2003 PLP 1222 (MLD)

Muhammad Arif Ch. for Respondent No.

1. Ch. Muhammad Azim for Respondents Nos.2 and

3. Nemo for Respondents Nos.4 to

8. Date of hearing: 17th September, 2002. This be considered as admitted case.

2. Brief facts under this revision petition are that the petitioners filed a suit for declaration challenged a notice that their shops/khokhas on the land in ownership of Housing and Physical Planning Department should not be demolished and notice dated 11-8-1994 is illegal and based on mala fides as the respondent No. 1 Town Committee has got no jurisdiction or power to demolish these properties. This suit was contested through written statement on behalf of the Town Committee, on the basis that suit being incompetent and for lack a cause of action and that under section 121 of the Punjab Local Government Ordinance the defendant Town Committee is authorised to demolish the disputed property. While hearing the application for interim injunction the learned Civil Judge observed that property on which the plaintiff have raised constructions belonging to the Housing and Physical Planning Department and it is admitted by the plaintiffs as well as their learned counsel that the plaintiffs are in illegal possession of the land belonging to the Housing and Physical Planning Department and are running their business, therefore, they cannot be allowed to come into the illegal possession through a course of law. Neither they have good prima facie case nor any locus standi to file the suit, therefore, the application is dismissed and plaint is rejected under Order VII, rule 11, C.P.C. An appeal was filed and the learned Appellate Court also confirmed the judgment passed by the learned Civil Judge.

3. Learned counsel for the petitioners submits that petitioners are effectees and turned down employees of Koh-e-Noor Mills, Liaquatabad and it was their permissive possession that they installed shops/khokhas on the land belonging to the Housing and Physical Planning Department and they have been giving "Tawaan" for the said property and they cannot be ousted from the, disputed property. The notices were issued for vacation, of land which are altogether illegal and violative of the provisions of Colonization of Government Lands Act, as the petitioners are in permissive possession. He has relied on "Municipal Corporation, Peshawar" and others v. Shakeel Hussain and others" (NLR 2001 Civil 356), and while considering the stay the plaint cannot be rejected "Jewan and 7 others v. Federation of Pakistan and 2 others" (1994 SCMR 826).

4. Learned counsel for the respondent submitted that the petitioners are admittedly unauthorized occupants of the property which belongs to the Housing and Physical Planning Department and through course of law they have obtained a sufficient period to keep their illegal possession. Any plaint which shows lack of cause of action can be rejected at any moment by the learned trial Court. He has relied on "Messrs Abdul Hamid v. Board of Intermediate and Secondary Education (1991 MLD 672), "Pakistan State Oil Co. Ltd. v. The Karachi Electric Supply Corporation Ltd. and others" (PLD 1991 Karachi 365) and "Mir Qamar-ul-Zaman v. Agricultural Development Bank of Pakistan and others" (1995 CLC 1982).

5. I stave heard the learned counsel for the parties and perused the plaint. It is to be noted that the petitioners have only challenged the notices being illegal and violative of law. It is settled principle of law that in an application for interim injunction the Court sees the sufficient grounds for grant of interim injunction the cardinal principles to be looked into by the Courts are prima facie case, balance of convenience and a pronounced or manifest exposure of the aggrieved person to an irretrievable injury "Mir Qaram-ul-Zaman v. A.D.B.P. and others" (1995 CLC 1982) and the order of rejection of plaint under Order VII, rule 11, C.P.C. contemplates that plaint shall be rejected in the following our cases:-- (a) Where it does not disclose a cause of action. (b) Where the relief claimed has been undervalued. (c) Where the court-fees of full value have not been supplied, and (d) Where the suit appears on the face of the plaint to be barred by any law. And these; provisions deal with the power of the Court to reject the plaint. The phrase "cause of action" would mean a bundle of facts giving rise to a right which plaintiff would have to prove if traversed by defendant. "Pakistan State Oil Co. Ltd. v. The Karachi Electric Supply Corporation Ltd. and others" (PLD 1991 Karachi 365). The purpose of rejection of plaint is that still born suit ought to be buried properly at its very inception so that no further time be consumed on fruitless litigation and secondly plaintiff would have a chance to retrace his steps at the earliest possible moment so, that if permissible under law he could file properly constituted case. The rejection of plaint under Order VII, rule 11, C.P.C. is distinct than the dismissal of the suit "Mir Qaram-ul -Zaman v. A.D.B.P. and others" (1995 CLC 1982) (Supreme, Court AJ&K).

6. This is also a settled principle of law that for rejection of plaint under Order VII, rule 11, C.P.C. the plaint is considered to the true and only the facts averred into plaint are to be looked into. In the resent case three things are admitted by the plaintiffs themselves:-- (i) That the property in question belongs to the Housing and Physical Planning Department; (ii) That the plaintiffs are neither their tenants nor they have applied for rehabilitation to the Provincial Government; (iii) That they are paying "Tawaan" for the encroachment of the land. They did not produce any document in support of the averments of the plaint. They challenged the notices which have no value in the eyes of law and no cause of action has accrued to them to file the present suit. The Court before whom the suit is pending has got jurisdiction to reject the same on the above premises if it does not disclose the cause of action or is barred by any law and is not properly constituted suit and the Court is fully convinced that it will be a futile exercise in future "Messrs Paper Corner v. B.I.S.E." (1991 CLC 740). The petitioners/plaintiff's are undoubtedly in unauthorized possession of the disputed property, which at no stage was validated by the Provincial Government or the, Housing and Physical Planning Department, Since sufficient time consumed in litigation they were ordered to pay "Tawaan" for their unauthorized occupation of disputed property. This is not sufficient to term the unauthorized possession of the property into permissive possession. Even bare reading of the suit in question shows that the plaintiffs have no cause of action to file the suit.

7. In this view of, the matter both the judgments of the learned subordinate Courts are unexceptionable. The instant Civil Revision is dismissed being devoid of force. H.B.T./G-240/L Revision dismissed.