2003 PLP 1684 (CLC)

(9) Whether the suit is not proceedable in view of preliminary objection No.9 of the written statement? OPD (10) Whether the suit is not proceedable in view of preliminary objection No. 10 of the written statement? OPD (11) Whether the suit is not proceedable in view of preliminary objection No. 11 of the written statement? OPD (12) Whether the suit is not proceedable in view of preliminary objection No. 12 of the written statement? OPD (13) Whether the plaintiff is entitled to allotment of Plot No.1-B in lieu of 8-B? If so, on what consideration? OPP (14) Relief.

5. The parties led their evidence. Vide judgment dated 16-4-2001 learned Civil Judge, Islamabad decided Issues Nos. 1, 2, 3, 4 in the negative. Issues Nos.5 and 13 were decided in favour of the respondents while Issues Nos.6, 7, 8 to 12 were decided in the negative. The learned Judge proceeded to decree the suit of the respondent. The appeal filed by the petitioner was dismissed by the learned Additional District Judge, Islamabad on 11-7-2001 by endorsing the findings on 'all the issues recorded by the learned trial Court. While deciding Issue No. 13, the learned Additional District Judge observed:-- "It is also established on record that on the application of the respondent, it was principally agreed that Plot No. 1-B be allotted to him. Gul Hussain P. W.1 has admitted that the Legal Branch gave opinion that Plot No.1-B be allotted to the respondent but this allotment could not be matured due to pendency of the present suit. He admitted contents of office noting on letter Exh.P.12 as correct which shows that auction of Plot No. 1-B was postponed on the ground that this plot was kept available for allotment to respondent as alternative of Plot No.8-B."

6. The learned counsel for the petitioner-defendant, inter alia, contends that the respondent-plaintiff was not entitled to the allotment of the Plot No.1-B as alternative either under any provision of law or contract. Further that the respondent was estopped from claiming the allotment of Plot No. 1-B as he had already accepted the allotment of Plot No.13-B. Further it is contended that the Appellate Court without adverting to documentary evidence on record decided the appeal in a slipshod manner and further that the internal noting of the C.D.A. did not create any right in favour of the respondent unless it was communicated to him in accordance with law. Finally, the learned counsel contends that both the Courts below have not grasped the real controversy between the parties, therefore, proper issues from the pleadings of the parties were not framed, resultantly the case has been decided by the Courts below by non-reading of evidence on the record. He contends that the judgment of the Appellate Court is in violation of Order 41, rule 31, C.P.C. as it does not contain points for determination or decision thereon or the reasons for the decision. Reliance has been placed on the case reported as Iftikharuddin Haider Gardezi and 9 others v. Central Bank of India Limited 1996 SCMR 669 and Jumma Khan v. Mst. Shamim and 3 others 1992 CLC 1022.

7. On the other hand, the learned counsel for the respondent has defended both the judgments of the trial Court as well as of the Appellate Court and contends that the respondent was entitled for allotment of Plot No.1-B and allotment of Plot No.13-B was never accepted by the respondent. Further contends that Plot No.8-B was erroneously transferred to the respondent by the C.D.A. and the respondent had deposited the requisite amount, as such he was entitled for the transfer of the plot in lieu of Plot No.8-B. He adds that the plot in dispute, i.e. No.1-B, was never transferred for construction of the post office. He states that despite taking the stand that the plot in dispute (No.1-B) was reserved for the post office was put to auction for which the C.D.A. had no right under the law. Further argues that the learned trial Court has correctly framed the issues from the divergent pleadings of the parties keeping in view the pleadings of the parties and that the petitioner was fully cognizant of the issues which arose out of their pleadings and they had adduced their evidence in respect thereof, and since no prejudice was caused to any of the parties by failure of the Court to frame a proper issue in the suit out of the pleadings of the parties, the judgments of both the Courts below are not liable to be set aside. He placed reliance on the case reported as Mehr Din v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1.

8. Before I proceed to decide the case on merits, I may advert to the point taken by the learned counsel for the petitioner that the issues have not been correctly framed by the trial Court from the divergent pleadings of the parties. Respondent's case before the Court is that he is entitled for the allotment of Plot No.1-B in Sector I-11/4(F&V), Islamabad as the same was principally agreed by the C.D.A., due to wrong allotment of Plot No.8-B to the respondent by the C.D.A. as the same was allotted to Abdul Rauf and Umar Farooq and due to non- availability of file and pendency of the case with the F.I.A. Plot No.1-B could not be allotted to the respondent and as such the entitlement of the respondent for the plot in dispute was denied. This controversy has resulted in framing Issue No. 13 as follows:-- "

13. Whether the plaintiff is entitled to allotment of Plot No. 1-B in lieu of Plot No.8-B? If so, on what consideration? OPP"

9. To my mind, the above stated issue has depicted the controversy between the parties and it cannot be said that the issue was not correctly worded or correctly framed by the learned trial Court keeping in view the pleadings of the parties. Even otherwise, both the parties throughout the trial were fully cognizant of the issue which really arose out of the pleadings of the parties and they had adduced their evidence in respect thereof. The learned counsel has failed to indicate any prejudice which was caused to the petitioner/C.L.A, on account of failure of the Court to frame a proper issue in the suit. No objection whatsoever was taken during the trial regarding non-framing of the issue. Even this point has not been raised in the memo. of appeal. In ground "C" of the appeal before the learned District Judge the petitioner has, asserted that:-- "(c) That the learned lower Court has failed to decide the Issue No. 13 according to law and facts of the case." In case of Mehr Din v. Dr. Bashir Ahmad Khan anal others 1985 SCMR 1, while interpreting Order XIV, rule 2, C.P.C. the Honourable Supreme Court has ruled:-- "Issue not happily worded and correctly framed by Court keeping in view pleadings of parties

Parties, throughout trial were fully cognizant of issue which really arose out of pleadings of parties and they had adduced their evidence in respect thereof

No prejudice, held, was caused to any of parties by failure of Court to frame a proper issue in suit arising out of pleadings of parties." This being so, I reject the contention of the learned counsel for the petitioner that correct issues have not been framed from the pleadings of the parties.

10. This brings me to decide whether Plot No.13-B was allotted to the respondent and the respondent was bound to make payment having already accepted the allotment of the said plot, or the respondent is entitled for the allotment of the plot in dispute i.e. Plot No. 1-B in lieu of Plot No.8-B which was initially allotted to him erroneously. The C.D.A. has authority to dispose of any land under section 49 of the Capital Development Authority Ordinance, 1960. Authority has been defined in section 2(b) of the said Ordinance, which reads as tinder:-- "'Authority' means Capital Development Authority established under section 4."

11. Sub-clause (2) of section 4 of the Ordinance (ibid) reads as under:-- "(2) The Authority shall be a body corporate, having perpetual succession and a common seal, with power, subject to the provisions of this Ordinance, to acquire and hold property, both movable and immovable and shall by the said name sue and be sued." The management and affairs of the Authority vests in the Board under section 5, and the constitution of the Board is made under section 6 of the Ordinance. Statutory rules and regulations as regards transfer etc. of the State land in terms of Article 260(c) and 268(7) of the Constitution of the Islamic Republic of Pakistan, 1973 have been declared to be the law for the purposes of Articles 173(5) of the Constitution. Therefore, law exists for dealing with the State land within the limits of Capital Territory Area of Islamabad as held in the case reported as M.D. Tahir, Advocate v. Federal Government through Secretary, Cabinet Division, Islamabad and another 1996 CLC 1987. In para. 7 of the plaint, the plaintiff-respondent asserted that in the Master-plan of the C.D.A., Plot No.1-B is never reserved for the Post Office, but the same is an. open plot for restaurant. The C.D.A. officials in their letter, dated 4-10-1994 advised the respondent to give his consent for the Plot No. 13-B and if he has not given the consent, the offer shall stand withdrawn. In reply to the above para. No.7, the C.D.A. in the written statement stated:-- "

7. That the plaintiff applied for Plot No.1-B, I/11/4 which was principally agreed but due to non-availability of file and pendency of case with the F.I.A., the request of the plaintiff was not acceded to." From the above-stated pleadings, it can be concluded that firstly the respondent has been deprived of the plot for the mistake of the C.D.A., and secondly for the non-availability of the file and pendency of the case with the F.I.A. with no fault of the respondent.

12. A reference has been made by the learned counsel for the petitioner to Exh.D.19, letter dated 23-1-1995 written by respondent Sh. Muhammad Hanif in which he accepted the offer of Plot No. 13-B under protest and the words "under protest" have been erased. In internal noting of the C.D.A. Exh.P.12 dated 2-2-1991 it has been accepted that the authority has agreed/approved the allotment of an alternative Plot No.1-B in Sector I-11/4, in lieu of Plot No.8-B, Sector I-11/4, vide paras. 16, 17 and 24-N of the noting. The Section Officer, Cabinet Division was informed vide page 53 in response to his letter at page 34/Cor of the same noting. Exh.P.19 is the note dated 28-8-2000 of Faiz Muhammad Chaudhry, Director (Law) in which he endorsed the proposal of the Director EM-II. Here it is advantageous to reproduce para. 414 of the noting, which reads as under:-- "

414. Reference pre-paras., it is also clarified that Chairman, C.D.A. approved the allotment of Plot No.1-B to Mr. Muhammad Hanif vide para. 17/N. Therefore, it is proposed that we allot Plot No. I-B to Mr. Muhammad Hanif and any suitable plot from the vacant plots may be allotted to postal authorities." Para. 445 of the same noting (Exh.P.20) has clinched the issue, which para. reads as follows:-- "

445. In view of the position explained above and to resolve this long outstanding issue, the case may be submitted to the competent authority for orders that:-- (a) we may issue allotment letter of Plot No. 1-B to Haji Muhammad Hanif in lieu of Plot No.8-B, (having same dimensions) as the allottee has paid the entire premium about 17 years age. (b) we may issue allotment letter of Plot No.421, measuring 20' x 70' to the postal authorities in lieu of Plot No.1-B, as the department has agreed to accept the alternate plot and the entire payment of premium also stands paid."

13. An objection has been raised by the learned counsel for the petitioner that the above-stated internal noting is not admissible in evidence and cannot be relied upon which objection is of no substance because I see that no objection whatsoever was raised at the time of production of the documents. It has been held in case reported as Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 that if no objection regarding the formal proof of a document is raised at the time of producing the same, the document shall be read in evidence. Section 49-F of the C.D.A. Ordinance deals with the admissibility of 'the document or entering as evidence, according to which a copy of any receipt, application, plan, notice order or other document or of any entry in a register, in possession of the Authority shall, if duly certified by the legal keeper thereof or other person authorized by the Authority in this behalf be admissible in evidence of the existence of the document or entry, and shall be admitted as evidence of the matters and transactions therein recorded in every case where, and to the same extent to which, the original document or entry would, if produced, have been admissible to prove such matters.

14. The findings on Issue No. 13 on the basis of evidence is correct and the respondent is entitled for the allotment of the plot in dispute i.e. 1-B, I-11/14, Islamabad. The C.D.A. is a statutory body and is expected to deal with the citizens fairly, honestly and its all actions should be transparent. The respondent cannot be deprived from the plot simply because erroneously a wrong Plot No.8-B in Sector I-11/4 has been allotted to him which was allotted to some other persons and thereafter he was refused the allotment on the ground that the file is with the F.I.A. and is not traceable or that the plot has already been allotted for construction of post office, which has been proved factually incorrect.

15. It is true that under Order 41, rules 30 and 31, C.P.C. the Court should set out points for determination record its decision thereon and give reason for the decision, and the rule laid down in Order 41, rule

31. C.P.C. is mandatory and should be followed to enable the Appellate Court to decide the matter in accordance with law. To my mind, the First Appellate Court was conscious of the real issue between the parties and was able to set out points for determination and has recorded the decision thereon and has given valid reasons on the basis of evidence. There is no, violation of Order 41, rule 31, C.P.C. Concurrent finding of fact recorded by the competent Court of law on the basis of evidence cannot be interfered with by this Court in exercise of revisional jurisdiction of this Court. Resultantly, this petition fails and is dismissed. S.A.K.C-219/L Petition dismissed.