2005 PLP 1889 (YLR)

O. VII, R. 11

Rejection of plaint

For the purpose of O. VII, R.11, C.P.C. prima facie the averments in the plaint, in absence of any cogent or admitted documents, could not be taken into consideration. Waqar Muhammad Khan Lodhi for Plaintiffs. Ms. Rizwana Ismail for Defendant No.2. This listed-Application (C.M.A. No.7684 of 2001) under Order VII, role 11 read with section 151, C.P.C. has been tiled' by the defendant No.2, who seeks dismissal of the suit with costs on the ground, inter alia, that the plaintiffs are merely trespassers having no right or legal entitlement to claim any benefit from their predecessor who was merely in permissive possession under a Licence. It was urged that Licence was cancelled admittedly in 1997 as is evident from the Annexure "F" dated 21-3-1997 to the plaint available at Page 77 on the Court's record. It is, therefore, contended that since the predecessor of the plaintiffs, who had passed away in the year, 1991, the right, title and interest of the Licensee not being transferable or heritable could not be transferred or enjoyed by the Plaintiffs nor they may claim any benefit therefrom. In support of her contention, Ms. Rizwana Ismail, learned counsel for defendant No.2 has placed reliance on (i) 2000 CLC 1267; (ii) 2003 YLR 2539; (iii) PLD 1999 Karachi 181; (iv) AIR 1984 Kerala 224; (v) 1987 CLC 1566; (vi) AIR 1975 Rajisthan 178; (vii) AIR 1991 Kerala 306 and (viii) 1994 MLD

527. In all the cases referred to above, it has been held that after expiry of Licence, the Occupant unauthorized possession and not entitled for any equitable relief. In contra, M. Waqar Muhammad Khan Lodhi, learned counsel for' the plaintiffs contends that the question whether the plaintiff's possession is lawful or unlawful cannot be gone into these proceedings under section 9 of the Specific Relief Act. It is contended that the plaintiffs were in possession upto the date, they were dispossessed on 9-6-2001. He further contends that various proceedings pending between the parties, the possession was admittedly that of the plaintiffs. After dispossessing the plaintiffs, the defendant No.2, who was appellant in F.R.A. No.513 of 1998 had withdrawn the same. It is asserted that the plaintiffs could not have been dispossessed from the premises in question without due process of law, In support of his contention, he has relied upon the cases reported as (i) 1982 SCMR 741 and (ii) 2001 SCMR

345. Having heard the arguments, perused the record and carefully examined the case-laws cited at bar. From the record, it appears that indeed the predecessor of the plaintiffs was apparently conferred the distributorship and was put in possession of suit property under the Agreement which is marked as Annexure "H" to the plaint. It also appears that earlier also, the parties were entangled in the legal proceedings including Suit No.833 of 1985 wherein the plaintiffs also sought to be joined as a party to the proceedings, as successor of late Muhammad Ismail. Admittedly, instant suit has been tiled under' section 9 of the Specific Relief Act. Section 9 of the Specific Relief Act, gives protection to a person put in possession of the property. Section does not speak of title or right of the Occupant. Plaintiff in a suit under section 9 of the Specific Relief Act is 'merely required to show that they were in possession and have been dispossessed from the premises in question without their consent and that without due course of law. Such principles have been enunciated by the apex Court in the case reported as 1982 SCMR 741 (ibid). It has been reaffirmed in another case reported as 2001 SCMR

345. To a specific query of this Court, learned counsel for defendant No.2 stated that the possession was taken over of an abundant property as it was not being used by the plaintiffs herein. No legal process appears to have been adopted while taking over the possession. It appears that merely even if the contention of learned counsel is taken on its face value, it shows that the defendant only took over the possession in presence of certain persons. Such affidavits, at this stage, cannot be relied upon for the purpose of determination of veracity of the same. For the purpose of Order VII, rule 11, C.P.C., prima facie, the averments in. the plaint in absence of any cogent or admitted documents cannot be taken into consideration. As regards the right and entitlement of the plaintiffs to continue in occupation or whether, it was licence coupled with the interest cannot be gone into the proceedings under section 9 of the Specific Relief Act. Such questions are alien to the proceedings in this suit. In view of the foregoing reasons and discussions, I do not 'find any merit in the listed application (C.M.A. No.7684 of 2001) under Order VII, rule 11, C.P.C., which is accordingly dismissed and consequently, the application (C.M.A. No.4741 of 2001) under Order XXXIX, rules 1 and 2, C.P.C. is allowed. Ad interim orders granted earliest is hereby confirmed. Both the above-referred listed applications stand disposed off in terms thereof. H.B.T./U-7/K Order accordingly.