2000 PLP 895 (MLD)

The first application i.e. C.M.A. No. 1800 of 1998 under Order 39, Rules 1 and 2, C.P.C. has been filed by the plaintiffs seeking an order of injunction against the defendant in respect of the disputed plot bearing No.CC‑

8. Block‑8, Clifton, Karachi and the second application i.e. C.M.A. No.4240 of 1998 under Order 7, Rule 11, C.P.C. has been filed by the defendants Nos.4 and 5 for rejection of the plaint.

2. The case of the plaintiffs is that they are the residents of Block‑8, Clifton, Karachi; the plot in case being an open space/farm in‑between the Plots Nos.CC‑7 and CC‑6 have been illegally declared/converted into a commercial plot and has been numbered CC‑8; such conversion of an open space/farm is in contravention of the provisions of K.D.A. Order and other relevant laws; the said open space/farm was for the benefit of the residents of the area and by such conversion they have been deprived of such benefit. The plaintiffs had earlier filed a Constitutional Petition No.D‑748 of 1995 in respect of the same subject‑matter which was disposed of on 3‑12‑1997 with the observation that since there are controversial matters involved in the petition, therefore, the same cannot be decided except by recording evidence on the documents produced by the parties and, therefore, a suit was a proper remedy; the petition was dismissed as not maintainable.

3. The case of the defendants Nos.4 and 5 is that the plot in case was never an amenity plot and it was a commercial plot from the beginning and in 1990 it was given commercial number as CC‑8 and was allotted to one Abdul Saeed Shaikh; the said Abdul Saeed Shaikh sold the said plot to Mrs. Vanita Saran Acharia and the KDA effected the mutation in her favour the defendant No.5 purchased the said plot from Mrs. Vanita Saran Acharia in 1994‑95 and a transfer/mutation was effected in their favour by KDA in February 1995; the suit of the plaintiffs is not maintainable as it is barred by res judicata; the matter has finally been adjudicated upon by High Court in Constitutional petition; the plaintiff cannot seek any relief in this case; and suit is barred by law of .limitation; according to the plaint the conversion took place in 1990 and the suit has been filed in 1998; the plaintiff failed to seek permission in the Constitutional petition to file a fresh suit and as such it is barred under Order 23, Rule 21, C.P.C.; no cause, of action accrued in favour of the plaintiff against the defendants Nos.4 and 5; the plaintiffs failed to make out any prima facie case for interim injunction; balance of convenience is in favour of the defendants and not in favour of the plaintiffs; the plaintiffs are not likely to suffer irreparable loss and it is the defendants who will be put to irreparable loss; the plain is liable to be rejected under Order 7, Rule 11, C.P.C.

4. The case of the KDA is that the disputed piece of land was not an amenity plot but it was an open/vacant space which was declared as Commercial plot and numbered as CC‑8; as the plots adjacent to and around the said plot were commercial, the suit is not maintainable as notice under Article 131 of KDA Order has not been served on the KDA which is a condition precedent for filing of the suit.

5. Heard the counsel, perused the pleadings and the' documents relied upon by them. It is pertinent to note that prior to this suit the plaintiffs filed Writ Petition No.748 of 1995 which was disposed of on 3‑12‑1997. It is advantageous to reproduce relevant paragraph of the judgment.

6. While discussing the merit of the case, the High Court has observed in para. 7 as under: "In the instant case, the petitioners have placed reliance upon a plan Annexure 'A', photo‑copy of which has been filed whereas the respondents have denied the authenticity of the said Annexure showing the plot in dispute as Farm. In rebuttal the respondents have filed Master Plan 1958 as Annexure R/l, Master Plan of 1972 as Annexure R/2 and schedule of Master Plan 1972 as Annexure R/3. Master Plan (part portion) lay out plan Clifton Block‑VIII, 1985‑87 up-to-date with schedule as Annexure R/4, site‑plan of CC‑E Block‑VIII, Clifton as Annexure R/4, site‑plan of CC‑8 Block‑VIII_ Clifton as Annexure R/5, public notice. dated 23‑4‑1990 as Annexure R/6, public notice dated 22‑7‑1994 published in daily Dawn as Annexure R/7, possession order, dated 19‑3‑1990 as Annexure R/8, allotment order, attested by KDA as Annexure R/9, transfer order of commercial plot CC‑8, Clifton attested by KDA as Annexure R/10, approval plan from Clifton. Cantonment. Board, dated 7‑12‑1994 as Annexure R/11, transfer order in favour of respondent No.4 in respect of Plot No.CC‑8, Block‑VIII, Clifton attested by KDA as Annexure R/12 and lease deed, dated 16‑3‑199'5 in favour of respondent No.4 as Annexure R/13. The petitioners have based their case that the plot in dispute was a Farm, therefore, the same being amenity plot could not have been converted to a commercial plot in absence of compliance of KDA order and regulations whereas the ‑above Annexure filed by the respondents contradict the said fact that the disputed plot ‑was a Farm. The dispute as to whether the plot m question was Farm or was a commercial plot considering that admittedly adjacent plots are commercial hence the said fact would require evidence keeping in view the documents produced by the respective parties. The dispute in fact as said above can be decided only after recording of evidence of parties and such questions of fact cannot be agitated and decided in the Constitutional petition."

7. While concluding the judgment the High Court in para. (9) observed as under:‑‑ "In view of aforesaid reasonings, we find that disputed/intricate questions of facts are involved in this petition which would need elaborate investigation, inquiry and evidence which cannot be undertaken in the writ jurisdiction of the Court considering that both parties have disputed even on the documents produced by them therefore, this petition is not maintainable and is hereby dismissed."

8. Before dealing with the application under Order 39, Rules 1 and 2, 1 .C.P.C. it will be appropriate to discuss the questions raised in the applications under Order 7, Rule 11, C.P.C. There are two main contentions is raised by the defendants in favour of the application one is that the suit is barred by principle of res judicata and the other is that the suit is barred by limitation. A reading of the quoted observations in Constitutional Petition No.748 of 1995 shows that the petition was not disposed of on merits but on the ground that the questions raised by the parties required a full‑fledged inquiry in the suit and the same could not be adjudicated upon in the writ jurisdiction.

9. The suit is, therefore, not hit by the principle of res judicata. The ~next contention as to the limitation is that the conversion of the plot took in 7990 and a suit has been filed after 8 years. The facts of the case are peculiar to nature. According to KDA it was an open space vacant plot up to 1990 and thereafter it was given a number of commercial plot and was allotted to one private party whereafter it was sold to other persons who got it transferred in their respective names which continued up to 1995 when the mutation took place in favour of the defendant No.5; and after 1995 the defendant No.5 started raising construction on the disputed plot and the plaintiffs filed. writ petition before the High Court which was disposed of as mentioned above; the plaintiff thereafter filed this suit. Prima facie it seems that the suit is not barred by limitation and it will. not be proper to non‑suit the plaintiff at this stage. These are, however, tentative findings on the application under Order 7, Rule 11, C. P. C. and the defendants are at liberty to raise these points again at the time of final hearing and, therefore, instead of disposing of this application on merits it is ordered that the same be heard alongwith the main suit.

10. While dealing with the application under Order 39, Rules 1 and 2, C.P.C. it will be appropriate to keep in view quoted observations of the High Court in the Constitutional petition. In the absence of detailed scrutiny through evidence this Court is not in a better position than the High Court which discussed the facts of the case and very categorically observed that the intricate questions of facts raised by the parties would need elaborate investigation, inquiry and evidence which can only be done after the evidence is recorded and documents are produced by the respective parties. This Court also at this stage is not in a position to give any final findings either way' as it is likely to prejudice the case of the parties. All the questions raised and documents produced by the parties require a detailed scrutiny during the evidence and thereafter at the time of final arguments. In case this application is dismissed, it will be very difficult to preserve the disputed plot as it will change hands and third parties' interest will be created and there is likelihood of the multiplicity of the litigation; and it will be impossible to retrieve original position of the plot if the plaintiffs ultimately succeed. The counsel have referred to a number of case in support . of their case but in presence of the quoted observation of the High Court in Constitutional Petition No.748 of 1995 which has been relied upon by both parties it is not necessary to discuss the referred cases.

11. In the circumstances, the application is allowed and the interim order passed on 13‑3‑1998 is hereby confirmed and the parties are directed. to maintain status quo till the final disposal of the suit. H.B.T./G‑6/K Application accepted.