' The plaintiff has filed this suit for specific performance, declaration and permanent injunction in respect of immovable property bearing No,WH-1, Sector 14 (Malir Band Ramp), Korangi Industrial Area, Karachi, hereinafter referred to as the plot in question. Along with this suit, the plaintiff has also filed an application under Order 39, rules 1 and 2, C.P.C. (C.M.A No,6570/94) seeking temporary injunction against defendant No,2, his contractors, workmen etc. From raising any further construction on the plot in question.
2. The case of the plaintiff in brief is that it is an incorporated company and is running an industrial unit on Plot No,13/20, Sector 22, Korangi Industrial Area, Karachi which is adjacent to the plot in question. The defendant No,1 constructed a bridge which is also called Malir Protection Bund adjacent to the plaintiffs plot at Road 8,000 Korangi. It is the case of the plaintiff that the space under the bridge and parallel to the service road were from the very beginning under the use of the plaintiffs company for the purpose of parking its trucks, trawlers and cars etc., therefore, in such circumstances, plaintiff approached defendant No,1 with the request that the said area be allotted to the plaintiff who has filed a copy of letter dated 9-5-1991 written by Executive Engineer, K.DA. As Annexure-A to the plaint through which the K.DA. Disclosed its decision to convert the area available under ramp of bridge as godowns to dispose of the same to the highest bidder. Through this letter, plaintiffs were invited to make offer. Thereafter several correspondence were exchanged between the plaintiff and the defendant No,1 and finally on 8th June, 1992 the plaintiff conveyed its acceptance and quoted price for the purchase of the land under the bridge. Thereafter, the plaintiff contacted defendant No, 1 but no positive response was made. In the month of December, 1994 the plaintiff came to know that the K.DA. Has auctioned the plot in suit to the defendant No,2 without notice to the plaintiff which compelled the plaintiff to file the above suit. The defendants have filed their respective counter-affidavits and written statements denying legal character of the plaintiff as well as challenging maintainability of the suit. I have heard Mr. Syed Amjad Hussain, Advocate for the plaintiff, Mr. Dasti Muhammad Ibrahim and Mr. Zafar Alam Khan, Advocates for the defendants. According to the learned counsel for the plaintiff, once the defendant No,1 has accepted the offer of the plaintiff to purchase the land in question he was not competent or authorised to put the same on auction. He has further stated that the K.DA. In connivance with defendant No,2 has put the property on auction out of sheer ill-will and mala fides. The sector and other details of the plot in question was never disclosed in the advertisement published in daily newspaper. Mr. Dasti Muhammad Ibrahim, Advocate for defendant No,1 has contended that the writing of letters to the plaintiff does not constitute acceptance as such there was no binding on the K.DA. To put the plot in question to public auction. He has further pointed out that no consideration was either fixed or paid to the defendant No,1.
3. Mr. Zafar Alam Khan, Advocate has also contended more or less same arguments. He has also invited attention of this Court to Article 131 of the K.D.A. Order, 1957. According to him, the plaintiff was required to have incorporated in the body of plaint the facts about the issuance and service of the notice under Article 131 which he has miserably failed and therefore, according to the learned counsel, the plaint is liable to be rejected. The contentions of Mr. Zafar Alam Khan, Advocate appearing for the defendant No,2 is not without force to the extent that since the suit is defective for want of notice under Article 131 of the K.D.A. Order, 1957, as such the plaint is liable to be rejected, although he has half-heartedly argued this point. This question of law was not agitated by the learned counsel appearing for the K.DA. Mr. Zafar Alam has also urged that the injunction application is liable to be dismissed against his client in view of the fact that the defendant No,2 is a bona fide purchaser and has acquired the right after participation in open public auction and after paying valuable consideration.
4. The consequences of non-compliance of Article 131 of K.DA. Order, 1957 were considered by this Court in several reported cases. In the case of Mst. Zainab Hajiani v. Al-Hilal Cooperative Housing Society and 2 others PLD 1978 Kar. 848, the plaintiff filed a revision application before this Court whose plaint was rejected under Order VII, Rule 11, C.P.C. For noncompliance of Article 131. His first appeal was also dismissed by the Additional District Judge, Karachi. The grievance of the said plaintiff, Mst. Zainab, was the K.E.S.C. Started building a sub-station on an open area adjacent to the residential house of the plaintiff which had caused blockade of the entrance to the house as well as danger to the inmates of the plaintiff's house. Plaintiff filed a suit for declaration and injunction against K.DA. And K.E.S.C. Without complying provisions of Article 131. A learned Single Judge of this Court, Mr. ZA. Channa, J. (as he then was), maintained the two orders of the lower Court rejecting the plaint on the ground that the suit was barred for want of notice under Article 131.
5. The case of Mst. Zainab Hajiani was considered by this Court in the case of Karachi Development Authority v. Evacuee Trust Board and 5 others PLD 1984 Kar. 34 It was held by Mr. Saleem Akhtar, J.
(as he then was) that notice under Article 131 was not necessary in the circumstances of that case, as the situation was completely different. In this reported case, the ownership and the authority of K.D.A. Was challenged and it was held that the case does not fall within the pale of Article 131. Again this Court in the case of Pakistan Railways, Karachi v. Karachi Development Authority and 5 others PLD 1992 Kar. 71 held inter alia that since application of Article 131 is attracted in the circumstances of the case as such the said suit was barred for want of notice under Article 131. The plaint was rejected by this Court. Recently this Court in the case of Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited and 2 others PLD 1995 Kar. 399 rejected the plaint in the suit on the grounds that the notice under Article 131 of K.D.A. Order, 1957 was not served on the defendant prior to filing of the suit. Nor such fact was disclosed in the memorandum of the plaint.
Following is the relevant portion of the reported case:--- "It is neither stated in the plaint of the suit nor in fact any notice as required under the above Article has been delivered to defendant No,2. The reading of the aforesaid Article shows that service or delivery of notice on defendant No,2 is mandatory before the institution of the suit and in case the suit is filed without service or delivery of such notice as required under the said Article, it shall be barred under the said Article."
6. In the instant case, the plaintiff has filed a suit for specific performance, declaration and injunction. It has not been alleged by the plaintiff that acceptance of the offer by defendant No,1 was outside the scope and B authority of K.D.A. In such circumstances, defendant No,1 has acted under and in furtherance of the K.D.A. Order, 1957 and Rules and Regulations framed thereunder.
Therefore, in the given circumstances, compliance of Article 131 was mandatory. Mr. Amjad Hussain has relied upon the case of K.D.A. v. Evacuee Trust Board and 5 others in support of his contention that the suit is not barred. I am afraid, this case is of no help to the plaintiff as facts of both the cases are quite distinguishable. In the said case, the plaintiff has challenged the ownership and authority of the K.DA. A perusal of plaint in the suit shows that Article 131 of K.DA. Order, 1957 was not complied.
7. In such circumstances when patently the above suit is barred by Article 131, the question left for determination is that what order should be passed? Defendants have not filed any application for rejection of plaint but this does not absolve this Court to exercise its discretion under Order VII, Rule 11, C.P.C. Time and again it has been held by this Court that it is the inherent and mandatory duty of the Courts to examine the plaint at an early stage and to see whether it is barred by any law. If on perusal of the plaint, it appears that the suit is barred then the plaint can be rejected even in absence of any application. For any reference, see the cases of Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190; Pakistan and another v. Devachand Muljimal and others PLD 1968 Kar. 107; Ali Muhammad and 6 others v. Secretary, Board of Revenue, Sindh, Hyderabad and 9 others PLD 1977 Kar. 747 and Trustees of the Port of Karachi v. Gujranwala Steel Industries and another 1990 CLC 197. In this last reported case, a learned Single Judge of this Court Mr. Wajihuddin Ahmed considered the question of maintainability of the suit even after dismissal of application under Order XXXVII, Rule 11, C.P.C. And rejected the plaints in all the three suits. Following is the relevant portion of the last reported case: " Even otherwise, question of rejection of the plaint under Order VII, Rule 11, C.P.C. Has an element of priority, has to be disposed of at the earliest and can always be considered even Suo Motu, without a formal application, and, thus while in Suit No,127/86 such an application lies struck off, on account of non-payment of costs, the matter under Order 7, Rule 11, C.P.C., can still be examined and, if a case for rejection of the plaint is made out under that provision, adequate orders can be passed.
No limitations as to stage or time are relevant in that context..."
8. For the aforesaid reasons, I hereby reject the plaint in the above suit. Consequently, C.M.A.
No,6570 of 1994 has become infructuous which is also dismissed.
Plaint rejected.