2000 PLP 1107 (CLC)

This revision application under section 115 of C.P.C. arises out of the judgment, dated 2‑10‑1998 passed by the learned I‑Additional District Judge, Karachi‑Central, dismissing the judgment, dated 4‑4‑1998 of the learned I‑Seniour Civil Judge, Karachi Central, in Suit No.393 of 1990 Muhammad Riaz v. K.M.C. and K.D.A. Brief facts of the applicant's case are that he was living and running his business at Ghujar Nala in the year 1967 from where through a slip called as shifting slip purporting to have been issued by K.M.C.; he shifted from there and came over to the plot in question. The case of the apllicant/plaintiff further was that after about one year of his stay at the new premises he had approached the Minister for Local Government and Town' Planning Department for regularization of the same plot on the basis, inter alia, that he was paying taxes in respect of the plot. The plaintiff was, however, kept on hopes and he continued approaching the respondents for allotment of the same plot but to no effect. However, on receipt of notices to vacate the plot due to unauthorized occupation the applicant filed, the suit with following prayer:‑‑ (a) That this Honourable Court may be pleased to declare that the plaintiff is in possession of the suit Plot bearing No.JSTI/1‑A, situated near PBS Petrol Pump, Government Dispensary Nazimabad, Karachi, since 1967, and that he is living peacefully and is not liable to be removed from the suit plot till his case is decided by defendant No.2. (b) To grant and issue permanent injunction against the defendant, their servants, agents, employees, contractors, or any other person working under them, not to interfere with the peaceful possession of the plaintiff over the suit plot (c) To award cost of the suit, and (d) Any other relief which this Honourable Court may deem fit and proper under the circumstances of the case. The plaint in the suit was rejected under Order 7, Rule 11, C.P.C. on the application filed by the respondent K.M.C. and the same decision of the trial Court was maintained in appeal before the District Court. However, in a Civil Revision Application No.4 of 1993 made before this Court, the revision application was allowed on 24‑5‑1993 and the trial Court was directed to afford opportunit to the respondents and decide the suit on merits In accordance with law The learned trial Court proceeded with the suit and after recording the evidence led by both the parties decided the suit on merits and dismissed the same with no order as to costs. The plaintiff in his appeal before the Court of 1st Additional District Judge, Karachi, Central, also did not succeed, therefore, he has come in revision against the decision passed by the First Appellate Court. The applicant's prayer in the Revision Application is as follows:‑‑ "Therefore, it is prayed that in the light of the above facts and grounds this Honourable Court, may be pleased to set aside the judgment arid decree, dated 2‑10‑1998 and further be pleased to restrain the respondents for not interfering the appellant in his peaceful possession of the plot till he gets it regularised from the concerned authority. " It was contended by Mr. Imadad Hussain Kazi that the applicant was running his business peacefully at Ghujjar Nala wherefrom under directions of respondent K.D.A. he shifted to the plot in question vide a shifting slip He has further contend; d that he has been living at the plot in question since many years and has paying taxes regularly. According to him the judgments of the two Courts below suffer from mis appreciation and mis reading of evidence and law. He has insisted that he is not encroacher nor in unauthorised possession but he is a shifter. He has contended that the applicant has spent about rupees two lacs and that he is in possession of the plot since long. In the end he has urged that the matter may be remanded to the trial Court for affording opportunity to respondent K.D.A. to lead its evidence and decide the matter afresh on merits. On the other hand Mr. t Tahawwar Ali Khan, learned counsel for respondent K.M.C., has contended that the applicant is neither an allottee nor a lessee or a licensee of the plot in question. The applicant has not produced any title document to show his title over the plot in question. He has contended that slip which is referred to as shifting slip would by no means confer any title of ownership or possession upon the plaintiff/applicant. Learned cousel has urged that the case of the plaintiff does not fall within the four corners of section 42 of the Specific Relief Act, same is barred under section 56 of the Act, and that suit as framed and filed is not maintainable as there is no prayer of declaration of title to the plot in question. Learned counsel has further urged that no such document has been produced by the applicant till today to show that he is in lawful occupation of the plot in question. Learned counsel further sated that the loan vests in K. D. A . respondent No.2, while roads and the amenities plots are maintained and looked after by respondent K.M.C. Mr. Tahawwar Ali Khan, learned counsel for respondent K.M.C. further contended that the suit is also barred under section 11 of C.P.C. as the applicant had previously filed Suit No.2993 of 1985 (new No.728 of 1988) in respect of the same plot which was dismissed for non‑prosecution and it was nowhere disclosed in the subsequent suit. He has further stated that the present suit was filed during the pendency of the previous suit. He has lastly urged that the judgments impugned in the present revision application does not call for any interference and the revision application is liable to be dismissed. Learned counsel for respondent K.M.C. has relied upon Haji Muhammad v. Karachi Municipal Corporation and 3 others 1979 CLC 815 in support of his contention. Mr. S. Muzaffar.Imam, learned counsel for respondent K.D.A., has submitted that the applicant has failed to give even the measurement of the plot in question in his plaint. The applicant was and is in illegal occupation of the plot in question and that he being without any title could not file the suit on the basis merely of possession. The learned counsel has urged that the possession of the applicant can by no means be termed as lawful. He has supported all legal pleas raised by Mr. Tahawwar Ali Khan, learned counsel for respondent K.M.C. and while concluding, further added that the applicant was served with notices under the Sindh Public Property (Removal of Encroachment) Act, 1975, as he had encroached upon the land which included a piece of public road, whereafter the applicant filed the suit. Having heard the learned counsel for the parties; I find that the applicant has based his suit only on the basis of his possession and the so called shifting slip issued to him. He has based the foundation of his suit mostly on his oral assertions. He has not filed or produced any document which could be termed as a title document to the plot in question. The learned counsel for the applicant when asked to explain the maintainability of his suit under section 42 of the Specific Relief Act, he could not make any satisfactory reply. He was further asked if shifter was anywhere defined and has got any rights or. title in law. He was unable to show that applicant was armed with legal character in the property as contemplated under section 42 of the Specific Relief Act. His answer to a question relating to the previous suit barring the present suit on the principle of res judicata, was that there was different prayer in the subsequent suit. I have perused the impugned judgments of both the Courts below and the record available in the file. The present revision application is liable to be dismissed for more than one reasons. Besides, concurrent findings of facts by the two Courts below, the suit filed by the applicant is badly hit by section 42 of the Specific Relief Act as also under section 11 of C.P.C. There is no denial of the fact that the prayer in the previous suit was in respect of the same plot and that the matter directly and substantially in issue in the subsequent suit was the same as in the former suit. Without going deeper into this question, the suppression of the fact of filing of the former suit and its non‑disclosure in the subsequent suit alone could be sufficient ground to refuse to grant the discretionary relief of declaration, as undoubtedly such conduct of the applicant/plaintiff would definitely disentitle him from getting such relief for having approached a Court of Law with no clean hands. The learned trial Court has dealt with all the legal and factual issues in detail and its finding on any issue have not been disturbed in appeal. Having been pursuaded by the law laid down in the cases of Haji A Muhammad v. Karachi Municipal Corporation and 3 others 1979 CLC 815 and Muhammad. Rafiq v. Divisional Engineer, P.W. Railway and others 1992 CLC 786, I have arrived at an irresistible conclusion that the judgments and decrees passed by the learned Courts below do not suffer from any illegality, material irregularity or any miss appreciation or misreading of evidence. No interference of this Court in its revisional jurisdiction is required. Resultantly, the Revision Application No.231 of 1998 is dismissed in limine alongwith the listed application. H.B.T./M‑22/K Revision dismissed.