1987 PLP 541 (MLD)

S.H. Kazilbash for Respondent No.2. Dates of hearing: 1st, 2nd and 5th February, 1987. This revision application arises from the appellate judgment passed by the learned District Judge (West), Karachi, dated 27-4-1986. The brief facts of the case are that the respondent No.l filed a Civil Suit. No.303/86 in the Court of fourth Senior Civil Judge (West), Karachi against the applicant and the Karachi Development Authority, the respondent No.2 in the case. The grievance of the respondent No.l was that the K.D.A. had allotted plot No.S.T-4 Sector 5-B, Qasba Township, Karachi to the applicants when the same had already been allotted to the respondent No.l, when the suit was pending before the learned Civil Judge, he by invoking Suo motu powers under order 7, Rule II, C.P.C. rejected the plaint filed by the respondent No.l on the ground that the respondent had failed to give notice to the K.D.A. who was the co-defendant in the suit as required under Article 131 of the K.D.A. Order of 1957 and since no suit could be filed against the K. D. A. without such notice, the suit filed by the respondent No.l was not competent. Article 131 reads as under:- "131. Notice of suit against Authority, etc.--(1) No suit shall be instituted against the Authority or any member or any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority, in respect of any act purporting to be done under this Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority office or the place of abode of such member, officer, servant or person, stating the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought." The respondent No.l then filed appeal against the order of the Civil Court, dated 31-3-1986 which was disposed of by the learned District Judge (West), Karachi by his order, dated 27-4-1986 and the appeal filed by the respondent was partly accepted, as rejection of the plaint, as against the applicant was set aside but the order as against the respondent No.2 was maintained. I have heard Mr. Akhtar Mehmood, learned counsel for the applicant and Mr. Gul Zaman Khan and Mr. Sabir Husain Qazilbash learned counsel for the respondent No.l and the respondent No.2 respectively. It may be pointed out at the very outset that the learned counsel appearing on behalf of the respondents No.l and 2 very fairly conceded that the plaint could only be rejected as a whole and could not be rejected in part and consequently the judgment of the learned District Judge (West) is erroneous. It was further conceded that it was evident from the prayer made in the plaint that the reliefs were jointly sought against the applicant and the K.D.A., the respondent No.2 and therefore, in no case the respondent No.2 which was a necessary party could be dropped from the suit filed by the respondent No.1 Since the law on the point, is clear, I have no difficulty in allowing this revision and setting aside the impugned order passed by the learned District Judge; but apart from that Mr. Gul Zaman Khan, learned counsel for the respondent No.1 has argued that the plaint filed by the respondent No.l could not have been rejected by the learned Civil Judge as the suit filed by the respondent did not fall within the mischief of Article 131 of the K.D.A. order. It was pointed out by Mr. Gul Zaman Khan that notice to the K.D.A. would have been necessary as a condition precedent for filing of a suit if the suit was filed in respect of any act of the ' respondent purporting to be done under the K.D.A. Order or the Rules or regulations made thereunder. The learned counsel pointed out that from the averments made in the plaint it is quite clear that the suit filed by the respondent did not relate to any act of the K.D.A. purporting to be done under the K.D.A. Order or the' Rules or the Regulations made thereunder since the only grievance of the respondent No.l in the plaint was that the occupation of the plot by the applicant was illegal as the same plot had earlier been allotted in favour of the respondent No.1 Therefore, according to Mr. Gul Zaman Khan, the cause of action as disclosed in the plaint clearly shows that the case did not fall within the mischief of Article 131 of the K. D. A. Order. Reliance in this respect was placed on P L D 1984 Karachi 34 wherein a single Judge of this Court has held in no less clear terms that every type of suit could not attract the provisions of Article 131 of the K. D. A. Order and consequently would not require notice as contemplated by the said Article. A perusal of the plaint indicates that the argument of Mr. Gul Zaman Khan is not without substance. The case as disclosed in the plaint shows that the respondent No.1 had been allotted an amenity plot by the respondent No. 2 against which it deposited an amount of Rs.8,000 by cheque but later it transpired that the applicant with the connivance of the respondent No.2 was allowed to occupy the same plot. From such averments made in the plaint it cannot be said that the alleged action of the respondent No.2 was purported to be taken under the K.D.A. Order or rules or regulations made thereunder. Consequently I agree with Mr. Gul Zaman Khan that Article 131 of the K.D.A. Order was not attracted, and rejection of the plaint by the learned Civil Judge was not proper. It is pertinent to ill point out in this respect that the Court should resort to rejection of the plaint after using all possible circumspection and should not act with undue haste in the matter. Consequently the order passed by the learned Civil Court rejecting the plaint is also liable to be set aside. Although the order passed by the learned Civil Court has not been impugned by the respondent No.l before this Court, nevertheless when this Court wants to do complete justice in the case, such formalities should not stand in its way. In any case, this Court is clearly empowered under Section 115 of the C.P.C. to exercise revisional powers suo motu specially when it is already siezed of the matter. If any authority on the point is needed then reference may be made to the case of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97. For the aforesaid reasons I allow this revision application and set aside not only the impugned order, dated 27-4-1986 passed by the learned District Judge (West) Karachi but also the order passed by the learned Fourth Senior Civil Judge, (West) Karachi, dated 31-3-1986 and further direct that the suit filed by the respondent No.l before the learned Civil Judge shall proceed in accordance with Law. There will be no order as to costs in view of the points raised in this revision. S. Q./O-1/K Application allowed.