1999 PLP 1587 (CLC)

Deferred.

2. Defendant No.2 called absent. Let the suit proceed ex pane against the said defendant.

3. The facts relevant for the purposes of disposal of this application filed by defendant No. 3 under Order VII, Rule 11, C.P.C. for rejection of plaint are that the defendant No. l is owner of one bifurcated portion of Plot No.D‑14, Block B, K.D.A. Scheme No.5, Clifton, Karachi having purchased the same from its original owner. As per averments made in the plaint, the defendant No. l submitted a revised plan for certain addition and alteration in the said portion of plot before defendant No.3 and ultimately vide letter, dated 24‑10‑1995, such permission was granted by defendant No.3 to defendant No.

1. According to the plaintiff, he has purchased Shops Nos.3 and 10 in the aforesaid portion of building, measuring 850 square feet and premises No.5 on mezannine floor from the defendant No ‑1 vide sale agreement, dated 4‑12‑1995. The defendant No. l under the said agreement of sale undertook to execute sub‑lease in respect of the premises purchased by the plaintiff but no steps were taken by the defendant No. l for executing the same in favour of the plaintiff and on insistence the defendant No. l refused to get the sub‑lease executed in favour of the plaintiff in respect of the said premises. The plaintiff has further averred in the plaint that defendants Nos.2 and 3 are causing harassment to the plaintiff as defendant No. l has failed to settle the dispute with defendants Nos.2 and 3 in respect of construction/revised plan and commercial use of the said premises. The plaintiff has, therefore, filed the suit in hand containing prayers for specific performance of sale agreement, dated 4‑1.2‑1995 and also for a declaration against defendants Nos.2 and 3 to the effect that action of the said defendants against the business of the plaintiff in the said premises are discriminatory and based on mala fide. The plaintiff has further sought injunction for restraining the defendants Nos.2 and 3 from taking any adverse action against the business of the plaintiff in the said premises. I have heard Mr. Arshad Zaman Kiyani for defendant No.3 and Mr. Imran Ahmed for the plaintiff. It has been contended by the learned counsel for defendant No.3 that the plaint in the suit is liable to be rejected under Order VII, Rule 11, C.P.C. as against defendant No.3 for want of notice under section 273 of the Cantonments Act, 1924 (hereinafter referred to as the Act). It is further, contended by the learned counsel that the suit is barred under section 56(d) of Specific Relief Act and that the plaint does not disclose any cause of action against defendant No.3. On the other hand, Mr. Imran Ahmed, learned counsel for the plaintiff, has contended that under subsection (4) to section 273 of the Act no notice is required to be given by the plaintiff before instituting a suit for in junction. It is further contended by Mr. Imran Ahmed that since the defendants Nos.2 and 3 were threatening to demolish the premises in question the plaintiff in view of section 273(4) is legally competent to approach this Court. In respect of the being barred under section 56(d) of the Specific Relief Act, it has 1 contended by the learned counsel that provisions of subsection (d) of section 56 of the Specific Relief Act relate to stay of Court proceedings and as such the same are not applicable in the instant suit. It is submitted by Mr. Imran Ahmed that since the action of defendants Nos.2 and 3 impugned in the present proceedings is mala fide provisions of section 56(d) of Specific Relief Act would not come in the way of the plaintiff in filing this suit. As to the absence of cause of action as against defendant No.3, it is contended by Mr. Imran Ahmed that perusal of plaint itself discloses cause of action against defendants Nos.2 and 3 inasmuch as the plaintiff has specifically stated that the said defendants are causing illegal harassment to the plaintiff. Section 273 of the Act prohibits filing of suit against any Cantonment Board; any member of Cantonment Board or against any officer or servant of a Board in respect of any act done in pursuance of provisions of the Act or any rule or bye‑law made thereunder until expiration of two months after notice in writing has been left at the office of the Cantonment Board. It is an admitted position that in the instant case no notice under section 273 of the Act was served by the plaintiff on defendant No.3. I do not find any force in the contention of Mr. Imran Ahmed that in case of a mala fide action no notice under section 273 of the Act is required for the reason that no particulars of such alleged mala fides on the part of the defendant No.3 or its officers/servants have been given in the plaint. Furthermore, from the contents of the plaint it appears that illegal and unadthorised construction has been carried out by defendant No.l and/or by the plaintiff as no approved building plan has been filed by the plaintiff alongwith the plaint. Such being the position, the defendant No.3 and its officers/servants are under a legal obligation to take action in respect of unauthorised construction. The allegations of harassment of the plaintiff at the hands of defendants Nos.2 and 3 are not only vague but also appear to be against the record. Adverting to the contention of Mr. Imran Ahmed that in view of provisions of subsection (4) of section 273 of the Act, the suit is not hit for non compliance of requirements of notice prior to filing of the suit, it may be stated that prior notice has been dispensed with under subsection (4) of section 273 of the Act, only in case relief of injunction is claimed in the suit by a plaintiff. In the instant case, as stated above, the plaintiff has claimed, alongwith relief of injunction following declaratory reliefs:‑‑

(a) to declare that the actions of defendants Nos.2 and 3 against the plaintiff's business in the suit premises are discriminatory and based on mala fides. (b) to declare that the actions of defendants Nos.2 and 3 against the plaintiff business in the suit premises are liable to be prevented on account of their own conduct and representation." In view of the aforesaid two reliefs in respect declaration it cannot be said that the instant suit in so far as defendants Nos.2 and 3 are concerned, contained prayer of injunction alone. Such being the position, the mandatory requirements of section 273(1) of the Act have not been complied with and as such the suit is barred under section 273(1) of the Act. Reliance in this connection has been aptly placed by the learned counsel for the defendant No.3 on the under-mentioned cases wherein it has been held that no prior notice to Cantonment Board is necessary where relief of injunction alone has been claimed by the plaintiff:‑‑

(a) Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785; and (b) Haji Abdus Sattar Kotriwala v. The Cantonment Board. Hyderabad and another 1988 CLC 1182. Since I have held above that mandatory requirement of section 273(1) of the Act has not been met before filing the instant suit, I do not feel obliged to record my findings on other contentions raised by the learned counsel for the defendant No.3. Accordingly, C.M.A. No.3328 of 1997 is granted and office is directed to delete/strike of names of defendants Nos.2 and 3 from the title of the plaint. Q.M.H./M.A.K:/M‑383/K Order accordingly.