1. ' This order will dispose of applications moved on behalf of defendants Nos. 1 and 3 for rejection of the plaint under Order VII, Rule 11, C.P.C. The application moved by the A.A.-G, on behalf of defendants Nos. 4, 6 and 7 for rejection of the plaint is on the ground that the suit against the official designation is not maintainable and the plaint is liable to be rejected as officers in their own official designation cannot be termed to be legal or natural persons for the purpose of Order 1, Rule 3, C.P.C.
2. ' Application on behalf of defendants Nos. 1 and 3 has been moved that the declaration sought cannot be granted and the suit is barred under the provisions of Specific Relief Act.
3. ' The plaintiff has filed suit for declaration and injunctioh with the following reliefs:-- "(1) To declare that plaintiff is lawful owner of the Flat No,C-12, Sunny View Apartment, Block 14, Gulistan-e-Johar, Karachi in view of the title documents Annexures A to J alongwith possession and directions to the plaintiff by defendants Nos.4, 5 and 6 to bring original title documents in their office is illegal void and has value in the eyes of the law and plaintiff cannot be dispossessed without due process of law.
(2) To grant permanent injunction in favour of the plaintiff and against the all defendants by restrainig them, their representative or representatives, agents, attorneys, persons subordinates working under them to create third party interest in respect of property in question and to harass and dispossess the plaintiff from her own Flat No,C-12, 2nd Floor, Sunny View Apartment, Block 14, Gulistan-e-Johar, without due process of law."
4. ' The case of the plaintiff, as disclosed in the plaint, is that she purchased the residential Flat C-12 in suit from defendant No,3 on the consideration of Rs,4,25,000, which was purchased by defendant No:3 from M/s. Sunny Homes (Pvt.j Ltd., defendant No,2. The sub-lease was executed in favour of Syed Ishrat Hussian Rizvi on 4-9-1991. There was loan in respect of the flat in question and the original documents were with H.B.F.C. ,Defendant No,3, according to the prevailing practice in Karachi in respect of the transaction of properties, executed an irrevocable registered power of attorney in favour of the plaintiff on 11-1-1995 and also addressed a letter on 13-2-1995 to defendant No,1 to hand over the possession of the flat in question to the plaintiff whereas Flat No,C-11 was handed over to defendant Shamim, It is her case that the receipt was handed over to defendant No,8, as the same was jointly in the names of plaintiff and defendant No,8 for both flats. The possession of the flat was handed over to her pursuant to the letter addressed by defendant No,3 to defendant No,2 and she claims to be in possession of the flat. It is her case that defendant No,1 tried to take possession from her .By approaching influential persons as well as the Government functionaries and in order to pressurize her, the. Defendants Nos.4 and 5 have issued notice to her for production of the original documents and the proceedings under sections 103 and 117, Cr.P.C.
5. Were also initiated. Hence the suit was filed with the above prayer.
6. ' Mr. Jalil Hashmi, learned counsel appearing for official defendants has urged that the suit brought by the plaintiff against the defendants Nos. 4, 6 and 7 is not maintainable and contended that the suit was brought against the official designations or titles and not against legal or natural persons, which is not permissible under the law. According to him, the defendants could not be sued with reference to their designations for their official acts unless they were "corporations sole", whereas they in fact are not. Only legal and natural persons can be sued as defendants in terms of Order 1, Rule 3, C.P.C., when no statute provides that public officer shall be a corporation sole and can be sued in its corporate name, as the case here is he has to be sued under the ordinary, law, which becomes applicable. Reference in his behalf can be made to the case of Secretary, B&R, Government of West Pakistan and others v. Fazal Ali Khan PLD 1971 Kar. 625, where in the suit against official designations or titles was found to be bad in form and was found to be not maintainable. Cases of (i) Sheriff of Bombay v. Hakamji Motaji & Co. AIR 1927 Bom. 521, (ii)
7. Manahem S. Yeshoova v. Union of India and others AIR 1960 Born. 196, and (iii) P.B. Shah & Co. And others v. Chief Executive Officer and others AIR 1962 Cal. 283 were considered.
8. ' In the first case, the suit had been brought against Sheriff of Bombay in his official title and it was held as under:-- "Because one can bring a suit against a public officer in respect of acts done by him in his official capacity, it does not follow that one can sue that officer by its official name, just as if he was a 'corporation sole' ."
9. ' In the second case the suit was brought against the Collector of Customs and it was held in it as follows:-- "The Collector of Customs is not a legal entity, but is merely an office occupied by several persons from time to time as appointed by the authorities. Hence a suit cannot be filed against or in the name of the . Collector of Customs."
10. ' In the third case, suit was filed against Chief Executive Officer and City Architect of Corporation of Calcutta and it was held in it as follows:-: "Where a statute provides that a public officer shall be a corporation sole and can be sued in his corporate name, the officer may be sued in that name. In the absence of such a provision, the ordinary law applicable to suits must apply. There is no provision in either in the Calcutta Municipal Act, 1951 or in any other statute that the person occupying the offices of the Commissioner, or the Chief Executive Officer and of the City Architect are corporation soles or that they are any of them may sue or be sued by their official titles. From time to time different persons occupy those offices.
11. Therefore, under Order VII, rule 1(c) if the plaintiff intends to sue the persons who for the time being occupy those offices he must implead those persons by. Their individual names. In the eye of the law the so-called Chief Executive Officer and City Architect without the individual names of the persons occupying those posts given in the suit title are not really on the record of the case."
12. ' The learned counsel for the plaintiff has not been able to reply to the contentions raised by the counsel for the Government.
13. ' The case of the plaintiff, as disclosed in the plaint, is that she has purchased the flat in question and irrevocable registered power of attorney has been executed in her favour. She was put in possession of the flat in question.
14. Under the provisions of section 54 of the Transfer of Property Act, mere agreement will not confer any right or title in the immovable property. In the present case, the plaintiff has sought declaration that she be declared a lawful owner of the suit flat.
15. ' The provisions of section 42 of Specific Relief Act cannot be involved for declaration in respect of the title in immovable property on the basis of even agreement coupled with the power of attorney as the same will not confer the plaintiff any right and title in the property or flat in itself.
16. ' Learned counsel for the plaintiff has urged that the application for amendment of the suit for specific performance of contract has been moved. After going through the application for amendment of the plaint, it appears that the plaintiff has given narration of the facts but has not mentioned even the proposed amendment in the pleadings. In paras. 5 and 6 of the application for amendment it has been stated as follows:-- "That in view of the fact disclosed in the aforesaid paragraph No,4 it is necessary to amend the suit as suit for declaration specific performance, cancellation and permanent injunction.
6. That in view of the aforesaid amendment it is also necessary to add paragraphs in the body and in the prayer clause of the plaint in respect of aforesaid necessary amendments."
17. To my mind, the application filed by the plaintiff for amendment lacks the required amendment, as such the same cannot be granted. The suit of the plaintiff is barred under the provisions of section 42 of the Specific Relief Act, therefore, the plaint of the suit is rejected, however, with no order as to cost. However, this will not preclude the plaintiff from filing a fresh suit on the same clause of action after rectifying the defect. All the pending applications stand disposed of.
18. ' These are the reasons of my short order dated 9-12-1998.
19. Plaint rejected.