1997 PLP 2444 (MLD)
ADDITIONAL COMMISSIONER‑II, K. DIVISION‑‑‑Plaintiff Versus SHAHID RAZA and others‑‑‑Defendants
| Citation | 1997 PLP 2444 (MLD) |
| Forum / Court | Karachi |
| Bench Members | Mushtaq Ahmad Memon, J |
| Parties | ADDITIONAL COMMISSIONER‑II, K. DIVISION‑‑‑Plaintiff Versus SHAHID RAZA and others‑‑‑Defendants |
Q1: What are the key laws and sections cited in 1997 PLP 2444 (MLD)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1997 PLP 2444 (MLD)?
The case was heard and decided by the Karachi bench comprising: Mushtaq Ahmad Memon, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1997 PLP 2444 (MLD) (ADDITIONAL COMMISSIONER‑II, K. DIVISION‑‑‑Plaintiff Versus SHAHID RAZA and others‑‑‑Defendants). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Headnotes / Summary
(a) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S. 42‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑‑Effect of earlier proceedings relating to property in question, on suit filed by plaintiff‑‑‑Determination of title of defendants in various proceedings could not be treated authoritative or final determination of such question as against plaintiff‑‑‑Issue which had been raised in earlier Constitutional petition was absolutely different‑‑‑Issue raised in present suit being totally different, jurisdiction of Civil Court to decide the same was not barred‑‑‑Earlier suit had been filed by occupants of property in question, wherein they had sought cancellation of Permanent Transfer Deed‑‑‑Plaintiff was defendant in such suit but suit was withdrawn unconditionally by occupants of property‑‑‑Issue of title having not been adjudicated upon after application of mind thereto, present suit filed by plaintiff was not barred. (b) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S. 42‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑‑Evacuee Trust Property (Management and Disposal) Act (XIII of 1975), S.3‑‑‑Civil Procedure Code (V of 1908), O,VII, R.11 ‑‑‑ Rejection of plaint‑‑‑Suit tiled by Notified Officer for declaration that P.T.D, issued in favour of defendants was fake and fraudulent ‑‑‑Averment in plaint to the effect that property in question was Evacuee Trust Property, would by itself divest plaintiff of any interest or right therein‑‑‑Plaintiff as Notified Officer had very limited scope of jurisdiction and could not claim to be custodian of all Government lands and properties ‑‑‑Averments in plaint did not show any legal character or right in plaintiff to maintain suit for declaration‑‑‑Plaintiff, fit: maintaining any proceedings for declaration in suit must show existence of status or character conferred by law which was wanting in suit‑‑‑Plaint was thus, rejected for lack of legal character or status in plaintiff to maintain suit for declaration. Burmah Eastern Limited v. Burmah Employees' Union PLD 1967 Dacca 190 and Mst. Sakina v. Excise and Taxation Officer 1989 CLC 964 ref. (c) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Rejection of plaint‑‑‑ Essentials‑‑‑Determination as to rejection of plaint in terms of O.VII, R.11, C.P.C. was required to be undertaken with reference to plaint and annexures thereof, alone‑‑‑Consideration of disputed or unadmitted material outside plaint would necessarily require evidence, therefore, same would not be considered while exercising jurisdiction under O.VII, R.11, C.P.C.‑‑‑Idea behind such jurisdiction was to nip in the bud and to bury still born suit at its inception, which was eventually bound to collapse and to avoid wastage of time of Court‑‑‑To allow such proceeding to continue would result in abuse of process of court. (d) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S. 42‑‑‑Limitation Act (IX of 1908), Art.14‑‑‑Bar to maintainability of suit in terms of Art.14, Limitation Act, 1908‑‑‑Applicability‑‑‑Bar under Art.14, Limitation Act, 1908, would apply‑ only in cases where act or order, sought to be set aside, was shown as having validly been passed‑‑‑Where, however, allegation was that title to property had been procured by practising fraud, question of limitation could not be pressed as bar to maintainability of suit. (e) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Res judicata, principle of‑‑‑ Applicability‑‑‑No final determination of title in earlier proceedings‑‑ Principle of res judicata, would not be applicable where question involved in suit had not been finally determined in earlier proceedings. ‑‑[Res judicata]. Khadim Hussain Abro, A.A.‑G. for Plaintiff. Qasit Nawaz for Defendants Nos. 3 to 5.
Judgment & Decree
3. Relief claimed in the suit relates to declarations and permanent injunction restraining the defendants from alienating or encumbering the property and parting with the possession thereof in any manner. They have also prayed for joint possession of the property of the deceased partition and accounts.
4. Suit itself as well as C.M.A. seeking temporary injunction have been resisted on behalf of defendants Nos. l and 2 who have filed separate written statements as well as counter‑affidavits. It is said that defendant No. 3 purchased Plot No. 130 from Rock 'Field Traders in 1965 through an agreement of sale which was accepted by the K.D.A and property transferred in his name. Likewise Plot No. 131 was allotted in favour of I.K. Traders on 16th July, 1965 by K.D.A who transferred the same in favour of defendant No.3 vide registered lease deed dated 2‑11‑1969. As regards Bungalow No.59/F P.E.C.H.S., the same was purchased sometimes in 1973 in equal shares in the name of defendant No. 1 i.e. wife of the deceased and Mst. Abida Sultana wife of defendant No. 3.
5. It may be pointed out that the defendant No. 3 in his counter‑affidavit has supported the plea raised by the plaintiffs to the effect that both the Industrial plots were purchased in his name by deceased Muhammad Iqbal who also purchased half undivided share in Bungalow No. 59/17 P.E.C.H.S. in the name of his wife i.e. defendant No. 1 and was residing with her in half of the portion of the bungalow. He has also stated about partnership in business with the deceased from 1975 to 1987 whereafter partnership was closed and both Industrial plots came to the share of the deceased as owner.
6. It further transpires from the pleadings of the parties that on the strength of unregistered general power of attorney executed by defendant No. 3 in favour of defendant No. l the latter entered into an agreement of sale with her daughter defendant No. 2 with regard to both the Industrial plots for a consideration of Rs.15,00,000 vide agreement dated 24‑6‑1993. It is further said that subsequent to this agreement defendant No. 2 has entered into an agreement of tenancy with Multi‑Chem Limited in respect of both the Industrial plots but the stand taken by defendant No.3 in his counter‑affidavit is that he never parted with the possession of both the Industrial plots. It further transpires that by public notice published in Daily "News" dated 1‑8‑1994 defendant No.3 cancelled the power of attorney executed by him in favour of defendant No. 1.
7. Upon hearing learned counsel for the parties and without touching the merits of the rival claims raised by each of them, in my view the following questions would arise at the trial: (i) Whether deceased Khawaja Muhammad Iqbal purchased the property in suit in the names of his wife and brother as Benami? (ii) Whether the recorded owners of the property are actual owners of the property in suit or the real ownership vested in the deceased? (iii) Whether defendant No. l acted in excess of her authority by entering into an agreement of sale in relation to the Industrial plots in favour of her daughter? (iv) Whether the agreement to sell between mother and daughter is a fake transaction? (v) Whether the plaintiffs and defendant No. 3 are in collusion with each other? (vi) What is the affect of delay in challenging the transaction on the part of the plaintiffs?
8. In view of foregoing issues to arise for decision in my view a good prima facie case for passing of interim orders is made out in order to preserve the property and to safeguard the interests of the parties to suit. At any event an arguable case has been made out which requires determination at the trial. For these reasons, I would direct defendants Nos. 1 to 3 not to deal with the property or place it under encumbrance or to part with possession thereof till further orders of the Court. This disposes of aforesaid C.M.A. C.M.A No.3526 of 1994. In view of the orders passed on C.M.A No. 3525 of 1994 I am not inclined to direct the defendants or the alleged tenants who are not a party to the suit to deposit the rent in Court during the pendency of the suit. This application is accordingly dismissed. A. A./J‑14/K Order accordingly.