2004 PLP 227 (MLD)

(v) directing the defendant any other relief available to the plaintiff in the circumstances of the case."

4. It transpires that Naheed required the said property (which had been rented out) for her personal use and reconstruction and accordingly she had filed R.C. No.270 of 1997 and R.C.No.750/1997 respectively against the tenant and also approached KBCA for necessary permission for this purpose. It further transpires that Jamil. Ahmad had also filed an Ejectment Application Bearing R.C. No.683 of 1998 and in execution of the Ejectment Order obtained possession of the property on or about 16-2-1999.

5. Meanwhile, on. or about 2‑4‑1998 Naheed obtained in Rent Case No.750 of 1998 an Order of Eviction of her tenant, Sikandar Khan from the said property and filed Execution Application bearing No.5 of 1999 when for the first time on 26‑5‑1999, Mrs. Halima Tahir and five other females appeared in the proceedings claiming to have purchased the said property by conveyance deed dated 10‑3‑1999 from the alleged attorney, Jamil Ahmed. Consequently on or about 9‑6‑1999, she filed in the High Court of Sindh another proceeding being Civil Suit No.811 of 1999 against (1) Jamil Ahmed, (2) Mrs. Halima Tahir, (3) Mrs. Rukhsana, (4) Mrs. Zubaida Noor, (5) Mrs. Zaitoon Farooq (6) Mrs. Razia Qasim, (7) Mrs. Noor Jehan (Defendants Nos.2 to 7, hereinafter referred to as 'the Halima Group"), (8) Inspector General of Registration and (9) The sub Registrar, 'T' Div. Seeking, inter alia, the following relief: "(i) adjourning the impugned conveyance deed dated 10‑3‑1999 as void, ab initio, invalid and of no legal effect and consequence and be cancelled directing the defendants Nos.2 to 7 to deliver up the same for cancellation thereof; (ii) directing the defendants Nos.2 to 7 to hand‑over vacant possession of the suit premises to the plaintiff; (iii) directing the office to send a copy of the decree to the office of the Sub‑Registrar‑XI concerned for its cancellation and taking note thereof in his books; and (iv) permanently restraining the defendants Nos.2 to‑7 not to further transfer/encumber/sell/mortgage/demolish/construct or create any , third party interest in any manner whatsoever in respect of the suit property bearing No.D‑38, Block‑8, situated in KDA Scheme No. 1, Karachi, measuring about 1360 Sq.Yards.".

6. On or about 25‑2‑2000, in Suit No.640 of 1999 the Halima Group filed an application under Order 1, rule 10 read with section 151, C.P.C. for being impleaded as parties in the proceedings as they were necessary and proper parties to the suit and their presence before the Court was essential to effectually and completely adjudicate upon and settle all questions involve in the suit. The application was allowed and Halima Group was joined as defendant Nos.4 to 9.

7. On or about 10‑12‑2001, the Advocate for Halima Group filed an application under Order 7, rule 11, C.P.C. for rejection of Suit No.640 of 1999 (C.M.A. No.9207 of 2001) inter alia, on the ground that there was no allegation or relief claimed in the prayer against defendants Nos.4 to 9 (the Halima Group) the suit was barred under sections 42 and 56 of Specific Relief Act, 1877, and that the relief for cancellation of power of attorney was against law and could not be considered.

8. On the same day, in Suit No.811 of 1999 the Halima Group filed an Application under Order 7, rule 11, C.P.C. for rejection of Suit No.811 of 1999 (C.M.A. No.9208 of 2001), inter alia, on the grounds that they had acquired the property for valuable consideration by Registered Deed, they had received its physical vacant possession and the original documents, the suit was barred under sections 42 and 56 of the Specific Relief Act and also under Order 2, rule 2, C.P.C. as Naheed in her Suit No.640 of 1999 had omitted and relinquished her claim of cancellation of the conveyance deed and possession of the said property and as such she was not entitled to file Suit No.811 of 1999 for the omitted and relinquished claims/reliefs.

9. As both suits related to the same property, were basically between the same parties and some of the grounds for rejection of plaints were similar, both applications were heard together and dismissed by the learned Single Judge by a common order dated 11‑2‑2002. Being aggrieved by the aforesaid order passed by the learned Single Judge, Halima Group has filed these two High Court Appeals bearing Nos.78 and 79 respectively.

10. Mr. Hafiz Abdul Baqi, learned counsel for the appellants, vehemently contended as follows:‑‑ (i) Both suits filed by Naheed are barred under sections 42 and 56 of the Specific Relief Act, 1877 as no legal right to the plaintiff existed to seek relief especially after 10‑3‑1999 when title to property was registered in favour of the Halima Group. (ii) Suit No.811 of 1999 is barred under Order 2, rule 2, C.P.C. as Naheed has omitted to challenge the validity of the conveyance Deed dated 10‑3‑1999 and ask for possession of the property in Suit No.640 of 1999. (iii) Naheed had also moved an application under section 12(2), C.P.C. before the Rent Controller in Rent Application No.683 of 1998 which was pending adjudication and as such Suit No.640 of 1999 for cancellation of power of attorney executed in favour of Jamil is barred under section 10, C.P.C. and referred to PLD 1991 SC 997 in support thereof.

11. Mr. Khawaja Naveed, learned counsel for respondent No.1, in reply to the above arguments submitted as follows: (i) The two suits Med by Naheed are not barred under section 42 and 56 of the Specific Relief Act, 1877 as both related to Naheed's title in the said property. (ii) That the causes of action in both suits are different. In Suit No.811 of 1999 the cause of action arose when Naheed came to know about the registration of the conveyance deed in favour of Halima Group while the cause of fiction in Shit No. 640 of 1999 arose when Naheed came to know that Jamil had obtained possession of the property frost the tenant on the basis of a fraudulent power of attorney. (iii) The application under section 12(2), C.P.C. pending in the rent proceedings does not affect Suit No.640 of 1999 or 811 of 1999 filed by Naheed.

12. We have heard the arguments advanced by both learned counsel for and against the admission of the appeal and have perused the record.

13. Under section 42 of the Specific Relief Act, 1877, any person entitled to any right as to any property can file a suit for declaration against any person denying or interested to deny his title to such right while section 56 of the said Act states the various situations where injunction cannot be granted by a Court. Naheed filed Suit No.640 of 1999 against Jamil, inter alia, on the ground that he had used a forged and fabricated power of attorney to obtain possession of the said property from the tenant in execution of an ejectment order procured by misrepresentation and fraud. Naheed also prayed for cancellation of the forged power of attorney under section 31 of the Specific Relief Act. The said suit cannot in the circumstances be said to be barred under section 42 of the Specific Relief Act. Mr. Hafiz Abdul Baqi, learned counsel for Halima Group did not indicate any specific clause of section, 56 of the Specific Relief Act under which Suit No.640 of 1999 is barred. The objections are accordingly rejected.

14. Naheed filed the second Suit No.811 of 1999, among others, for cancellation of the conveyance deed which had deprived her of her title in the said property and for directing the Halima Group to hand over vacant possession of her property and to restrain the said Group from transferring, selling mortgaging or creating any third party interest in the said property. As Naheed claims to be owner and alleged that Jamil had fraudulently conveyed the property to the Halima Group, this suit is also maintainable under sections 31 and 42 of the Specific Relief Act. The objection under section 56 of the Specific Relief Act in respect of Suit No.811 of 1999, is rejected for the same reason stated above.

15. The argument of Mr. Hafiz Abdul Baqi that Suit No.811 of 19991 is barred under Order 2, rule 2, C.P.C. as Naheed had omitted to challenge the validity of the conveyance deed and seek a mandatory injunction to obtain possession of the property in Suit No.640 of 1999 is misconceived. Suit No.640 of 1999 was filed on 7‑4‑1999 when Naheed came to know about the bogus power of attorney purported to have beet executed by her in favour of Jamil relating to the said property which Jamil had used to obtain possession of the said property from the tenant in execution of an ejectment order procured by misrepresentation and fraud. Naheed had tried to obtain from Khawaja Latif, Advocate, the name of the alleged attorney, Jamil but had failed, in her attempts. At the time of filing Suit No.640 of 1999 she had no knowledge that Jamil had executed any conveyance deed in favour of the Halima Group except that somebody was misrepresenting himself to be her Attorney. Consequently she filed a suit for delivery and cancellation of the alleged power or attorney. There was no occasion for her to file a suit for cancellation of I the alleged Registered Conveyance Deed as she had no knowledge about it. In view of the above fact, Suit No.811 of 1999 is not hit by Order 2 rule 2, C.P.C. The argument advanced by the counsel for Halima Group are frivolous and vexatious and are accordingly rejected.

16. Mr. Hafiz Abdul Baqi, learned counsel for the appellant vehemently contended that Naheed had filed an application under section 12(2), C.P.C. before the Rent Controller and therefore, Suit No.640 of 1999 is barred under section 10, C.P.C. and referred to the case of Ismail v. Subedar Gul Inayat Shah PLD, 1991 SC 99.7 in support. There is no cavil about the proposition of law enunciated by the Hon'ble Supreme Court in the above judgment that the‑ Rent, Controller has the power to set aside any order which has been secured by fraud or mis representation upon him. Naheed has challenged the validity of the Rent Controller's order of ejectment on the ground that Jamil had obtained the said order on the basis of a forged power of attorney, which is based on fraud and misrepresentation. The learned Rent Controller in the rent 1 proceedings will only decide the question of the validity of the ejectment order passed by him and nothing more. In Suit No.640 of 1999, it is the High Court which will decide whether or not the power of attorney which was allegedly used by Jamil for obtaining an ejectment order and in respect of which Khawaja Abdul Latif, Advocate has issued a Public Notice in newspapers is void and should be delivered for cancellation and permanently restrain Jamil and other defendants in the suit from acting or relying upon it.

17. It is well‑established that for examining the merits of an application under Order 7, rule 11, C.P.C. the Court is required to see only the averments made in the plaint. In both suits Naheed has stated the facts giving rise to separate causes of action and filed two separate suits claiming different reliefs. It is disgusting to note that in Suit No.640 of 1999, the Halima Group first filed an application under Order 1, rule 10, C.P.C. to be impleaded as parties in the suit and after the application was allowed the Group filed an application under Order 7, rule 11, C.P.C. for rejection of the plaint, inter alia, on the ground that the Halima Group had not been a made party and that they had purchased the property by a registered sale‑deed from Jamil and Naheed had not joined them as parties in the suit. On the basis of the pleadings it cannot be denied that when Naheed filed Suit No.640 or 1999 she did not know that the said property had been sold to the Halima Group and it was only when Naheed filed an execution application in Rent Case No.750 of 1998 for ejectment of her tenant Sikandar that the Halima Group appeared and claimed to be the owner of the property by virtue of a conveyance deed dated 10‑3‑1999 from alleged attorney, Jamil Ahmed about whom Khawaja Latif, Advocate, had refused to give any information about the Halima Group which apparently was in the process of buying the property from Jamil in spite of the public notice published by Naheed in the Daily Nawa‑e‑Waqt and the Daily Jang of 9 12‑1997. The conduct of Khawaja Latif who issued the notice on behalf of the purchasers of Naheed's property as narrated in the two suits does not appear to be above board and bona fide. The facts as stated in the two suits do not warrant rejection of the plaints under any principle or law.

18. In view of the above discussion, we are of the confirmed opinion that learned Single Judge was justified in dismissing the two applications filed by Halima Group under Order 7, rule 11, C.P.‑C. for rejection of the plaint as they were patently mala fide.

19. On the insistence of Mr. Hafiz Abdul Baqi, learned counsel for the appellant, we heard his arguments for more than one hour and. we are convinced that. the above two appeals are frivolous and vexatious to the knowledge of the appellant. The appellant shall accordingly pay compensatory costs of Rs.5,000 (Rupees Five Thousand) to the contesting respondent.

20. The above are the reasons for the order dated 7‑3‑2003 dismissing the appeals. H.B.T./H‑115/K Appeal dismissed.