1986 PLP 2979 (MLD)

This Revision Application is directed against the judgment and decree of the first appellate Court; dated 16‑7‑1974 passed in Civil Appeal No.188 of 1972 allowing the appeal of the respondent No.1 and decreeing the suit for declaration and permanent injunction in appeal. The following facts may be stated here in brief which are relevant for the purpose of disposal of this Revision Application. Respondent No.1 instituted Suit No.311 of 196$ for declaration that he is the lessee of Hyderabad Municipal Committee in respect of Plot No.75 situated in Pathan Colony (Millet‑e‑Islam) , Hyderabad and that the notice, dated 4‑9‑1968 issued to him by the H . M . C . threatening him to disposes the plot is' without jurisdiction. In the plaint the respondent No.1 alleged that he was in occupation of the plot in suit for over 10 years and that he applied for regulation of the said plot which was done and he was asked to pay the lease money from the year 1958. It was further claimed that in fact demand notice was issued on 20th March, 1962 in which the lease money was allegedly demanded from him from 1958 to 1962% It was also alleged that he paid the money demanded by the H . M . C . but in the meantime the plot in suit was allotted to deceased respondent No.2 in, lieu of an area of 4,000 sq. ft. which was affected by a 35 ft. road and partly added to Jinnah Maidan, adjacent to Pathan Colony. The suit was resisted by the applicant who claimed that the plot in suit was allotted to deceased respondent No.2 on 17‑3‑1967 and that he was informed to this effect by the Chief Officer by a copy of the letter which was endorsed to him. It is an admitted position that the respondent No.1 had filed. appeal against the letter of the Chief Officer, H . M . C . , dated 17‑3‑1967 before the Controlling Authority and the Controlling Authority remanded the case back to the H . M . C . for holding fresh enquiry with regard to the alleged entitlement of respondent No.1 over the plot.. It is also an admitted position that after remand of the case to the H . M . C . by the Controlling Authority as aforesaid and enquiry was held and the Chairman of H.M.C. by his order, dated 28‑8‑1968 rejected the claim of respondent No.1 and against that order of the Chairman, dated 28‑8‑1968 another appeal was preferred by respondent No.1 which is presently pending before the Controlling Authority. This position is admitted in paragraph 12 of the written statement filed on behalf of applicant in the suit, which is as follows:‑‑ "The contents of this para. are not disputed. The appeal is pending before the Commissioner, Hyderabad Division, Hyderabad, hence the civil Court has no jurisdiction." It is an admitted position that the notice, dated 4‑9‑1968 was issued by the Chairman, H.M.C. after filing of appeal before the Controlling Authority against the order of Chairman, dated 28‑8‑1968. Learned counsel for the respondent. No.1 states that if the applicant do not propose to take any action against him until disposal of his appeal before the Controlling Authority he would not press the suit provided he is allowed an opportunity of agitating the matter after final disposal of his appeal before the Controlling Authority. In reply to the above submission of the learned counsel for respondent No.1 Mr. Abdul Matin, stated that his client will be willing not to evict the respondent No.1 until such time his appeal before the Controlling Authority is disposed of finally on merits. In view of this admitted position I am of the view that presently, no cause of action is left for the plaintiff /respondent No.1 to persue his suit for declaration and injunction any more as he will be at liberty to institute a fresh suit if necessary. I accordingly, accept this Revision Application, set aside the orders of the first appellate Court but permit the respondent No.1 to withdraw his suit with liberty to institute a fresh suit if necessary. In view of the statement made by the learned counsel for the applicant that his client will not evict the respondent No.1 until disposal of the appeal before the Controlling Authority, it is also clarified that the applicant will be free to take action against respondent No.1 in accordance with the law after disposal of appeal of respondent No.1 by the Controlling Authority. With these observations the Revision Application is disposed of. H . B . T.????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.