2009 PLP 722 (CLC)

ABDUL RASHEED KALWAR, J.

Applicant filed Suit bearing No.684 of 1997 in the Court of IIIrd Senior Civil Judge, Karachi Central on 25-8-1993 with the following prayer:

(a) The plaintiff is an Islamic Madersa and 350 children are getting the education of Hifz-e-Qur'an and Nazra, in a well-developed Madersa at Plot No.ST-2, Sector 5-B, North Karachi which is an amenity plot. (b) By declaring that the Madersa is made up of concrete and block, missionary and not a Semi Pecca Madersa as inspected by the defendant No.2 and the report of defendant No.2 and the notice of defendant No. 1 dated 24-8-1993 are illegal and void. (c) Directing the defendant No.1 to regularize the said plot to plaintiff as per nominal rate and also declare the amenity plot and cancel the auction and also cancel the commercial value of the said plot. (d) By granting permanent injunction restraining the defendants, their attorney, executors, successors, officers, persons or persons working for their or on their behalf from disturbing the peaceful possession of the plaintiff of the suit plot i.e. ST-2 Sector 58/1, North Karachi or demolishing the structure over the suit plot or any part thereof without adopting due process of law. Both respondents filed their joint written statement and thereby took several pleas that suit plot is encroached upon by the plaintiff/applicant which is earmarked for commercial purposes. They also raised legal objections under the heading of additional pleas as to maintainability of the suit, jurisdiction of the Court, value of suit and disclosure of cause of action in the plaint. On the pleadings of parties, the trial Court framed issues and recorded evidence of the parties, witnesses. Finally, decreed the suit in favour of applicant on 29-3-2002. Respondent preferred Appeal No.96 of 2002 which was heard by IIIrd Additional Sessions Judge, Karachi Central and decided vide judgment and decree, dated 19-11-2005. The Appellate Court allowed the appeal and dismissed the suit with observation that applicant has failed to establish his right and title to the property, therefore, suit for declaration and permanent injunction under sections 42 and 54 of Specific Relief Act was barred. Besides being barred by the provision of Article 131 of K.D.A. Order V of 1957 as no notice had been delivered to K.D.A. before filing of the suit. Applicant being aggrieved by the appellate judgment and decree, both dated 19-11-2005, filed this revision application before this Court on 4-2-2006. Learned counsel for the applicant states that applicant is ready to pay cost of suit plot, where Madersa and mosque are already in existence. The N.O.C. was issued to them and suit-land is in their possession since, 1977. He further states that during the pendency of this revision application the applicant made their efforts to find out some way to resolve the dispute outside the Court but applicant did not succeed to resolve the dispute. Learned counsel for respondent has argued that adjoining plot to suit property is also in possession of the applicant which was allotted for Madersa and mosque in the year 1992. The applicant approached the respondent for depositing the cost of the suit property but it has not been allotted so far to the applicant. Learned counsel for the respondent fully supported the judgment of Appellate Court saying that applicant has no right and title of any kind in their favour. He states that evidence of the petitioner was recorded in the trial Court but nothing has been brought on record to substantiate their claim of title before the trial Court. The plot is commercial one. Learned counsel for the respondent stated that the plaint was liable to be rejected under Order VII, rule 11, C.P.C. but such application of the respondent was not allowed by the trial Court. He has stated that under section 42 of the Specific Relief Act prayer of the petitioner as contained in the plaint cannot be granted and relief of injunction being dependent upon main relief for declaration also cannot be granted. He has further argued that revision application is without merit. Heard both the learned counsel and perused the record. It is admitted position that the applicant is neither owner nor lessee of this suit plot. Mere possession since 1977 does not create any right in his favour. The applicant is ready to pay cost/auction price of the plot but the applicant has not supported his assertion with any provision of law which may have created right of prior purchase in his favour. It would be proper to have glimpse of the provision of section 115, C.P.C. "

115. Revision.

1[(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears

(a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, (c) the High Court may make such order in the case as it thinks fit]. No jurisdictional defect in it in, exercise by the Court or material irregularity has been pointed out by the learned counsel in the impugned judgment passed by Appellate Court. Scope of section 115, C.P.C. is very limited. The revision filed by the applicant is not containing any ground, which may bring revision within the four corners of section 115, C.P.C. In order to see that prayer in the plaint can be granted under the provisions of sections 42 and 54 of Specific Relief Act. Sections 42 and 54 of the Specific Relief Act, are reproduced herein under for the aforesaid purpose:

"

42. Discretion of Court as to declaration of status.

Any person entitled to any legal character, or to right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Bar to such declaration.

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief that mere declaration of title, omits to do so. "

54. Perpetual injunctions when granted.

Subject to the other provisions contained in or referred to by, this chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication. When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act. When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases (namely):

(a) Where the defendant is trustee of the property for the plaintiff; (b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused by the invasion; (c) Where the invasion is such that pecuniary compensation cannot be got for the invasion; (d) Where it is probable that pecuniary compensation cannot be got for the invasion; (e) Where the injunction is necessary to prevent a multiplicity of judicial proceeding." From the perusal of the prayer in the plaint it is clear that no prayer as to title, legal character or right in the suit property within four corners of section 42 of the Specific Relief Act has been made. Nothing was shown from the record that any obligation existed in favour of the applicant whether expressly or impliedly. There is no contractual relationship between the applicant and the respondent which may have created any contractual obligation in his favour. The applicant has not established any right to property. Requirements for grant of perpetual injunction as laid down in section 54 of the Specific Relief Act are conspicuously lacking from the case of the applicant. The applicant cannot seek protection of law under sections 42 and 54 of the Specific Relief Act when he has no legal character, right to the property and does not fulfil the requirements of law for grant of perpetual injunction in his favour, therefore, I do not see merit in the revision application, and same is dismissed in limine with no order as to cost. S.A.K./M-38/K Revision dismissed.