1992 MLD 1054 (PLP)

This civil revision is directed against the judgment and decree, dated 7‑6‑1980, by which the learned Additional District Judge, Lahore, dismissed the appeal of the plaintiffs‑petitioners against the order, dated 20‑10‑1979, whereby a learned Civil Judge at Lahore had rejected their plaint under Order 7, Rule 11, C.P.C.

2. Irshad Ahmad, the predecessor of the present petitioners, had brought a suit for permanent injunction, seeking to restrain the respondent from demolishing certain shops raised by them on a portion of Quarter No.938‑D (N‑type) Samanabad which, according to him, had been constructed with a bona fide belief that no sanction was required from the respondent for their construction. Alongwith the plaint he also moved an application for the issuance of temporary injunction, seeking to restrain his opponent from demolishing the shops in question till the decision of the suit.

3. The learned trial Judge dismissed the application on 30‑9‑1979.1 Feeling aggrieved, the successors‑in‑interest of the plaintiff (now petitioners filed an appeal which was admitted to regular hearing on 20‑10‑1979 but on the same day the learned Civil Judge rejected the plaint under Order 7, rule 11, C.P.C. on account of the failure of the plaintiffs to appear for recording their better statements prior to the settlement of issues for which they had been specifically summoned.

4. This order was challenged in appeal but the learned Additional District Judge, vide his judgment, dated 7‑6‑1980, dismissed the same agreeing with the trial Court that the plaint itself did not disclose any cause of action, especially when the plaintiff himself had averred therein that he had raised the disputed construction without the sanction of the respondent, as similar construction had been raised by some other persons in the vicinity. Aggrieved by this judgment, the plaintiffs came up in revision to this Court.

5. It is argued on behalf of the plaintiffs‑‑petitioners that no notice, as required by section 40 of the Lahore Development Authority Act, 1975, was ever served on the petitioners nor they or their predecessor were provided any opportunity of being heard before taking the proposed action. It is contended that shops in question were constructed by the predecessor of the plaintiffs petitioners prior to the coming into force of 1975 Act. It is argued that issues in this case were framed by the learned Civil Judge and his observation in the impugned order was misconceived that there was no need to frame any issue or record evidence. According to the learned counsel, once he had framed the issues, he was bound to record evidence for which 20th October, 1979 was fixed as the first date for evidence of the plaintiffs‑petitioners. He contends that in the same area there were as many as 200 shops similarly constructed by other owners of similar quarters and the respondent was not taking any action against them and as such the proposed action of the respondent is discriminatory in nature. Finally, it is urged that if the respondent has compounded the offence with the owners of other shops in the locality, they should also treat the petitioners at par with them. In support of this contention he has placed reliance on A I R 1945 Lahore 81.

6. On the contrary, it is argued on behalf of the respondent that learned counsel appearing on behalf of the plaintiffs‑petitioners has agitated certain grounds which were not taken up before the learned Additional District Judge and he cannot be now allowed to do so. The authority cited by him, according to the learned counsel, has no relevancy in this case because that ruling pertained to the refusal of the Municipal Committee to sanction a plan while in the instant case the permission to construct shops had never been sought from the respondent. It is contended that the property on which the shops were constructed by the petitioners or their predecessor formed part of residential property and without the prior permission of the respondent it could not be converted into the commercial one. In this connection he refers to Regulation No. 17 of the Building Regulations of Lahore Development Authority Act, 1984 framed under section 45 of the 1975 Act He submits that under section 38 of the said Act it is also an offence and the respondent had served a notice on the petitioners for the demolition of the shops and in fact it is on account of that notice that they had brought the suit. According to the learned counsel, there may be some cases somewhere in the town in which the respondent might have compounded the offence but he is not aware of any specific instance in the locality in which the disputed property is situated and if the plaintiffs‑petitioners knew any particular instance he could implead him as a party but this course was not adopted by them.

7. Perusal of the record shows that after the completion of the pleadings of the parties, issues had been framed yin 29‑7‑1978 and the case was adjourned to 26‑10‑1978 for the evidence of the plaintiffs‑petitioners. Once the suit had reached that stage, there was little justification for the learned trial Judge to summon the plaintiffs‑petitioners for recording their statements in the light of the order, dated 30‑9‑1979 by which their application for temporary injunction had been dismissed. That phase was ewer and against that order their appeal was pending, If the plaint did not disclose any cause of action due to certain averments made therein, the defendant‑respondent should have specifically agitated this question for its rejection under Order VII, rule 11, C.P.C. and in the absence of any such move by it, the learned Civil Judge should not have resorted to an unusual course of short‑circuiting the matter suo Motu to compromise his impartiality. By passing the order, dated 20‑10‑1979 he even rendered the pending appeal of the plaintiffs‑petitioners against the rejection of their application for temporary injunction, infraction.

8. In view of the above, the revision is accepted, the impugned judgments and decrees are set aside, and the case is remanded to the trial Court for its trial on and from the stage it had passed the order, dated 20‑10‑‑1979, However, it shall decide the suit within two months under intimation to Deputy Registrar (Judl.) of this Court and meanwhile the parties shall maintain status quo. Parties are directed to appear before the learned District Judge on 1‑7‑1991 who shall entrust the case td some Court for trial. He shall see that the time limit for its decision is observed by the learned trial Court. H.B.T./A‑69/L Revision accepted.