1. ' This is an application under Order 7, Rules 10 & 11, C.P.C. Filed on behalf of the defendants Nos,1 and 2 seeking the return of the plaint or its rejection.
2. ' The learned counsel for the defendants Nos,1 and 2 submitted that the plaint is liable to be returned to the plaintiff under Order 7, Rule 10, C.P.C. And/or deserves to be rejected under Rule 11 of that Order as from the statement in the plaint and the reliefs claimed therein the suit is barred by law. Elaborating his submissions he argued that the suit having been filed for declaration and injunction was barred by section 42 of the Specific Relief Act as it is neither in respect of entitlement to any legal character of the plaintiff nor to any right as to any property and on the point he referred to the case of Burmah Eastern Limited v. Burmah Eastern Employees Union (PLD 1967 Dacca 190).
3. ' The learned counsel for the plaintiff disputed the contention of the defendants and stated that the suit was very much in respect of infringement of the right to property of the plaintiff inasmuch as the plaintiff as owner of Plot No,51-F/i, Block-6, P.E.C.H.S. Karachi, was entitled to the beneficial use thereof like other plot-holdeRs, He stated that under the lease deed he had an undisturbed right to the use of 40 feet wide road in front of the plot. However, the defendants, inter alia, had unauthorisedly constructed a katcha mud and stone ramp on the said road just in front of the property of the plaintiff thereby not only narrowing the said road considerably but also threatening to damage the property of the plaintiff. In this regard he also referred to the Report submitted by the Nazir of the Court who was appointed as Commissioner to inspect the site. He stated the acts of these defendants clearly amounted to the denial of the legal character and the right of the plaintiff attached to his property. I agree that on the facts disclosed in the plaint the suit relates to infringement of valuable rights of the plaintiff and it cannot at the present stage be said to be barred by section 42 of the Specific Relief Act. The case of Burmah Eastern Ltd. Referred to by the learned counsel for the defendants Nos,i and 2 is distinguishable. In that suit terms of employment were challenged and the declaration sought was:- .... That the prejudicial terms and conditions imposed upon the service of the members of the plaintiff Union by the defendant No,1 as detailed in Annexure D to the plaint are illegal, invalid, void ab initio and ultra vires and as such not binding on the members of the plaintiff Union and that they are entitled to their former rights and privileges including basic pay, privilege leave and other benefits and emoluments as enjoyed by them while in the service of the defendant No,2, the Burmah-Shell."
4. ' On the facts of that case the learned Court found that the suit was not maintainable as there was no allegation of infringement of a right to property and what the plaintiff was seeking to establish was also not a legal character within the meaning of section 42 of the Specific Relief Act.
5. ' Next it was contended that the suit was hit by section 54 of the Cooperative Societies Act, 1925, particularly in view of relief (d) claimed in the plaint as admittedly the defendant No,3 was a Cooperative Society and, therefore, any dispute relating to that defendant was to be determined by arbitration in the manner provided in the said Act. The reply of the learned counsel for the plaintiff was that in so far as the illegal construction of the ramp was concerned it was not a dispute with regard to the business of the defendant No,3, for, the construction of the road in question and the demolition of the ramp put up by the defendants Nos,1 and 2 did not fall within the business of the society. It was submitted that either the KDA or the KMC were responsible for the maintenance of road in the society. On this point Mr. S.H. Kazilbash, learned counsel for the KDA stated that it was not the KDA which was constructing and maintaining the roads in the said society but the Building Control Authority and therefore he suggested that it may too be made a party in the suit. As regards the relief (d) prayed for by the plaintiff it was stated by the plaintiff's counsel that the said relief will not be passed.
6. ' As regards the objection for non-compliance of Article 131 of the Karachi Development Order, 1957 the plaintiffs counsel submitted the case was not covered by the said Article and that primarily the defendants Nos,1 and 2 were infringing the rights of the plaintiff and as such reliefs have been claimed against them. He stated that even otherwise failure to give notice under Article 131 will only effect the defendant No,5 and not be relevant in so far as the defendants Nos,1 and 2 are concerned. In any case, he said that in view of the submission of the learned counsel for defendant No,5 the KDA may perhaps become redundant.
7. ' It was lastly argued that the suit was not maintainable by virtue of section 91 of the Civil Procedure Code as the requisite consent of the Advocate-General had not been obtained. The reply of the plaintiffs counsel was that it is not a case of public nuisance but as stated in the plaint a case of infringement and denial of the legal rights of the plaintiff and as such did not fall under the said section.
8. ' Having considered the contentions raised by the learned counsel for the parties it seems to me that the suit of the plaintiff basically relates to the infringement of his valuable and legal rights by the defendants Nos,1 and 2 and at this stage it cannot be said to be barred by section 42 of the Specific Relief Act, or, in so far as the defendants Nos,1 and 2 are concerned, by the other provision of law referred to by the defendants' counsel. Accordingly I find no merit in the application under Order 7, rule 11, C.P.C. And dismiss the same.