1. This is a Civil Revision Petition under section 115 of Code of Civil Procedure directed against the judgment and decree dated 18-9-1994 passed by District Judge, Karachi-Central, in Civil Appeal No.82 of 1994, Shamsul Hassan v. KDA and three others whereby judgment and decree dated 18-9- 1994 Passed by First Senior Civil Judge, Karachi-Central, Shamsul Hassan v. KDA was affirmed and appeal was dismissed.
2. Brief facts of the case are that the petitioner/plaintiff filed suit for declaration and injunction with a prayer that: "Declare that the notice/order dated 9-5-1992 is illegal, mala fide, ultra vires and action taken thereunder on 14-5-1992 by and on behalf of the defendants Nos. 1 and 2 and further the acts of demolition/damage likely to be caused by the defendants Nos. l and 2, their men, servants, agents, employees, attorneys or other persons on their behalf as threatened of would similarly being based upon such notice shall be illegal, mala fide and on without lawful authority and not applicable to the plaintiff in respect of the suit property viz. The Lawn/Garden and the structure comprising some eight rooms and bath rooms on Plot No. ST-1/B, Block-VI, Federal 'B' Area, Karachi; Restrain by perpetual injunction the defendants their men, servants, agents, attorneys employees and other persons acting under their and on their behalf severally and jointly from demolishing/causing damage to the Lawn/Garden or structure comprising some eight rooms, bath rooms on Plot No. ST-1/B, Block No. VI, KDA Scheme No. 16, Federal 'B' Area. Karachi or interfering the peaceful possession of the plaintiff therein in any manner whatsoever. "
3. The respondents Nos. 1 and 2 moved an application under Order 7, Rule 11, C.P.C. For the rejection of the plaint on the ground stated in the application which was allowed by First Senior Civil Judge, Karachi-Central as per judgment dated 18-9-1994. The petitioner/plaintiff preferred an Appeal No. 82 of 1994 before the District Judge, Karachi-Central which was disposed of as per judgment dated 8-1-1995, whereby the appeal filed by the petitioner/plaintiff was dismissed, hence the present Revision.
4. I have heard Mr. G. M. Qureshi for petitioner, Mrs. Zahida Naqvi for respondents Nos. l and 2, Dasti Muhammad Ibrahim for respondent No. 3 and Syed Zaki Muhammad for respondent No.4, learned counsel for the respective parties and perused the impugned judgments and Annexures filed with the memo. Of Revision Contention of learned counsel for petitioner is that he moved an Application dated 11-4-1995 under Order 6, Rule 17 read with section 151, C.P.C. For amendment in the memo. Of Revision petition which was allowed by 'his Court with the consent of parties on 11-4-1995, therefore now the deficiencies about his locus standi before the Court of First Senior Civil Judge slid not exist any more hence the impugned order of rejection would not fall within the mischief of Rule 11 of Order 7, C.P.C. And the impugned judgments and decree were liable to be set aside and the case was liable be remanded to lower Court to decide the same afresh in view of the amendments allowed. He has further argued that the petitioner is a tenant of the respondent No.4, therefore, his rights would be effected by the threatened actions of the respondents, hence, he has locus standi to challenge the said actions of respondents Nos. 1 to 3 in this suit. He has further argued that he has spent huge amount over the construction of rooms and bathrooms and maintenance of lawn on the plot of land, therefore, unilateral action on the part of the respondents Nos. l to 3 would be not in accordance with law considering that the same has been taken without giving him opportunity. He also stated that the respondent No.4 was in collusion with the rest of respondents Mrs. Zahida Naqvi for the respondents Nos. l and 2 has argued that the petitioner/plaintiff has no locus standi as the respondent No.4 is the lessee upon whom notices dated 9-5-1992 and 14-5- 1992 have been served under the law for violation of the rules and the petitioner/plaintiff has not been issued any such notice therefore no cause of action has accrued to him for the filing of present suit therefore plaint was rightly rejected by the two Courts below.
5. Mr. Dasti Muhammad Ibrahim for respondent No.3 has argued that respondent No.4 was leased out the above plot as amenity plot and was to use the same for the said purpose only and not for the commercial purpose and he was not supposed to sub-lease the same to the petitioner/plaintiff for the purpose to which it was being used. He has further argued that the petitioner/plaintiff would definitely be affected by the action which has been proposed to be taken against the respondent No.4 as per notices issued to him as the petitioner/plaintiff was in possession of the plot for which he has spent huge amount on construction of rooms and bathrooms on the land of the plot and maintenance of lawn.
6. Learned First Senior Civil Judge has rejected the plaint on the ground that as the notices were issued to respondent No.4, therefore, no cause of action accrued to the petitioner/plaintiff, therefore, he had no locus standi to file the present suit hence the plaint was rejected under Rule 11 of Order 7 of C.P.C. The First Appellate Court observed in its order dated 8-1-1995: "Under section 42 of the Specific Relief Act a person has been authorised to seek declaration from the Court of law in respect of his legal status or right in property. Where he seeks a declaration in respect of any right as to any property against a person denying or interested to deny his title to such right as to any property .. .. ..However, a bare perusal of the notice dated 9-5-1992 to the plaint reveals that the said notice had nothing to do with the appellant .. .. .. Above notice did not confer any right on the appellant to file suit for seeking a .. .. ...Inasmuch as neither the same is addressed to him nor his right in the plot in dispute can be visualized which is an essential requirement for maintainability of a suit under section 42 of the Specific Relief Act .. .. ..Appellant has failed to make out not only existence of right in property in dispute but has also failed to establish denial .. .. .. ...According to his own version in the plaint he is a tenant of respondent No. 4 and was occupying the plot in dispute .. .. ..However, appellant did not produce any agreement of tenancy or lease between him and respondent No.4 in respect of the plot in dispute to substantiate his version that he was lessee/tenant of respondent No.4 in respect of the plot in dispute .. .. ..Till 30-10-1991 he was merely an allottee in respect of the plot in dispute .. .. ...Respondent No-4 could not transfer or confer a better title in respect of the plot than what he himself had. Plot in dispute could be given on rent under a tenancy agreement by respondent No.4 only if he had acquired some right or ownership in the plot in dispute and in absence of the same he could neither give the plot in dispute on lease nor on rent under the Sindh Rented Premises Ordinance and the transaction between the appellant and respondent No.4 can neither be deemed to be an agreement of lease nor a rent agreement as claimed by appellant and the same was merely a permission or licence by respondent No.4 in favour of appellant .. .. ..It is thus clear that appellant did not have any right as to any property or in the property in dispute and in absence of existence of a right he could not have recourse to section 42 of the Specific Relief Act as existence of a right as to the property is a condition precedent for filing a suit under section 42 of the Specific Relief Act."
7. Admittedly, the said plot was allowed as amenity plot to the respondent No-4 who in his turn is alleged to have rented out or sub-leased out the same to the petitioner/plaintiff and the respondents Nos. l and 2 in view of the breach of conditions of the grant of amenity plot by the respondents Nos.1 and 2 issued notices to respondent No.4 and not to the petitioner to explain about the commission of breach of the terms and conditions of the grant. It is the lessee/allottee, the respondent No.4 who should feel aggrieved of the action of the respondents Nos. l and 2 and not the petitioner/plaintiff. The petitioner/plaintiff is not a party to the alleged lease/grant made by the respondents Nos.1 and 2 in favour of respondent No.4. It is correct that if any action is taken against the respondent No.4 in respect of plot in dispute which is possession of the petitioner/plaintiff would cause damage to the petitioner/plaintiff but for the same he could take or initiate action against the respondent No.4 with whom he has entered into alleged agreement of tenancy or agreement of lease. The petitioner/plaintiff cannot be said to have any cause of action against the respondents Nos. l and 2 in respect of action taken by them so also he cannot be said to have locus standi or right to sue the respondents Nos. l to 3 under section 42 of the Specific Relief Act. I am in full agreement with the observation of the First Appellate Court which have been reproduced above. The amendment which has been allowed would not alter or improve the status of the petitioner/plaintiff so far as his locus standi and maintainability of suit are concerned. The suit under section 42 would not be maintainable against the respondents Nos.1 to 3 and grievance, if any, could be against the respondent No.4 for which the remedy could be only for damages for the breach of terms of the alleged contract with him if and committed by the respondent No.4 who is alleged to be in collusion with the rest of the respondents. In the circumstances, the present suit being not maintainable under section 42 of the Specific Relief Act was rightly rejected by two Courts below. No illegality or material irregularity has been pointed out in the judgments of two Courts below by the learned counsel for applicant therefore no interference is called for in the Revisional jurisdiction of this Court. Accordingly, this Revision has no merits and is hereby dismissed in limine so also the C.M.A. 68 of 1995.