2003 PLP 42 (YLR)

Mr. Akhlaq Ahmed Siddiqui, while arguing that the plaint cannot be rejected under Order VII, rule 11, C.P.C. because a claim for damages has also been made has relied on the case of Mst. Iqbal Begum (supra). However, the clear provisions of Order VII, Rule 11, C.P.C., inter alia stipulate that the plaint of, a suit shall be rejected if, (i) it does not disclose a cause of action and (ii) the suit appears from the statement in the plaint to be barred by any law. Inclusion of a prayer for damges, in itself, is not sufficient to assume that it is a new cause of action. Relief in the form of damages is a consequential relief. Unless and until the plaintiff does not first establish , his claim over the disputed land, he cannot claim damages. Therefore, if it is held that the plaintiff has no claim over the disputed land, his claim for damages evaporates in thin air. In the case of Salahuddin (supra), the question of vested right has been discussed, which is of no help to the plaintiff, as no vested right accrued to the plaintiff for enforcement whereof he may approach this Court. In the case of Salima Begum and others (supra), a controversy arose whether there was some interpolation in the pleadings or not. Since the facts and the law laid down therein are distinguishable, therefore, this case is not relevant for the purpose of present controversy. In the case of Sakhi Muhammad (supra), it was held that Islamic Jurisprudence and Islamic Law, cannot be subordinated to another principle which comes in clash with them. There is no cavil with this proposition and I am in complete agreement with this observation. Reliance on this case was placed in view of the submission that the plaintiff' had purchased the plot from one Muhammad Bux Brohi and the sale in the absence of any sale‑deed in writing was valid as per Islamic Law where oral transactions are permitted. However, this transaction between the plaintiff and said Muhammad Bux Brohi is of no help to him unless it is proved that Muhammad Bux Brohi was a lease holder from a competent authority. If a person purchases some land from a encroacher, he steps into the shoes of such encroacher and cannot become lawful owner at any time. A suit is tiled to enforce a personal civil right. The plaintiff has to establish his right over the land in dispute and, thereafter, the consequential relief of damages will be considered. In the present case, the plaintiff has based his suit on letter, dated 8‑7‑1993, filed as Annexure P‑9 to the plaint, which reads as follows: "Mr. Muhammad Muzaffaruddin, resident of 47/3, Sector 5‑E, North Karachi Township, Karachi. Subject: Regularization of Commercial Plot No. St‑1/1, Sector 12‑D, measuring 1000 sq. yds. in North Karachi Township. The Governing Body, K.D.A. in its 5th meeting held on 21st September, 1992 vide Resolution No. 144, resolved as under:‑‑ Resolution No.

144. It was resolved that as a result of site inspection 1000 sq. yds. out of the plot, in occupation, of Mr. Muzafarruddin may be regularized and the rest of the land should be re possessed by K.D.A. and put to auction. It was further resolved that the cost of land to be regularized in favour of Mr. Mazafaruddin should be charged at the rate of auction of the portion redeemed or the rate of average auction price of the last three auctions in the Sector, whichever is higher. Accordingly a provisional challan for Rs. 14,90,100 calculated @ Rs.1,490.10 per sq. yd. (average auction price of the last three auctions) was issued to you for making payment but on your request the Director‑General, K.D.A. was pleased to allow you to make payment in 4 (four) equal instalments within one year. It may please be noted that the amount of Rs. 7,45,050 (Rupees seven lacs forty‑five thousands and fifty) only (paid in two instalments of Rs. 3,72,525 each) is purely provisional, the final rate of occupancy value to be charged will be determined after auctions of commercial plots carved out in the remaining area after 1000 sq. yds. in the said ST. You are advised to please remove the encroachments from the plot over 1,000 sq. yds. and hand over the physical possession to the Executive Engineer, North Karachi Division, K.D.A. to arrange disposal of plots through auction. In case, the encroachments are not removed by you within 30 (thirty) days, the K.D.A. will be at liberty to remove the same forcibly by demolishing the structures, if any. It may further be noticed that regularization letter will only be issued after you make full payment on the final rate to be determined after auction of plots carved out on the remaining area of the said ST." (Emphasis is supplied). This letter clearly explains the factual position about the payment made by the plaintiff to K.D.A. that it is a provisional payment and regularization will only be made after full payment is made on the rate to be determined after auction of the plots carved out from the remaining area is made. Under the terms of the proposal, the plaintiff was required to vacate the remaining 1288 sq. yds. of the area but, with mala tide intention the plaintiff did not remove the encroachment in order to prevent the defendants from carrying out the auction of the remaining after carving out commercial plots therefrom and, thus, make it impossible to determine the rate of occupancy value of the plot to be regularized in favour of the plaintiff. Thus, the plaintiff himself violated the terms of the offer with the result that no right accrued in favour of the plaintiff in respect of the suit‑land, which is valuable Government property. Due to failure of the plaintiff to fulfil the conditions of the offer, the offer was withdrawn vide letter, dated 9‑1‑2001. Aggrieved by such withdrawal of the offer, the plaintiff filed a Constitutional petition before this Court. A Division Bench of this Court dismissed the petition vide order, dated 14‑5‑2002, which reads as under: "The petitioner appears to be aggrieved by an order of the respondent No.1 withdrawing an offer for regularization of a plot of land allotted to the petitioner vide allotment order, dated 8‑7‑1996. At the outset it may be clarified that though the plot is stated to be measuring 2288 sq. yards, the allotment in favour of the petitioner was only confined to 1000 sq. yds. and these two figures have caused a certain amount of confusion. Nevertheless, the admitted facts show that by governing body Resolution No.144 dated 21‑9‑1992 it was inter alia resolved that as a result of site inspection 1000 sq. yds. out of the plot in occupation of Mr. Muzafaruddin may be regularized and the. rest of the land should be re‑possessed by K.D.A. and put to auction. Accordingly by letter dated 8‑7‑1993 the petitioner was inter alia advised to remove the encroachments from the plot over 1000 sq. yds. (which apparently meant in excess of 1000 sq. yds.) within 30 days. Apparently, the petitioner failed to do so and applying for regularization of the entire plot of 2288 sq. yds. in his favour. He was given several notices to remove the encroachment (hand over possession of the area in excess of 1000 sq. yds.) but to no avail till the impugned order was passed. Mr. Nazar Husain Dhoon, learned counsel for the respondent No.1 has argued that the original allotment in favour of the petitioner was itself conditional and in case such condition had not been fulfilled the respondent No.1 was perfectly justified in cancelling the allotment. Indeed, the allotment letter does appear to indicate so and in any case the petitioner cannot he illow‑! To enjoy premium over unlawful occupation of pubic property. Moreover, we have noticed that the letter of allotment dated 8‑7‑1993 (placed on record by the respondent) clearly states that the final price of the plot would be determined after the plots carved out of the remaining area (exceeding 1,000 square yards) were auctioned, and the petitioner was required to make instant payment at the provisional rate of 1,490 per square yard. However, in the memo. of petition supported by an affidavit it is contended that the allotment was made at the price of Rs. 200 per square yard. Such an incorrect assertion shows that the petitioner has not approached the Court with clean hands and this is an independent ground for refusing relief. For these reasons the petition is dismissed with costs." The plaintiff being aggrieved by this order, tiled a petition for leave to appeal before the Hon'ble Supreme Court which also was dismissed in the following terms: "After arguing at length learned counsel for the petitioner submits that the petitioner will file civil suit for the reliefs claimed in this petition and withdraws the petition. Accordingly the petition stands dismissed as withdrawn. " Thus, the offer made to the plaintiff was withdrawn and such withdrawal was challenged in the High Court as well as in the Hon'ble Supreme Court. However, the, petition and the petition for leave to appeal were both dismissed. as stated above. In view of the above admitted facts the plaintiff cannot claim any title or interest in the suit plot. Furthermore, the subject‑matter of the suit already stands decided in the Constitution petition by a Division Bench of this Court. In the case of Muhammad Anwar (supra), the facts were that a plot was transferred to one Mst. Nawab Bibi and the petitioner. Muhammad Anwar, adopted son of said Nawab Bibi claimed that the transfer document should be issued in his favour as under an agreement of association she had transferred the plot to him and that he had paid the purchase price from his own sources. His claim was rejected by the Deputy Settlement Commissioner on the ground that no agreement of association had been presented before any competent Settlement Authority nor the statement of the parties had been recorded in support of the agreement. The petitioner invoked the Constitutional jurisdiction of the High Court challenging the order of the Deputy Settlement Commissioner. A learned Single Judge dismissed his writ petition and the Intra Court Appeal tiled against such order was not pressed saying that the appellant would seek his remedy through a civil suit. Plaint in such civil suit was rejected by the trial Court on the ground that legality of the order of Deputy Settlement Commissioner had already been adjudicated upon by the High Court., therefore, the suit was hit by ‑ the principle of res judicata. Appeal and revision against such order also met the same fate. A civil petition tiled before the Supreme Court was also dismissed holding as follows: "This petition is clearly without any merit. The High Court in writ jurisdiction had examined the grounds upon which the petitioner was seeking to impugn the order of the Deputy Settlement Commissioner and recorded a finding that the said order was entirely legal. The same question could not therefore, be re agitated in a Civil Court. The trial Court was, therefore, right in non suiting him. The petition is dismissed. " In an identical manoeuvre, the plaintiff first approached the High Court in its Constitutional jurisdiction, then, on dismissal of his petition, he approached the Supreme Court and withdrew the petition for leave to appeal. However, the subject‑matter of the suit, being the withdrawal of offer by K.D.A. which was agitated before the High Court in its Constitutional jurisdiction already stood decided by the High Court vide order, dated 14‑5‑2002. Therefore, this suit is hit by the principle of res judicata. Proceedings for eviction of the encroacher under section 3 of the Sindh Public Property (Removal of Encroachments) Act, 1975, were commenced. The plaintiff had a right of appeal before the Tribunal constituted under section 12 of the Act but K he, for reasons best known to him did not avail the remedy available to him under the law. The present proceedings are hit by sections 9, 11 and 13 of the Act which are reproduced below: "

9. Cognizance of offence and mode of trial.‑‑‑(1) No Court shall take cognizance of an offence under this Act except on a complaint made by an officer authorized by Government in this behalf. (2) Government may by notification direct that an offence under this Act, shall be tried in summary way in accordance with the procedure prescribed by Chapter XXII of the Code of Criminal Procedure, 1898 (Act V of 1898).

11. Bar of jurisdiction and abatement of suits.‑‑‑(1) No Civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is ‑ not a public property, or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act or anything done or intended to be done under this Act. (2) All suits, appeals and applications relating to encroachment and dispute that any property is not a public property of that any lease or licence in respect of such property has not been determined for the purpose of this Act, shall abate on coming into force of this Act.

13. Exclusive jurisdiction.‑‑‑A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such pubic property has not been determined for the purpose of this Act." In case the plaintiff was aggrieved by the notice under the Act of 1975, he should have approached the appropriate forum. Reliance is placed on the case of Tariq Transport Company (supra), wherein it was held that where a statue creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself for the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ. Thus, it was premature for the plaintiff to approach this Court without first availing of the remedy of appeal before the Tribunal as envisaged under section 12 of the Act. As regards the submission of Mr. Akhlaq Ahmed Siddiqui that the case before the Supreme Court was withdrawn with permission to file a suit,' therefore, the provisions of section 11, C.P.C. do not apply, it may be mentioned that the Hon'ble Supreme Court has only mentioned the submission of the counsel that the plaintiff will tile a civil suit for the reliefs claimed in this petition. Furthermore, this was petition for leave to appeal while before that a Division Bench of this Court had dismissed the petition filed by the plaintiff through a detailed order quoted above. Therefore, for all intents and purposes, this matter was already decided by this Court in the petition. The upshot of the above discussion is that this suit is hit by section 11 of the C.P.C. as well as is barred under the principle laid down in the case of Tariq Transport Company (supra) that where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself for the remedy provided by the statute for such breach before he applies for any other remedy. Therefore, I allow the application and reject the plaint in the suit. S.A.K./M‑406/K Application allowed.