1998 PLP 234 (MLD)

In the present case the plaint was rejected by the Trial Court being not maintainable under section 42 of the Specific Relief Act as neither the defendant had legal character nor there was any property involved. The Appellate Court has discussed the maintainability of the suit under section 42 of the Specific Relief Act and on page-17 of the judgment has held that the money is "moveable property". The word property has been defined in Black's Law Dictionary as:-- "The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate. " The most comprehensive definition of the property is given in Corpus Juris Secundum (Volume LXXIII) as:-- "

In law it is not the physical material object which constitutes property. The term means, something more than the mere thing which person owns, and in its more appropriate and true legal sense property is not alone the corporeal thing or physical object itself, and is not alone the land or chattel itself. In fact, it has been said that there are no property rights innate in object; themselves. The physical object constitute only the foundation and material of property, and, although the subjects of property, they are, when coupled with possession, only the indicia, the visible manifestations of invisible rights, the evidence of things not seen, and the idea of property springs out of the connection, or control or interest which, according to law, may be acquired in or over things. In the strict legal sense the word 'property' signifies valuable rights or interest protected by law, and this is the primary, appropriate, and broader signification of the term. In modern legal systems, property includes practically all valuable rights, the term being indicative and descriptive of every possible interest which a person can have, in any and every thing that is the subject of ownership by man, including every valuable interest which can be enjoyed as property, and recognized as such, equitable interests as well as legal interests, and extending to every species of valuable right or interest in either real or personal property, or in casements, franchises, and incorporeal hereditaments. ............................................................. ............................................................. Property is considered to be the highest right which a man can have to anything, real or personal, being a complex bundle of. rights, duties, powers, and immunities, comprising a vast variety of rights, with certain rights such as the right of use, the right of enjoyment, and the right of disposal considered to be the constituent elements or essential attributes of property." All definitions include corporeal and incorporeal tangible or intangible wealth in fact it includes all the rights that a man can have. In view of these definitions it is clearly established that the word property includes money. The finding of the appellate is upheld to this extent. The suit was filed for declaration and injunction wherein the prayers were as follows:-- "(1) Declare that the defendants Nos.l and 2 cannot enhance the rate of the fees as they had already enhanced the same 1-1/2 year earlier and that also without prior permission of the defendants Nos.3 and 4 and the defendants Nos.3 and 4 cannot grant this permission for any unreasonable amount and the decision of enhancement of fee of the defendants Nos.l and 2 is illegal unlawful and without any lawful authority and is nullity in the eyes of law; and that the defendants Nos. l and 2 are bound to receive fees from the plaintiffs with respect to their children, studying in the Karachi Public School, Star Gate, Karachi at the rates prevailing in the month of March, 1995; (2) Declare that the defendants Nos.l and 2 s charging Rs.5,000 as admission fee is also illegal, unlawful and without any lawful authority and the admission fee could be only double to the monthly tuition fee of the relevant class in the School; (3) Declare that the Defendant Nos. l And 2 are bound provide; (i) All the trained teaching staff in the School; (ii) Minimum place for per student as required under the law and mop new admissions beyond the capacity; (iii) properly equipped laboratory and school library with books lending facility; (iv) Sports facilities and extra-curricular activities arrangements. (v) Dispensary/Sickroom/First Aid facility; (vi) Waiting room for the parents/guardians who come to collect their wards; (4) Declare that the uniform as is already adopted cannot be changed; (5) Declare that the purchased of books and note books is not necessary to be purchased by the students from the school. (b) Declare that the wards of the plaintiffs cannot be harassed by withholding their results on account of note-payment of the fee on enhanced rates and cannot otherwise be harassed or subjected to ally discrimination. " All tile prayers are in the form of declaration, which means grant of a declaratory decree. To pass, such decree, the suit must fall within the requirement of section 42 of the Specific Relief Act. The section provides that any person entitled to any legal character, or to any rights as to any property may institute a suit against any person denying or interested to deny his title to such character or rights. In the case of Sripatrao Sadashiv Upre v. Shankarrao (AIR 1930 Bombay 331), it was held that alleged right arising out of a contract cannot find a subject-matter to a declaratory suit. In the case of Nathu Ram v. Mula and others (AIR 1937 Lahore 25), it was held:-- ... that a suit for declaration that the plaintiff would be entitled to contribution from the defendant if and when occasion arose did not fall within section 42 of the Specific Relief Act where a declaratory relief was sought in respect of rights arising out of a contract which would affect only the pecuniary relationship between the parties to the contract. " The section will not be applicable. In view of the case-law cited during arguments injunction in a suit in respect of rights arising out of contract effecting only pecuniary relationship cannot be granted. In the present case also relationship between the parties arises out of a contract signed by the School and the Parents and the declaration which have been sought in the suit are of pecuniary nature. Considering the above definitions and applying the same to the present case, it is clear that the interim relief granted by the Appellate Court at the time of disposing of the appeal and remanding the same to the trial Court amounts to grant of main relief. The principle laid down under Order 7, Rule 11, C.P.C. enjoins a duty on the Court to reject the plaint, on perusal thereof if it appears that the Suit is incompetent. Rule 11 (d) of Order 7 clearly stipulate that where the suit appears from the statement in the plaint to be barred by any law the plaint shall be rejected. In the case of Mst. Zubeda Begum v. Muhammad Saeed, (1991 MLD Karachi 1312): it was held that:-- "The plaint should be rejected if the Court comes to the conclusion that even if the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief, but the Court cannot consider either the pleadings of the defendant nor any material outside the plaint for rejection thereof. Therefore, the grievance of the learned counsel that the Appellate Court has failed to examine and consider documents placed by the appellant on the record is of no substance. The Appellate Court would have acted in violation of the aforesaid settled principle of law, if it had done so. " Next contention of the learned counsel for the applicant that in spite of the fact that the averment made in the plaint were denied by the respondent, but the learned Appellate Court still held that the applicant admitted the averments of the respondent, is supported by different paras of the counter-affidavit and objection filed in the suit appeal. In para. 15 of the Appellate order the learned District Judge has observed that "On facts most of the averments of the appellants are admitted," which is contrary to the contents of the counter affidavit. Admittedly, a party has a right to approach the Court if they are aggrieved by actions of the others but it is the forum which is to be correct one. If the plaintiffs in the suit were aggrieved of the actions of the defendants and their fundamental rights were violated, the law provides a proper forum where the grievance could be retrieved. One such forum to which the plaintiff in the suit approached was the` "Controlling Authority" where they lodged their grievance. Without going into the merits of the case or giving any finding as to the legal status of Respondents Nos.l to 100 this revision is accepted and the judgment dated 14-12-1995 passed by the learned Appellate Court is set aside. The case is remanded back to the trial Court of Senior Civil Judge, District Malir, which will decide all the issues being raised by the parties in the case according to law. A.A./A-139/K Case remanded.