AMIR HANI MUSLIM, J.- Through the High Court Appeal, the appellants have impugned the Order dated 13.7.2002 passed by the learned Single Judge rejecting the plaint in Suit No. 217 of 2002 filed by the appellants against the respondent son the ground of want of notice under Article 131 of the Karachi Development Authority Order, I 957 (hereinafter offered to as "the KDA Order").
2. Brief facts pleaded in the Appeal are that the appellants were neighbors of the respondents Nos.
1 and 2 residing in Block No. 8, Clifton, Karachi. It is alleged that the respondent No. 1 who is the owner of the Bungalow No. 49F, Block No. 8, Clifton, Karachi, was to rent out the premises to the respondent No. 2, who was to convert the said residential bungalow into commercial by establishing a School in the name of respondent No 2. The appellants approached the respondent No. 1 requesting her to desist from letting out the premises for school purposes as it would create congestion in the area besides being violative of the terms and conditions of the lease issued by the KDA which restricted the lessee under the covenants of the lease from using the premises for other than for residential purposes for which it was leased out to the respondent No 1.
3. The respondent No. 1 did not pay heeds to the request of the appellants and informed them that her main object was to get a rental of Rs. 175,000/- per month and she was not bothered about the resultant problems of the area. In these circumstances, Counsel for the appellants served a legal - notice upon the respondent No. 2 warning them to avoid starting School in the premises. Copy of the said notice was also endorsed to the respondents Nos. 3 (K.D.A.) and 4 (Cantonment Board) for their information. Since the respondents Nos. 3-and 4 failed to take any action, therefore, the appellants approached this Court by filing Suit No. 217 of 2002 for declaration, injunction and cancellation against the respondents seeking following reliefs:- "(a)Direct defendants Nos. 3, 4 and 5 or any once or more of them to do their statutory duty by restraining defendants Nos. 1 and 2 from changing residential use of F-49, Block 8, Clifton, Karachi.
(b) To direct defendants 1 and 2 not to create any third party interest in any manner whatsoever, which would involve change of residential use and grant an injunction against defendants 1 and 2.
(c) To set aside and declare and cancel any order secretly passed illegally by defendants Nos. 3, 4 and 5 or any of them authorising change of residential use of the said premises and to declare any agreement between defendants 1 and 2 in this respect as illegal.
(d) To prohibit change of use in future and to grant any additional reliefs deemed proper."
Alongwith the suit- an injunction application was filed by the appellants on which ad-interim order was passed restraining the respondent No. 2 from enrolling any student in the School.
4. The respondents Nos. 1 and 2 filed an Application (CMA No. 3524/2002) under Order VII, Rule 11, CPC seeking rejection of the Plaint on the ground that the suit was barred under Article 131 of the KDA Order for want of notice to the K.D.A. Which was impleaded as one of the defendants. In the affidavit of the Partner of the respondent No. 2 filed in support of the said application seeking rejection of the plaint, it was pleaded that the appellants have not complied with the provisions of Article 131(1)(2) of the KDA Order which contemplates service of notice on. K.D.A. Prior to filing of the suit and, therefore the suit filed by the appellants merits dismissal.
5. The learned Single Judge heard the Injunction Application as well as the application under Order VII, Rule 11, CPC filed 'by respondents Nos. 1 and 2 and by the impugned order was pleased to allow the application of the respondents 1 and 2 dismissing the suit of the appellants holding that the appellants have failed to comply with' the mandatory provision of Article 131 of the KDA Order by not serving notice upon the K.D.A. Prior to filing of the suit.
6. It has been contended by Mr. Samiuddin Sami, learned counsel for the appellants, that Article 131 of the KDA Order extends protection to the KDA and in any event cannot be used as a 'tool to seek ejection of the plaint against private parties. The learned counsel further argued that the application under Order VII, Rule 11, CPC has not been made by KDA which was a party to the proceedings but was filed by a private party, therefore, the learned Single Judge could not have dismissed the suit as a whole against all the defendants on account of non-compliance of the provisions of Article 131 of the KDA Order. He submitted that if a suit filed against more than one defendant is barred against one of the defendants, the Plaint cannot be rejected against all the defendants and the learned Single Judge had erroneously rejected the plaint against all the defendants. He submitted that the law does not authorize the Courts' to reject the Plaint in part as has been done in the instant case.
7. It was further contended by the Samiuddin Sami, that the learned Trial Court while rejecting the plaint the learned Judge has over looked the fact that the KDA was also served with the Notice on 3.12.2001 which was issued to respondent No. 2. He submitted that the notice of said date to the KDA was sufficient and substantial compliance of the Article 131 of the KDA Order and the learned Single judge was not justified in law In allowing the Application under Order VII, Rule 11, CPC of the respondents Nos.,:l and 2. In support of his contention learned counsel has relied On the following case-laws:-
(1) Vellayan Chettiar v. Madras Province (PLD 1947 PC 160);
(2) Mrs. A.V. Isaacs v. Federation of Pakistan (PLD `1954 Lah. 800);
(3) Federation of Pakistan v. Ehsan Elahi (PLD 1955 .Lah. 303);
(4) Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi (PLD 1976 S.C. 785);
(5) National Bank of Pakistan v. Fakr Muhammad (PLD 1984 Kar. 256 (260));
(6) Karachi Development Authority v. Evacuee Trust Board (PLD 1984 Kar. 34);
(7) Muhammad Rashid Bhatti v. K.D.A. (PLD 1986 Kar. 130);
(8) Orangi Pilot. Project' v. M.A.I. Z.A. T. (Regd.) (1987 MLD 541); and
(9) Institute of Bankers in Pak. v. Zaiul abedin (1987 MLD 549).
8. As against this Mr. Saeeduddin .Nasir, learned counsel for respondents Nos. 1 and 2 has submitted that the impugned order was proper as the appellants have not complied with the mandatory requirement of service of notice upon K.D.A. And therefore, no exception could be taken in regard to the passing of the impugned order. He has relied upon the following case-laws:-
(1) Zainab Hajiani v. Al-Hilal Co-operative Housing Society Ltd. (PLD 1978 Kar.. 848),
(2) Pakistan Railways v. K.D.A. (PLD 1992 Kar. 71);
(3) Zia-ur-Rehman Alvi v. Allahabad Co-operative Housing Society Ltd. (PLD 1995 Kar. 399);
(4) National Fibres Ltd. v. Karachi Development Authority (1996 MLD 76);,, and
(5) Sualeh Sons (Pvt.) Ltd. v. Karachi Development Authority (1997 CLC 893).
9. We have heard the learned counsel, perused the record and examined the case-law cited by them. For the sake convenience Article 131 of the KDA Order is reproduced hereunder:- "131. Notice of suit against Authority, etc.-- (1) No suit shall be instituted against the authority or any member or any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority in respect of any act purporting to be done under this Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority office or the place of abode of such member, officer, servant or person, stating the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought.
(2) ............ (3) ...........
10. This Article provides that no suit could be instituted against the KDA or against any member or a person acting under direction of KDA until the expiry of one month from the delivery of written notice at the KDA office or place of abode of such officer or servant. It further specifies that notice should state the cause of action, the name and place of intending plaintiff and the nature of the relief sought. The bar contained and/or contemplated under Article 131 of the KDA Order is that the proceedings cannot be initiated by a person against KDA if the KDA is not pay to notice of such proceedings and a period of one month has not lapsed from the date of service of such notice on the KDA. In the instant case, we have noticed that the appellants before filing of the suit, had addressed a notice through their Counsel to the respondent No. 2 on 3.12.2001 staling therein' that appellant being neighbour are concerned about the illegal conversion of the residential premises. In the referred notice the appellants had clearly stated that establishing school in the said premises was violative of the terms of the KDA lease and in the event if the respondent No. 2 failed to give-up the idea of opening the School the appellants would be constrained to approach this Court by impleading KDA as one of the parties who was bound to take immediate action against the violation of the terms of their lease against the owners of the premises. Copy of this notice was endorsed to the KDA (respondent No. 3) as well as to the Cantonment Board (respondent No. 4) who were also defendants in the suit filed by the appellants.
We feel that endorsement of such notice upon KDA was substantial compliance of the Article 131 of the KDA Order. Therefore, the plaint could not have been rejected on this score alone.
11. We, with profound respect to the learned Single Judge, are further of the view that even otherwise a plaint cannot be rejected in part In this respect we are clear in our mind, that in a suit, if there are more than one defendants and the suit is barred either under some law or otherwise against one of the defendants only such defendant can be struck of from the array of defendants.
This aspect of the case appears to has been lost sight by the learned Judge while passing the impugned order. An appellant/plaintiff cannot be required to file fresh suit against those respondents/defendants against whom the proceedings were not barred under any provision of law. Mr. Saeeduddin Nasir could not place any material before us to show that the impugned order was justifiable in law. We believe that the bar contemplated under Article 131 of the KDA Order could only be invoked by KDA itself and the benefit of this provision cannot be extended to cover the private defendants if they are arrayed as defendants.
12. We, for the aforesaid reasons, had allowed the Appeal by the short order on 6.11.2002.