1991 PLP 670 (MLD)

S.42

Civil Procedure Code (V of 1908), S. 115

Revisional jurisdiction, exercise of

Plaintiff, because of his conduct, was not found to be entitled to discretionary relief under provision of S. 42, Specific Relief Act, 1877

Revision against order of lower Appellate Court being also a discretionary relief, there was no justification to exercise discretionary power of Court under S. 115, Civil Procedure Code, 1908, m aid of plaintiff

Revision was dismissed in circumstances. Ch. Nawab ud Din Mahmood for Petitioner. Nemo for Respondent. On 13-10-1989, Ghulam Hussain petitioner filed a suit for declaration to the effect that he was entitled to the transfer of the disputed plot against payment of reserved price to be fixed by the LDA, Lahore-respondent. He also prayed for the recovery of Rs. 20,000 as damages from the defendant-respondent. The petitioner was allotted plot measuring 5 marlas No. 240/0, Model Town Extension Scheme, Lahore. He constructed house on the plot. On the western side of his house, there was vacant plot measuring 3-1/2 marlas. So he made application before the Director-General, LDA for the allotment of this plot to him. On his application, the Director-General, LDA passed the following order:-- "Allowed, please fix the price" on 28-10-1985. Before the price could be fixed and paid, the petitioner constructed a boundary wall on the plot without any formal order of the delivery of possession by the LDA. Later on, boundary wall constructed by the petitioner was demolished by the LDA. According to the petitioner, he has suffered pecuniary loss of Rs.20,000 by the act of demolishing of the boundary wall. The suit was resisted whereon 8 issues were framed. The petitioner produced Muhammad Hanif P.W. 1, Muhammad Iqbal P.W.

2. He himself appeared as P.W.

3. He tendered in evidence Ex. P. 1, copy of his application whereon the order reproduced above was written, copy of the site plan Ex. P.W. 3/1, copy of the registered sale-deed Ex. P.W. 3/2 and copy of the petition made by him to the Chief Minister Ex. P.W. 3/3. To rebut this evidence, the respondent tendered in evidence copy of letter of Director-General Ex. D.1, copy of - summary sent to the Chairman Ex. D.2 and the copy of site plan Exh. D.3. The defendant also produced two witnesses namely, Muhammad Hanif D.W. 1 and Muhammad Latif D.W.

2. The trial Court decreed the suit on 8-3-1989. Feeling aggrieved thereby, the LDA-respondent filed appeal which was accepted by the Additional District Judge, Lahore, dismissing the suit of the petitioner. Hence this revision.

2. Before me, the learned counsel for the petitioner has challenged the findings of the Appellate Court on issues Nos. 4, 5 and 7 which are as under:-- (4) Whether the plaint is deficient in court-fee ? If so, with what effect? OPD. (5) Whether the plaintiff is entitled to the transfer of the disputed parcel of land ? If so, against what price? OPP (7) Whether the plaintiff is entitled to recover Rs.20,000 as damages from the defendant? OPP He argued that suit could not be dismissed unless the petitioner was given an opportunity to make up deficiency in the court-fee; that in view of the order dated 28-10-1985 of the Director-General, L.D.A., the petitioner had become full owner of the plot and as such, is entitled to its transfer as a matter of right; that since there is no dispute that the boundary wall constructed by the petitioner was demolished by the respondent, therefore, there was no justification to refuse compensation claimed by the petitioner from LDA. Conversely, the learned counsel for Lahore Development Authority appearing at pre-admission stage has supported the judgment of the Appellate Court.

3. I have considered the submissions made by the learned counsel for the parties with care. I do not agree with the learned counsel for the petitioner. No doubt, neither plaint can be rejected nor the suit can be dismissed on account of deficiency in court-fee unless the plaintiff is given opportunity to make up the same but in the instant case, the suit has not been dismissed on this ground although the Court was of view that the court-fee paid by the plaintiff was deficient. In the instant case neither any price of plot was fixed nor paid or promised to be paid. So the petitioner had not acquired any title in the disputed plot. The order of the Director-General, LDA passed on the application of the petitioner for the allotment of the disputed plot to him as reproduced at page 2 of this judgment, neither constitutes a valid sale nor does confer any title on the petitioner. Furthermore, neither the possession of the plot was delivered to the petitioner by the L.DA. nor any formal order for the delivery of the possession of the plot to the petitioner was made. The petitioner hurriedly without waiting for the fixation of the price of the plot by the L.D.A., occupied the plot and raised four walls on it. So, the L.D.A. was fully justified in demolishing the same. The manner in which the petitioner conducted himself disentitles him to discretionary relief under section 42 of the Specific Relief Act. He is neither entitled to the declarations sought by him nor is he entitled to recover the money as damages for demolishing the plot from the respondent/defendant. The learned Appellate Court was quite competent to set aside the judgment and decree of the trial Court. The learned Appellate Court has given sound and cogent reasons in support of its decision. The revision under section 115, C.P.C. is again a discretionary relief. I do not see any justification to exercise the discretionary power of this Court under section 115, C.P.C. in aid of the petitioner. Pursuant to the above discussion, the revision application fails and is accordingly dismissed in limine. A.A./G-397/L Revision dismissed.