P L D 2003 Karachi 466 (PLP)

E. Direction be made to the defendant No. 1 to hand over the peaceful vacant physical possession of the suit property to the plaintiff. F. Grant the damages in the sum of Rupees Four Million against the defendants Nos. 1 and 2 at Two Million from each defendant. G. Cost of the suit. H. Any other relief which this Honourable Court may deem fit and necessary in the circumstances of the case may also be granted. Heard Mr. Z.U. Mujahid, learned counsel for the appellant, Mr. Mahmood Habibuilah, learned counsel for respondent No.1, Mr. S.I.H. Zaidi, learned counsel for respondent No.2, Mr. Manzoor Ahmed, learned counsel for respondents No.4, 5 & 6 and Mr. Muhammad Sarwar Khan, Additional Advocate-General, Sindh. Mr. Z.U. Mujahid, learned counsel for the appellant, argued that the plot in question does not belong to respondent No.2 and as such they have wrongly and illegally executed sub-lease in favour of respondent No.

1. The learned counsel further contended that the plot in question is owned by the K.M.C, respondent No.4, who is the only competent authority to lease the same. Learned counsel argued that on the basis of the averments made in the plaint the suit cannot be dismissed under Order VII, Rule

11. C.P.C and the learned Single Judge wrongly dismissed the same. In support of his contentions the learned counsel relied upon the following cases:-- (1) Mst. Arshan Bi and others v. Maula Bakhsh and others (2003 SCMR 318); (2) Muhammad Latif and others v. Abdur Rehman Khan and others (2001 SCMR 953); (3) Rafiuddin v. Karachi Metropolitan Corporation & 2 others (1994 MLD 874); (4) Ghulam Rasool v. Muhammad Waris Bismil (1994 MLD 527); (5) Valuegold Ltd. and 2 others v. United Bank Limited (PLD 1999 Karachi 274); (6) Mst. Iqbal Begum v. Farooq Inayat and others (PLD 1993 Lahore 183); (7) Ghulam Ali v. Asmat Ullah and another (1990 SCMR 1630); and (8) Qazi Sher Muhammad, etc. v. Nazar Ali Shah, etc. (NLR 1985 Civil 90). On the other hand, Mr. Manzoor Ahmed learned counsel for respondents Nos.4 to 7 made a statement before us that the K.M.C. does not claim any interest on the plot in question and further argued that in any eventuality it is between the K.M.C. and the respondent-Society to resolve the dispute, if any. In this regard the appellant has no right or locus standi. Mr. S.I. H. Zaidi, learned counsel for respondent No.2 argued that the respondent No.2 is the Society and the plot in question falls within the boundaries of the Society and the said Society has rightly and legally executed deed, of sub-lease in favour of respondent No. 1, who is in possession of the same and constructed building thereon. Mr. Mahmood Habibullah, learned counsel for respondent No. 1, argued that the appellant is an encroacher on possession of the plot adjacent to the plot of the respondent No. 1, duly and legally allotted by the respondent No.2 and in order to harass the respondent No. 1, the appellant has filed the suit with mala fide intentions. We have gone through the memo of plaint and considered the respective arguments of the learned counsel for the parties. From the averments made in the plaint it appears that the appellant is not claiming any interest in the plot in question and the entire allegation in the memo. of plaint pertains to the ownership of the said plot either with the respondent No. 4 or with respondents Nos.6 &

7. For the purpose of seeking declaration under section 42 of the Specific Relief Act, the plaintiff ought to have established entitlement to any legal character or any legal right to the property or any alleged denial by the defendants. The relief under section 42 of the Specific Relief Act cannot be attracted in a case where the plaintiffs do not allege their entitlement in the legal character or any right to the property or any denial of the same by the defendants. The relief or declaration provided under section 42 of the Specific Relief Act is to safeguard the right to his own legal characters or property and not to the right of third party. The appellant is not claiming any personal right in the property rather he is seeking declaration as of the right in the property of third person. The appellant has no cause of action and the plaint has been rightly rejected, by the learned Court. As regards the case-law relied upon by the learned counsel for the appellant, suffice to say that technicalities should not be allowed to come in the way of justice. Efforts should be made to provide substantial justice to the parties before the Court, but at the same time it is the requirement of law that incompetent suit should be buried at its inceptions if the suit, on the face of it, was not maintainable. The appellant has not produced any document showing his personal interest in the property in question and is not entitled for any declaration and as such consequential relief too. For the above reasons the appeal was dismissed in limine and these are the reasons for our short order dated 25-3-2003. S.A.K./B-72/K Appeal dismissed.