1 Sana Akram M inhas, J: The Appellants of the instant HCA No.128/2022 and HCA No.129/2022 assail a common order dated 14.3.2022 ("Impugned Order") whereby plaint of Suit No.1598/2013 ("Suit 1598") and plaint of Suit No.888/2014 ("Suit 888") instituted by the Appellants (who were Plaintiffs in the Suits below) were rejected.
2. In HCA No.5/2022, the Appellants have assailed an order dated 25.11.2021, whereby the Single Judge recalled the ad interim order (dated 20.11.2018) which had been operating in Suit 1598 (plaint of which Suit has subsequently been rejected vide the Impugned Order).
Factual Context
3. Briefly, the fundamental facts that emerge are: i) In December 2013, the Appellants filed Suit 1598 seeking "Declaration, Permanent Injunction, Demarcation, Cancellation of Documents, Removal of Encroachment & Possession." The Appellant No.1 is a residents welfare association of a village known as Shaheed Shah Inayat Village ("SSI Village"), with Appellants No.2 to 80 claiming to be its inhabitants. The Appellants aver SSI Village is situated in NC No.1, Scheme No.33, Deh Songal, Sector 24-A, Karachi. ii) In May 2014, the Appellant No.1 along with two others, initiated Suit 888 seeking "Declaration, Permanent Injunction, Removal of Encroachment & Possession". They contended that the Province of Sindh (through the Secretary of Education) and the Education Works Department were conducting construction activities on land belonging to SSI Village. iii) According to the Appellants, SSI Village was "regularized" with the approval of the Chief Minister of Sindh. In February 2012, the Chief Minister sanctioned a summary for granting leasehold rights to the occupants of SSI Village, covering 20 acres in NC No.1, Scheme No.33, Karachi. This action was purportedly in accordance with the Statement of Conditions dated 21.11.2008 ("SOC 2008") issued under section 10(2) of the Colonization & Disposal of Government Lands (Sindh) Act, 1912 ("COGLA 1912"). The summary alleges: " In compliance of orders of Hon'ble High Court of Sindh, Karachi passed in C.P. No.2325/2010 dated 02.11.2011 (Annex 'B'), the Deputy Commissioner, Malir, Karachi vide his letter No.DC/K/Malir/7739/ 2011 dated 30.12.2011 has forwarded report of Assistant Commissioner ... ... ...." iv) Thereafter, the Land Utilization Department sent a letter dated 17.7.2012 to the Deputy Commissioner (Malir), Karachi confirming that SSI Village was processed for regularization.
However, (just like the summary for the Chief Minister) the letter similarly alleged that: " Keeping in view, the judgment and order dated 4.6.2012 passed by the Hon'ble High Court of Sindh, Karachi, the subject village is hereby regularized on the terms & conditions laid down in the policy."
Deliberate Misinterpretation of Order of Division Bench v) The fact that the Division Bench of this Court did not issue any orders for the regularization of SSI Village, coupled with the deliberate and repeated misinterpretation of the Division Bench's order by the Land Utilization Department, to further their own agenda and fabricate a false semblance of legality in order to justify their action, is evident from the contents of the order itself. The relevant extract is: Order dated 2.11.2011 in CP No.D-2325/2010: " In the circumstances while disposing of both the applications, we direct the Secretary, Land Utilization Department, Government of Sindh, to consider the case of the village of the applicants/intervenors and if the law provides for its regularization to pass appropriate order in accordance with law and rules and after providing opportunity of hearing to all persons who may be affected and also maintaining and providing for the amenities and dispose of such application of the applicant/interveners preferably within a period of two months and report compliance to the Member Inspection Team-I of this Court. A copy of this order be sent to the Secretary, Land Utilization Department, Government of Sindh for making compliance." [ Emphasis added ] vi) The misinterpretation of the earlier Division Bench's order dated 2.11.2011 was recognized by a separate Division Bench in another petition filed by SSI Village (viz. CP No.D-446/2012 - M/s Shaheed Shah Inayat Village v. Province of Sindh & Others), which, on 22.11.2012, issued the following order: Order dated 22.11.2012 in CP No.D-446/2012: "...... .... Whatever the case may be Mr. Khurram Iqbal and Mr. Miran Muhammad Shah learned AAG seek verification of such document and assist the Court whether village within municipal limits could have been sanctioned on the basis of order, which did not direct regularization but merely recorded, if it is permissible under the law."
[ Emphasis added ] vii) Even though the clear and unequivocal orders of the learned Division Bench are self-evident, the Government of Sindh, Land Utilization Department and the Appellants persist in falsely claiming that SSI Village was regularized based on the aforementioned court orders (as is patent from paragraphs 4 & 5 of the memo of Appeal). viii) As per the Appellants, the demolition of houses within the SSI Village by occupants of adjacent Shah Nawaz Shar Village, along with the encroachment and commencement of construction activities upon SSI Village land by Respondents No.1 to 4, prompted the Appellants to initiate Suit 1598 seeking the following reliefs: a) Declare that the Plaintiffs No.2 to 80 and other Villagers who are members of the Plaintiff No.1 are owners/ lessees of their respective Plots in Shaheed Shah Inayat Village measuring 20-00 Acres piece of land of Shaheed Shah Inayat Village situated in Na-Class No.1, Scheme No.33, Deh Songal, Sector 24-A for 99 years. b) Declare that any encroachment on the land of Shaheed Shah Inayat Village by the Defendants No.1 to 4 and anybody else claiming through and under them is illegal and without lawful authority. c) Direct the Defendants No.5 to 8 to carryout demarcation of the Village Shaheed Shah Inayat and demolish/remove the encroachment made on the Plaintiffs land. The Defendants No.5 to 8 may also be directed to handover possession of the encroached land of the Shaheed Shah Inayat Village to the Plaintiffs d) Direct the Defendants No.1 to 4 to deliver up the documents, if any, in their favour, executed by the Defendants No.5 to 7 in respect of 20-00 Acres of piece of land of Shaheed Shah Inayat Village in this Honourable Court and same may be cancelled. e) Restrain the Defendant No.1 to 8 and any other person claiming through and under them to interfere in the Village of Shaheed Shah Inayat and to encroach upon it in any manners whatsoever. f) Any other relief/ reliefs, this Honourable Court may deem fit and proper under the circumstances of the case.
Respective Arguments
4. The learned Counsel representing the Appellants argued that: i) The Plaint is not hit by any of the defects described in Order 7 rule 11 CPC; ii) No purported cancellation order of the regularized SSI Village has been issued by the Chief Minister, Sindh and nor is any available on record; iii) Cancellation orders cannot be issued in violation of due process or the principles of natural justice, which necessitate providing prior notice to and conducting a hearing for the affected parties (i.e. Appellants); iv) Assuming SSI Village regularization is cancelled, the allotment orders/sanads issued to individual inhabitants (Appellants No.2 to 80) nevertheless remain intact and valid, thereby providing them with the legal status under section 42 of the Specific Relief Act, 1877 ("SRA 1877") to maintain their Suit(s); v) The Appellants are neither claiming ownership of nor converting the amenity land (reserved for girls college, public park and graveyard) for private or commercial purposes.
5. The learned Assistant Advocate General and the Counsel for private Respondents supported the Impugned Order and contended as follows: i) The SSI Village is a fictitious/dummy village which has never existed; ii) Although the SSI Village has claimed a Katchi Abadi status, it is not included in the master list of Katchi Abadis nor declared as such by the Sindh Katchi Abadis Authority; iii) To qualify for grant under the SOC 2008, a village must exist on state land on or before 31.12.2000.
However, satellite images provided by SUPARCO display that no construction, buildings, amenities are visible in the image upto July 17.7.2011; iv) The letter of 27.11.2018 from the Principal Secretary to the Chief Minister of Sindh constitutes cancellation orders for SSI Village and/or the land granted for it.
Impugned Order
6. The record reflects that no specific application under Order 7 rule 11 CPC was filed by any of the Respondents in Suit 1598 and Suit 888. Nonetheless, through the Impugned Order, the plaints of the Appellants in the aforesaid two Suits were rejected. In reaching this decision, the learned Single Judge arrived at the following conclusion: "
12. Perusal of above reflects that apex Court has directed that all plots reserved for amenity purpose shall be reiterated [retrieved] back and province of Sindh is required to execute the same.
13. In view of above discussion, it is categorical that plaintiffs have failed to establish that they acquired any vested right in the subject land as the registration of the village has been cancelled by the competent Authority and in the records the said land is State Land reserved for Girls College, Graveyard and Family Park and under the law status of an amenity land cannot be changed or altered. The Plaintiffs are seeking their ownership in the state land without having their legal character. Thus, the Suits are barred under Section 42, of the Specific Relief Act, 1877. Hence, present plaints are rejected. Consequently, J.M has become infructuous Accordingly, suits and J.M are disposed of. "
Points For Determination
7. We have heard the arguments of the respective sides and have also considered the record. In accordance with Order 41 rule 31 CPC, the pivotal points formulated for determination herein are: i) Whether the Appellants lacked the legal character to sue under section 42 SRA 1877? ii) Whether the Appellants' Suit 1598 and Suit 888 failed to establish a cause of action or appeared to be barred by any law based on the statements in the plaints?
Argument Evaluation
8. The primary consideration that weighed with the learned Single Judge was that the Supreme Court's directive mandated the retrieval of plots reserved for amenity purposes. Further, the Appellants had failed to establish a vested right in the subject land, considering that SSI Village regularization was cancelled and the land was designated as State Land for specific purposes.
Consequently, the Appellants' attempt to claim ownership without legal character rendered the Suits barred under section 42 SRA 1877 and the plaints liable for rejection under Order 7 rule 11 CPC.
Section 42 of Specific Relief Act, 18771
9. If any rights stemming from property ownership are infringed or threatened, the aggrieved individual has the right to initiate a suit under section 42 SRA 1 Section 42 of Specific Relief Act 1877: Discretion of Court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
1877 (since this section allows individuals with legal rights over property to initiate legal action). This suit involves seeking a declaration against any person denying or attempting to deny the title or related rights to the property. The court may then declare the plaintiff's entitlement to those rights or characteristics. The above tenets are exemplified in Parveen Begum v. Shah Jehan (PLD 1996 Kar 210) and Abdul Razzak Khamosh v. Abbas Ali (PLD 2004 Kar 269).
10. The Appellants had, amongst others, sought a declaration affirming their ownership or leasehold rights over their individual plots within SSI Village on the basis of allotment orders/sanads. If the Appellants' property rights are infringed upon, section 42 SRA 1877 provides protection.
11. That said, the scope of section 42 SRA 1877 does not exhaustively cover all situations necessitating a declaration. Even in scenarios not explicitly addressed by this section, the requisite declaration may be granted under the broader provisions of the law. The precedents set by Arif Majeed Malik v. Board of Governors (2004 CLC 1029) and Naseem-ul-Haq v. Raes Aftab Ali Lashari (2015 YLR 550) are illustrative of this legal principle.
Purported Issuance of Order Cancelling Village Regularization & Land Grant
12. The official Respondents argue that during the pendency of Suit 1598 and Suit 888, the regularization of SSI Village has been revoked, a claim contested by the Appellants. However, on our specific query, the learned Assistant Advocate General explained that while no explicit cancellation order exists, the letter dated 27.11.2018 from the Principal Secretary to the Chief Minister, Sindh, conveying the Chief Minister's directives for "immediate necessary action," effectively acts as a cancellation directive for SSI Village and/or the land granted for it.
13. In the absence of a definitive cancellation order, it could not be conclusively concluded that the regularization of SSI Village has been officially revoked. Therefore, under the circumstances, it is untenable to assert that the Appellants lacked grounds or cause of action for initiating or continuing the lawsuit.
Order 7 rule 11 CPC2
14. The "rejection of plaint" and "dismissal of suit" are distinct concepts with different consequences. It is now an established legal principle that the question whether a suit is likely to succeed or not is independent of whether or not the plaint should be rejected (see Al Meezan Investment Management Company v. WAPDA First Sukuk Company - PLD 2017 SC 1). It is common to observe situations where a plaint could not be rejected, yet the suit was eventually dismissed for various reasons.
15. In the case of Jewan v. Federation of Pakistan (1994 SCM R 826), the Supreme Court determined that only the contents of the plaint are to be considered, and the defence presented in the written statement is to be ignored. However, it was also noted that if there is additional material presented alongside the plaint and admitted by the plaintiff, the court may also take it into account.
16. The Supreme Court in Raja Ali Shan v. Essem Hotel (2007 SCM R 741) ruled that it is incumbent upon a court to dismiss a plaintiff's claim if, upon examination, it is evident that the suit lacks competence. Moreover, the court not only possesses the authority but also bears the responsibility to dismiss the plaintiff's claim, even in the absence of a formal application from any party, if it violates any of the stipulations outlined in Order 7 rule 11 CPC.
17. In Abdul Karim v. Florida Builders (PLD 2012 SC 247), the Supreme Court held: " Firstly, there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the contents of the plaint. However, this does not mean that the court is obligated to accept each and every averment contained therein as being true. Indeed, the language of Order VII, Rule 11 contains no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the power of the court, which is inherent in every court of justice and equity to decide whether or not a suit is barred by any law for the time being in force completely intact. The only requirement is that the 2 Order 7 rule 11 CPC: Rejection of Plaint: The plaint shall be rejected in the following cases:
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, falls to do so;
(c) Where the relief claimed is properly valued, but the plaintiff is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; and
(d) Where the suit appears from the statement in the plaint to be barred by any law. court must examine the statements in the plaint prior to taking a decision.
Secondly, it is also equally clear, by necessary inference, that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint are correct or incorrect. In other words the court is not to decide whether the plaint is right or the written statement is right. That is an exercise which can only be carried out if a suit is to proceed in the normal course and after the recording of evidence. In Order VII, Rule 11 cases the question is not the credibility of the plaintiff versus the defendant. It is something completely different, namely, does the plaint appear to be barred by law.
Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the court is not denuded of its normal judicial power. It is not obligated to accept as correct any manifestly self-contradictory or wholly absurd statements. The court has been given wide powers under the relevant provisions of the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129 which enable it to presume the existence of certain facts. It follows from the above, therefore, that if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement which are not relevant, but in exercise of the judicial power of appraisal of the plaint. "
18. A plaint could be rejected under Order 7 rule 11 CPC if it failed to establish a cause of action or if the suit appeared to be prohibited by any law based on assertions made within the plaint. Neither the Respondents' Counsel referenced any applicable legal provision, nor did such provisions appear in the Impugned Order, that would warrant or justify the dismissal of the Appellant's two Suits on an application of the provisions of Order 7 rule 11 CPC. As demonstrated above, the Appellants had a legitimate cause of action due to the threat posed to their title over the land granted.
19. We, therefore, find ourselves unable to agree with the analysis and conclusion put forth in the Impugned Order. If the allegations or contents of the plaint are found to be inaccurate or unsubstantiated, it could ultimately result in the dismissal of the suit. This dismissal often occurs after the evidence has been recorded during the trial proceedings. However, if such a conclusion can be reached without evidence being recorded, the suit should at least be dismissed after the framing of issues.
Land Reserved for Amenities Including Girls' College, Public Park & Graveyard
20. The Impugned Order cites Supreme Court's directives passed in Constitution Petition No.9/2010 ((late) Naimatullah Khan, Advocate v. Federation of Pakistan & Others - which was filed by the then Mayor of Karachi) directing that all plots reserved for amenity purpose shall be retrieved back. A series of orders have been passed by the Supreme Court in the said case and one such order dated 22.1.2019 (reported as Abdul Karim v. Nasir Salim Baig - 2020 SCM R 111) commands as follows: " ... ... ... ... ... ... ... ....
Besides Jam Sadiq Ali Park, there are so many other amenity plots in the city meant for parks, playgrounds and other amenity use as per the original Master Plan of the city which has been allowed to be converted into commercial use. DG shall take steps to have all such plots which were originally meant for residential purposes amenity plots and playgrounds go to restore them to original position and remove all illegal and unlawful construction on such plots. ... ... ... ... ... This complete ban in cessation of conversion of residential plots, amenity plots like that of parks, playgrounds and other amenities shall apply all across Karachi City including cantonment areas. ... ... ... ..."
21. Even otherwise, the Supreme Court's ruling in the seminal case of Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCM R 2883) unequivocally prohibits the conversion of amenity plots to any other use, underscoring that such actions are illegal and cannot be tolerated.
22. The Appellants in their memo of Appeal (in Grounds I and J) categorically state that the Appellants do not assert ownership over, nor seek to repurpose, the amenity land for private or commercial use. They support the construction of designated public facilities but aver that these amenities should remain within the area allocated for them and not encroach upon SSI Village land.
23. Be that as it may, the amenity land, inter alia, designated for the girls' college, public park and graveyard can neither form part of the SSI Village land and nor can the latter lay any claim over it.
The record reflects that the Karachi Development Authority (KDA) has been tasked with the construction of the public park viz. Mohtarma Benazir Bhutto Family Park situated in Gulzar-e-Hijri, Sector 24-A, KDA Scheme No.33, Karachi which work is ongoing.
Injunctive Orders
24. The learned Assistant Attorney General and other Respondents have raised significant doubts regarding the authenticity of the SSI Village, alleging it to be a fictitious, bogus entity, concocted to unlawfully seize and swa llow valuable state land held in trust by the Province of Sindh.
25. Upon our appraisal, the following notable aspects emerge for consideration: i) The Appellants allege that SSI Village has been regularized by the Chief Minister, Sindh and land granted to it in accordance with the SOC 2008 issued under section 10(2) COGLA 1912. Yet, neither SOC 2008 nor COGLA 1912 contain any provision for so-called regularization of an entire village. ii) Taking into account the SUPARCO satellite images (which display that no construction, buildings, amenities are visible in the image upto July 17.7.2011), it cannot be said that the SSI Village existed on or before 31.12.2000, a pre-requisite outlined in Condition No.2(j) of the SOC 2008, which defines an "Existing Village or Habitation" as a village or habitation existing on state land on or before 31.12.2000. iii) In addition, Conditions No.7 and 8 of SOC 2008 mandate that upon complete payment of the lease, the grantee must execute a registered conveyance deed, which will serve as the title document. The absence of this deed raises doubts concerning the Appellants' proprietary rights and title. iv) According to the Enquiry Report dated 21.8.2014 of the Chief Minister's Inspection, Enquiries & Implementation Team, while SSI Village in CP No.D-2325/2010 claimed to be listed at Sr. No.147 in the list of Katchi Abadis, however, as per the Sindh Katchi Abadis Authority, SSI Village is not included in the master list of Katchi Abadis nor declared as a Katchi Abadi as yet. v) Whether any opportunity for a hearing was provided to the individuals likely to be affected, as stipulated by a Division Bench of this Court in its order dated 2.11.2012 (the same order which has been repeatedly referenced and misinterpreted by the Land Utilization Department) prior to approval of the SSI Village and/or grant of land to it?" vi) Whether a village (specifically, SSI Village) within municipal limits of Karachi could have been sanctioned - a question posed by a Division Bench of this Court in its order dated 22.11.2012 passed in CP No.D-446/2012 but which remains unanswered to-date. vii) Whether the Land Utilization Department, Board of Revenue, Sindh, can arbitrarily approve schemes and/or allocate plots for residential, commercial, industrial, and amenity purposes, among others, in contravention of and/or in the absence of any Layout Plan or Master Plan for the area, thus, resulting in the haphazard and unplanned growth of the urban areas and infrastructure? viii) Instead of dispensing favors and allocating land to chosen few arbitrarily, whether the Province of Sindh is not legally obligated to conduct public auction for plots in order to secure and ensure their maximum value/price, considering its role as a custodian holding the state land in trust?
26. Injunction, an equitable remedy, aims to support equity and fairness, and not to exacerbate injustice. To be granted this relief, the applicant must demonstrate a prima facie case, along with proving that the balance of convenience favours him and that he would suffer irreparable harm without protection during the lawsuit. The pronouncements of the Supreme Court in Puri Terminal Ltd v. Government of Pakistan (2004 SCM R 1092) and Supreme Court Employees Cooperative Housing Society v. Marshal Construction Management (2022 SCM R 366) reiterate these principles.
27. In light of the issues highlighted above (in the preceding paragraphs 24 and 25), the Appellants have not met the requisite criteria for securing injunctive relief, as delineated by established standards.
HCA No. 5/2022 Impugning Recall of Ad Interim Stay Order.
28. By order dated 25.11.2021 passed in Suit 1598, the Single Judge recalled an ad interim order dated 20.11.2018 which had been operating in Suit 1598. The Appellants have challenged the recall order in HCA No.5/2022.
29. As we have already expressed our views regarding the non-grant of injunction in the aforementioned HCA No.128 and 129 of 2022 (detailed in paragraphs 24 to 27 above), the third HCA No.5/2022 is disposed of accordingly.
30. Another related aspect warrants mention. On a previous occasion, a Single Judge (by order dated 23.12.2013) permitted the Defendants of Suit 1598 to proceed with construction. Subsequently, the Appellants contested this decision in HCA No.3/2014 (Shaheed Shah Inayat Village v. Ashiq Hussain Vighio & Others). This HCA was disposed of by an order dated 1.4.2015, restraining the Defendants of Suit 1598 from raising any construction on 3 10 acres of land in SSI Village and from interfering with the Appellants' possession "Till the disposal of injunction application". However, given that the Impugned Order (which rejected the plaints of Suit 1598 and Suit 888) effectively disposed of the injunction application, it is made clear that the order dated 1.4.2015 in HCA No.3/2014, therefore, no longer holds field. This is further supported by the reasons outlined above (in paragraphs 25 to 27).
Conclusion
31. Following the foregoing considerations, it is ordered that: i) The Impugned Order dated 14.3.2022 is set aside and the plaints of Suit No.1598/2013 and Suit No.888/2014 are restored for further legal proceedings as per the law; ii) The aforesaid two Suits are being restored for adjudication in accordance with law, but without restoration of injunction application which stands dismissed, as we find that the Appellants are not entitled to the relief of injunction in view of our observations above (in paragraphs 24 to 27); iii) This order or the restoration of Suit No.1598/2013 and Suit No.888/2014 do not hinder the Government of Sindh from taking any lawful action in the future with respect to the SSI Village or its granted land; iv) The High Court Appeal(s) No.5, 128 and 129 of 2022 accordingly stand disposed of along with all pending applications without any costs awarded.