1998 PLP 1879 (MLD)

NAZIM HUSSAIN SIDDIQUI, J.

This appeal is directed against the Order dated 1-9-1997 of a learned Single Judge in Civil Suit No.917/1988, whereby the appellant's application, under Order VII Rule 11 C.P.C., was dismissed. The facts relevant for decision of this appeal are as follows: Respondent Mst. Zarina Jamshed is an occupant since 21-8-1971 of Bungalow No.262/B (Survey No.262/1) comprising an area of 173 acres, situated at R.A. Lines, Ingle Road, Karachi as a temporary allottee which is now the property of the appellant and once was declared enemy property, as per Notification dated 26-1-1968. It was later on purchased by the Ministry of Defence for Rs.3,62,

000. Thereafter, it was transferred to the appellant by way of consideration of Rs.74,55,

721. It was allotted to the respondent at her request that her late husband, who was a CSP officer and Joint Secretary of the Government of Pakistan, was killed in an unfortunate car accident. The respondent at that time had four (4) young school going children and wanted a shelter for them. Temporary allotment order in favour of the respondent was issued on 14-7-1991 on monthly rent of Rs.500. The appellant approached the respondent for vacating said premises and the latter filed the suit in question for possession, declaration, injunction and prayed for the following reliefs: (i) decree that the possession of the portion of the bungalow No.262/B R.A. Lines, Ingle Road, Karachi from where the Defendants have forcibly dispossessed. the Plaintiff be restored to the Plaintiff; (ii) declare that the plaintiff being a tenant in respect of the bungalow No.262/B, R.A. Lines, Karachi is entitled to the peaceful possession thereof; (iii) restrain the Defendants, their subordinates, servants, agents, ands or any person or persons and/or any authority/authorities acting under express or implied authority of the Defendants from interfering in the possession of the Plaintiff's possession in respect of bungalow No.262/B, R.A. Lines, Ingle Road, Karachi; (iv) declare that the plaintiff is entitled to adjustment of rent in respect of the sum spent by the plaintiff on repairs of the bungalow No.262/B, R.A. Lines, Ingle Road Karachi, i.e. to the extent of Rs.2,00,000.00; (v) restrain the Defendants, their subordinates, servants, agents, and/or any person, or persons and/or any authority/authorities acting under express or implied authority of the Defendants from handing over possession of the portion of the bungalow No.262/B, R.A. Lines, Ingle Road, Karachi to any person except the Plaintiff; (vi) restrain the Defendants, their servants, subordinates, agents and/or any person or persons from interfering in the Plaintiff's enjoyment of amenities connected with bungalow No.262/B R.A. Lines, Ingle Road, Karachi and/or disturbing the water connection, electricity connection, water connection use of the lawns and servant quarters; (vii) grant costs of the suit; The appellant filed an application under Order VII Rule 11 C.P.C. and the same was dismissed by the order, which has been impugned in this appeal. Rejection of the plaint was sought on the ground that no relief could be granted to the respondent under section 42 of the Specific Relief Act and also in view of sections 10 and 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. Aforesaid two sections of the Ordinance are as follows: "Section 10: No Civil Court shall pass an order in any suit or proceeding granting a temporary or interim injunction restraining the Central Government or any officer authorized by it from taking possession of any land or building under this Ordinance. Section 11: (1) No suit or legal proceeding shall lie against the Central Government in respect of anything which is, in good faith done or intended to be done under this Ordinance. (2) No suit, prosecution or other legal proceeding shall lie against any person in respect of anything which is, in good faith, done or intended to be done under this Ordinance." The only point for consideration in this matter is that whether the suit appears from the statement in the plaint to be barred by any law. It is an admitted fact that the premises belongs to the Government. It is also an admitted fact that it was allotted to the respondent to provide her shelter temporarily as her deceased husband never had or owned a house, land or property anywhere in Pakistan. It is also an admitted fact that for the last 27 years she is occupying the said premises. In the case reported as Estate Officer, Government of Pakistan v. Syed Tahir Hussain PLD 1962 SC 75, it was held that occupation by a Government servant of Government owned premises allotted to him can be no more than a tenancy at will, which may be terminated by the State at any time without cause shown. Further, it was observed that the case may be one of tenancy at will or mere licence the Government has full. authority to terminate the occupation by means of a peremptory notice. Chaudhary Iqbal, learned counsel for the respondent strenuously argued that the premises was allotted to the respondent as such, the relationship between the respondent and the Government is that of landlord and tenant and the respondent could not be evicted therefrom except in due course of law. It is noted that a Government Bungalow cannot be given to a stranger as a tenant. It i was given to the respondent, under the circumstances, mentioned earlier. In fact, it was given to the respondent as a licence and not as a lessee. Though in the letter of allotment the words "Temporary Allotment" are used but in fact it was a licence. Under such circumstances, the substance of the documents is to be looked into and no technical terms embodied in the documents. On this point reliance is placed upon the case of Ahmed Din v. Abdullah Bhai and others PLD 1962 Karachi

663. In the case of Saeed Ahmad Malik v. Naval Estate Officer 1989 CLC 1204, it was held that in respect of Government plot, where the occupant even with permission constructed an Auto Workshop, the suit for declaration was not maintainable under provisions of section 42 of the Specific Relief Act. In case of Imtiaz Hussain v. Government of Pakistan 1992 CLC 1122, it was held that an allottee of a building or land belonging to Government would not become tenant thereof and his status would only be that of licence. In the instant case, ex facie, the respondent has no legal right and title in the premises and it being so, the suit was barred under section 42 of the Specific Relief Act and also it was barred under sections 10 and 11 of the Ordinance quoted earlier. Learned counsel for the respondent argued that under the circumstances, the plaint could not be rejected. He cited (1) Dr. Salahuddin Ahmed v. Ministry of Works and another 1983 CLC 457 and (2) Abdul Manan Malik v. The Marine & Fisheries Deptt. and another 1986 MLD 2970, to contend that plaint containing allegations of mala fide, could not be rejected without framing issues and recording of evidence. The facts, of the instant case are entirely different and both the above cases are distinguishable. The respondent is a licence and in that capacity she cannot claim the reliefs mentioned earlier. Now it is a settled proposition of law that it is the duty of the Court to reject the plaint which is incompetent from its inception. The instant suit was not maintainable and was hit by the provisions of Order VII Rule 11 C.P.C. On the point reference can be made to the cases (i) Burmah Eastern Ltd. v. Burmah Eastern Employers Union and others PLD 1967 Dacca 190 (ii) Pakistan through Secretary, Ministry of Refugees and Rehabilitation and another v. Davachand Muljimal and others PLD 1968 Kar. 107 (iii) Muhammad Akhtar etc. v. Abdul Hadi etc. 1981 SCMR 878 (iv) Lt. Col. M. Ahsanul Haq v. Sh. Manzoorul Haq and 2 others PLD 1979 Note 120 at Page 90 and (v) N.A. Shahriyar v. Messrs Conforce Ltd. 1982 CLC 1570. Learned counsel for the respondent argued that the notice as required under proviso of subsection 2 of section 4 of the aforesaid Ordinance was not served upon the respondent. Although, the respondent had notice about the intention of the appellants as is evident from the proceedings of Rent Case No.28 of 1993 between the parties and also from the Suit No.917/1988, we direct that before taking any action against the respondent; the appellant would serve upon her a notice of 14 days for vacating the premises. In view of above discussion, we allow this appeal with no order as to costs, set aside the impugned order and reject the plaint. Above are the reasons for short order announced on 2-6-1998. H.B.T/D-16/K Appeal allowed.