SALAHUDDIN PANHW AR, J. Through instant Judgment, I am going to decide the above suit (Suit No.645 of 2014) which the plaintiff has filed for 'Possession, Damages and Mesne Profits.
2. Succinctly, relevant facts are that plaintiff claims to be lawful registered owner of suit property.
Father of parties died in year 1960 and plaintiff, being elder brother, took care of his brothers and sisters; brought them up and provided education. He constructed suit property from his own pocket and by obtaining loan from HBFC and repaid entire loan to HBFC; on 08.3.1996 mother of parties namely Mst. Amna Begum died and soon after defendants came with false claim that plaintiff had gifted suit property to his mother and on basis of such false claim they (defendants) filed suit No.746 of 1998 before this court; plaintiff filed his written statement therein which however was dismissed on 30.01.2014.
3. It was further claimed that suit property is round+1 floor; defendants were residing in suit property since its construction under permission and license of plaintiff which (license) revoked on filing of suit No.746/1998 by defendants; plaintiff claimed to have suffered losses and mental agony due to filing of suit No.746/1998 against him by defendants hence he (plaintiff) claimed that defendants are liable to pay mesne profit since June 1998 till filing of suit i.e Rs.192,80,000/-; plaintiff also claimed mesne profit at rate of Rs.175,00,000/- p.m with 20% per annum till delivery of possession and he (plaintiff) also claimed Rs.20,00,00/- as damages.
With reference to such, the plaintiff sought for following relief(s):- a) A money decree against the defendants jointly and severally for Rs.192,80,000/- (Rupees One Crore Ninety Two Lacs Eighty thousands only) as mesne profit from June 1998 till April 2014. as per details in para No.11 of the plaint; b) A decree against the defendants jointly and severally for Rs.175,000/- p.m as mesne profit from the date of filing of this suit till delivery of the possession of the suit property with increment of 20% per annum; c) A decree against the defendants jointly and severally for Rs.20,00,000/- as damages on account of mental tortures, stress, agony and damages on account of malicious/frivolous litigation/prosecution; d) To direct the defendants to handover the vacant peaceful possession of the suit property viz. C- 93, Block-6, Scheme No.24, Gulshan-e-Iqbal Karachi to the plaintiff; e) Costs of the suit;
4. The record shows that defendants despite of service through all modes, including publication, failed to appear hence were declared ex-pane vide order dated 30.11.2015; later on 23.12.2015 plaintiff was directed to file affidavit in evidence which he (plaintiff) filed on 26th January, 2016.
5. The plaintiff, present in person, was heard who reiterated contents of the plaint and prayed for decree of the suit, as prayed.
6. I have heard the plaintiff, present in person, and have carefully gone through the available record.
7. Though, it is a matter of record that the defendants despite service did not opt to cause his appearance for defending or least denying the claims of the plaintiff. However, non-appearance of the defendants alone shall not necessarily result in decreeing a suit but the plaintiff even in an ex parte proceeding has to prove his cause/claims.
8. Besides, it is well settled principle of law that no relief can be granted by the Courts on basis of an incompetent suit. The plaintiff has filed the instant suit for relief of mesne profit, damages and possession on a cause of action while basing such claims with reference to dismissal of the suit of private defendants (suit No.746 of 1998), so is evident from para-14 of the plaint itself which reads as: "That the cause of action first arose in favour of the plaintiff on 20.06.1979 when the suit property was leased in favour of the plaintiff, on 08.06.1998 when the defendants filed suit No.746/1998, lastly on 31.01.2014 when the suit was dismissed by this Honourable Court and the cause of action is still continuing till date in favour of the plaintiff and against the defendants."
The above suit (Suit No.746/1998) though was dismissed but, on quarry, the plaintiff admitted that it was restored to its original position. The moment Suit No.746/1998 was restored to its position the root (cause of action) of the suit of the plaintiff lost its place thereby brining superstructure to ground.
9. Let's discuss maintainability of suit, regarding all claims of the plaintiff. The plaintiff claims damages while pleading that:
10. That the defendants have filed false, frivolous cases against the plaintiff including the Suit No.746/1998, due to which the plaintiff suffer losses and mental agony and the defendants are liable to pay damages to the plaintiff: Worth to add here that the plaintiff has nowhere given details of any other case hence per settled law he (plaintiff) cannot prove or even refer in evidence what was not pleaded in, pleading.
10. Further, it is well-settled principle of law that for a relief of 'damages for frivolous cases would require one to prove co-existence of three essentials i.e. initiation of litigation; its being causeless and mala fide; and it should have been ended in favour of plaintiff. Since, restoration of dismissed suit is sufficient to establish wash away all claims regarding above three essentials which may be alleged/pleaded in a suit, dismissed for non-prosecution even.
11. The relief of the possession and mesne profit is subject to determination of the suit (746/1998) particularly when in said suit defendants (plaintiffs in that suit) claimed possession under inheritance. Thus, the plaintiff cannot legally sustain a claim for such relief(s) till a proper time nor plaintiff can legally file a suit the cause of action thereof has ceased.
12. In view of above discussion, I am of the clear view that the suit of the plaintiff is not sustainable and is dismissed accordingly with no order as to costs. However, this shall not prejudice the rights of the plaintiff to seek such relief, if decision of the Suit No.746/1998 so permits.
Let such decree be drawn. Announced in open court this 12th day of April, 2016.