1. By this application under Order 7, Rule 11 read with section 151, C.P.C. filed by defendants Nos.1, 2 and 3 seeks rejection of the plaint on the ground that the defendant No.3 has already taken the possession of the area of land measuring 4000 Sq.yds. situated on Shaheed-e Millat Road, adjacent Baloch Colony, Karachi hereinafter referred to as the said property on 22-2-1999 after giving fourteen daysnotice, dated 3-2-1999 and that the suit of the plaintiff is barred by law i.e. under sections 10 and 11 of the Central Government of Lands Buildings (Recovery of Possession)
2. Ordinance, 1965 hereinafter referred to as the said Ordinance.
3. In support of the application learned counsel for the defendants placed reliance on sections 10 and 11 of the Said Ordinance. He argued that the suit is in respect of property belonging to the Federal Government. The Possession of the same has been obtained by the defendants as such this suit is not maintainable. Learned counsel further argued that as actions have been taken in good faith, no suit lies against Federal Government under section 11(1) or 11(2). In support of arguments on the ground of maintainability of suit. Reliance is placed on the cases of Zafar-ul-Ahasan v. Republic of Pakistan PLD 1960 SC (Pak.) 113, Ahmed Din v. Abdullah Bhai and others PLD 1962 (W.P) Kar. 663, Burma Eastern Limited v. Burma Eastern Employees Union PLD 1967 Dacca 190, Muhammad Hussain v. District Council Muzaffargarh through Chairman and another 1987 CLC 1098.
4. Learned counsel in his reply has argued that the present suit is not one of a bona fide action but pertains to mala fide actions of the defendants resulting from illegal and arbitrary action as specifically pleaded in paragraphs Nos.10 to 20 of the plaint: He further placed reliance on the terms of contract between the parties contained in the agreement, dated 27-1-1988 and filed as Annexure "A" to the plaint providing for the determination of the depreciated value of the structure in case of taking over of property by the defendants even after the agreed period of three years under clause No.17 of the aforesaid agreement reproduced as follows:--- "At the successful conclusion of the period of agreement the building shall become the property of the principal after the payment of the depreciated book value of the building. The depreciated value will be assessed as per MES Rules and regulations."
5. Learned counsel stressed that the determination of the depreciated book value of the building is specifically provided for under the contract but no determination of the depreciated value took place nor any action has been initiated in this regard so far which reflects further mala fide on behalf of defendants. He proceeded to argued that the property the structure and building raised by the plaintiff by way of construction of the Cold Storage is the property of plaintiff and is not a building owned by the Government until such time as the necessary formalities are completed. It is for this purpose that the present suit has been filed. He also argued that no notification as to the exercise of the power delegated of the aforesaid ordinance is produced and in the absence of such a notification any power exercised is not covered under the provisions of the said Ordinance, therefore, the suit is maintainable. A bare reading of the plaint and the Annexures thereto reveals that the prayers mentioned in the suit include the prayer for compensation as under:----.
6. "In alternate judgment and decree that the plaintiff is entitled for compensation of Rs.60,00,000 in respect of building, boundary walls etc. constructed by them on the plot of land bearing No.2 admeasuring about 4000 Sq. Yds. situated in P.A.F. Land, Balouch Colony, Shahrah-e-Fasial, Karachi in terms of agreements executed between the plaintiff and defendants from 1988. to 1998."
7. Section 10 of the said Ordinance relied upon by the learned Advocates for defendants reads as under:--- "10. Jurisdiction of Civil Court barred.--- No Civil Court shall pass an order in any suit or proceeding granting a temporary or interim injunction restraining the Central Government or any officer authorized by it from taking possession of any land or building under this Ordinance."
8. This section clearly pertains and is limited to the extent of granting temporary or interim injunction restraining the Central Government or any officer authorized by it from taking possession of any land or building under this Ordinance. In the instant case the defendants have already entered upon and taken over possession of the lands belonging to the Government whereon structure is raised by the plaintiffs and does not involve a temporary or interim injunction in view of the facts of this case.
9. Section 11 of the said Ordinance is reproduced as under:-- "11. Indemnity.--- (1) No suit or legal proceeding shall lie against the Central Government in respect of anything which is, in good faith, done or intended to be done under this Ordinance.
(2) No suit, prosecution or other legal proceeding shall lie against any person in respect of anything which is, in good faith done or intended to be done under this Ordinance."
10. Subsection (1) of section 11 pertains to suit or legal proceedings against Central Government in respect of anything which is, in good faith done or intended to be done under this Ordinance and subsection (2) extends the same protection to any person in respect of anything which is, in good faith done or intended to be done under this Ordinance. In the instant case the plaintiff has categorically pleaded mala fide actions. The facts which constitute the mala fides have also been specifically mentioned incorporated in the correspondence exchanged between the parties and annexed to the plaint. In addition the suit also covers the question of determination of the depreciated book value of the building which was required to be determined as per MES Rules and Regulations but these rights -of the plaintiffs have been violated and no determination took place or even initiated till to date by the defendants. The plaintiff cannot be deprived of this right under the said agreement which can be enforced through this suit.
11. In the case of Zafar-ul-Ahsan (supra) the Honourable Supreme Court while considering the ouster of jurisdiction has held as under:-- "As regards the contention that the order of retirement is not an order under sub-clause (b) because of the non-observance of Rule 2 or the omission or refusal of the President to hear the appellant in support of his appeal, the position is precisely the same, viz; that the order must be held to be under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, even if in following the statutory procedure some irregularity was committed. If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is ncessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute land the order made should be such as could have been Made under the statute. These conditions being satisfied, the ouster in complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statue the omissions or irregularity alleged will be a matter for the authority, and not, as rightly observed by the High Court, for Court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England land in this sub-continent, be treated as an order under the statute. In the present case the Screening Committee and the President both had jurisdiction in the matter the appellant was amenable to the jurisdiction exercise, the jurisdiction was exercisedon the grounds mentioned in the statute and the order made 'is within the terms of the statute and it is not the petitioner's case that the Committee acted mala fide and used the statute for an ulterior purpose. The ouster is, therefore, complete land we have no jurisdiction to call in question the order made."
12. In the instant case the constitution of authority under section 9 has been specifically disputed and no notification as required under section 9 is placed on record. The bar contained in sections 10 and 11 is limited to the granting of temporary or permanent injunction restraining the Central Government or any officer authorized by it from taking possession of any land or building under this Ordinance while section 11 provides indemnity to the Government and officers in respect of anything which is in good faith done or intended to be done under this Ordinance. The suit of the plaintiff in addition to the specifically pleadings of mala fide is based on the compliance of the terms of contract not during the period but while the plaintiff remained in possession of the lands and buildings but regarding enforcement of the agreed terms of contract pertaining to the adjudication of the dispute under the terms of a contract and determination of compensation to which no bar is imposed under the said Ordinance as such the Zafar-ul-Ahsan's case is not attracted and is distinguishable for the aforesaid reasons. In Ahmed Din's case (supra) the difference between lease and license has been considered by the Division Bench of the erstwhile High Court of West Pakistan Karachi Bench. This point does not pertain to the issue of the determination of compensation under the terms of contract. In Muhammad Hussain's case the learned Single Judge of the Lahore High Court considered the virus of the Notification, dated 26-4- 1983 withdrawing the earlier Notification, dated 12-7-1973 issued under the provisions of the Waqf Properties Ordinance, 1961 was pleased to uphold the Notification. In the instant case no Notification has been produced at all as specified under section 9 of the said Ordinance. The case of Burmah Eastern Limited (Supra) the Division Bench of the Dacca High Court while examining the cases covered by Order 7, Rule 11 was pleased to observe: "The Principles involved are two-fold. In the first place, it contemplates that a still-born suit should be properly buried, at this inception, so that no further time is consumed on a fruitless litigation.
13. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case.
14. Order VII, rule 11, of the Code as quoted above, enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive. It appears from the language of rule 11 of Order VII that lit requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law."
15. This enunciation of the settled legal position will be attracted only after a conclusion is arrived at that the suit is barred by law which is to be valid by an order rejecting the plaint; under Order 7, Rule 11, C.P.C. However, the facts in this case are entirely distinguishable being a matter falling for determination of the rights and liabilities of the parties under contract not covered under the provisions of sections 10 and 11 of the Central Government Lands and Building Recovery of Possession Ordinance, By a short order C.M.A. No.3117 of 1999, the application for rejection of plaint under Order 7, Rule 11, C.P.C. was rejected. The above are the reasons for the short order.