1. ' This judgment shall dispose of aforesaid two revision applications as common questions of fact and law are involved in both of them.
2. ' The respondents with the exception of respondent M/s. Arif Builders filed Suit Nos. 1210 of 1991 and 1209 of 1991 respectively against the applicants and respondent M/s. Arif Builders before the Civil Court for declaration and permanent injunction seeking a declaration that they are in possession of shops Nos.47 to 58 and 80 to 83 situated on a piece of land adjoining the Dargah Abdullah Shah Ghazi as lawful and bona fide tenants of M/s. Arif Builders and the threatened action of the said respondent of ejecting them from the shops by force and without due course of law is mala fide, arbitrary and without any lawful authority. They also prayed for a permanent injunction restraining the applicants as well as M/s. Arif Builders from dispossessing them from the above shops except in due course of law. In Suit No,1209 of 1991, shops Nos. 59 to 63 and 84 to 87 are involved and the Plaintiff, sought identical relief against the applicants and M/s. Arif Builders.
3. ' In both the suits, applicants namely Chief Administrator of Auqaf and Government, Sindh, moved applications for rejection of the plaint under Order VII, Rule 11, C.P.C. On the grounds inter alia, that the suit was barred by section 10, C.P.C. And sections 21 and 23 of the Sindh Waqf Properties Ordinance, 1979, (hereinafter to be referred as "the Ordinance"). After notice to the respondents, learned Senior Civil Judge by order dated 1-10-1991 held that the jurisdiction of the Civil Court was barred under section 21 of the Ordinance. Accordingly, She rejected the plaint in both the suits. The contesting respondents impugned this order in Civil Appeal Nos.176 of 1991 and 177 of 1994 which were heard by an Additional District Judge Karachi South, who by his order dated 17-3-1993 set aside the impugned order and came to the conclusion that proper course for the Trial Court was to frame issues and after recording evidence to decide the suit on merits. Both the suits were, therefore, remanded to lower Court. It is as against this order, that the instant revision applications were filed.
4. ' The averments in the plaint filed by the respondents are that M/s. Arif Builders being lessee, at the instance of the applicants, constructed shops on a piece of land known as Abdullah Shah Ghazi Shopping Centre at Clifton v. M/s. Arif Builders, by virtue of agreement with the applicants, rented out the shops in suit to the respondents on 13-7-1991 at monthly rental of Rs,500 and handed over the possession to them, which was intact. While refusing to accept the rent by the Manager/representative of M/s. Arif Builders, they were asked to vacate the respective shops in their possession immediately. The tenants, therefore, tried to contact the partners of M/s. Arif Builders, who also asked them to vacate the same and threatened to dispossess them by use of force. This respondent actually tried to dispossess them from their respective shops but because of timely intervention by the neighbours their possession could not be disturbed which remained intact. It was alleged that M/s. Arif Builders were trying to dispossess them in collusion with the applicants. Apprehending invasion to their tenancy rights by force, the respondents were left with no choice but to knock the door of the Civil Court.
5. ' The case of the applicants as given out in their counter-affidavit to the - application for temporary injunction in the lower Court is that any agreement executed between the respondents and M/s. Arif Builder was not binding on them as the same was not executed with their permission or written consent. It was stated that on 24-4-1984 Chief Administrator Auqaf and M/s. Arif Builders entered into an agreement which, inter alia, provided that- the said respondent will construct a shopping center and other buildings over a plot measuring 1600 sq. Yds. Attached to the Dargah Abdullah Shah Ghazi; that M/s. Arif Builders will be responsible for preparation of plans through a qualified Architect within one month and the construction work would be started after approval of plans by K.M.C./K.D.A. Within three months. Some times in 1985, certain restrictions were imposed by K.B.C.A./K.D.A. With regard to height of the proposed building and keeping in view the said restrictions, a revised agreement was signed between the parties on 14-1-1986. It was provided in this agreement that the earlier agreement dated 24-4-1984 shall be amended and the terms repugnant to the terms of the subsequent agreement shall stand modified to that extent.
6. Subsequent agreement dated 14-1-1986 was also revised and a third agreement daed 25-9-1986 was entered into between the parties. In order to serve the requirements of the applicants additional land measuring 5400 sq. Yds. Was leased out to M/s. Arif Builders. It was added that on coming to know that M/s. Arif Builders were raising construction in breach of agreement and in violation of instructions of K.B.C.A./K.DA., they were left with no alternative but to rescind all the agreements vide letter dated 16-5-1988. M/s. Arif Builders impugned this action and filed Suit No,429 of 1988 in the High Court of Sindh in which an order to maintain status-quo was passed which remained operative till the withdrawal of the suit. On the representation of M/s. Arif Builders the Chief Minister Sindh passed an order dated 19-9-1990 that the agreements mayu be restored provided M/s. Arif Builders withdrew the cases from the Court and the K.DA.May be asked to approve the plan. On 8-7-1991, M/s. Arif Builders gave an undertaking that they shall not raise any construction without the approval of the plan by K.B.C.A. On 19-7-1991, Chief Minister Sindh visited Dargah Abdullah Shah Ghazi and on 21-7-1991 instructed the applicant No,1 that order dated 8-7- 1991 restoring the agreements be withdrawn. Accordingly, applicant No,1 withdrew the order for restoration of the agreements by his office order dated 21-7-1991. Possession of the shops in favour of the respondents was denied. It was stated that applicant No,1 had no intention to deprive any person of his lawful rights and the respondents in collusion with M/s. Arif Builders had tried to conceal the facts from the civil Court. It is pertinent to observe that respondent M/s. Arif Builders did not contest the suit in the lower Court.
7. ' In order to substantiate their claim, Mr. Manzoorul Haq learned counsel for the contesting respondents, has referred to paragraphs 8, 12 and 15 of the agreement dated 24-4-1984 between the applicants and M/s. Arif Builders. Para. 8 of this agreement provides that on construction of the shopping centre and residential flats, the lessee party of the second part will have the right to sub- let the shops and flats to the respective tenants of their choice and the lessor party of the first part shall recognise such sub-tenants as lawful tenants during and after the lease period. Para No,12 of the agreement authorises the lessee party i,e, M/s. Arif Builders to charge and receive rent from the sub-tenants and issue receipts to them without any hindrance while the lessor party i,e, Chief Administrator Auqaf shall receive lease money from the lessee on expiry of three years grace period. .Para.15 of the agreement recites that after expiry of the period of lease and handing over peaceful possession of the premises by the lessee party to the lessor party, the lessor party shall always be bound to change tenancy of the tenants already recognised as lawful tenants vide para 8 by charging a prescribed fees equivalent to six months rent in case of shop and three months rent in case of residential flats of the outgoing tenant. In the second agreement dated 14-1-1986, para 4 clearly states that the period of lease shall be seven years excluding two years grace period for construction. This agreement was modified by the agreement dated 25-9-1986 in which period of lease was revised as 10 years including four years construction period. Learned counsel pointed out that the aforesaid three agreements were in the first instance rescinded vide letter dated 16-5- 1988. Agreements were restored vide letter dated 8-7-1991, which was withdrawn by Chief Administrator Auqaf vide office order dated 21-7-1991. Factual position emerging from the above letters and office order would be that all the agreements were intact and operative between 8-7- 1991 and 21-7-1991. In both the suits, the agreements of tenancy in favour of the contesting respondents were executed on 9-7-1991 and 13-7-1991 respectively as reflected in para. 9 of the plaint in each case and the copies of tenancy agreements filed in the civil Court. It would thus seems that the respondents had acquired prima facie a valid right and interest of tenancy in respect of the shops in suit during the period agreements executed by Chief Administrator Auqaf in favour of NI/s. Arif Builders were valid and operative.
8. While section 10, C.P.C. Deals with the stay of subsequent suit between the same parties involving identical issues in a previously instituted suit, it has nothing to do with the rejection of a plaint which is regulated by the provisions contained in Order VII, Rule 11, C.P.C. Section 21 of the Ordinance bars a suit to question the legality of anything done under the Ordinance by or at the instance of the Chief Administrator or in respect of any matter which the Chief Administrator is empowered by or under the Ordinance to determine or settle or to grant an injunction or other order in relation to any proceedings before the Chief Administrator under the Ordinance, or anything done or intended to be done by or at the instance of the Chief Administrator under the Ordinance. It will be seen from the averments in the plaint that the respondents had neither questioned the legality of anything done under the provisions of the Ordinance nor did they challenge the authority of the Chief Administrator to act within the scope of his powers under the Ordinance. They had not prayed for an injunction in relation to any proceedings before the Chief Administrator nor sought any relief in relation to an act done or intended to be done by the Chief Administrator under the provisions of Ordinance. They had only sought a declaration as to their tenancy with reference to lease-hold rights in favour of M/s. Arif Builders and prayed for protection of their possession in their right.
9. Undoubtedly, the applicants did not initiate any proceedings for eviction of the respondents under the provisions of the Ordinance, as such, on the face of the contents of the plaint, it does not seem to be barred by section 21 of the Ordinance as wrongly assumed by the learned Senior Civil Judge.
10. Needless to point out, section 23 of the Ordinance deals with the protection of action taken under the Ordinance and bars a suit, prosecution or other legal proceeding against any person for anything done or intended to be done in good faith under the Ordinance, which is not a point involved in the suit. In the circumstances, it cannot be said that the learned First Appellate Court committed an error of jurisdiction or illegality in order to warrant an interference by this Court in the exercise of revisional jurisdiction. Reference to the cases of Haji Ghulam Rasool and others v. Chief Administrator Auqaf, (PLD 1971 SC 376) and Jam Pari v. Muhammad Abdullah, 1991 SCM R 786 dealing with the points relating to waiver and estoppel, on the part of the applicants is misconceived and uncalled for in the circumstances of the case.
11. ' In the result, both the revision applications being without any merit are dismissed.