2017 PLP 434 (YLRN)

SALAHUDDIN PANHWAR, J.

By order dated 19.12.2011 passed by Division Bench of this Court, this Court was directed to decide maintainability of Suit at first stage, accordingly, learned counsel for the plaintiffs was put on notice to satisfy the maintainability. In response he has argued that plaintiffs were granted Sanad in 1996-97 as well Form-II was issued by Mukhtiarkar West. He has also emphasized on paragraphs Nos. 4, 5, 6, 8 and 9 of plaint, which are reproduced herewith:-- "

4. That the village in question was sanctioned as per letter No.SGAS/195 of 1993 dated 29.04.1993 by the Deputy Commissioner Karachi East is annexed herewith and marked as Annexure 19.

5. That the existence of the village has not been denided by the present regime who have issued a Residential Certificate in the name of Imam Ali son of Dhani Bux, resident of Dhani Bux Goth, which certificate was issued by the Nazim/Secretary Union Counsel, dated 7.9.2006 is annexed herewith and marked as Annexure "20".

6. That letter No.223 dated 11.3.1999 was issued by the Deputy Commissioner Malir, holding that Dhani Bux Brohi was the real owner of the village. The said letter is annexed herewith and marked as Annexure 21.

8. That recently the Defendant No.4 along with other staff pertaining to Enforcement Cell including the D.O. AND D.D.O came at the site along with bulldozers and other machineries and without issuing any notice, they started demolition, construction made by the plaintiff and other villagers sitting there and having business there. In spite of all protest with the help of the Enforcement Cell and Police they demolish all the constructions which were pucca contraction in nature and they plaintiffs and other villagers had to sit there under shadow of sky for the whole night and thereafter they had arranged.

9. That the demolition of the premises of the plaintiffs was against the laws, since the plaintiffs were sitting there since, long, having valid documents of title the regularization of the village was yet to get a final shape and the properties of the plaintiff in question can not be demolished without notice to the plaintiff and all those others which has been done with mala fide intention at the instance of the defendant No.4, who had no concern with the land in question. Even otherwise if it is taken that the land in question was allotted to the defendant No.4 then that was also not in accordance with law since the land were in use and enjoyment of the plaintiffs, having genuine and valid title documents in their favour and without cancellation of the same no harsh action could have been taken and for that purpose a regular notice was necessary which has been deliberately not issued since the defendant No.4 being influential person wanted Khajao the lands having been mixed up with the other authorities. They had no legal authority to get the land at all its given to them." and has prayed that the plaintiffs are lawful owners occupiers/inhabitants of Village Dhani Bux Brohi which is Katchi Abadi awaiting for regularization and the defendants have no concern with the same.

2. Whereas, learned counsel for defendant No.4 vehemently argued that plaint is not maintainable in its present form as plaintiffs have contended that they were granted Sanad by the Sindh Gothabad Scheme, simultaneously their stand is that they are residing in Katchi Abadi, and seeking regularization of Katchi Abadi, which is the domain of City District Government, whereas, issuance of Sanad is subject of Province of Sindh, documents appended with the plaint are forged and subject matter land is 20 acres which was granted to the defendant No.4 in 1987.

3. Counsel for the Defendant No.2/CDGK/KMC contends that suit land is not pertaining to City District Government hence regularization of suit land is not jurisdiction of defendant No.2, in fact it pertains to defendant No.1, which is Province of Sindh.

4. Heard and perused the record.

5. I am conscious of the fact that scope of maintainability falls within the criterion as enshrined under Order VII Rule 11, C.P.C. I am equally conscious that the law undoubtedly insists that 'Courts must put an end to the litigation at the very initial stage when on account of some legal impediments full-fledged trial will be a futile exercise', as held in the case of Noor Din and another v. Additional District Judge, Lahore and others (2014 SCMR 513). Since, rejection of plaint under Order VII, Rule 11, C.P.C. is an exception to general principle that every lis should be decided on merits hence exercise of such jurisdiction would only be justified where either on examination of averments of plaint or on taking into consideration those undisputed rather admitted documents or facts, even if brought by defence, the plaint is prima facie found "barred by some law or legal impediments". Such exercise normally shall not be available for dismissal/rejection of a lis merely with reference to some claims of defence or denial of status of plaintiff or legality of documents under which plaintiff claims. 'A denial to status/ character of plaintiff or title document of plaintiff shall require determination thereof by framing appropriate issue and allowing parties to lead their respective evidence but it legally cannot be a ground within meaning of Order VII, Rule 11, C.P.C. because it permits rejection of those plaint only which prima facie are found "barred by some law or legal impediments. A presumption about certain facts even would also not justify rejection of plaint because a presumption legally cannot be equated to that of 'admitted fact' as held in the case of Munir Ahmed v. Mst. Shirin Akhatar and others (2015 SCMR 441) that: "

7. This being the position, we feel that on the basis of application under Order VII, Rule 11, C.P.C., moved by respondents, disposal of the suit through the impugned order was uncalled for as dismissal of the Suit on mere presumption about certain facts is not warranted by law, more particularly, when a party is contesting the suit and wants its disposal on merits, and has also filed an application for amendment in the pleadings."

6. Reverting to merits of the case, it would be conducive to refer paragraphs Nos.2, 4 and 5 of written statement filed by Province of Sindh and Mukhtiarkar which show that the documents as claimed by the plaintiffs are not genuine and defunct Deputy Commissioner West was not competent to grant such land as well it is stated that letter issued by Nazim of UC Gujro is not authenticated document regarding sanction of land. It is also claimed by the defendant No.4 that in 1987 land was allotted to their society by the government and thereafter, with the police help, they got possession as there was some Kacha Construction.

7. From above it appears that plaintiffs are claiming the title over the land on the basis of certain documents issued by Deputy Commissioner, UC Nazim and Muhhtiarkar West, whereas, defendants Nos. 1 and 3 are disputing those documents as well authority of Deputy Commissioner, besides defendant No.4, who is a society, is also claiming their title. Thus, prima facie, either party has respective claim and title; denies legality and validity of document(s) of each other. Further, it is also claim: that plaintiffs were in possession of subject matter, who raised construction has been removed/demolished by the defendant No.4 which the plaintiffs also challenge as not legal. The suit of the plaintiff for declaration and permanent injunction is otherwise maintainable within the meaning of Specific Relief Act hence without proper adjudication of respective claims it shall not be within spirit of administration of justice to knock out the plaintiffs merely for reason that defendant No.4 denies or disputes the claims and title of the plaintiffs. Admittedly, plaintiffs are out of possession, suit is pending since 2007; issues were framed on 10.05.2010 and matter was remanded back by Division Bench of this Court by order dated 19.12.2011.

8. Worth to add here that, it is settled principle of law that one should not be knocked out on the technicalities and if someone, who approaches the Court, is entitled for any relief that Court can after adjudication grant such relief. Admittedly, application for amendment with regard to restoring of possession is on record which is to be argued, accordingly, suit is held to be maintainable under the law and the same is fixed for evidence. Commissioner for recording of evidence was appointed and the same is pending with Commissioner. At this juncture, with the consent of parties, Mian Mohsin Raza, Advocate (Suite No.18-C, 4th Floor, Sasi Arcade, Block-7, Main Clifton, Karachi) is hereby appointed as a new Commissioner to record evidence. He would be entitled to receive Rs.15,000/- per witness to be borne by the respective parties. Office to issue notice to the learned Commissioner. It is made clear that learned Commissioner, in case of deliberate delay in examination of witnesses by party, would be entitled to close the side of either party or impose cost. The Commissioner shall return the commission duly executed within three months.

9. Office shall call record and proceedings pending before earlier Commissioner and shall be handed over to the new Commissioner. C.M.A. No. 7756 of 2010. Prima facie, plaintiffs are out of possession, accordingly, application for injunction earlier pending has become infructuous and dismissed. ZC/C-27/Sindh Application dismissed.