2008 PLP 238 (MLD)

GULZAR AHMED, J.

By this application, the plaintiffs have sought injunction in respect of Plots bearing Nos. 151, 152 and 153 situated in commercial block, measuring 134 sq. yards each in the defendant No.1 Society. The grievance of the plaintiffs is that the three plots were allotted to the plaintiffs and subsequently were subleased to them. Though plots are existing but the defendant No.1 is not getting the lay out plan approved from the defendant No.2 and that the plaintiffs' construction on these plots has been demolished wrongfully at the behest of the defendant No.1. The plaintiffs in the suit have sought declaration of ownership of the said plots with other reliefs. Learned counsel for the defendant No.1 has submitted that the ownership of the said three plots being claimed by the plaintiffs is wrongful inasmuch as the sublease was granted to them fraudulently and that the plots are actually amenity plots reserved for car parking. He has further stated that the demolition of the plaintiffs construction was carried out by KBCA in terms of the order, dated 3-9-2002 passed by a Division Bench of this Court in C.P. No.D-858 of 2000. I have considered the submissions of the learned counsel for the parties. Learned counsel for the plaintiffs has drawn my attention to the order, dated 26-5-2005 passed by the Minister of Co-operation under section 64 of the Co-operative Societies Act, 1925 filed at page 133 with the plaint in which the plaintiffs have been held to be the owners of the three plots in question. He states that this order of the Minister of Co-operation has not been challenged by the defendant No.1. The counsel for defendant No.1 states that the order passed by the Minister of Co-operation is mala fide and without authority but admits that the defendant No.1 has not challenged the same. He has also not pointed out any document showing these plots to be amenity plots for car parking. Prima facie, from the order of Minister of Co-operation it appears that plaintiffs are owners of the three plots in question and, therefore, they are entitled to the interim relief as prayed by them in this application. Consequently, the interim order passed on 24-3-2006 on this application is hereby confirmed and the application is disposed of.

2. This is an application under Order VII rule 11, C.P.C. filed by the defendant No.1 to which counter-affidavit has been filed by the plaintiffs. The only ground on which this application is pressed is that the plaintiffs have filed Constitutional Petition bearing No. D-858 of 2000, which was disposed of by order, dated 3-9-2002 and, therefore, the present suit is barred under the principle of res judicata as contained under section 11, C.P.C. Copy of the order, dated 3-9-2002 is filed along with this application. The memo. of petition of the said constitutional petition has been tiled at page 91 with the plaint. I have examined the contents of the memo. of petition and have gone through the order, dated 3-9-2002 and find that the relief claimed in the petition was with regard to the illegal construction being raised by the respondent No.3, Akhtar, adjacent to the plot of the plaintiffs and on the portion of road and in that respect the Court has ordered on 3-9-2002 directing KBCA to remove illegal construction. There was no dispute in respect of the ownership of the plots nor any declaration as to ownership was sought by the plaintiffs in the said petition. Even the parties in the said petition were different from the present suit inasmuch as the KBCA was respondent No.1 and one Akhtar was respondent No.3 in the said petition who are parties in this suit. Further, the City District Government Karachi who is defendant No.2 in the instant suit was not party in the said petition. The grounds provided for invoking the principle of res judicata are not available to the defendant No.1 as both the proceedings are altogether of a different nature seeking different reliefs and between different parties. This application has no merit and is accordingly dismissed. H.B.T./Z-18/K Application dismissed.