2010 PLP 1916 (MLD)

AMIR HANI MUSLIM, J.

By consent of the learned counsel of the parties, I have heard this matter finally at Katcha peshi stage.

2. The grievance of the applicant is that he has filed Suit No. Nil of 2005 against the respondents before the III Senior Civil Judge, Karachi (West), for declaration and permanent injunction, seeking following reliefs: "(a) A declaration that the notices under section 3(1) of the Port Authorities Land and Building (Recovery of Possession) Ordinance, 1962 dated July 24, 2004 (Annexure "J" Hereto) and March 8, 2005 (Annexure "K" hereto) issued by the defendant No. 1 are illegal, mala fide and void ab initio and have been issued in colourable exercise of jurisdiction. (b) A declaration that the plaintiff is entitled to tenancy rights in respect of Shop No. 9 on ground floor, AKPT Stadium Agha Khan Road, Kharadar, Karachi. (c) The defendants their agents, subordinates and body acting through them be restrained from dispossessing the plaintiff by force or on the basis of the aforesaid notice from the Shop No.9, on ground floor, KPT Stadium Agha Khan Road, Kharadar, Karachi. (d) Costs of the suit and (e) Any other relief which the nature and circumstances of the case may require granted."

3. In the plaint, the applicant has impugned the notices issued by the respondent No. 1 under section 3(1) of the Port Authorities Lands and Building (Recovery of Possession) Ordinance, 1962, pleading therein that the said notices were issued with ulterior motives for his ejectment. It was further pleaded in the Plaint that the action of the respondent No.1 was mala fide and falls beyond the parameters of the KPT Act.

4. The trial Court vide order dated 25-4-2005 has rejected the plaint of the applicant, inter alia, on the ground that the suit was barred under sections 4 and 87 of the KPT Act against which a Civil Appeal No.45 of 2005 was preferred by the applicant, which too was dismissed. The applicant in these proceedings has impugned both the orders of the Courts below.

5. The learned counsel for the applicant has contended that both the courts were in error in rejecting the Plaint, inter alia, on the ground that the suit was barred by sections 4 and 87 of the KPT Act. It is contended that the applicant has specifically pleaded mala fide on the part of the KPT authorities. According to him, the courts below overlooked this statement of fact in Plaint and have rejected the Plaint, inter alia, on the ground that since no notice has been served upon the respondent No.1 in terms of section 87 of the KPT Act, the suit was barred. In support of his contention the learned counsel has relied upon the judgment of this court in the case of Mohd. Ismail and Co. Ltd. v. Karachi Port Trust, reported in PLD 1978 Karachi 892, which Judgment has also been relied upon by the courts below while rejecting the plaint.

6. As against this, the learned counsel for the KPT has contended that since no prior notice was served upon the KPT by' the applicant and the suit was filed against the Department and not against the Board of Trustees, the Plaint was rightly rejected by the Court below.

7. I have heard the learned counsel for the parties and have perused the record. Sections 4 and 87 the KPT Act are reproduced hereunder:-- "(4) Act to be carried out by trustee.

The duty of carrying out the provisions of this Act shall subject to such conditions and limitations as are hereinafter contained, be vested in a board to be called. "The Trustees of the Port of Karachi" and such Board, hereinafter referred to as "the Board shall be a body corporate and have perpetual succession and a common seal and shall sue and be sued by the name first aforesaid. (87) Limitation of suits, etc.

No suit shall be commenced against any person for anything done or purporting to have been done; in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suit. And, in the case of a suit for damages, if tender of sufficient amends shall have been made before the suit was brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender."

8. The applicant has filed suit against the KPT through its Chairman, who is also head of the Board of Trustees. Therefore, this objection that the suit was liable to be dismissed under section 4 of the Act as Board of Trustees of the KPT were not impleaded as the defendant is misconceived. The suit was not filed against the Department but was filed against the KPT through its Chairman. In any event, such defect was otherwise curable and the Courts below should have granted time to the applicant to cure such defect instead of rejecting the plaint.

9. In regard to service of notice prior to filing of suit in terms of section 87 of the KPT Act is concerned, it is an established law that if the party pleads mala fide on the part of the authority then bar of the nature would not be attracted. In the case of Mohd. Ismail and Co. Ltd. v. Karachi Port Trust (supra) his lordship while interpreting the' provisions of section 87 has held that, if in a plaint it was pleaded that action of the authority was tainted with malice then bar provided under section 87 of the KPT Act would not be attracted and no notice in terms of the said section is required to be served. Therefore, both the Courts were in error in passing the impugned orders' by relying upon the aforesaid case of Mohd. Ismail and Co. Ltd. v. Karachi Port Trust, which is distinguishable and in fact supports the case of the applicant.

10. Moreover, application of the provisions of Order VII Rule 11, C.P.C. have limited scope. The courts can neither travel beyond the contents of the plaint for the purposes of its rejection nor can they look into the defence of the other side. In the case in hand, I do not find any justifiable reason to uphold the impugned orders of the Court below as the same were passed overlooking the scope of Order VII Rule 11, C.P.C. The courts below were influenced by the language of sections 4 and 87 of the KPT Act, which can only be attracted if the authorities have exercised the powers bonafidely. If there is allegation of mala fide in exercise of powers and or it is pleaded that the act of the KPT is tainted with malice then the bar of the nature would not be attracted. For the aforesaid reasons, I allow this Revision Application and set aside the impugned orders of the courts below. Matter is remanded to the trial court, which shall proceed with the matter on merits and dispose of the case at an early date. H.B.T./A-76/K??????????????????????????????????????????????????????????????????????? ??????????? Case remanded.