1992 PLP 1122 (CLC)

(e) West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance (IX of 1966)‑‑‑ ‑‑‑‑Ss. 5 & 10‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11 & 5.115‑‑ Rejection of plaint‑‑‑Plaintiff was never in possession of plot belonging to Government‑‑‑Plot in question allotted to father of plaintiff was cancelled on specified date‑‑‑Said allotment also stood lapsed after the death of plaintiffs father‑‑‑Plaint disclosing no cause of action was rightly rejected by Trial Court‑‑‑Appellate Court while setting aside order of rejection of plaint had mis‑interpreted law and acted in excess of jurisdiction‑‑‑Trial Court's order of rejection of plaint was restored while that of Appellate Court to the contrary, was set aside. ‑ Abdul Majeed Khan for Applicant. S.M. Sayedain Zaidi for Respondents Nos.1 and

2. Bilal A. Khawaja for Respondent No.3. Date of hearing: 13th August, 1991. The official respondents have moved an application under Order 7, rule 11, C.P.C. for rejection of the plaint which was accepted by the Court but on appeal learned VIth Additional District Judge, Karachi East set aside the order of the learned trial Court and rejected the application under Order 7, rule 11, C.P.C. and remanded the case to the learned trial Court for trial on merits. It is against this order of 1‑12‑1990 that this Revision application is directed.

2. Respondent No.3, Muhammad Iqbal, had filed a civil suit (No.1710/89) seeking a declaration and cancellation of a document. The averments made by respondent No.3 in his plaint are that he is tenant of respondent No.3, Estate Office, Government of Pakistan, in respect of Plot No.603, Garden East, Karachi, which was allotted to his father Tar Muhammad (since deceased) and after the death of his father the plaintiff had become statutory tenant of Estate Office. According to Respondent No.3/plaintiff he had allowed Imtiaz Hussain appellant (defendant No.3 in the suit) to work as motor mechanic on this plot but had subsequently cancelled the licence on 15‑3‑1988 but he did not vacate the plot. In the meantime Imtaiz Hussain obtained from the Estate Office allotment order of the plot in his own name. On the basis of these facts respondent No.3, Muhammad lqbal/plaintiff sought a declaration that he was the only recorded tenant of the suit plot and that without the cancellation of his allotment it could not be allotted by the Estate Office to Imtiaz Hussain or any one else and therefore the allotment order dated 11‑11‑1989 obtained by Imtiaz Hussain was illegal, unlawful and void ab initio and may be cancelled. Official respondents Nos.1 and 2 (who were defendants Nos.1 and 2 in the suit) thereupon filed an application under Order 7 rule 11, C.P.C. for rejection of the plaint on the ground that the suit was barred in view of section 10 of the Federal Government Lands & Buildings (Recovery of Possession) Ordinance, 1966, and under sections 39 and 42 of the Specific Relief Act. While application under Order 7, rule 11, C.P.C. was allowed by the trial Court, it was dismissed by the learned Appellate Court vide impugned judgment dated 1‑12‑1990.

3. Learned counsel for the parties have been heard. It is an admitted position that Tar Muhammad, father of respondent No.3, was allotted this plot in November 1972. A copy of this allotment order is available on the appellate file of the Court of Additional District and Sessions Judge No.VI, Karachi East at page 69 thereof. It is in the following words:‑ 'With reference to his application dated 11‑11‑1972, the plot of land' measuring 45' x 60' situated at Garden Road, Karachi, previously allotted to Mr. Abdul Aziz, is hereby transferred to Mr. Tar Muhammad son of Ayub for running Firewood Shop"." It is apparent from this very order that the allotment made in favour of Tar Muhammad did not create any vested right in him and that he was merely a licensee. It shows that the previous allottee was Mr. Abdul AZ12 and that the plot in question did not devolve upon his legal heirs but was transferred to Tar Muhammad. This takes the ground off from under the feet of respondent No.3 who claims to be the "Recorded Tenant" of the Estate Office. If there could be a‑Recorded Tenant" in respect of this plot then it was first Abdul Aziz and on his death his legal heirs but this was not so.

4. Respondent No.3 is not even "unauthorised occupant" of the plot in dispute in terms of section 2(f) of the Federal Government Lands & Buildings (Recovery of Possession) Ordinance, 1966, because he admits in the plaint that he is no more in possession thereof and had handed over its possession to the applicant. Even if he were in actual possession, he would have been an unauthorised occupant under section 2(f) of the said Ordinance because he has no expresb permission or authority of the Federal Government for being in possession. An allottee of a building or land belonging to the Federal Government does not become its tenant. His status is only that of licensee. A tinder section 5 of the said Ordinance, the Federal Government by order in writing may direct an unauthorised occupant to vacate the land within the period specified in the said order. In the present case, there was no necessity of any such order of the Federal Government because the licensee (deceased Tar Muhammad) is no more alive and the possession of the building in question is that of applicant Imtiaz Hussain. Under section 10 of the Ordinance, jurisdiction of the Civil Court is barred in respect of building and land owned by the Federal Government. In this view I get support from the judgment reported as 1983 CLC 1783 Dr. Munir Ahmed v. Chairman, House Allotment Committee, Government of Balochistan in which it is held that the Government is fully authorised to terminate occupation of premises belonging to the Government both in case of tenancy‑at‑will and of licence and Government premises, even if duly allotted are liable to termination by the Government at any time without any show‑cause notice. Another judgment to the same effect is 1989 CLC 1204 Saeed Ahmed Malik v. Naval Estate Officer. This judgment applies on all fours to the present case and it was held in it that a plaint in a similar suit was rightly dismissed under Order 7, rule 11, C.P.C. It is thus abundantly clear that on the very face of it, the plaint was liable to rejection as the relief claimed therein was barred under section 10 of the Federal Government Lands & Buildings (Recovery of Possession) Ordinance, a 1966.

5. Learned council for respondent No.3 argued that application under Order 7, rule 11, C.P.C. cannot be granted unless issues raised in plaint are determined on the basis of evidence adduced by the parties. Such an argument is unwarranted since the application under Order 7, rule 11, C.P.C. does not admit of a written statement by the opposite‑party or of evidence of the parties. If a bare perusal of the plaint shows that the relief claimed under it is barred under any provision of law or where the contents of the plaint do not show any Q cause of action it is liable to be dismissed forthwith without asking the defendant to file his written statement.

6. I have perused memorandum dated 11‑11‑1989 issued by the Estate Office, Government of Pakistan. It is a perfectly authentic document which creates the relationship of a licensor and licensee between respondents 1 and 2 on one side and the applicant on the other and it also cancels the allotment of the plot earlier made in the name of Tar Muhammad, the deceased father of respondent No.3.

7. In short, the original allotment in favour of the father of respondent tro.3 stands cancelled vide memorandum dated 11‑11‑1989,of the Estate Office of the Government of Pakistan. Even otherwise it stood lapsed after the death of Tar Muhammad. The plot in question had never been in possession of respondent No.3 and the applicant is in possession thereof. The plaint, as such, does not disclose any cause of action. The learned Appellate Court had thus misinterpreted the law and acted in excess of its jurisdiction while passing the impugned judgment. I would therefore accept this Revision application, set aside the impugned judgment and restore the order of the learned trial Court rejecting the plaint under Order 7, rule 11, C.P.C. The parties are left to bear their own costs. AA./I‑176/K Revision accepted.