P L D 1988 Karachi 433 (PLP)

This revision application is directed against the judgment and decree passed by the learned IVth Additional District Judge, South Karachi dated 8‑10‑1986 whereby he set aside the order of the learned IIIrd Senior Civil Judge, Karachi dated i1‑8‑1981, whereby he suo motu rejected the respondent's plaint under Order VII, Rule 11, C.P. C.

2. Brief facts leading to these proceedings are that the applicant is the real sister of the respondent. The property in dispute bearing No. GK‑2 Survey No.22, Old Survey No. C‑2/19, Kharadar, Karachi, originally belonged to the father of the parties, who had purchased the same from one Yousuf Ali through a Registered Deed. The respondent claims that this property was orally gifted to him by his. father, who also subsequently reduced in writing in the shape of Declaration on 3‑2‑1971.

3. Admittedly the father of the parties died in 1972. It is alleged by the respondent, that the applicant/ Defendant requested his permission to open a school and Beauty Parlour in the said property which request he acceded to. It is further averred, that after granting the permission, the respondent left for U.S.A., and therefore, the applicant took complete possession of the immovable property in the suit. In 1986 the plaintiff /respondent is said to have asked the applicant to vacate and hand over possession of the property to the respondent, but the applicant allegedly neglected, avoided and refused to vacate the premises or put the respondent in possession of the premises. It is further alleged, that the applicant started demolishing the premises without permission of the respondent in order to deprive him of his valuable right in the building in spite of the fact that she was not entitled to behave in such fashion. The respondent, therefore, filed a suit for injunction before the trial Court praying therein for permanent injunction against the applicant restraining her from demolishing, altering, renovating, changing and/or reconstructing the building in suit and also restraining her from selling, negotiating, transferring, alienating in any way the property in question.

4. The respondent /plaintiff had also filed an application under Order XXXIX, Rules 1 and 2, C.P. C. in the said suit. The applicant filed a counter‑affidavit resisting this application and disclosed certain facts in the said counter‑affidavit disputing the title of the respondent over the property, and claiming the right in the property. While hearing the application, the learned trial Court came to the conclusion, that the title was in dispute and the Defendant /Applicant was in ,Possession of the ease property, and therefore, in absence of gayer for declaration and possession the suit for injunction alone was riot maintainable, and therefore, rejected the plaint under Order VII, rule 11, C.P.C. In appeal the learned Appellate Court was of the opinion that while rejecting the plaint under Order VII, Rule 11, C .P.C. the trial Court has erroneously considered the averments raised by the applicant /defendant in his counter‑affidavit, and therefore, this order was not legal and liable to be set aside.

5. It is conceded by Mr. Nisar Ali yearned counsel for the applicant that the leaned Appellate Court has rightly held, that while rejecting the plaint under Order. VII, Rule 11, C.P. C. the trial Court has only to look into and take into consideration the pleas raised by the plaintiff in his plaint and it cannot base its finding on the pleas raised by the defendant or documents produced by the defendant in support of his contention. However, he points out that the finding of the learned trial Court was not only based on the contention of the applicant /defendant raised in the counter‑affidavit, but was also based on the facts disclosed in the plaint. He has pointed the observation of the learned trial Court which may be reproduced as under: ‑ "From plain needing of the plaint it would appear that title is in dispute and the defendant is in possession of the case property since long where see is running a school as well as a Beauty Parlour."

6. The possession of the applicant of the premises in dispute is admitted in para‑4 of the plaint. The only point that requires consideration is whether the facts as disclosed in the plaint prima facie show any dispute over the title between the parties. From the plaint it is clear that the property in suit belonged to the father of the parties, who has died in 1972. From the plaint it is also clear that the applicant was daughter of the deceased owner and ordinarily she was entitled to her share of inheritance of this property. However, the plaintiff /respondent claims the right over this property by way of oral gift from the father. From para‑4 of the plaint it further appears, that though he had granted the request of the applicant for starting School and Beauty Parlour in the building in question, but it is averred that it was in absence of the plaintiff, that the Defendant/Applicant took complete possession of the disputed property. In para‑5 it is averred that though the respondent asked the applicant to vacate the premises, but she refused to vacate or hand over possession to him. In para 6 it is averred that the applicant /defendant is intending to demolish the building in order to deprive the plaintiff of his valuable rights in the building and it is further averred that she is not entitled to behave in such a fashion. In para 7 the respondent has expressed his fears that there was danger of alienation of property to completely deprive the plaintiff of the ownership in the building in question.

7. It is argued by Mr. Nisar Ali learned counsel for the applicant that the averments made in the plaint clearly show that title of the plaintiff over the property is not admitted, but is disputed by the respondent who is claiming her right over the property by taking possession of the same and by doing other alleged acts with respect to the property which are ordinarily done by owners. It is further submitted by the learned counsel for applicant that according to para‑4 of the plaint the respondent No.l is alleged to have permitted the applicant, to occupy the premises in dispute for the purpose of opening of school and Beauty Parlour. In other words, he claims that the applicant is his licensee, Admittedly there is no averment in the plaint that any rent was paid or settled. In para 5 it is stated, that the respondent asked the applicant to vacate and hand oven the possession of the property to the plaintiff so that he may use the premises in his own interest, but the applicant refused to vacate. Thu‑‑, ever, ' the applicant is held to be licensee of the respondent still this demand by the respondent asking the applicant to vacate the premises amounts to revocation of such licence under Section 61 of the Easement Act. After the revocation of the licence, the licensee would not be deemed to be holding the possession on behalf of the licensor, but her possession would be adverse to that of licensor." It is further submitted, that under the circumstances the respondent cannot be deemed to be in constructive possession of the premises through the applicant. It is further contended, Mat even from the pleadings in the plaint it is clear that there is dispute between the parties over possession and the respondent being out of possession had to file suit for possession before he could seek any injunction against the applicant. It is also contended that the respondent has made vague averments in the plaint and has tried to suppress the facts. In the plaint it is not stated as to when he granted the alleged licence to the applicant, nor does he state when he made demand from the applicant to vacate the premises. It is contended, that the respondent has come to the Court with unclean hands and as such his plaint was liable to be rejected on this ground, and he was not entitled to any injunction. Reliance is placed on 1971 D L C 640, wherein it is held, that "while considering the question of issuance of temporary injunction, the Court has to decide the point of non‑maintainability and if mere reading of the plaint discloses that the suit was not maintainable, the plaint could be rejected under Order VII, Rule 11, C.P.C." In 1969 D.L.C. 147, it was held by a Division Bench, that "the suit by father for mere declaration, that his son has been in possession of the suit property as benamidar was not sufficient as prayer of consequential relief for recovery of possession was essential." Similar view was taken in 1969 D L C 416, wherein it was held, that "the suit for declaration was not maintainable under sections 39 and 40 of the Specific Relief Act, where the plaintiff not in possession of property, sought cancellation of instrument of title only, although he could also claim decree for possession." In PLD 1983 S C 344, their Lordships held that "relief of injunction claimed in the suit could not be granted in a matter of breach of contract, as specific performance was proper and clearly efficacious remedy. Such suit was held to be hit by section 56(1) of the Specific Relief Act". In the instant case it is clear from the aforesaid discussion, that even from pleadings of the plaint it is clear that there is dispute between the parties over the possession of property and the applicant as alleged in the plaint is refusing to deliver the possession of the disputed property to the respondent and is allegedly doing such acts which are likely to deprive the respondent of his right of ownership of the property. Thus, the applicant is impliedly disputing the title of the plaintiff /respondent. The title of the respondent over the property in such circumstances cannot be considered to be undisputed. The proper and efficacious remedy in such case would be a suit for declaration, possession and injunction and not for injunction alone. Section 56(i) of the Specific Relief Act., provides that injunction cannot be granted when equally efficacious relief can be certainly obtained by any other usual mode of proceedings except in the case of breach of trust". Reliance is also placed in this context on A I R 1951 Lahore 494, wherein it is held, that no injunction could be granted in a case where the plaintiff is able to claim some other effective relief. For the aforesaid reasons I find that the learned Civil Judge has rightly held that from the plain reading of the plaint it would appear that the title was in dispute and the possession of the case property teas with the applicant t nave already pointed that even this possession is disputed and the applicant is admittedly refusing to hand over the possession of the premises to the respondent when demanded by him. Under the circumstances the learned Rent Controller has rightly rejected the plaint under Order VII, Rule 11, C.P. C. as suit for injunction alone would not lie under the circumstances of this case without prayer for declaration with regard to title and possession. The impugned judgment of learned appellate Court appears i to be based on misreading or non‑reading of the pleadings in the plaint and is, therefore, liable to be set aside. I accordingly set aside the impugned judgment and decree and restore the judgment/order of the Civil Court rejecting the plaint under Order VII, Rule 11, C.P. C. The revision application is disposed of in the above terms with no orders as to costs. A.A. /F‑52/ K Revision accepted.