KAUSAR SULTANA HUSSAIN, J.---- Instant High Court Appeal has been filed against the impugned judgment and decree dated 03.07.2018, passed by the learned Single Judge in Suit No. 1007 of 2000, whereby the suit of the respondent seeking declaration, injunctio n and compensation has been decreed in terms of prayer clauses (A) to
(H) respectively , which are copied hereunder for ready reference:- A) DECLARE that the cancellation Order dated 8-6-2000 (Annexure "Z") and subsequent Order dated 8-7-2000 (Annexure Z/2) in respect of Plaintif f's residential plot No. 356, 37th Street, Phase-VIII, Defence Housing Authority , are mala fide, illegal and in complete derogation and violation of the order of the Hon'ble High Court passed in Suit No.1283/97 on 5-3-99 (Annexure "X") and having no force in law .
DECLARE that the Allotment Order dated 25-8-1976 (Annexure "D") issued in favour of the deceased father of the plaintif f in respect of the suit plot and subsequent mutation/transfer letters dated 24-12-89 (Annexure "H") 31-8-96 (Annexure "P") issued to the other legal heirs are valid and legal.
C) MANDA TORY INJUNCTION be issued against the defendant's Authority directing them to affect mutation/transfer of the suit plot in the exclusive name of the plaintif f on the basis of the documents submitted by the other Co-sharers relinquishing their shares in the plot in favour of the plaintif f (Annexure "Q" and "R") and issue the same to her .
D) DECLARE that the Publication in Daily "DAWN" dated 6-8-2000 (Annexure Z/3) a notice for ballot for Allotment of residential Plot Phases I to VIII which includes the plot of the plaintif f based on the illegal cancellation order dated 8-6-2000 and subsequent order dated 8-7-2000, is equally illegal and violative of the Court Order dated 5-3- 99.
E). PERMANENT INJUNCTION be issued against the defendant and all persons acting through or under restraining them from transferring by way of ballot- allotment as published in Daily "DAWN" dated 6-8-2000 (Annexure Z/3) or taking any further action on the basis of the illegal cancellation order dated 8-6-2000 (Annexure "Z") and subsequent Order dated 8-7-2000 (Annexure Z/2) or taking any further action prejudicial and adverse to the interest of the plaintif f over the suit plot bearing No.356, 37th Street Phase-VIII , measuring 2000 square yards, situated in Defence Of ficers Housing Authority , Karachi, on which the Plaintif f has subsisting legal right.
F) DECREE be awarded in the sum of Rs.30,00,000/- (Rupees Thirty Lacs) for mental and material loss.
G) COST of the suit be awarded, H) Any other relief or relief(s).
2. Brief facts of the case are that the Respondent filed a Suit No.1007 of 2000 (original jurisdiction) for Declaration, Injunction and compensation agains' the Appellant (MIA), on the ground that they have cancelled the residential Plot No.356, 37th Street, Phase-VIII, DHA, Karachi (the Suit Plot), measuring 2000 square yards, which was earlier allotted to the father of Respondent/Plaintif f by way of ballot held on 22.02.1976 and after death of her father the same was mutated in favour of his legal heirs including the Respondent on 24.12.1989. After the sad demise of her mother on 16.08.1993, share of mother in the subject plot devolved on the legal heirs and again mutation was affected in favour of all the legal heirs on 31.08.1996; all the legal heirs submitted documents for transfer of subject plot exclusively in favour of the respondent, yet the appellant proceeded to cancel the subject plot on the pretext that her father was allotted a residential plot in 1960, which he had already sold and he was not entitled for second residential plot; she was issued a show cause notice on 01.10.1997, which she challenged vide Suit No. 1283 of 1997 and said suit was disposed of by this Court on 15.09.1998 directing A the respondent to submit reply to show- cause notice and in case the appellant decides to reject the contention of the respondent, the appellant is restrained from cancelling the transfer of the clot in favour of legal heirs till proper adjudication is done, in which event the respondent is entitled to file a fresh suit; the appellant did provide opportunity of hearing, yet the plot was again cancelled vide letter dated 08.07.2000, which resulted into filing of Suit No. 1007 of 2000. It is further averred in the plaint that per letter dated 08.06.2000 issued by the appellant, the father of the respondent was allotted plot No. 7/B, 5th East Street, DHA Karachi, measuring 1000 Square Yards on 16.01.1953 therefore he was not entitled for allotment of second residential Plot No. 356, 37th street, phase-VIII measuring 2000 square yards, which allotment was procured by him without disclosing the fact that he had earlier allotted residential plot. The appellant further stated that the fact of double allotthent came to their knowledge when the record was computerized, hence the appellant proceeded against the legal heirs of the deceased allottee of ficer.
3. The learned trial court has framed the following issues from the pleadings of the parties:-
1. Whether the suit is maintainable?
Whether the Allotment Order dated 28-8-1976 issued in favour of the deceased father of the plaintif f in respect of plot No. 356, 37th Street, Phase-VIII, DHA and subsequently Mutation /Transfer letter dated 24-12-1989 dated 31- 8-19% issued to the other legal heirs are valid and legal?
3. Whether the Plaintif f is entitled exclusively in her name for the mutation / transfer of the suit plot on the basis of the document submitted to the Defendant?
4. Whether the action of the Defendant for cancellation of the suit plot is illegal and against the rules of the Defendant?
5. Whether the defendant Authority after expiry of more than 25 years of the Allotment of the Suit plot can cancel the Allotment of the Suit plot in the circumstances of the case.
6. Whether the father of the Plaintif f got the disputed plot allotted without disclosing that he had got allotted a residential as well as the commercial plot?
7. Whether the Plaintif f is entitled to relief as prayed?
8. What should the decree be?
4. The parties have led their respective evidence and relied upon the documentary evidence in order to prove their respective version. The learned trial court after conclusion of the evidence of both the side and hearing arguments of their counsel decreed the suit of the respondent as per prayer clauses A to H mentioned above, however , the claim of the respondent for awarding 30,00,000/- in respect of mental and material loss was not allowed as respondent did not bring any evidence to prove such loss.
5. As per observations of the learned Single Judge the lis of the respondent is maintainable as the undisputed facts of the suit reflects that the respondent/plaintif f does have a legal character as envisaged in Section 42 of the Specific Relief Act, 1877. The learned trial court has further opined that the action of the appellant/defendant for cancelling the suit plot is illegal and against the order dated 05.03.1999 passed in Suit No. 1283 of 1997 but the learned trial court has taken lenient view by holding that the said cancellation did not constitute contempt of court.
Findings of the learned trial court on Issues Nos.2, 3 and 5 mentioned above are that the allotment order dated 28.08.1976 (Exh.P/6) issued in favour of deceased father of the respondent/plaintif f was a valid document and the subsequent mutation/transfers in favour of legal heirs vide transfer letter of 24.12.1989 (Exh.P/1 1) and 31.08.1996 (Exh.P/19) were done by appellant after fulfilling its requisite requirement and such transfers in favour of legal heirs of deceased father including the respondent/plaintif f are valid and legal.
6. We have heard the learned counsel for the parties at length and also have gone through the entire record of the suit with due care and cautions and the case laws relied upon by the learned counsel for the appellant.
7. The learned counsel for the appellant Mr. Waseem Iqbal has submitted that the impugned judgment and decree are unlawful, illegal, contrary to the settled position of law, based upon misreading and non-reading of evidence and material available on record as such are nullity in the eyes of law; that the learned Single Judge, completely failed to appreciate that allotment of earlier plot in favour of father of the respondent is admitted and under bye- laws of the then society , father of the plaintif f was not entitled for second residential plot, which was got allotted by concealing facts and in violation of bye-laws of the society; that the learned Single Judge, with due regards, failed to appreciate that the respondent being successor in interest of her deceased father has no vested right to independently claim any title in the property as such she is bound to sink or swim with her deceased father; that the learned Single Judge, with due regards, completely misread the evidence while observing that allotment letter of earlier plot was not produced as sublease "A" was duly exhibited and the same reflects that plot was subleased in favour of father of the respondent and he had transferred the same plot during his life time. He further argued that the bye-laws of the society , which provide that member is only entitled for one residential and one commercial plot and any allotment in violation of bye-laws is liable to be cancelled by Managing Committee; that the appellant has successfully established the fact that the father of the respondent was earlier allotted a residential plot and subsequent allotment of residential plot is violation of bye-laws of the then society and the same cannot be saved on any ground whatsoever; that the learned Single Judge, completely ignored Article 17(h)(i) of Presidential Order No. 7 of 1980, whereby executive board of appellant is vested with statutory power to cancel allotments which were made or issued in contravention of the bye laws of the society or the resolution of the Managing Committee of the society; that the impugned judgment and decree suffers from manifest illegality and is based upon misreading and non-reading of evidence as also in derogation to the provisions of presidential order as such the same is not sustainable and may be set-aside; that the learned Single Judge, erred in law while decreeing the suit of the respondent ignoring the inherent defect in the suit as co-sharers were not joined as party and the suit was bad for nor-joinder of parties, therefore, he praye d for set aside the impugned judgment and decree and dismiss Suit No. 1007 of 2000 of the respondent.
8. On the other hand, learned counsel for the respondent Mr. Raghib Baqi, Advoca te has argued that the judgment and decree passed by the learned Single Judge are well guarded and based on complete and exhaustive discussion of facts and evidence on the basis of the issues and the same therefore, cannot be questioned under the law and the grounds taken in the memo. of appeal are not correct; that the Suit No. 1007 of 2000 was filed on 09.08.2000 stating and challenging besides the facts given in the plaint that the order dated 08.06.2000 passed by the appellant (DHA) and subsequent order dated 08.07.2000 in respect of respondent's/plaintif f's residential Plot No. 356, 37th Street, Phase-VIII Defence Housing Authority , are mala fide, illegal and in complete derogation and violation of the order dated 05.03.1999 passed by this Court in Suit No. 1283 of 1997 and having no force in law and the allotment order dated 25.08.1976 issued in favour of the deceased father of the respondent/plaintif f in respect of suit plot and subsequent mutation/transfer letters dated 24.12.1989 issued to the other legal heirs are valid and legal and mandatory injunction be issued against the - appellant/defen dant authority directing them to 'effect mutation/transfer of the suit plot in the exclusive name of the respondent /plaintif f on the basis of the documents submitted by the other co-sharers relinquishing their shares in the plot in favour of the respondent/plaintif f and issue the same to her and declare the publication in daily "Dawn" dated 06.08.2000 a notice for ballot for allotment of residential plot phases-1 to VIII" which include the plot of the respondent/plaintif f based on the illegal cancellation order dated 08.06.2000 and subsequent order dated 08.07:2000 was equally illegal and violative of the court order dated 05.03.1999 and the permanent injunction be issued against the appellant/defendant and all persons acting through or under them restraining them from transferring by way of ballot-allotment or taking any further action on the basis of the illegal cancellation. He further argued that in the circumstances and evidence on record the Court was pleased to decree the respondent/plaintif f's suit as per prayer clause "A" to "E" and the appeal has no footing in any of the grounds mentioned in the memo. of appeal, therefore, he prayed that the appeal in hand is to be dismissed along with the C.M.A. No. 2301 of 2018 with special cost throughout.
9. After hearing arguments, perusal of record and the relevant laws as well we are of the view that it is matter of record that the Plot No.356, 37th Street, Phase-VIII, DHA, Karachi measuring 2000 square yards, the subject matter of instant appeal was allotted to respondent's deceased father through a ballot held on 22.02.1976, which after the demise of respondent's father mutated in favour of deceased's legal heirs including respondent on 24.12.1989, subsequently after the demise of respondents mother , share of mother in the said plot was also devolved to her legal heirs and another mutation was effected in favour of all the legal heirs of respondent's deceased mother on 31.08.1996. Later on all the legal heirs of deceased allottee submited documents for transfer of the said plot, but the said transfer was not done by the appellant to respondent on the pretext that respondent's deceased father was allotted another residential plot in 1960, which the deceased already sold and that the deceased father was not entitled for second plot. Appellant issued a show cause notice (SCN) to the respondent on 01.10.1997, which was assailed before this Court in Suit No. 1283 of 1997, such suit was culminated by order dated 15.09.1998, whereby respondent was directed to submit reply to the show-cause notice and in case appellant decides to reject the plea of the respondent, the appellant was restrained from cancelling the transfer of the plot in favour of legal heirs of the deceased father till proper adjudication is done. It is also alleged that respondent's deceased father was initially allotted residential Plot No. 7/B, 5th East Street, DHA, Karachi (to be referred to as second plot) measuring 1000 square yards on 16.01.1953 and a commercial plot in DNA and that as per bye-laws of appellant one person can be allotted one residential plot and one commercial plot only .
10. Appellant's view point is quite simple that as per bye-laws of Pakistan Defence Officers Co-operative Housing Society Limited, Karachi which was predecessor organization to Pakistan Defence Officers Housing Authority (PDOHA or simply DHA), one officer can be allotted only one residential and one commercial plot, whereas in the instant case, deceased Colonel has got allotted two residential plots, which is against the Bye-laws of the society specially article 17 of Presidential Orders No.7 of 1980 and that such fact come to the knowledge of the Authority , when the Authority's data was digitized and duplicate allotment surfaced. The appellant termed such allotment an outcome of concealment of facts and fraud and that the fraud vitiates most solemn proceedings.
11. We observed that learned trial court thoroughly discussed all aspects of the case including non-production of original allotment order of second plot in favour of deceased father by the appellant during trial; G general power of attorney in favour of one Abdul Bari Khan and subsequent sub-lease in the name of said Abdul Bari Khan without demonstration of chain of transaction and subsequent emergence of another power of attorney in favour of one Mohammad Aslam Khan purported attorney of deceased father (Major Kanwar Shoukat Ali Khan), the said attorney transferred the second plot in favour of Mrs. Sadia Khatoon. It was also revealed from the record during trial that payment of transfer charges of such plot were made at commercial rates instead of residential.
12. It was viewed by the trial court that all the above circumstances are pointing towards factual errors and lack of authenticity on the part of appellant. It was also discussed that how the power of attorney conveyed from one attorney namely Abdul Bari Khan to another Mohammad Aslam Khan, which form the basis for transfer of second plot to Mrs. Sadia Khatoon in 1976 as there is broken chain of transaction. Learn ed trial court also thrashed out significant difference of signatures of the deceased father on the application form for allotment and the power of attorney and that deceased father did not figure in sub-lease and transfer order . It was also held that appellant failed to discharge the burden to prove the respondent's late father got the allotment of suit plot without disclosing about existence of aforesaid second plot in his name. It, is also apparent from the judgment delivered by the learned trial court that the impugned cancellation, letter was issued by the appellant without application of fair and judicious mind and without consideration of basic principles of law as no fair opport unity of hearing was provided to the respondent and also impugned cancellation letter devoid of reasoning and grounds for cancellation of allotment of plot in question.
13. We have gone through the available record the case file with due caution and care as well as the judgment dated 03.07.2018 passed by the learned Single Judge. There appears no need to go over the evidence and testimonies being matter of record and extensively discussed by the learned trial court in the judgment. Appellant also did not bring any substantial defect in appraisal of facts by the trial, court or any question of law not considered by the learned trial court. However , learned advocate for the appellant laid emphasis that the deceased father committed fraud and that fraud vitiates most solemn proceedings as such said plot needs to be cancelled.
14. So far as grounds submitted and averments raised by the appellant that the impugned judgment and decree are in derogation to the provisions of Presidential Order and that the same is based upon contradictory conclusions and misreading and non-reading of evidence, we found no such infirmity or irregularity in the said judgment and decree as every aspect of the case was thoroughly discussed by the trial court and resultant outcome should have been the same as announced.
16. With the above discussion and reasoning, appeal in hand was dismissed through short order dated 28.09.2021 with no order as to costs along with listed applications.
15. There are the reasons of our short order dated 28.09.2021.