' C.M.A. No, 1733 of 2002. By this order of I intend to dispose of C.M.A. No,1733/2002, an application under section 94(e), read with section 151, C.P.C., whereby the plaintiff, without prejudice to his rights, has proposed to resolve all disputes involved in the suit in the following terms:---
(a) That the seal imposed by the K.B.C.A. Be withdrawn and the possession of tenement be handed over to the Official Assignee, with the direction, to get so-called unauthorized construction removed from the suit premises within a period of two weeks.
(b) That the learned Official Assignee be directed to engage the services of licensed Architect/Engineer to supervise the removal of construction for which the plaintiff undertakes to pay necessary fees.
(c) That after removal of the so-called objectionable construction as claimed by KBCA/KDA, the Official Assignee be permitted to deliver the vacant possession of the suit premises to the plaintiff.
(d) That upon receipt of the physical possession from the Official Assignee the plaintiff undertakes to withdraw the suit and further undertakes not to raise any construction in future in violation of the sanction/approval issued by the competent Authority/KBCA.
2. Brietly the relevant facts of the caseare that the plaintiff, who claims himself to be the tenant of defendant No,5 in respect of ground' floor and first floor of "Bunder View Building" bearing Survey No,
167. Sheet No,MR-1, measuring 645 Sq. Yds., situated at MR Quarters, M.A. Jinnah Road, Karachi (hereinafter referred to as suit property), at the monthly rent of Rs,80,000 has filed this suit for declaration, permanent injunction and damages amounting to Rs,7.3 million against defendants, substantially for seeking protection Of his tenancy rights in the suit property. His main grievance .Is against the actions of defendant No,3 whereby they had demolished some unauthorized construction raised in the suit property and also sealed it.
3. In the written statement defendant No,5, from whom tenancy rights in the suit property have been claimed by the plaintiff, did not dispute such claim of the plaintiff, but complained about non-payment of monthly rent and certain other sums by the plaintiff, while the defendant No,3 in their written statement justified their actions against plaintiff. Defendant No,3 averred that illegally and unauthorizedly plaintiff had raised construction of 100 shops with left on the ground floor and also raised columns at first floor inside The suit property which, after notice, resulted in the action of demolition and sealing of building by defendant No,3. With the written statement defendant No,3 also filed copy of notice dated 8-9-2001, calling upon the owner/occupant of suit property for demolition of unauthroized construction and several photographs showing the demolition work carried out by them.
4. During the proceedings of the suit, by order, dated 21-9-2001, the Official Assignee was appointed as Commissioner to inspect the site of suit property and to submit his report. Such detailed report, dated 25-9-2001 submitted by the Official Assignee/Commissioner is available before the Court, which goes to show the extent of demolition work carried out by defendant No,3 and also sealing of ground flour and first floor of the suit property by them.
5. In this background, the plaintiff has extended the proposal contained in the listed application, as reproduced above to resolve the whole controversy.
6. Mr. Rasheed A. .Razvi, Advocate contends that in the present suit initially the plaintiff has strongly questioned the actions of defendant regarding ifiegal demolition of certain portions of suit property and its sealing, but now to avoid further litigation he has conceded to the allegation of defendant No,3 regarding some unathorized construction in the suit property and showed his willingness to undo the same under the supervision of a responsible officer of the Court viz. Official Assignee, therefore, there seems to be no valid reason for the defendant to oppose such offer.
7. On the other hand the main ground on which relief claimed in the listed application has been opposed by the learned counsel for defendant No,3 is. That the suit filed by the plaintiff, who is only tenant of the suit property, is not maintainable in law. I am not impressed with such submissions of the learned counsel for the reason that A tenancy rights are valuable legal rights, and thus for protection of such rights a party can .Approach the Court in appropriate case, as in the instant one.
The next ground pressed by the learned counsel for defendant No,3 is that it is the privileged and preoperative of defendant No,3 to demolish unauthorized construction of a building and to take further steps of, sealing of such property in appropriate cases, as has been done in the present case, therefore, intervention of Official Assignee for this purpose, as suggested by plaintiff, is not warranted by law. In this context the letter, dated 8-9-2001, issued by defendant No,3 negates their stand as by this letter they themselves had first called upon the owner/occupant to remove the unauthorized construction and comply other objections highlighted in the said letter.
8. The last ground urged by Mr. Sikandar Khan Yasir is that the prayer made in the listed application is beyond the Scope of the reliefs claimed by the plaintiff in the suit. In reply to this, Mr. Rasheed A.
Razvi has rightly referred the provision of Order VII, rule 7, C.P.C. And cases reported in PLD 1988 Karachi 414, PLD 1978 Supreme Court 220 and PLD 1989 Karachi 404. The ratio of these cases is that the Courts are not denuded of their powers to mould and grant such relief to a party as dictates of justice may demand in the changed circumstances of the case, even if such relief has not been expressly claimed by a party, provided otherwise that Court has jurisdiction to grant such relief. In view of this legal position the last objection of Mr. Sikandar Khan Yasir has also no force.
9. Though Mr. Ch. Muhammad Iqbal, A.A.-G has also opposed this application buf he was unable to give a single reason to justify such stand taken by the' defendant No,l.
10. Mr. Muhammad Anees, Advocate for defendant No,5 submits that defendant No,5 has no objection to the grant of listed application, however, subject to the condition that outstanding arrears of rent, etc. Claimed by defendant No,5 may be recovered from the plaintiff. Suffice it to say that for such relief it is open for defendant No,5 to follow' legal course against the plaintiff.
11. I have carefully examined the relevant record available before me. Precisely, the issue which is to be addressed for deciding the fate of listed application is that if the plaintiff has volunteered to get demolished all unauthorized construction raised over the suit property under the supervision of Official Assignee of this Court at his own case so that the possession of the suit property, which has been sealed by defendant No,3, solely on the ground of unauthorized construction,' may be restored to him, then what valid objection defendants could raise to such offer of the plaintiff.
Obviously such proposal of plaintiff is in consonance with the spirit of letter, dated 8-9-2001 issued by defendant No,3. Admittedly on one hand plaintiff has claimed possession of suit property as tenant, before its sealing, which has not been disputed by any of the defendants while on the other hand the only justification for sealing of suit property given by the defendants is the alleged illegal 'and unauthorized construction, nothing else. In the given facts and circumstances the relief claimed in the application seems to be effectively covered from the pleadings of the parties and such developments which had taken place at the time of institution of the suit and thereafter.
12. In view of the above discussion I find no legal impediment in granting the relief claimed by the plaintiff in para. 8 of his application and to dispose of this suit finally on such terms, as also conceded by Mr. Rasheed A. Razvi, learned counsel for the plaintiff.
13. For the forgoing reasons, Mr. Bashir Memon, Official Assignee of this Court is again appointed as Commissioner to supervise the work of deomolition of all unauthorized construction in the suit property within one month from the date of this order, after desealing of suit property by defendant No,3, which should be done immediately. For technical assistance Commissioner may engage some licensed engineer at the cost of plaintiff. The representative' of defendant No,3, if they so chose, may also accompany the Commissioner/Official Assignee to ensure demolition of all unauthorized construction. After demolition and removal of all unauthorized construction possession of suit property, to the extent it was let out to the plaintiff under the tenancy agreement, dated 29-10-1998 may be restored to him. Fee of the Commissioner is fixed in the sum of Rs,25,000 which shall be paid to him by the plaintiff.
14. The listed application and suit stand disposed of in the above terms. Compliance report may be submitted in due course of time.
15. It is clarified that contempt application bearing C.M.A. No, 6806 of 2000 will be decided separately in accordance with law.