1. Through this application under Order 7, 'rule 11, C.P.C, the defendant No,5 seeks rejection of the plaint.
2. The plaintiff has filed suit for Declaration/Cancellation of the Auction Proceedings/Permanent Mandatory Injunction, Damages/Compensation for mental agony and torture at Rs,5 Million.
3. The plaintiff has sought the following reliefs:--
(1) Declaration that the plaintiff is the lawful owner/transferee of the Plot of Land/House bearing No,R-LS-4, 33-A. S.T.I. measuring 120 sq. yards situated at Korangi No,2, Karachi, by virtue of the indenture of Lease Deed executed and duly registered with the T. Division Sub-Registrar, Karachi, on 6-10-1985 and is a legal and lawful, valid and subsisting title deed/document of the said property.
(2) For cancellation of, the auction proceedings/bid and subsequent proceedings, order, decision or any other proceedings taken on 17-6-1996 and on any other date and may declare the auction proceedings/bid as nullity in the eyes of law and also in violation of the law and Constitution.
(3) For permanent/perpetual/mandatory injunction against defendants ' 1 to 9 and also against defendant No,10 restraining them permanently from interfering with the plaintiff's title documents/registered Indenture of Deed. interests, title and possession of the plaintiff's house/plot of land/ property in question and its free use, occupation or any kind of interference/ interruption or to demolish the said house or any portion thereof or forcibly evict the plaintiff from the house/plot of land or any show of force or any .other kind of authority/police etc. and to restrain defendants 1 to 9 from issuing any kind of title deed or allotment to any other person or persons or enter into any kind a transfer in respect of the plot of land/house No,R-LS-4-33-A, S.T.I. situated at Korangi No,2, Karachi.
(4) Costs of the suit may be awarded to the plaintiff from the defendants 1 to 9 and also damages/compensation as claimed in the body of the plaint, in the sum of Rs,50 lac (Rs, 5 Million) he paid to the plaintiff severally and jointly."
4. Heard learned Advocates for the parties, Mr. Khalid Mahmood, learned counsel for the applicant/defendant No,5 has submitted that the suit is hit by section 42 of the Specific Relief Act as under section 42 of the Specific Relief Act, a person is to establish that, he is entitled to any legal character, or to any right as to any property to show that, any person is denying, or is interested to deny his title to such character or right. He has submitted that, in para.1 of the plaint, it is stated that, the property bearing No,R-4, Block 33-A, St.1 is admeasuring 120 square yards and lease in respect thereof was executed in his favour by K.D.A., the defendant No,
1. According to Mr. Khalid Mahmood, the relief is sought in respect of Plot No,LS-4 which is a commercial plot and the plot which was allotted to the plaintiff is a residential plot. He has further submitted that, Plot No,LS-4 is measuring 200 square yards while the Plot No,R-4 is measuring 120 sq. yards and defendant No,13, Ch. Ashraf was leased out Plot No,LS-4. He has submitted that, the plaintiff has no right, title or interest in Plot No,LS-4 and therefore, neither there is any cause of action in favour of the plaintiff nor the plaintiff can invoke jurisdiction of this Court under section 42 of the Specific Relief Act.
5. He has next- contended that, the plaintiff has sued the defendants Nos.2 to 9, by their names instead of suing them through their official designations and has consequently, violated the provisions contained in section 79, C.P.C. He has submitted that, on this count, the plaint is liable to be rejected and has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Haji Abdul Aziz v. Government of Balochistan 1999 SCM R 16.
6. He has next contended that, no notice has been served on the K.D.A. under Article 131 of the K.D.A.
7. Order, 1957 and consequently the plaint is liable to be rejected. Syed Muzafar Imam, learned counsel for K.D.A. and all other officials of the K.D.A. has adopted the arguments of Mr. Khalid Mahmood.
8. On the other hand, Ms. Kauser Amin, learned counsel for the plaintiff has submitted that, the plaintiff was leased out Plot No,R-4, Block No,33-A St-1 and he is in possession thereof. Her contention is that, the K.D.A. officials by manipulation of record numbered the plot in possession of plaintiff as LS-4 and put the same plot to auction thereby depriving the plaintiff of his lawful rights being lessee of Plot No,R-4. She has pointed out that in prayer clause 1, it has been prayed that the plaintiff may be declared to be lawful owner/transferee of Plot No,R-SL-4, Sector St-1, measuring 120 sq. yards because at the instance of defendant No,15, who according to her is an Estate Agent and in collaboration and collusion with the officials of K.D.A. is engaged in manipulation of record and at this behest the K.D.A. officials have wrongly numbered Plot No,R-4 as LS-4 and without notice to the plaintiff have put the same to auction. She has submitted that according to K.D.A. the documents in possession of the plaintiff are forged and according to plaintiff the K.D.A. officials have manipulated the record and this issue requires recording of evidence and cannot be decided at this stage.
9. She has further submitted that, so far service of notice on K.D.A. is concerned, it has been served on 1-6-1997 and the copy thereof has been annexed with the plaint as Annexure.
10. As regards suing of defendants Nos.2 to 9 by their names, she stated that an opportunity be given to her to amend the plaint, whereby the names of defendants Nos.2 to 9 shall be deleted and they shall be impleaded in their official capacity with their official designation, so as to bring the plaint within the parameters of section 79.
11. I have carefully considered the contentions raised by the learned Advocates for the parties and I am persuaded to agree with the contention of Ms. Kauser Amin that, the question if the plaintiff is in possession of forged documents of the K.D.A. officials have manipulated the record and changed the number of plot from R-4 to LS-4, is a matter of evidence and can be decided after recording of the evidence produced by the parties. So far, objection of non-service of notice is concerned, I am of the opinion that, it is without substance because a copy of notice Annexure F-V/II is available on record. The notice was sent by registered post and the postal receipt is Annexure F-V/I. As regards, the objection of suing the defendants Nos.2 to 9 by their names, is concerned, the learned counsel for the plaintiff has already conceded that, the plaint is required to be amended and I am of the opinion that, no plaint should be rejected on technical ground without giving an opportunity to the plaintiff for rectifying the technical defect.
12. For the foregoing reasons, I am of the opinion that, it is not a fit case for rejection of plaint and consequently, the application under Order 7, rule 11, C.P.C. stands dismissed. The learned counsel for the plaintiff undertakes to file the amended plaint within one week and supply the copy thereof to the learned advocates for the defendants.