2007 PLP 1034 (YLR)

FAISAL ARAB, J.

In 1994, the plaintiff married defendant No.4 they then left for United States as defendant No.4 was permanently settled there. Out of their wedlock two children, Zainab Alika Lilak and Daniel Ali Lilak were born. On account of estranged relations their marriage broke up. Therefore, proceedings for divorce and distribution of assets were filed in the Court of appropriate jurisdiction in the United States. With the consent of both the parties, the Court referred the dispute with regard to the distribution of movable and immovable assets for Arbitration. The Arbitrator gave his award on 3-3-2003. The award was made rule of the Court and accordingly three properties were to be transferred in the name of the plaintiff. Three relinquishment deeds were also prepared. Two in relation to properties situated in the county of Arapahoe, State of Colorado, USA and third in relation to Plot No.124-B, Khayaban-e-Khyber, Phase-8 measuring 666 square yards in Pakistan Defence Housing Authority, Karachi. On 3-4-2003, the plaintiff informed Defence Housing Authority i.e. defendant No.1 about the relinquishment of defendant Nd.4's interest in the aforesaid plot in favour of the plaintiff. The Defence Housing Authority advised the plaintiff to file appropriate proceedings in Court for execution of the award. It is also the case of the plaintiff that after the award dated 3-3-2003, the plaintiff came to know that defendant No.4, sold the plot in question to defendant No.2, who in turn sold the plot to defendant No.3. According to the plaintiff, this was done to defeat the award. In these circumstances, the plaintiff was constrained to file the present suit. In the suit the plaintiff sought following reliefs:-- (a) That considering the award/ judgment and decree of the Court, passed by the District Court of Arapahoe, County Colorado, USA declare that the plaintiff is entitled to get the transfer of the Plot bearing No.124-B, Khayaban-e-Khyber, Phase-8, D.H.A. Karachi with the direction to the Defence Housing Authority to transfer/ mutate the said plot in favour of the plaintiff and the defendants may be directed to hand over vacant and peaceful possession of the said plot to the plaintiff. (b) It may be declared that the mutation of the plot in suit in the name of Jamal Akbar is mala fide and illegal and the same may be set aside. Accordingly it also be declared that the sale agreement/ sale-deed entered into between the defendants Nos.2 and 3 is illegal and null and void. (c) Judgment and decree may be passed against the defendant No.4 for child support at the rate of US $ 916.71 per month w.e.f. April 1, 2003 upto June, 2004 amounting to US $ 14.667.00 and future child support at the same rate till the minor become major. (d) Permanent injunction may be granted against the Defence Housing Authority, Karachi restraining them from transferring or mutating the plot in suit in favour of any other person except the plaintiff and all other mutation if made by it may be set aside. (e) Cost of the suit be awarded. Defendant No.3 has moved C.M.A. 6194 of 2006 under the provisions of Order VII, rule 11, C.P.C., seeking rejection of the plaint on the following grounds:-- (a) That the plaintiff has filed the suit for declaration, temporary and permanent injunction and recovery of amount on the basis of an Arbitration award dated 3rd March, 2003 wherein the defendants Nos.1 to 3 were not party. Hence the suit is liable to be dismissed as it combines two alleged causes of action i.e. monthly support and maintenance recovery and entitlement to property against a hotch potch (unconcerned) defendants: (b) That the award dated 3-3-2003 cannot be termed as a decree and is not executable under section 44-A, C.P.C., explanation 3(b). In this regard defendant No.3 reply on PLD 1982 Karachi 107. (c) That the suit is not maintainable under section 13 Civil Procedure Code, 1908, in this regard -defendant No..3 rely on 1986 MLD 710. (d) That for enforcement of an award or Foreign Decree in Pakistan certain requirements under Pakistan Law had to be fulfilled but this has not been done by the plaintiff. (e) That in paragraph 11-A of award there is no mention of the suit plot and the phrase used in "land in Pakistan". This should have resulted in no proceedings at all in this country. (f) That the suit is barred under Specific Relief Act. (g) That no cause of action has accrued to the plaintiff against the answering defendant for declaratory decree could be passed in the circumstances, mentioned in the plaint, hence the plaint is liable to be rejected under Order VII, rule 11, C.P.C. From the contents of paragraph 3 of the plaint it is evident that with mutual consent of the plaintiff and defendant No.4 that the matter was referred to arbitrator for distribution of movable and immovable assets. The arbitrator gave his award on 3-3-2003 in USA which was made Rule of the Court. As the suit plot was transferred by defendant No.4 in favour of defendant No.2, who in turn transferred it to defendant No.3, the plaintiff was left with no alternative but to file the present suit. From the contents of the plaint it is evident that the plaintiff is seeking enforcement of award which was outcome of an agreement of exchange of several properties including plot in question. No provision of law prevents a party from seeking enforcement of a contract reached with another party anywhere in the world in relation to a property located in Pakistan by filing suit in Court of appropriate jurisdiction in Pakistan within whose jurisdiction the property is situated. In addition to the above, I also find that in prayer clause (c) of the plaint, the plaintiff has claimed maintenance from defendant No.4 for their child. It is settled law that where a suit is maintainable even in relation to one out of several reliefs in the plaint, the application under Order VII, rule 11 is not maintainable as plaint cannot be partially rejected. In any case, as all the reliefs could be sought by the plaintiff through the present suit, therefore, the application filed under Order VII, rule 11, C.P.C. is misconceived. Vide short order passed on 16-10-2006 the listed application filed by defendant No.3 was dismissed. The above are the reasons for the same. H.B.T./Z-5/K Application dismissed.