2006 PLP 810 (MLD)

SYED JAMSHED ALI, J.

This is a revision petition by the plaintiff who has failed before the learned two Courts. It arises out of the following circumstances.

2. On 1-9-1994, the petitioner filed a suit for declaration with the averments that he was owner in possession of the house which was purchased by him from one Muhammad Ibrahim. On 6-7-1967, said Muhammad Ibrahim had submitted a building plan which was rejected but he succeeded before the Civil Court. However, ultimately this Court decided the matter against the said Muhammad Ibrahim. The grievance in the suit was against the notice dated 16-7-1994, issued by the Municipal Corporation Sialkot, the respondent herein for demolition of the house of the petitioner.

3. The suit was contested. The position taken was that the issue had been decided by the Honourable Supreme Court of Pakistan and, therefore, the suit was not maintainable. It was further asserted that the plaintiff had encroached a portion of the public street. The respondent also filed an application under Order VII Rule II for the Code of Civil Procedure for rejection of the plaint. It was contested. However, vide order dated 6-4-1995, the learned trial Court found that the plaintiff as successor-in-interest of Muhammad Ibrahim was bound by the decisions already rendered. It was further noted that Muhammad Ibrahim aforesaid had gone upto the Honourable Supreme Court of Pakistan but the matter was decided against him. Accordingly, the suit was dismissed although the plaint should have been rejected. The petitioner filed an appeal which was dismissed vide order dated 18-2-1997.

4. The learned counsel for the petitioners contends that the notice impugned in the suit was not subject-matter of the previous litigation. He further submits that the other ground to assail the said notice was that no action was being taken by the respondent against the similarly placed persons who had raised construction in the same Mohallah in which the house of the petitioner is situated, therefore, the impugned notice was mala fide, the provisions of Local Government Ordinance 1997 were not applicable and that the Municipal Corporation had passed a resolution to regularize the construction of the petitioner. All these questions, according to him disclosed a triable issue and, therefore, the suit could not have been summarily dismissed unless the pleadings in the previous litigation and the judgments rendered therein were formally brought on the record and the petitioner allowed an opportunity to meet the said objections. He also maintains that for the purpose of rejection of the plaint at the initial stage averments of the plaint only could be looked into and not the defence. The further grievance is that even an issue of law was not framed. Reliance was placed on Muhammad Iqbal and 3 others v. Mst. Rehmat Bibi through Legal Hiers (1998 CLC 1:1), Naya Daur Motor (Pvt.) Limited v. Pakistan Banking Council through Chairman, Habib Bank Plaza, Karachi and 7 others (PLD 1997 Karachi 208) and Haji Mir Alam Shah through Legal Heirs v. Adam Khan and 16 others (2004 CLC 1100).

5. On the other hand, the learned counsel for the respondent has defended the impugned judgments. According to him neither the declaration nor the injunction prayed for could be granted to the petitioner because the construction of the house purchased by the petitioner was illegal as the building plan filed by the predecessor-in?-interest of the petitioner stood rejected as a result of judgment of this Court in R.S.A. No.897/67 decided on 20-2-1984, whereby the suit of said Muhammad Ibrahim was dismissed.

6. The submissions made by the learned counsel for the parties have been considered. Undisputedly, the house which the petitioner had purchased was constructed without the approval of the building plan. Therefore, the illegal construction raised by the petitioner could not be sanctified because grant of declaration is a discretionary relief. Likewise, this Court is also exercising discretionary revisional jurisdiction. It may also be observed that the petitioner, in his plaint, had referred to the decision of this Court but had suppressed C.P. No.979-84, filed by Muhammad Ibrahim before the Honourable Supreme Court of Pakistan C which dismissed on 13-9-1988. In any case the decision of this Court was referred to in the plaint which could not only be referred to by the learned two Courts but was rightly relied upon. I will also like to observe that judicial notice can be taken of the judgment of the superior Courts. The contention that only the averments of the plaint could be looked into and not the defence, has not in the circumstances impressed me. The provisions of Order VII Rule 1 of. the Code of Civil Procedure are not exhaustive and if initiation of litigation amounts to abuse of the process of the Court, the plaint could be rejected at the initial stage. It has has rightly been observed by the learned two Courts that the petitioner was bound by the earlier decisions to which his predecessor was party.

7. The judgments cited by the learned counsel for the petitioner proceed on their own facts. In this case the net effect of the judgment of this Court in R.S.A. 896/67 and C.P. No.979/84 referred to above is that the suit of Muhammad Ibrahim against rejection of his building plan stood dismissed and the construction of the house by him was ex facie H illegal which could not be protected. The plea that the respondent had regularized the construction of the petitioner was not supported by any prima facie evidence.

8. Accordingly, this revision petition is dismissed with the modification that instead of dismissed of the suit as directed by the I learned trial Court, the plaint in the suit filed by the petitioner stands rejected. S.A.K./F-115/L?????????????????????????????????????????????????????????????????????????????????? Revision dismissed.