SARMAD JALAL OSMANY, J.--- This is an application under Order VII, Rule 11, CPC filed on behalf of the defendants whereby it is prayed that as the Plaint displays no cause of action and that as it is barred under Section 9 as well as Section 42(2) of the Specific Relief Act, 1877 and also since the prayers in the suit are contrary to Islamic Principles, therefore, the plaint may be rejected.
2. The brief facts as per averments contained in the plaint are that the plaintiffs Nos. 1 and 2 are the were and son respectively of defendant No. 1 whereas the defendant No. 2 is the real brother of defendant No. 1. It is the plaintiffs' contention that the suit property belonged to the father of the defendant No. 1 and since the economic position of the plaintiff No. 1 and defendant No. 1 from the beginning of their marriage was unstable late Zahid Saeed Khan Lodhi, the father of defendant No. 1 gifted the suit property to the defendant No. 1 and another son Shahid Hameed Lodhi in equal shares. Consequently, the plaintiffs and Mst. Mehrin Lodhi, the daughter of the plaintiff 'No. 1 have been occupying the suit property for the past so many years. On 13.1.1996 the defendant No. 1 ceased to occupy the suit property when he decided to live with his second were whom he had married recently. Thereafter, the defendants Nos. 1 and 2 have been insisting that the plaintiffs move out of the suit property and upon their refusal the defendants have devised a malicious and fictitious arrangement whereby the defendant No. 1 gifted his portion of the suit property to the defendant No. 2. Vide Registered Gift Deed dated 21.11.1996 in order to deprive the plaintiff from their share of the suit property and for the purposes of obtaining their eviction.
3. It is the case of the plaintiff that such a Gift is unlawful, mischievous, fraudulent and illegal since when the same was made on or about 21.11.1996, the plaintiffs were in possession of the suit property and hence, possession, as alleged in the gift deed, could not have been handed over to the defendant No. 2 by the defendant No. 1. Consequently, the gift was not complete and, therefore, a nullity in the eye of law. It is further pleaded that the Gift is even otherwise invalid as it is against the basic principles of Islam whereby the disposition of the property seeking to disinherit legal heirs is not permissible. It is, therefore, prayed by the plaintiffs that the Gift Deed dated 21.11.1996 be declared as invalid and unlawful, the same be cancelled and a permanent injunction be issued restraining the defendants or others claiming through them from evicting the plaintiffs from the suit property.
4. On the basis of the above facts and circumstances, Mr. Muneeb Ahmed Khan appearing for the defendants has argued that in para 4 of the plaint it has been admitted that the defendants are 50% owners each of the suit property. In para 10 of the plaint it has been averred that the Gift of the defendant No. 1's share to defendant No. 2 is invalid and seeks its cancellation on the basis that on the date when possession was allegedly handed over by the defendant No. 1 to defendant No. 2, the plaintiffs were in possession and hence, the-Gift Deed is invalid to that extent. Learned counsel says that no right to the suit property has been established by the plaintiff as such, which is against the provisions of Section 9 of the Specific Relief Act. Similarly learned counsel says that the suit is barred under Section 42 of the Specific Relief Act since neither have the plaintiffs established their right to any particular legal character or to any property. He h9s relied upon Munawar Hussain Shah v. Biloria Bi (PLD 1978 SC (AJ&K) 33), Muhammad Bashir v. Muhammad Yaqub (1993 CLC 1084), Fazal Ahmed v. Rakhi (PLD 1958 Lah. 218), Saida v. Pinnu (PLD 1979 SC (AJ&K) 245).
On the other hand, Mr. Usman Ghani Rashid appearing for the plaintiffs says that no ownership right is being claimed by the plaintiffs. What they are seeking is the cancellation of the Gift Deed which according to the plaintiff is defective and hence cannot be acted upon. So also the plaintiffs claim that they should not be dispossessed from the property except under due process of law as they are in possession of the same. In support of his contention learned counsel has relied upon Khalida Bibi v. Daryar Khanum (1994 MLD 2339), Sardar Ahmed Khan v. Zamroot Jan (PLD 1950 Pesh.
45) and Hyderabad Municipal Corporation v. M/s. Fateh Jeans (1991 MLD 284).
5. It would be seen that declaratory decrees are controlled by Section 42 of the Specific Relief Act which provides that any person entitled to any legal character or to any right as to any property may institute a Suit against any person denying or interested to .Deny such title to such character or right for a declaration as regards the same. On the other hand, a decree for permanent injunction is provided for in Sections 54 and 55,of the Specific Relief Act whereas Section 56 of the said Act provides for instances where injunctions cannot be granted.
6. As regards the relief of cancellation of the Gift Deed, the same is controlled by Section 39 of the Specific Relief Act, which provides that any person against whom a written instrument is void or voidable, who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
7. From a bare perusal of the plaint. It is quite apparent that the plaintiffs do not seek any declaration as to any legal character or right to any property. All they seek is that the Gift Deed in question being invalid and unlawful be cancelled and that the Court permanently injunct the defendants from dispossessing the plaintiffs from the suit property otherwise than in due course of law. As an ancillary relief they also seek a declaration that the Gift Deed be adjudged as null and void in the circumstances of the case.
8. It would be seen that under Section 54 of the Specific Relief Act a permanent injunction may be issued to prevent the breach of an obligation existing in favour of the plaintiff whether, expressly or by implication particularly when the defendant. invades or threaten to invade the plaintiffs right or enjoyment of the property in the particular circumstances enunciated by said Section. It is trite law that where the plaintiff is in lawful possession of an immovable property he or she can always approach a Court of law for an injunction to the effect that he/she may not be dispossessed except in due course of law. This in a nutshell is precisely the plaintiffs' case and as much is the settled law in view of the following cases:-
(1) Sarfraz Khan V. Abdul Karim (1981 MLD 1230) (2) Sehar Begum v. Salahuddin (1991 MLD 1954) and
(3) Hyderabad Municipal Corporation v. IVI/.s. Fateh Jeans Limited (1991 MLD 284).
9. As regards the gift deed in question, the facts of the case disclose that if it were left outstanding, this would cause injury to the plaintiffs since on the basis of the same, the defendants are seeking to dispossess the plaintiffs. Consequently, I am satisfied that the plaint does disclose facts whereby the plaintiffs have a legitimate cause of action seeking the cancellation of the gift deed. It is also settled law that at the stage of rejection of a plaint under Order VII, .Rule 11, CPC the strength or weakness of the plaintiffs case is not to be examined but what is to be seen is where the Suit does not display a cause of action or is otherwise barred by any law the Plaint should be rejected. In my view, therefore, at this stage, it is futile to consider whether on the facts of the case the Gift Deed could or could not be cancelled. Hence, the cases cited at the bar against and in favour of the cancellation of the Gift Deed have no relevancy at this stage. They would, of course, be relevant once the matter goes for evidence at the time of final arguments.
10. Finally as regards the relief of declaration, it may be that a declaration may not be granted regarding invalidity of the Gift Deed in terms of the first prayer of the plaintiff. However, again as held by the Hon'ble Supreme Court in Muhammad Ilyas Hussain v. Cantt Board Rawalpindi (PLD 1976 SC 785), if one of the reliefs, claimed in a suit, was unavailable on account of any technical difficulty the others, if claimed and available cannot be disallowed merely because of the bar which applied to the first.
For all the foregoing reasons I find no force in this application. These are the reasons for dismissing the same on 29.3.2000. .