required but in this case High Court has given permission in J.M. No,12/1996 on that sale deed was executed.
Mr. Tahawar Ali Khan Advocate for C. D. G. K. and Mr. lqbal Memon advocate for KBCA, they have stated that this is a private dispute and they have no concern in this matter .
I have heard the learned counsel for the parties, perused the record, relevant law and case law cited at bar. In the present case important questions have been raised which will have for reaching consequences in their nature and impact on the community as a whole. All these contentions requires deeper appreciation of evidence which properly be thrashed out at the time of trial.
In view of the above, at present, the office objections are over ruled subject to all just exceptions. " [Underlining is ours]
9. Messrs Standard Hotel [Pvt.] Limite d and others feeling 'aggrieved' and dis-satisfied' with order dated 09.04.2008, filed High Court Appeal No,110 of 2008 [Messrs Standard Hotel [Pvt.] Limited and others v. Amir Hameed and others] before this Court under section 15 of the Ordinance X of 1980 C.P.C. [Amendment] Ordinance, 1980 read with Law Reforms Ordinance, 1972, whereby , Order dated 09.04.2008 , passed in Suit No,549 of 2008, by a learned Single Judge of this Court, was impugned/challenged. On 21.08.2008. after service, when the said High Court Appeal [In short HCA], came-up before the Court, then the same was DISMISSED with observations as follows:-- "In view of the facts discussed above and the observations made by the Apex Courts it is incumbent upon the courts to look into the matter and exam ine the legal character of the plaintiffs before issuing summons to the defendants. Anyhow in the present case, suit has been admitted and summons have been served on the respondents who had put their appearance before the Court.
Even then it would be proper for the learned single judge belare proceeding the suit to decide the question of maintainability of the suit at first instance. With these observations High Court Appeal stands dismissed accordingly ." [Emphasis supplied]
10. Per diary dated 12.12.2008 of Addl. Registrar [O.S.], Defendants Nos,2, 3, 5 to 15 [Respondents Nos,2, 3, 5 to 15 herein], were served with 'summons' and thereafter , service upon them was held good. On service having been held good on the said defendants, only Defendants Nos,1 1 and 12, filed their written-statements . As far as, Defendants Nos,2, 3, 5, 8, 9 and 10 to 15, are concerned, despite extension of time since, 12.12.2008, the said Defendants, however , failed and/or avoided to file their written-statements, as such, vide order dated 22.12.2009, passed by the Addl. Registrar [O.S.], they were DEBARRED from filing of their written statement[s].
11. Further , it appears, that against Defendants Nos,1 and 4, the plaint was 'struck off' on 30.09.2010, under Rule 128 of Sindh Chief Court Rules [O.S.] by Addl. Registrar [O.S.] on account of non-payment of cost. As per diary of Addl. Registrar [O.S.] dated 30.09.2010, the Defendant No,2 though had filed its' written-statement on 06.08.201 1, but evidently after having been declared, as DEBARRED from filing of 'written-statement' vide Order dated 22.12.2009 . passed by Addl. Registrar [O.S.], which order dated 22.12.2009 of Addl. Registrar [0.S.] on the face of record is still holding field. As far as, Defendants Nos, 6 and 7, are concerned, it appears, that they were declared ex-parte vide order dated 04.10.2012 , as the said Defendants, despite extension of time, failed and/or avoided to file their written-statement[s].
12. As far as, Defendants Nos,1 1 and 12 i,e, [1] SHO, PS Frere, Karachi and [2] The Inspector General of Police, Head Office, I. I. Chundrigar Road, Karachi, are concerned, their written statements are available on record. In their written statements, Defendants Nos,1 1 and 12, while, raising some preliminary objections with regard to maintainability of the suit, have denied the arising of any cause of action in favour of the plaintif fs [Appellants herein]. Further , according to Defendants Nos,1 1 and 12's stand since, the dispute is between private parties, as such, official Defendants Nos,1 1 and 12, have been wrongly joined in Suit No,549/2008 . Per Defendants Nos,1 1 and 12's stand their names are liable to be deleted from the array of Defendants.
13. Subsequently , on 14.01.2009 , the Court seemingly , keeping in view the observations of a Divisional Bench of this Court made at the time of dismissal of the High Court Appeal No,110 of 2008 [Messrs Standard Hotel [Pvt.] Limited and others v. Amir Hameed and others] i,e, on 21.08.2008 , framed two questions/issues for determination as follows:-- "1. Whether the suit is maintainable when the plaintiff has remedy of filing of an application under section 12(2), C.P.C. in J.Misc. Application No,12 of 1966, in which order has been passed for selling of suit property , upon which registered sale deed is said to have been executed?
2. What is the effect of the order dated 18.7.2007 , whereby plaintiffs application under Illegal Dispossession Act of 2005, was dismissed?
14. The above two issues/questions were subsequently decided by a learned Single Judge of this Court vide order dated 06.04.201 1 against the Defendants [Respondents herein]. For convenience purpose, Paras 6, 7 and 8 of Order dated 06.04.201 1, being relevant are reproduced herein-below:- "6. I have heard learned counsel for the parties and considered the record with their assistance. The first point to be noted that the two questions regarding maintainability have been framed in every specific and precise terms, and I am at present only concerned with the question as framed, and not with any other objection as to the maintainability of the suit which may be available to the defendants and which they may be entitled to raise. This is a crucial point which must be kept in mind at all times. Keeping this point in mind, I now turn to consider the two questions of maintainability noted above. Insofar as the first question is concerned, in my view the remedy under section 12(2), C.P.C. is not an appropria te remedy for the plaintiffs in respect of any order that may have been made in J.Misc.No,12/1966. (It would appear that an order was made in that matter for the sale of the suit property .). This is so, firstly , because no such order has been produced by the defendants so as to enable the Court to decide whether section 12(2) would be at all applicable. Secondly , it would appear that any order that may have been made in the aforesaid petition was made prior to the insertion of section 12(2) into the C.P.C., which would seem not to have retrospective effect. Furthermore the grievance of the plaintiffs is as regard the sale deed executed in 1980, which, it would appear , was executed several years after any order they may have been made in the aforesaid J. Misc. No,12/1966. The purpose, of an application under section 12(2), C.P.C. is to provide a remedy to any person who is aggrieved by a decree that may have been obtained from the Court by fraud or misrepresentation and it seems to me that this condition is not applicable in the facts and circumstances of the present case. Accordingly insofar as the question No,1 is concerned, I hold that the suit prima facie is maintainable. [Emphasis supplied]
7. Insofar as the second question is concerned, it is to be noted that a complaint under the Illegal Dispossession Act of 2005, is in respect of the offence of illegal dispossession, which is an offence in terms of section 3 of the said Act. In other words, proceedings under the Illegal Dispossession Act of 2005 are criminal Proceedings whereby the complainant seeks to have the persons accused of having committed the offence under section 3 punished for such offence . It is correct that if the trial Court conclu des that an offence under section 3 is made out, it has to make an order regarding restoration of the possession of the property concern ed. However it must also be remembered that criminal proceedings on the one hand, and civil proceedings one other are separate and distinct in nature, and it is well settled that the success or failure of one is not necessarily determinative of the outcome of the other . Thus, even if the criminal complaint filed regarded as having been dismissed on the merits that does not, in and of itself, mean that their civil suit is also liable to be dismissed . The two proceedings have to be decided on their own merits and hence the suit cannot be declared to be non-maintainable on this ground.
8. For the foregoing reasons, 1 am satisf ied that on the two questions framed by the order dated 14.01.2009, the suit ought not to be declared to be non-maintainable. However , as noted above, this is entirely without prejudice to the right of the defendants to raise such other objections as to maintainability to-wh ich they may be entitled in law.
The point of maintainability having been disposed of as above, the other matters which had been listed on 29.3.201 1 may be listed by the office on the next date of hearing." [Emphasis supplied]
15. Upon determination of the two questions/issues in favour of the Appellants herein [Plaintif fs], reproduced hereinbefore, the Defendant No,2 [Respondent No,2 herein], thereafter , opted to file an Application under Order VII Rule 11, C.P.C., seeking therein, REJECTION of the plaint, inter alia, on the ground s that six plots in question have been purchased by Defendant No,2 from Defendant No,1 [Respondents Nos,2 and 1 respectively], and the plaintif fs [Appellants herein] seemingly , therein, have no concern. Manifestly , in the application under Order VII Rule 11, C.P.C. bearing C.M.A. No,3136/2012, the rejection of the plaint was again sought on the ground that plaintif fs, have no legal character and/or any right in respect of the Suit properties; suit is hit under Article 115 of the Qanun-e-Shahadat Order , 1984 and barred under Sections 42 and 56 of the Specific Relief Act, 1877 [I of 1877].
Needless to say, to effect and extent, the office Objection No,1 and other objections as well, has/had already been OVERRULED by Order dated 09.04.2008, passed by learned Single Judge of this Court. Even the HCA No,110/2008, filed by Respondent No,2, amongst others against aforesaid order dated 09.04.2008 was dismissed by a Division Bench of this Court on 21.08.2008. Order dated 09.03.2008 in view of DISMISSAL OF HCA No,110 of 2008 has thus attained finality .
16. The aforesaid APPLICA TION under Order VII Rule 11, C.P.C. [C.M.A. No,3136/2012], nevertheless, when came-up before the Court along wiih other four [4] Misc. Applications, on 09.12.2014; when Suit No,549/2008 [Amin Hameed and another v. Messrs Alloo and Minocher Dinshaw Charitable Trust and others], was fixed for hearing of Applications and settlement of issues/ examination of parties the learned Single Judge on hearing instead of rejecting the plaint the same was DISMISSED vide the 'impugned order' dated 09.12.2014 without disposing of the other listed Applications.
17. The Appellants [plaintif fs] again feeling 'aggrieved' and 'dissatisfied' with the order dated 09.12.2014, thus, have preferred the above High Court Appeal, inter alia, with a prayer that 'impugned order dated 09.12.2014, passed by a learned Single Judge of this Court be set aside.. The said order , according to Respondents, is not only erroneous but also against the law .
18. Lastly , on 08.02.2018 when, after service, the above High Court. Appeal came-up before us then, we heard Mr. Muhammad Jawed Bangash, learned counsel for the Appellants, Mr. Zafar Iqbal Dutt, learned counsel for the Respondent No,2, Mr. Shahid Iqbal Rana, learned counsel for the Respondent No,5, Mr. Usman Tufail Sheikh, learned counsel for the KDA, Chaudhry Arif Majeed, learned counsel for the Respondent No,7, and Ms. Nasreen Sahito, learned State Counsel and also gone through the record with their valuable assistance minutely .
19. Per learned counsel for the Appellants, the 'impugned order' dated 09.12.2014 besides perverse is against the facts and law, hence the same is liable to be set-aside. Mr. Muhammad Jawed Bangash further contended that the learned Single Judge of this Court has failed to appreciate that the issue of maintainability of the suit has been decided earlier twice. The learned Single Judge, it is urged by Mr. Muhammad Jawed Bangash, has absolutely failed to appreciate the facts of the case properly that is to say in its true perspective. The office objections since, have already been OVER-RULED vide order dated 09.04.2008, as such, the re-agitation of the like objections, per learned counsel, is a clear violation of law and justice. In terms of Orders dated 09.04.2008 and 06.04.201 1 not only the suit is maintainable but the contentions raised/ relief sought in the plaint, as held, require deeper appreciation of evidence, which can only and properly be thrashed out, at the time of regular trial of the case.
20. Apart from the above, the learned Single Judge has erred in law to consider that even the two issues framed viz-a-viz the maintainability of suit have been later on, decided against Respondents herein [Defendants] vide Order dated 06.04.201 1. The said two issues/ questions, per Mr. Muhammad Jawe d Bangash, were settled/framed pursuant to and in compliance with the observations made by Division Bench of this Court at the time of dismissal of, the High. Court Appeal No,110 of 2008 [Messrs Standard Hotel [Pvt.] Limited and others v. Amir Hameed and others] on 21.08.2008.
21. Per Mr. Muhammad Jawed Bangash since the TWO ISSUES pertaining to the maintainability of the suit have already been decided vide order dated 06.04.201 1, as such, the 'impugned order' dated 09.12.2014 in view of this position as well is not only illegal, perve rse but also based on assumption and surmises. Moreover , the learned Single Judge has also failed to consider and properly appreciate the arguments advanced by the Appellants' counsel, on the issue of maintainability of the suit and finding of this Court twice vide orders dated 09.04.2008 and 06.04.201 1 whereby , the suit filed by the Appellants [Plaintif fs] was found as maintainable.
22. Conversely , Mr. Zafar Iqbal, learned counsel for Respondent No,2, forcefully , contended that the suit filed by the Plaintif fs [Appellants herein], on 27.06.2006, has rightly been dismissed under Order VII, Rule 11, C.P.C., as the Plaintif fs [Appellants herein], have no legal character and/or rights in respect of the suit properties; suit is hit under Article 1 15 of Qanun-e-Shahadat Order , 1984, barred under Sections 42 and 56 of the Specific Relief Act, 1877.
23. According to Mr. Zafar Iqbal Dutt, the jurisdiction of this Court has been invoked wrongly , that is to say by way of filing the suit, in fact, the Appellants [Plaintif fs] have no personal right, interest in the suit plots, as the claim of possession as occupier since, 4 decades /'adverse possession' over the suit plots is false and bogus. In support of his contentions, reliance was placed the case of on Anjuman Araian, Behra v. Abdul Rashid and others [PLD 1982 SC 308 ], wherein it was observed as follows:-- "We find force in the contention of Mr. Brohi; we observe that the only contention of the appellant to show its interest in the land in dispute is that it was in its possession. But this possession was illegal, unauthorised an had no legal sanction. Faced with this situation, the only argument, which the appellant's counsel could press, was that in transferring the area to Abdul Rashid (Respondent No, 1), the law had not been followed. But this grievance was shared by the appellant along with numerous others and, therefore, his capacity , while agitating against the orders of transfer , was of person raising a question pro bona publico. However , this Court has now held in several decisions that a party acting pro bona publico had no locus standi to all in question the transfer of property in favour of a third party unless he has a personel interest in the matter . We may add that a person can be deemed to be "aggrieved" if he has, some interest in the corpus of the party , to which the law attaches some sanctity . It is only if the appellant can demonstrate some interest in the property , to which some legal sanctity was attached, can he be considered as an aggrieved party . However , the interest of a trespasser is not such an interest which has the blessings of any law. Hence he cannot maintain a writ petition. This view has consistently been expressed by this Court. In Abdul Ghaffar v. Settlement Commissioner , Rawalpindi etc., (1) it was observed that "a trespasser was neither entitled to the transfer of a house under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 nor competent to move the High Court in exercise of its constitutional jurisdiction". Again in Managing Committee, Muhajrin v. Mst. Zainab Bibi and others (2) it was observed that "the doctrine of "Istehsan" has never been applied in favour of person in unauthorised possession of property". In Mirza Sardar Muhammad and others v. Pakistan and others (3), wherein the petitioners therein had constructed a shop over the property and the notice of ejectment served the Municipal Committee was challenged through a writ petition, it was observed that the petitioners had no right or title to remain on the property and, therefore, could not be allowed to perpetuate their unlawful possession. Thus, a trespasser has never been held to be a person who is entitled to successfully invoke the writ jurisdiction of the High Court, as he lacks the locus standi to do so. ..."In the present case, the occupation of the appellant vas unauthorised and illicit and, therefore, he could not be considered to have been deprived of any right in law by its transfer to a third party , whereas in the case of Fazal Din, the appellant therein had a legitimate expectation, which was built upon a statutory presumption that a market would be constructed opposite his plot, which would result in improving his business. Indeed, this Court recorded a finding of fact that it was this expectation which induced him to raise an expensive construction over his plot. Thus, a link was established between the appellant therein and the impugned action, namely , the alteration of the scheme for setting up the market. Hence, in that case, a nexus existed between the appellant therein and the order impugned by him, whereas in the instant . case, no such nexus existed between the dispute raised by the appellant, namely , the transfer of the land to a third party and the appellant because a nexus could only have existed if the appellant could show any invasion of his own right or the frustration of some expectation by the transfer of the land to Respondent No,
1. No such right was being invaded nor such expectation frustrated in this case."
24. Lastly , learned counsel for the Respondent No,2 herein [Defendant No,2], contended that Appellants' suit, as famed and filed, on 27.06.2006, is not only time barred but also had in law as the Appellants/Plaintif fs have no 'cause of action' for filing of the suit against the Respondents herein [Defendants]. Per learned counsel, if, the High Court Appeal in hand, is not dismissed, then, the Respondents including contesting Respondent No,2, shall be seriously prejudiced.
25. The learned counsel for other Respondents i,e, Respondents Nos,5, 6 and 7 and Ms. Nasreen Sehito, learned State Counsel neither supported nor opposed the instant High Court Appeal as according to them the dispute involved is between private Appellants and Respondents with which the official Respondents are not concerned.
The learned State Counsel besides, prayed for deletion the names of official Respondents from the .array of Defendants/ Respondents.
26. Heard and perused the record.
27. Before proceeding further , it is worth to note, that the Respondents Nos,2, 3, 5, 8, 9, 10 to 15 [Defendants] have already been DEBARRED from filing of their written statements' vide order dated 22.12.2009, passed by Addl.
Registrar [0.S.] of this Court. The relevant diaries/orders dated 12.12.2008, 22.12.2009 and 30.09.2010, passed by Addl. Registrar [O.S.] of this Court are respectively reproduced herein-below:-- a. 12.12.2008 Summons issued to defendants Nos,1 to 15 returned served on defendants Nos,2, 3, 5 to 15 and un-served on defendants Nos,1 and 4 as they were not present....
Service is held good against defendants 2, 3, 5 to 15. [Underlining is ours] W/S have been filed on behalf of defendants Nos, 1 1 and 12.
W/S by defendants Nos,2, 3, 5 to 10, 13 to 15 in 4 weeks.
Repeat summons to defendants Nos, 1 and 4 through bailiff and TCS. b. 22.12.2009
1. For filing W/S by defendants Nos,2, 3, 5 to 10, 13 to 15.
No W/S have been filed since 12.12.2008.
2. Summons not issued to defendants Nos, I and 4. Cost not paid.
1. None present on behalf of defendants Nos, 2, 3, 5, 8, 9, 10, 11, 12 to 15. No application for extension of time has been received.
The defendants Nos, 2, 3, 5, 8, 9 10 to 15 are debarred from filing of W/S. [Underlining is ours] Application under section 148, C.P .C. filed on behalf of defendants Nos, 6 and 7.
W/S in 2 weeks Cost in a week Ad]. to 09.03.2010. c. 30.09.2010
1. The matter is already filed in Court on 27.10.2010.
2. Summons not issued to defendants Nos, 1 and 4 as cost not paid since 22.12.2009.
Plaint struck off under Rule 128 SCCR (OS). [Underlining is ours] Adj. to 03.12.2010.
28. As far as Respondents Nos, 6 and 7 are concerned, vide Court's order dated 08.03.2012, the suit against them was ordered to proceed ex parte. From the record, it further appears that vide order dated 19.05.201 1, further 4 weeks' time was granted to the Defendants for doing the needful but apparently neither any application for re- calling order dated 22.12.2009 passed by the Addl. Registrar [O.S.], was filed nor any 'written statement', was filed within four [4] weeks. Order dated 19.05.201 1 being relevant is reproduced herein-below:-- "19.5.201 1 Mr. Munir -ud-Din, Advocate for plaintiff No,1 Mr. Muhammad Javed Bangash, Advocate for plaintiff No,2 Mr. Zafar lqbal, Advocate for defendants Nos,2 and 3 Ms. Shamim Akhtar , Advocate for CDGK Ms. Farkhanda, State Counsel. ** 1 & 5) If the plaintiff No,2 has any grievance as is being stated in this applications, let the plaintiff pursue .his remedy before the appropriate forum.
Applications stand disposed of.
2) Learned counsel for defendant No,7, who has filed this application, supplies copy to learned counsel for plaintiff, who seeks time to go through the same to file counter -affidavit, if any .
3) It appears that on account of the issue of maintainability that had been raised in respect of suit property , none of the defendants has filed their written statement. Four weeks' time is granted to do the needful. [Underlining is ours] 4) Deferred.
Adjourned to a date in office."
29. The Respondent No,2 herein [Defe ndant No,2] once again on the basis of a so-called legal ground i,e, "plaintif fs have no legal character and/or rights in respect of the Suit properties; suit is hit under Article 115 of the Qanun-e-Shahadat Order , 1984 and barred under Sections 42 and 56 of the Specific Relief Act, and the plaintif fs have not stated in the plaint on what basis they have filed the suit". As referred to in the application under Order VII Rule 11, C.P.C. [C.M.A. No, 3136 of 2012 ], sought the REJECTION of the plaint. The aforesaid ground is/was not a new ground rather it was the 1st objection , raised by the office. All office objections including the objection No,1, in the first round, were heard by learned Single Judge of this Court and OVER-RULE D vide Order dated 09.04.2008.
The Respondent No,2 herein [Defendant No,2] and others, feeling 'aggrieved' and 'dis-satisfied' by order dated 09.04.2008, filed High Court Appeal No,110 of 2008 [M/s. Standard Hotel [Pvt.] Limited and others v. Amir Hameed and others] but High Court Appeal No,110 of 2008, was also dismissed on 21.05.2008 by a learned Division Bench of this Court. In view of this position, Order dated 09.04.2008 whereby , the objections raised by the office including the above legal objection was over-ruled, has attained finality .
30. On dismissal of the High Court Appea l No,110 of 2008 [Messrs Standard Hotel [Pvt.] Limited and others v. Amir Hameed and others], two more question s/ issues perhaps in view of observations made by a learned Division Bench of this Court vide order dated 21.05.2008 were framed/settled but the same questions/ issues, in the second round, were also. decided against the Respondents herein [Defendants], vide order dated 06.04.201 1. Despite, passing of two orders i,e, dated 09.04.2008 and 06.04.201 1, whereby , the Appellants [Plaintif fs] suit was found/declared as maintainable, however , in the third round, the suit of the appellants was dismissed as not maintainable through the 'impugned order' dated 09.12.2014.
31. The Appellants [Plaintif fs] Suit No,549 of 2008, it is significant to note, is not only for Declaration, Permanent Injunction,. Cancellation of Documents i,e, registered Sale Deed dated 03.12.1980 but also is for damages/ compensation in the sum of Rs,20,000,00 0/- [Rupees Twenty Million only]. In such like situation even if, any of the relief[s] is barred or found to be barred by law then too under Order VII Rule 11, C.P.C., a plaint cannot be rejected in piecemeal, if, otherwise, one of the prayers contained in the plaint is found as maintainable. In the case in hand, the Appellants [Plaintif fs] can obviously maintain a suit for damages/ compensation in view of their long occupation/dis-possession from the suit plots. Under law, no doubt, the claim of damages can only be established through suf ficient evidence to be led by the Claimants/Appellants herein [Plaintif fs].
32. As far as the contention of Mr. Zafar lqbal Dutt, learned counsel for Respon dent No,2, regarding negative declaration and bar of suit under Sections 42 and 56 is concerned, upon going through the contents of the 'plaint' and the prayers sought therein, including prayer for damages/compensation,. the Appellants' [Plaintif fs] Suit No,549 of 2008 as framed and filed, in our opinion, does not seem bar under Sections 42 and 56 of Specific Relief Act, 1877. On this aspect of the matter , relian ce can be placed on the case of [i] Mst. Jan Ara and others Muhammad Zubair and others [2012 CLC 1630 ] and [ii] Dr. Mohomed Aqeel Khan and others v. Mst. Dr. Shaharyar and 2 others [1987 MLD 2809 ], wherein, it was held as under:--
[i] 2012 CLC 1630 "11 As far as the claim of negative declaration is concerned, the objection is not tenable for the reason that the rule is not of universal application, however , where in a plaint the relief sought for in negative form of declaration, its refusal has not been justified. As there is no absolute bar contained anywhere in law, because in order to overcome, the various complexities of law and procedure, the Courts are bestowed with the unbridled authority to do away with all those impediments, hampering with the fair dispensation of justice. In this respect, the observation made in case Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 1 13) can be relied upon:-- "Negative declaration can be granted on principle that what can be done directly can also be justified if is done indirectly . Such declaration must, however , also be one affecting Home threatened injury or infringement of plaintiffs right." [Underlining is ours].
[ii], 1987 MLD 2809 "...I am of the view that even if I agree with the learned 1st Appellate Court that the declaration sought by the applicant was not permissible under the law in the circumstances of the case, the learned 1st appellate court clearly overlooked the fact that in the suit the applicant/plaintiff in addition to the relief of declaration had also sought the relief of permanent injunction which was quite independent f the relief of declaration claimed in the suit.
The learned counsel or the respondents were unable to satisfy me that the relief of injunction claimed by the applicant/Plaintiff in his suit could not be granted without granting relief of declara tion claimed in the suit. As the relief of injunction claimed by the applicant/Plaintiff was distinct, separate and independent relief the learned first appellate court could not throw out the whole suit on the consideration that the relief of declaration could not be granted in favour of applicant under the law. As this important aspect of the case was completely overlooked by the learned 1st appellate court while allowin g the appeal of respondent No,1, it amounted to an order in excess of jurisdiction. I accordingly accept this revision application set aside the judgment and decree"... [Underlining is ours].
33. Moreover , law always prefers decision of cases on merits and, of course, discourages the technical knockout.
The purpose behind legal and codal formalities and procedure is nothing but only to ensure the safe administration of justice and avoid/thwart, the chances of injustice/mis-carriage of justice. In this regard, the relevant observation from the case of Imtiaz Ahmed v . Ghulam Ali [PLD 1963 SC 382 ], are reproduced herein below:- "I must confess that having dealt with technicalities for more than forty years out of which thirty years are at the Bar, 1 do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy . The English system of administration of justice on which our own is based may be to a certain extent technical but we giving effect to the form and not to the substance defects substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his." [Underlining is ours].
34. In view of the facts and circumstances of the case in hand the Suit bearin g No,549 of 2008 filed by the Appellants/Plaintif fs on 27.06.2006 is found maintainable under orders dated 09.04.2008 and 06.04.201 1, in our opinion, should not have been dismisse d under Order VII Rule 11, C.P.C. which provision of law only permits REJECTION of the plaint and nor dismissal of the suit. Moreover , a 'fair trial' and 'due process' has now become a fundamental right of each and every litigants. In this view of the matter as well, the suit of the appellants/plaintif fs would not have been DISMISSED without recording of evidence under Order VII, Rule 11, C.P.C. much-less without affording opportunity for leading evidence. The relevant observations regarding fair trial and due process from the case of Shabir Ahmed v . Kiran Khursheed and others (2012 CLC 1236 ), read as below:- "Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that each person shall be accorded certain 'process' if they are deprived of life, liberty property-- -The question then focuses on the nature of the 'process' that is 'due'. The government always has the obligation of providing a neutral decision maker one who is not inherently biased .against the individual or who has personal interest in the outcome".
Due process is now available to every person as a fundamental right and unde rscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairne ss and procedural propriety and at all times must honour the law and the settled legal principles. Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person." [Emphasis supplied].
35. It is significant to note, in the suit filed by the Appellants [Plaintif fs] they have not only claimed damages/ compensation but multiple other reliefs as well. The Court even otherwise, if comes to the conclusion that this Court has no jurisdiction to grant anyone or more reliefs, as sought in the plaint, then too if, a single relief deserves to granted then, the suit to continue, as in such like situation, plaint cannot be REJECTED in piecemeal, The prayer for damages/ compensation, as sought by the plaintif f under the given facts and circumstances, is entertainable and plaintif fs/appellants herein, of course, can maintain a suit for damages, however , grant of damages is subject to proofs/evidence.
36. Indeed, under law, the 'ONUS OF PROOF' for damages lies on the shoulder of claimants/plaintif fs and without discharging such 'ONUS OF PROOF' damages, of course, cannot be granted straightaway . Under law, even, a fixed amount of damages cannot be granted, until and unless, the quantum of loss[es] / damages, actually suffered is ID proved through suf ficient evidence.
37. With regard to the contention of Mr. Zafar Iqbal Dutt, learned counsel for Respondent No,2 [Defendant No,2] viz-aviz lack of 'cause of action' it is suffice to say, it is a bundle or totality of 'essential facts' started in the plaint.
Reliance on this aspect of the matter , can be placed on the case of Muhammad Tariq Mahmood and 2 others v.
Anjuman Kashmiri Bradari Khisht Faroshan through President Abdul Ashfaq and 2 others [2003 CLC 335] wherein, it was observed as follows:-- 9... 'Cause of action' has not been defined in the C. P.C. It is the bundle of facts, which have been alleged by the plaintiff in the plaint. It has been held in the case reported as National Development Finance Corporation v. Messrs Leepa Shoes Ltd., Mirpur 1992 MLD 474 that to ascertain cause of action only the facts stated in the plaint are to be construed to determine whether they constitute a cause of action" . It means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed. [Underlining is ours].
38. The Appellants [Plaintif fs] inter alia have specifically challenged the registered sale deed in favour of the Respondent No,2 and the authority of four [4] trustees of Respondent No,1 [Defendant No,1]. The averments/ assertions made in the plaint, inter alia to the above effect and extent have also gone un-rebutted. The Defendants including Respondent No,2, have been debarred from filing their 'written statement[s]' long ago by Addl. Registrar [0.S.] of this. Court as per diary/order dated 22.12.2009. The said order , it is needless to say, is still in field. In the suit file though the 'written statement' of Respondent No,2 [Defendant No,2] filed on 06.08.201 1, is available, but it has been filed after a lapse of more than 2-1/2 years so far. The said written-statement has not been taken on record perhaps in view of order dated 22.12.2009 passed by Addl. Registrar [O.S.] of this Court.
39. Nevertheless, since, the plaintif fs interlia have claimed damages/ compensation in the sum of Rs,20,000,000/- [Rupees Twenty Million only], as such, the Appellants [Plaintif fs] in order to prove the claim of damages/ compensation are required to lead evidence. Manifestly , without evidence, damages cannot be granted.
40. As far as the case law cited by Mr. Zafar Iqbal putt, learned counsel for Respondent No,2 [Defendant No,2], is concerned, the same under the given facts and circumstances of the case in hand, is distinguishable, as the cited case was a case of writ petition and the issue of damages/compensation etc. therein was also not involved.
41. Before parting with the judgment it is clarified that the observations made herein-above be deemed as confined to the extent of disposal of the instant High Court Appeal and shall not cause any prejudice to the case of any party , which, no doubt, is to be decided on merits and in accordance with law .
42. For what has been stated above, this High Court Appeal is ALLOWED.
The 'impugned order' dated 09.12.2014, passed by learned Single Judge of this Court is hereby , set aside. Suit No,549 of 2008, filed by the appellants [plaintif fs], be proceeded further on merits and in accordance with law as swiftly as possible.
43. Instant High Court Appeal stands ' ALLOWED' accordingly .