' This suit was initially filed by the plaintiff No,1, i,e, Marriage Halls Association registered under the Society Registration Act, 1860 and 51 individual owners of different Marriage Halls located in the city.
All the plaintiffs appeared to be aggrieved by notices issued identical though separate notices issued to plaintiffs Nos.2 to 52 i,e, other Marriage Halls owners required the plaintiffs to seeking the regularization of Marriage Hall by payment of Rs,1,000 per sq.Yds. Up to 31st December, 1994 along with the plaint an application under Order 1, Rule 8, C.P.C. Was preferred seeking permission to the plaintiffs to represent 'a number of other Marriage Halls owners, though no final order appears to have been passed on that application (C.M.A. No,6566 of 1994) the facts remain that Public Notices in terms of the requirement of Order 1, Rule 8, C.P.C. Were issued and thereafter, 12 other Marriage Hall owners applied for being joined as plaintiffs under Order 1, Rule 10, C.P.C. The application submitted by these 12 persons were granted by the Court vide order, dated 30th October, 1997. It may also be pertinent to mention that by an earlier order, dated 5-1-1995 an order was passed ditty that the Karachi Development Authority may also be joined as party which was panted.
2. Accordingly, amended plaint was presented on 12-1-1998, the defendants though served did not file written-statement within the time granted to them and consequently, they were debarred from doing so. However, Mr. K.A. Wahab, learned counsel for the defendants Nos.I and 2 submitted an application under Order 7, Rule 11, C.P.C. Praying for rejection of the plaint on certain purely legal grounds. This application was dismissed for non-prosecution. Subsequently, learned counsel has filed another application (C.M.A. No,4051 of 1998) on 16-4-1998 praying for same relief.
3. Mr. K.A. Wahab, learned counsel for defendants raised three (3) objections to the maintainability of the suit i,e, (1) that court-fee stamp of the requisite value had not been affixed on the plaint or supplied otherwise (2) that the suit was barred under section 20-A, K.B.C.A. Order 1979, (3) that the suit was barred under Article 131 of the K.D.A. Order, 1959. While I proposed to deal with first objection a little later it may be pertinent to consider the question of bar of jurisdiction under section 20-A of Sindh Buildings Control Ordinance, 1979 which reads as follows:-- "20-A. Notice for institution of suit. No suit shall be filed against the Authority or any of its employees in respect of anything done or purported to be done by the Authority or such employee under this ordinance except after expiration of sixty days next after notice in writing has been delivered to or left at the office of the Authority or employees as the case may be."
4. It was pointed out to learned counsel that requirement of notices was applicable only if the impugned action was taken strictly under the provision of the Order. Mr. K.A. Wahab contended that the impugned action was taken under section 86(3) of the ordinance, where under no building could be used for a purpose other than for which its plan was approved. He argued that the Marriage Halls in question were operating in residential buildings and their use as such was invalid.
The argument, however, overlooks the- settled principle that the question of slaw of jurisdiction has to be decided on the basis of averments made in the plaint or facts admitted by the plaintiff. The plaintiffs have expressly contended that the defendant No,1 had no jurisdiction to issue such notices only the K.D.A. Could do so. The defendants have not placed anything on record to indicate that the buildings in question were constructed after the enforcement of Ordinance or their plans were approved by the defendants. Therefore, it cannot be assumed that the impugned action was taken in the exercise of the powers conferred by the ordinance. It is settled law that when the action alleged to be ultra, vires the powers of the defendant no statutory notice is necessary.
5. With respect to the objection premises upon similar provision of the K.D.A. Order (Article 131) it might suffice to say that since ex-facie the impugned notices were not issued by the defendant No,7, it cannot be presumed that they were taken under purported exercise of powers under K.D.A.
Order. I, therefore, find both these contention untenable.
6. Coming to the third objection Mr. K.A. Wahab argued that independent causes of action had accrued to all plaintiffs, and therefore, they were required to pay court-fee separately. He relied upon a judgment reported in (AIR 1935 Calcutta P. 573) wherein a suit filed by 73 plaintiffs in respect of similar causes of action, it was held that each one of them was required to pay court-fees separately. Learned counsel also placed before me a copy of an order passed by my learned brother Abul Inam J., in Suit No,1553 of 1997. In this suit the plaintiffs were residents/allottees of different shops and flats in one building known as 'Shahzad Plaza' and apprehended demolishing of the building by the defendant. It was held that all the 24 plaintiffs having purchased separate fiats or shops, independent causes of action had accrued to /hem each plaintiff was required to pay court-fees. It was observed that Order 1, Rule 1, C.P.C. Allowed different persons to join in one suit in the interest of speedy settlement of disputes and avoiding of conflicting the judgment but did not absolve parties from paying court-fee required by law. It might be relevant to mention that the aforesaid judgment has been upheld by a Division Bench of this Court in H.C.A. No,I5 of 1998 which judgment is binding on this Court.
7. Mr. Muhammad Zubair Qureshi attempted to distinction these cases by arguing that the principles laid down therein did not apply to representative suit under Order I, Rule 8, C.P.C. And that the plaintiffs had not sought separate declaration or reliefs. In this context the scheme of Rules 1 and 8 of Order I, C.P.C. Needs to be kept in view. Indeed under Rule 1, Order 1 different persons may join in a suit not only where the right to relief arises from one transaction but even on the simple ground that common question of law and fact would arise in the suit. This, however, does not amount to say that the cause of action is common as indeed different causes of action might arise to different people at different times though the questions of law or fact involved in all those matters may be the same. I, therefore, entirely agree with my learned brother Abul Inam, J. Would hold that procedural facility granted by the, C.P.C. Cannot override liability under a fiscal statute.
8. With reference to Order I, Rule 8, C.P.C. Mr. Muhammad Zubair Qureshi is right to extent that when one person files a suit in a representative capacity he is not required to pay court-fee after in respect of all persons that he seeks to represent. In this case, however, the suit was not filed by one but by 52 persons and all these 52 persons applied to be treated as representative of numerous others. The permission was not even granted. Therefore, it cannot be urged that one set of court- fee was sufficient for the purpose of maintaining the suit on behalf of 52 persons owing different plots and receiving different notices. Secondly, when an application under Order I, Rule 8, C.P.C. Is made and the plaint is advertised the persons sought to be represented by the plaintiff has two options. He may either continue to be represented by the original plaintiffs or may enter appearance under sub-rule (2). In both cases upon granting of permission under Order I, Rule 8, C.P.C., the judgment would be binding on them. However, he may not be required to pay court-fee in the just case, but when instead of allowing the original plaintiff to represent him he chooses to pursue the matter independently as a plaintiff, he cannot be absolved of respondents' liability to pay court-fees. Accordingly, I am clear of the opinion that plaintiffs are required to pay court-fee.
' In the circumstances, I would grant each of the plaintiff two (2) months' time to pay proper court- fee failing which his name will be struck off. Thereafter, the suit may be placed for final disposal.