FAHIM AHMED SIDDIQUI, J. By filing this civil suit, the plaintif fs have sought certain reliefs against the defendants containing declaration, specific performa nce and injunction regarding the plots of different sizes, which were purchased by them in an open auction.
2. Factual matrices of the case are that KDA carved out 72 commercial plots of different sizes from Plot No. ST-2, Block-10, Federal-B Area, Karachi and offered them to the prospective buyers in an open 'auction through a public notice published in the daily Jang. The plaintif fs participated in the auction proceedings and submitted their bids, which were accepted by the KDA. The KDA demanded installment amount from plaintif fs and other allottees. The plaintif fs deposited the requisite payment in the prescribed account of KDA. Meanwhile, some of the residents of the locality filed a civil suit bearing No. 1016/1996 before this Court, wherein they prayed for a declaration and permanent injunction against the KDA and others by claiming that Plot No. ST-2 is an amenity plot and reserved for park in the Master Plan. They also claime d that the conversion of the said plot as residential, commercial or flat site is illegal, as such they prayed for the relief of declaration and injunction. Some of the plaintif fs entered in the said suit by filing requisite applications and became defendants and filed their WS. The said suit was proceeded up to the stage of recording of evidence of plaintif fs side. Nevertheless, before entering the defendants in the witness box plaintif fs of Suit No. 1016/1996 withdrew the said suit by submitting that their grievance had been redressed as the plots allotted to the plaintif fs were cancelled. With their withdrawal application, they produced one show-cause notice dated 26-06-2006 allegedly issued by KDA to plaintif f No. 12 followed by a cancellation letter dated 11-07- 2006. The plaintif fs claimed that none of the plaintif fs had ever received the alleged show-cause notice or cancellation letter . It is also their claim that the Plot No.ST -2 is neither an amenity plot nor it was reserved for park.
In the backdrop of this development, the plaintiffs have filed the instant suit with the following important prayer clauses:- A. To declare that Plot No: ST-2, Block-10, Federal "B" Area, Karachi is a commercial plot as per the layout plan of the scheme.
B. To declare that the alleged show-cause notices and cancellation orders of 72 Commercial Plots, carved out from Plot No: ST-2, Block-10, Federal "B" Area, Karachi, issued by the defendants are ab-initio void, ultra-virus, illegal, having no legal effect and consequences upon the allotment orders issued in favour of the plaintiffs and the action taken by the defendants is based on mala fides.
C. To direct the defendants to perform their part of contract and obligations with the plaintiffs in respect of Plots carved out from Plot No: ST-2, Block No. 10, Scheme No. 16, Federal "B" Area, Karachi by executing registered leases in their favour and by delivering the physical vacant possession of the respective plots to the plaintiffs and in case they failed to do so, alternatively the Nazir of this Hon'ble Court may be authorised to perform the part of contract and obligations of the defendants on their behalf in this regard.
D. To award decree of damages amounting to Rs. 500,000/- to each plaintiff (total Rs. 90,00000/-) against the defendants.
E. To restrain the defendants, their subordinates, employees or anybody else acting on their behalf and under their control from handing over the possession of 72 Commercial Plots, carved out from Plot No: ST-2, Block-10 Federal "B" Area, Karachi to any person, body , authority or from using the same for amenity purpose or raising any sort of construction in any manner thereon and from changing its status from commercial to any other category .
3. After service, the defendants filed their written statement in which, upto some extent, they admitted the factual narrations of the plaintif fs' case but they denied the relief(s). On the basis of the pleadings, the following issues were framed and parties were asked to lead their evidence regarding the said issues:- i) Whether the suit, in its present form, is maintainable? ii) Whether the suit plot was an amenity plot or a commercial plot? iii) Whether the defendants are entitled to cancel the bid confirmation letter / allotment letter of the plaintiffs in respect of the suit plot? (As amended with the permission of Court) iv) What should the decree be?
4. After framing of issues, the parties were required to produce their respective evidence to be recorded through the commission. The evidence of the plaintif fs and defendant (KDA) was recorde d and after recording evidence; the commission furnished his report. Thereafter , the matter was adjourned from time to time for arguments, but the defendants remained absent; as such the arguments of the learned counsel for the plaintif fs were heard. After hearing the arguments and going through the depositions recorded, my replies to the above quoted issues are as under:- Issue - (i) In negative Issue - (ii) As under Issue -- (iii) In affirmative Issue -- (iv) As under Now my analysis and reasons for reaching the above conclusion are as under:- Issue (i)
5. Defendants in their WS did not assail the maintainability of the instant suit. It is relevant to mention here that the suit is not hit by the law of limitation. As far as office objection regarding maintainability is concerned, it has two fold, one pertains to court-fee, which is required to be paid by all the plaintif fs; while other is regarding filing of a constitutional petition earlier than the filing of the instant suit. Although, the office objections have been addressed at the time of admission of this suit but I would like to say something regarding the question of maintainability on these accounts. In the instant case, the crux of the dispute is not about the individual plots of the plaintif fs but Plot No. ST-2, Block-10, FB Area, Karachi, from where the respective plots of the plaint iffs were carved out. As claimed by some, the said plot No.ST -2 is an amenity plot and that could not be bifurcate d in plots of different sizes; and this issue is the actual dispute and subject matter of the entire case. Hence, the suit filed by the plaintif f is a representative suit, in nature for which one court fee, as paid by the plaintif fs, is sufficient. Even for a multifarious suit, where different plaintif fs are jointly maintaining one suit with the distinct subjects, on the ground of the constitutional right of a speedy and inexpensive justice, they are justified in affixing maximum court fee in the suit.
In this respect reliance may be taken from a full bench judgement of this Court reported as Umed Ali and 12 others v . Government of Sindh and others (PLD 2007 Karachi 224 ).
6. Now come to the other aspect of the case i.e. filing of a constitutional petition bearing No. 1361/2006 by the plaintif fs, learned counsel for the plaintif fs has already replied at the time of admission that in the aforementioned constitutional petition, the petitioners challenged the impugned letter while in the present suit, the plaintif fs have sought relief of declaration, specific performance, damages and injunction; as such the present suit is fully maintainable wherein the plaintif fs have sought exhaustive reliefs in respect of their respective properties.
7. Regarding the maintainability of the present suit on this score, I am not inclined to swallow the arguments put forward by the learned counsel for the plaintif fs. It is an admitted position that the constitutional petition was filed and during the pendency of the said constitutional petition, the instant suit was also presented and during its pendency , C.P. No. D-1361/2006 was withdrawn. The order dated 21-11-2006 passed in the aforementioned petition is meaningful, as such the same is reproduced:- "Through instant petition, petitioners had impugned the action of cancellation of the plot, which was alleged to have been allotted in the year 1996. Listed applications seek for withdrawal of the petition as the petitioner have already filed the suit before this Court in respect of the show-cause notice and cancellatio n for allotments of their plots. In this view of the matter , the petition is allowed to be withdrawn with no order as to cost along with all the listed application. CMA No 8297/06 is also disposed of as such."
From the above order , it reflects that the petition filed by the plaintif fs was withdraw n by submitting that the similar relief has already been sought in the civil suit; therefore, the petitioners be allowed to withdraw the petition. It is also reflecting from the above quoted order that the withdrawal was unconditional and without seeking any permission for filing of another litigation, as such the said CP dismissed simpliciter . It is appropriate to refer that the cause of action of the constitutional petition filed by the plaintif fs and in the present suit is similar . The cause of action is described in the present suit is as under: "That the cause of action have accrued to the plaintiffs against the defendants on 16-08-2006 when first time they came to know about cancellation of their plots, when Suit No: 1016/1996 was fixed in the Hon'ble High Court of Sindh at Karachi and on such date this episode was withdrawn and the same cause of action is continue day by day."
8. It is perceivable that on the same cause the petition was filed and during the pendency of the petition, the plaintif fs preferred to file the present suit. It is also significant that one of the issue framed in the present suit pertains to the cancellation letter issued by the defendants. However , the learned counsel for the plaintif f has taken refuge by submitting that since the relief claimed are different therefore, subject matter is not identical in both the litigations, as such it is not hit by the princ iple of res-judicata. Nevertheless, I am of the view that the present suit of the plaintif f is hit by Explanation-IV of Section 11 of C.P.C. Since at the time of filing of the present suit, the aforementioned constitutional petition was already pending; therefore, the present suit was not maintainable even at the time of its inception. It is also noteworthy that the plaintif fs themselves admitted that the cause of action accrued in their favour on the basis of Suit No. 1016/1996, which was filed by the people of locality against KDA and the plaintif fs subsequently intervened in the said suit and added as defendant. The said suit filed by residents of the locality was later on withdrawn on the assurance of KDA officials that the plots of the plaintif fs were cancelled. I am of the view that propriety demands that the plaintif fs should array those residents of the locality as the party because it was their efforts due to which the plots allotted to the plaintif fs were cancelled. Hence, the suit filed by the plaintif fs is also hit by non-joinder of the necessary party .
9. In the aforementioned scenario, the proper course available to the plaintif fs is to approach the court for withdrawal of the said constitution petition before filing of the instant suit and at the time of withdrawal, a permission ought to be sought for filing of the present suit. The plaintif fs neither withdrew CP filed by them before the institution of the present suit nor they sought any permission for the same. Even they did not bother to take any step to correct their mistake after filing of the present suit. In my candid view, the proper course available to the plaintif fs was to seek a permission for filing of the present suit; as such the present suit is also hit under the provision of Order XXIII, Rules 1 of C.P.C. For the sake of brevity , I would like to reproduce Sub-Rules (1) and (2) of Order XXIII Rule 1 of C.P .C., which reads as under: "Withdrawal of suit or abandonment of part of claim :- (1) At any time after the institution of a suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied - a) that a suit must fail by reason of some formal defect or b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,"
If withdrawal is not done as per the provision mentioned above, the plaintif f or petitioner will face the consequences as mentioned in Sub-Rule (3) of Order XXIII, C.P .C., according to which:- "(3) Where the plaintiff withdraws from a suit or abandons part of a claim without the permission referred to in sub- rule (2), he slit '1 be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
There is no qualm about it that a CP is a civil proceeding, as such the provisions of the Code' of Civil Procedure, if not specifically barred, can be resorted in the constitution petition. It is also a settled legal position that filing of a new civil proceeding based on the same cause of action and subject matter can only be initiated after withdrawal of the previous civil litigation under the permission of the court for filing a fresh case of civil nature. In this respect, reliance may be taken from the case reported as Muhammad Yar (deceased) through LRs and others v.
Muhammad Amin (deceased) through LRs and others (2013 SCMR 464 ), wherein it is held as: "From the clear language of the above, it is vivid and manifest that the noted rule mainly comprises of two parts; sub-rule (1) entitles the plaintiff of a case to withdraw his suit and/or abandon his claim or a part thereof, against all or any one of the defendants, at any stage of the proceeding and this is his absolute privilege and prerogative (Note: except in certain cases where a decree has been passed by the Court such as in the cases pertaining to the partition of the immovable property etc.). And where the plaintiff has exercised his noted privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant(s) and this bar is absolute and conclusive, which is so visible from the mandate of sub- rule (3) "
However , the position in the present suit is more harmful for the plaintif fs, as they have chosen to file the same without withdrawing the constitutional petition already filed by them. In the explicit statutory provision, the plaintif fs are precluded of filing the present suit, as they have not chosen to withdraw the constitution petition filed by them pertaining to same property with the same cause of action; and even subsequently they simply sought its withdrawal, which was dismissed simpliciter . Hence, I am confident to hold that the present suit is not maintainable:- Issue (ii)
10. It is the claim of the plaintif fs that their plots were carved out from a chunk of land (ST-2), which was not an amenity plot but the same was reserved for commercial use. According to them, since the plot was reserved for commercial use; therefore, it is not illegal to carve out commercial plots of different sizes from the same In support of their contention, the learned counsel for the plaintif fs relied upon the defendant's deposition in which it was admitted that Plot No.ST -2 was reserved for market/commercial. It is worth noting that it has come on the record through plaintif fs' witnesses that there is a park within the metes and bounds of ST-2, which was established and being maintained by KMC. The contentio n of the plaintif fs is that the said Park was unauthorizedly established by the KMC and KDA officials have assured them that the boundary wall of the said park was dismantled; as the said plot is not reserved for park. It is also noteworthy that in the master plan, ST-2 is shown as a market. The defendant witness Syed Khalid Zafar in his affidavit in evidence has mentioned that the said ST-2 is reserved for Market. He further reiterated in cross-exa mination that the said chunk of land was reserved for market/commercial.
In the existing position of affairs, at the most it can be stated that the plot is reserved for establishing a market.
Nowadays, the concept of a market carries some important facilities including covered car parking, dining area lavatories, playland for the children, mosque or prayer area and other allied facilities, which requires a considerable piece of land with proper planning and development. In the present case, a huge plot was subdivided into commercial plots of 120 and 146 square yards, which will not fulfil the requirement of establishing a market but convert the locality into a sordid area of commercial activities instead of a decent shopping mall. The residence of the locality would not tolerate such a crowded souk in their close proximity , who had already naysaid to such proposal by filing a suit earlier .
11. It is the admitted position that the plot in question was a huge plot, and in a portion of it, KMC has established a park for the children. The existence of the said Park has come on the record in the evidence of the plaintif fs' side.
The plaintif f witness namely Muhammad Islam Siddiqui has produced applications of the plaintif f's attorney Omar bin Islam addressed to Director General, KDA (Exhibits P/38 and P/39). Such fact is mentioned in exhibit P/39 in Urdu language as: {{URDU TEXT}} From the above mentioned portion of a document produced by the plaintif fs, it becomes evident that ST-2 was practically in possession of KMC in the shape of a park. In such a situation, the residents of the locality rightly thought that the said piece of land is an amenity plot reserved for park. I am of the view that KDA officials were in knowledge of the availability of Park or some structure resembling to a park, and the same was allowed by them to be used as Park continuously by the residents, they cannot sub-divide the same without notice to residents of surrounding. Besides, it has also come on the record that the said entire area or part thereof is reserved in the Master Plan for Market, and Market does not mean the establishment of segmented shops situated in small commercial plots. Market is actually a colonnade structure raised for the purpose of establishing shops and other vending facilities with all the requisite necessities, as described above. In my humble view that an amenity plot can be used for certain activities, which may be commercial in nature but the same are for larger advantage of residents like school, college and hospita l. I am also of the view that earmarking a plot for the market does not mean, it is a commercial plot. It is not out of place to mention that if a plot is not earmarked as residential, commercial or industrial, it will certainly be an amenity plot, hence this issue is replied accordingly .
Issue (iii)
12. As discussed above, the subject piece of land, from where the plots would be allotted to the plaintif f, was reserved for the market but there was a Park already established and this fact was well in knowledge of KDA officials and the plaintif fs. It has also come on the record that the plaintif fs have drawn the attention of KDA officials towards this fact but in spite of that they participated in the auction. As explained above, the residents were rightly conceiving that the said plot is an amenity plot as a Park was already established therein. Parks and green patches are actually lungs of the city and once establish by an agency of government on a government land; the same should be protected. The conversion and sub-division of a piece of land for carving small plots of commercial nature was done without consulting the people of the locality , which is morally and legally not appreciated. I am of the view that in the existing scenario, it was mandatory for KDA to invite public objection before carving out the small plots of commercial nature as per provision 3(b) of Schedule -- D of the Karachi Building and Town Planning Regulations, 1979. In the existing position of affairs, I am of the view that there is serious apprehension of the residents of the locality regarding the allotments of commercial plots to the plaintif fs, which otherwise was done without inviting mandatory public objection.
13. In this respect, another aspect of the case is also having substantial importance. ST-2 is a colossal piece of land, wherein the plots of plaintif fs were carved out by subdividing the same in small segments. The law has provided a procedure for a subdivision, which was also not followed. As per provi sion of the Karachi Building and Town Planning Regulations, 1979, there were two types of subdivisions know n as (i) Major Sub-Division as provided under Regulation 18-1 and (ii) Minor Sub-Division as mentioned in Regulation 18-2. Surely , carving out 72 commercial plots comes under the catego ry of major sub-division and Regulations 19 to 25 indicate the process to be followed for sub-division, while Regulation 26 of the Karachi Building and Town Planning Regulations, 1979 has specified the criteria to be applied and the same is identified in Schedule -- D, Pt.
1. It is pertinent to mention here that the criteria is laid down in item 1(vi) of Schedule - D of Karachi Building and Town Planning Regulations, 1979, which is reproduced as under: "Sub-Division of Plot will only be considered to the extent that the sub-divided plot shall not be less than 400 square yards except in the areas mentioned in subsection (ix)."
Since Federal-B Area is not mentioned in subsection (ix); therefore, procedure provided in item 1(vi) would apply in any sub-division carried out in Federal-B Area, as such no plot could be carved out which is less then 400 square yards within the region of Federal-B Area.
14. Now sufficient water has flown beneath the bridges and the Regulations of 1979 has been replaced by new regulations know as Karachi Building and Town Planning Regulations, 2002. In such a situation, one can think that in changed scenario new regulation may be applied to the sub-division. Although, the new regulations are not applicable to the sub-division carried out earlier to its promulgation, but even then it is pertinent to observe that in the Regulations of 2002, sub-division, as previously carried out by KDA is not permissible. As per provision mentioned in Regulation 18-3.1.4, of the present Building and Town Planning Regulations for the city of Karachi, a sub-division of commercial plots shall not be less than 725 square yards with minimum frontage of 60 feet. In view of the prevailing regulations, it is further clarified that the scheme of the law is that the commercial activities should be curtailed in the, tiny slices of land.
15. From the above discussion, it is now crystal clear that not only the process of sub-division was non-transparent as it was done behind the back of the people residing in the vicinity but also it was done in contravention to the prescribed regulations of the Karachi Building and Town Planning Regulations, 1979, which was enforced at that time and even the present regulation does not acknowledge such bifurcation. Since sub-division was not properly done and the same is against the prevailing rules and regulations of all the time; therefore, it was a right step by the defendants (KDA) that they did not go forth in respect of allotment of plots to plaintiffs and rolled-back the entire process. Hence, by culminating the discussion regarding instant issue, I reply the same in the affirmative. In my view, the defendants (KDA) were not only entitled to cancel the suit plots but it was obligatory for them to do so.
Issue (iii)
16. In view of the discussion in the foregoing paragraphs, I came to ultimate conclu sion that the suit of the plaintif fs is neither maintainable nor established on the merits of the case. I, therefore, have no alternate but to dismiss the same with no order as to cost. Accordingly the instant suit is dismissed with no order as to costs.