AMIR HANI MUSLIM, J.--Through this 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 respondents on the ground of want of notice under Article 131 of the Karachi Development Authority Order, 1957 (hereinafter referred to as "the KDA Order").
2. Brief facts pleaded in the appeal are that the appellants were neighbours 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,49-F, 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 No1.1 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 not bothered about the resultant problem 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 one 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 interests 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 (C.M.A. No,3524 of 2002) under Order VII, rule 11, C.P.C. seeking rejection of the plaint on the ground that the suit was barred under Article 131 of the K.D.A. 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 pleased that the appellants have not complied with the provisions of Article 131(1)(2) of the K.D.A. 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, C.P.C. 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 K.D.A. 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 K.D.A. Order extends protection to the KDA and in any event cannot be used as a tool to seek rejection of the plaint against private parties. The learned counsel further argued that the application under Order VII, rule 11, C.P.C. has not been made by K.D.A. 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 K.D.A. 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 overlooked 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 K.D.A. 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, C.P.C. of the respondents Nos.1 and 2. In support of his contention learned counsel has relied on the following case-law:--
(1) Vellayan Chettiar v. Madras Province (PLD 1947 PC 160); (2) Mrs. A.V. Isaacs v. Federation of Pakistan (PLD 1954 Lahore 800); (3) Federation of Pakistan v. Ehsan Elahi (PLD 1955 Lahore 303); (4)
Muhamamd Ilyas Hussain v. Cantonment Board, Rawalpindi (PLD 1976 SC 785); (5) National Bank of Pakistan v. Fakir Muhammad (PLD 1977 Kar. 256 (260)); (6) Karachi Development Authority v.
Evacuee Trust Board (PLD 1984 Karachi 34); (7) Muhamamd Rashid Bhatti v. K.D.A. (PLD 1986 Karachi 130); (8) Orangi Pilot Project v. M.A.J.Z.A.T. (Regd.) (1987 MLD 541) and (9) Institute of Bankers in Pak. v. Zainul 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-law:-
(1) Zainab Hajiani v. Al-Hilal Cooperative Housing Society Ltd. (PLD 1978 Kar. 848); (2) Pakistan Railways v, K.D.A (PLD 1992 Karachi 71); (3) Zia-ur-Rehman Alvi v. Allahabad Cooperative Housing Society Ltd. (PLD 1995 Karachi 399); (4) National Fibres Ltd. v. Karachi Development Authority (1996 MLD 76); and (5) Sualeh Sons (Private) Ltd. v. Karachi Development Authority (1997 CLC 893).
9. We have beard the learned counsel, perused the record and examined the case-law cited by them. For the sake convenience Article 131 of the K.D.A. 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 K.D.A. or against any member or a person acting under direction of K.D.A. until the expiry of one month from the delivery of written notice at the K.D.A. 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 K.D.A. Order is that the proceedings cannot A be initiated by a person against K.D.A. if the K.D.A. is not put to notice of such proceedings and a period of one month has not lapsed from the date of service of such notice on the K.D.A.. 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 stating 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 K.D.A. 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 K.D.A. 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 K.D.A. (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 K.D.A. was substantial compliance of the Article 131 of the K.D.A. 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 he struck off from the array of defendants.
This aspect of the case appears to have 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 'tire bar contemplated under Article 131 of the K.D.A. Order could only be invoked by K.D.A. itself and the benefit of this provision cannot be extended to cover the private defendants if they are arrayed as defendants.