2007 PLP 2642 (YLR)

AKHTAR ZAMAN MALGHANI, J.

This revision petition is directed against the judgment- and decree dated 29-10-2004 passed by Additional District . Judge-II, Quetta whereby appeal filed by the petitioner against ,the judgment and decree dated 30-6-2004 rendered by Senior Civil Judge-II, Quetta, was dismissed.

2. Briefly stated, facts of the case arc that the petitioner filed a suit for declaration and possession with The averments that he was serving in BM Sariab which was closed in 1974. In the year 1986 the said Mill and Colony were devolved upon the Finance Department. According to the contents of plaint the houses of Colony and Bungalows were allotted to the dwellers but the petitioner was deprived of such facility and instead he was forcibly dispossessed though he was paying rent regularly to the Government; whereafter he continuously made applications to the concerned authorities for allotment of the house and at last his case was processed in the year 1998 and defendant No.1 directed defendant No.2 to allot the house in question to plaintiff and an allotment. order was accordingly issued in his favour. It was further stated -that during the intervening period defendant No.3 succeeded in getting the house in question allotted in his name in the year 1991 who was directed to vacate the house in the year 1997 whereupon he filed a suit which suit was dismissed and appeal filed by him was also dismissed by Additional District Judge-II, Quetta vide. judgment and decree dated ZO-11-1999. According to the plaintiff/petitioner the house was got vacated from Abdul Khaliq but despite his application possession was not handed over to him. Following reliefs were claimed in the suit:- "(a) Declaring that the plaintiff is the lawful owner of house bearing No.6 situated at Old Sariab Mills, Sariab Road, Quetta, and further directing the defendants Nos.1 and 2 to complete the remaining formalities in favour of plaintiff. (b) Directing the defendant No.1 to cancel the re-allotment order .in favour of defendant No.3. (c) That directing the defendant No.3 not to dispossess the plaintiff by force or by illegal means till disposal of main suit. (d) Any other relief which this honourable Court deems fit and proper in the circumstances of the case may also be granted in favour of plaintiff and cost of the suit may also be awarded in his favour."

3. It appears from the record that after arguments were heard on legal issues suit was dismissed by the learned .Senior Civil Judge-II, Quetta vide judgment dated 31-6-2004. Appeal filed by the petitioner was also dismissed vide judgment and decree dated 29-10-2004.

4. I have heard the learned counsel for the petitioner as well as learned counsel for the respondents. The learned counsel for the .petitioner vehemently contended that the suit was dismissed on point of limitation as well as on the ground that the same was hit by principle of res judicata. According to him the point of limitation being mixed question of fact and law and could not have been decided without affording opportunity of leading evidence to the parties, as such the judgment and decree of both the Courts below were bad in law. He further contended that the suit was not hit by principle of res judicata because earlier suit was filed by Abdul Khaliq which was dismissed and not by the petitioner. On the other hand learned A.A.-G. contended that-the petitioner got allotted the Bungalow in dispute under political. pressure though he was not, entitled to allotment of .the same as he was a supervisor and not entitled to reside in such a huge Bungalow measuring about 8000 Sq. ft. Even otherwise the allotment order issued in his favour was of no legal sanctity having been issued by Secretary S&GAD who under the Benevolent Fund Ordinance, 1960 has no authority to make allotment which was sole job of Board of Directors which vide resolution dated 31-5-2001 found the petitioner not eligible. He further contended that according to his own. showing the petitioner was dispossessed from the house in question in the year 1986 and suit has clearly barred by time and rightly held so by the learned Senior Civil Judge.

5. I have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the documents annexed with the petition as well as with the re-joinder. Undisputedly respondent No. 2 filed a suit in respect of the property in dispute wherein petitioner was one of the defendants and in .his defence he took the plea that he was lawful allotted of the property in dispute. Learned Additional District Judge while dismissing the appeal also considered entitlement of the petitioner and rejected his plea. Relevant portion of the judgment is reproduced herein?below:- "From the evidence produced by both the parties it is proved that neither appellant was entitled to transfer of Bungalow to him on ownership basis nor the same was legally transferred to him or defendant No.3 was entitled to the allotment of the same. Relief under section 42 of Specific Relief Act is discretionary relief and a person who comes to the Court should come with clean hands. I am afraid that appellant has not come to the Court with clean hands: Therefore, he is not entitled to discretionary relief. There is no legal order of transfer in his name, therefore he cannot be declared legal owner of the Bungalow in dispute which is main relief in his suit. As discussed above the appellant has failed to prove his legal right over the property in dispute hence he is not entitled to relief claimed for." These findings were not challenged further and have attained finality.

6. Even otherwise so-called allotment order dated. 20-1-1998 addressed to the Project Director Civil Servants (Benevolent Fund} Housing Scheme, Sariab, Quetta had been issued under the signatures of Section Officer (B&A), S&GAD who had no powers to ,make allotments under the Government .Servants Benevolent Fund Ordinance, 1960 and rules made thereunder under which provisions only Board has been empowered to make such allotments, as such; both the lower Courts rightly repelled claim of the petitioner. Moreover, it was admitted before me that the petitioner was serving as supervisor in the Sariab Mill and it is surprising to note that he was righting for a Bungalow constructed over 8000 Sq ft. to which he was not entitled. Furthermore, according to parawise comments of Secretary and Project Director, petitioner succeeded in getting allotment of two Houses bearing Nos.B-30 and 31 whereas Bungalow No.6 as allowed to be occupied by him temporarily on humanitarian grounds on account or death of his brother. Under such circumstances the revisional jurisdiction being discretionary could not be "exercised in favour of the petitioner as it would tantamount to perpetuate illegalities. For the foregoing reasons the petition is dismissed with no order as to costs. H.B.T./19/Q???????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.