P L D 2004 Karachi 28 (PLP)

(ii) Declaration that the order dated 30-9-1990 passed by the learned defendant No.1 (Criminal Court), in respect of the plaintiffs' immovable suit property, is without any lawful authority, without jurisdiction, void and nullity in the eyes of the law. (iii) Declaration that the judgment dated 10-9-2002 passed by a Division Bench of this Hon'ble Court dismissing Constitutional Petition No.D-1230 of 1990 filed by the present plaintiffs and upholding said void order of the Criminal Court/defendant No.1 is not maintainable in respect of the plaintiffs immovable suit property, and set it aside. (iv) Perpetual injunction, restraining the defendants, their agents, and employees from interfering with the plaintiffs' peaceful possession of the suit property, or claiming any right, title or interest therein, or dealing in any manner with it. (v) Award of cost to the plaintiffs. (vi) Any other relief deemed fit and proper by this Hon'ble Court under the circumstances of the case.

4. Despite service having been effected on 26-9-2002 the defendants failed to file written statement. Vide order dated 24-2-2003 defendant No.1 was ordered to proceed ex parte, whereas defendant No.2 was given last chance. Since no written statement was filed by defendant No.2, he was debarred from tiling written statement vide order dated 30-5-2003 and the case was fixed for final disposal.

5. Arguments of Mr. Ghulam Ali Khokhar, Advocate for plaintiffs have been heard, while the defendants opted not to appear and argue.

6. It was mainly argued by the learned counsel for the plaintiffs (i) that the order of Criminal Court in determining the title was not conclusive; (ii) that the agreement to sell does not create any right, title or interest in the immovable property; (iii) that the sale of immovable property exceeding the value of Rs.100 could only be made by registered deed. It was next argued that the question of title to property had to be decided by the Civil Court. Additionally it was contended that the pleadings made in the plaint were not rebutted as no written statement was filed, the plaintiff was entitled to the decree as prayed. In support of the above arguments learned counsel relied upon case-law reported in (1) Calcutta Weekly Notes, Vol. XVIII, p.1146(DB); (2) Indian Law Reports Vol. XVII, p.293 (Bombay Series); (3) AIR 1971 SC 385; (4) PLD 1970 SC 343; (5) 1968 SCMR 509; (6) PLD 1966 Lah. 953 and (7) PLD 1986 Kar. 74

7. The above arguments advanced by learned counsel for the plaintiffs with ease and equanimity, prima facie appeared to be glitteringly convincing and persuasive. However, having gazed it in juxtaposition of the facts of the case arguments were found to be absolutely irrelevant and preposterous. So far as the case-law referred by the learned counsel is concerned, there can be absolutely no quarrel with the same, as it is based on established principles of law, yet to the hard luck of the plaintiff, the case-law is alien to the facts of the case in hand, thus most patently inapplicable.

8. Now coming to the facts of the case, it may be observed that according to pleadings of the plaintiffs the suit property was sold by their mother to Mst. Razia Bashir against a sale consideration of Rs.22,50,000, out of which she admittedly, received a sum of Rs.20,00,

000. The purchaser lady was put in possession of the property. For the recovery-of remaining sum of money the plaintiffs' mother, herself filed a suit which was decreed. However at a subsequent stage she appeared to have taken a somersault. She, admittedly obtained the possession of the property through Martial Law Authorities by adopting apparently illegal and dubious mode, but manoeuvring the situation presumably by using her connections in the corridors of power and. taking undue advantage of absence of the purchaser lady. Subsequent recession of the sale agreement, as pleaded in the plaint was evidently next step to manipulate the situation. The circumstances under which the order was passed by the learned Judge Special Court (Offences in Respect of Banks) defendant No.1) made it abundantly clear that the plaintiffs predecessor-in-interest was afforded ample opportunity to put forward his/their case before the

9. From perusal of order dated 30-9-1990 passed by defendant No. 1, viz. Special Court (Offences in Banks) Karachi, it transpires that absconding accused Asadullah alias Arif was in fact son of the purchaser lady. Mst. Razia Bashir. It is further evident from the said order that evidence was produced during the proceedings of the said Banking Case that sale price of the property in question to the extent of Rs.20,00,000 was, in fact paid by the said Asadullah himself byway of several pay orders which had been produced in the said proceedings by P.W.6 Abdul Habib Khan as Exh.6/A, B, C, D & E. The plea of the plaintiffs that the said Asadualah had no connection with Mst. Razia Bashir is belied by the above said observations of defendant No.1 which were based on the evidence produced during the trial of the said case. The contents of the above order further reveal that it was ordered that, "either the amount of Rs.20,00,000 which was paid by. Asadullah, absconding accused, to Mrs. Akhtar Amanullah deceased, be refunded by her heirs to the Bank with interest at the rate of 14% or in the alternative they receive the balance of sale price amounting to Rs.2,50,000 with interest as decreed by High Court and give possession of the house to the Bank for sale". The above order was admittedly challenged before this Court in Constitutional Petition No. D-1230 of 1990 which was dismissed vide judgment dated 10-2-2002. Civil Petition for Leave to Appeal No.314-K of 2002 impugning the above judgment was dismissed as withdrawn vide order dated 24-6-2002. The facts and circumstances patently speak that the hands of plaintiffs are soiled, they have approached this Court, with sly, and catty faces. From the beginning they took unfair advantage as they/their predecessors-in-interest manoeuvred and manipulated the situation in their favour. They want to eat a cake and have it too which clearly displays glaring malice on their part. The plaintiffs are not entitled to any of the relief prayed. Admittedly the mother of the plaintiffs appropriated the large portion of the sale consideration, consequently they could not, be declared the, owners of the suit property. The judgment passed, by the Special Court. (Offences in Respect of Banks), attained. finality; thus could not be questioned in civil suit. It is well-settled that no declaratory relief is a discretionary relief. It could not be granted to the plaintiffs approaching the Court with unclean hands or it will clothe a suitor with an undeserving advantage; or will inflict unjustified loss on the defendant. The declaration if granted to the plaintiffs in the instant suit will definitely clothe them with an undeserving advantage which the equity does not permit. Even otherwise the plaintiffs have no legal character to maintain the suit. As a result of the above discussion the dismissal of suit is the only option. The suit is accordingly dismissed. M. H./R-101/K Suit dismissed