IN THE HIGH COURT OF SINDH AT KARACHI

 

 

SUIT NO.1347 of 2001

Plaintiff:                                Rana Muhammad Safdar,

                                         through Mr. Muhammad Shahid Qadeer, advocate.

 

Defendant No.1                  Mrs. Darakshinda,  

                                                through Ch. Abdul Rasheed, advocate.

 

Defendant No.2                  Development Construction        

                                                Corporation (exparte)

 

 

Date of hearing:     .            26th November, 16th December, 2015.

 

Date of judgment   :           17th March, 2016.

 

                                                                 

J U D G M E N T

SALAHUDDIN PANHWAR-J, This judgment will dispose of the captioned suit, whereby plaintiff seeks Specific Performance, Possession & injunction with the following prayers:-

           

a)                 the defendant No.1 be ordered to execute proper registered lease deeds of 5 commercial plots bearing Nos.CB-2/1 (area 71 Sq.yds); CB-3 (area 132 Sq. Yds); CB-4 (area 132 Sq.Yds); CB-5 (area 132 Sq. Yds); and CB-6 (area 132 Sq. Yds); as the plaintiff has already made full and final payments of the said plots as far back as 1980;

b)                 the defendant No.1 be further ordered to execute proper registered lease of 10 residential plots bearing No.A-2/1 (area 65 Sq. Yds); A/3 (area 130 Sq. Yds); A/4 (area 130 Sq. Yds); A/5 (area 130 Sq. Yds); A/6 (area 130 Sq. Yds); A/47 (area 30 Sq.Yds); A/48 (area 130 Sq. Yds); A/49 (area 130 Sq.Yds); A/50 (area 130 Sq.Yds); & A-50/1 (area 65 Sq. Yds) as the plaintiff has already made full and final payments of the said plots as for back as 1980;

c)                 the defendants be further ordered jointly and severally to pay mense-profits  / compensation for the last 3 years for use and gains made from plaintiff’s 5 plots at the rate of Rs.1000.00 per plot per month i.e at the rate of Rs.15,000.00 per month for 36 months immediately prior to the filing of the suit, which comes to Rs.5,40,000.00 and future mense-profit at the same rate till delivery of possession of the plots;

d)                 Defendants be further ordered to deliver the vacant and peaceful possession of all the above 15 plots to the plaintiff and meanwhile, neither transfer possession to any one nor create any third party interest in the said plots;

e)                 Should the defendants failed to abide by the orders of the Court for registering proper lease deeds of above plots and deliver vacate possession of the plots, this Hon’ble Court may order the Nazir of High Court to do the same;

f)                  Defendants be burdened with the costs of the suit;

g)                 Any other relief deemed proper under the circumstances of the case.

 

2.                     Tersely, relevant facts of the case as averred in the plaint are that in the month of August, 1980 plaintiff met with one Syed Haider Ali s/o Syed Mohiuddin , attorney of defendant No.1 at Hyderabad Housing Project at Landhi, who persuaded plaintiff to purchase some plots in Hyderabad Housing Project and informed the him that owner of the project was defendant No.1, owner of approximately 10 acres 8 ghuntas of lands near Swedish Institute Landhi bearing S.Nos.90-A (Area 2-35 acres); 352(Area 2-31 acres); 253(area -29 acres) and 354(Area 2-33 acres) totaling 13673 Sq. Yds in Deh Landhi. Plaintiff was further informed that said land originally belonged to a Hindu Evacuee Tara Chand Gayheemal and defendant No.1 was allotted S.Nos.90-A, 353 and 353 in or around 1953 and later on purchased the same from Land Settlement Department around 1967 whereas S. No.354 was claimed to have been purchased by her in auction from Settlement Department. Defendant No.1 got town plan of said land approved from competent authorities of the KDA in proof of he (plaintiff) was handed over the copies of general power of attorney and others. S. No.353 was mutated in Revenue Record in Deh form VII on 23.2.1972 in name of defendant No.1 whereas S.Nos.90-A and 353 were mutated in record of rights on 13.9.1972. Defendant No.1 submitted proposed Lay out Plan for approval before Town planning department of the KDA and plan was duly approved in 1973. On assurance, plaintiff purchased 5 commercial plots in Block CB and 10 plots in Block A of said housing project after making full and final payment; after receiving full and final payment, the attorney of defendant No.1 assured plaintiff that possession of plots would be delivered within a few months. The attorney informed plaintiff that plots had been let out to defendant No.2 who was in possession as a tenant. However, tenant was in default of rent for years hence Rent application No.3440 of 1977 had been filed by defendant No.1 against the defendant No.2 in the Court of First Rent Controller, Karachi. The matter had already been decided in favour of the defendant No.1 by order dated 24.10.1978. It was further assured by the Attorney that defendant No.1 had filed Execution No.24 of 1979 in court of first rent Controller, Karachi and as soon as the possession of the said plots was received by the defendant No.1 from the defendant No.2 peaceful vacant possession of 5 plots shall be delivered to plaintiff. Thereafter plaintiff approached defendant No.1 for possession who said that she was a housewife and her housing project was now being looked after and run by one Mr. Yousuf Hussain Khan as her Manager and plaintiff should contact him. Plaintiff met Mr. Yousuf Hussain Khan a number of times between 1986 and 991 and claimed possession of the plots. Said Yousuf Hussain Khan just before one day of his death, confirmed through his letter dated 21.01.1991 that as per record plaintiff had made full and final payments of the said 15 plots and that possession would be handed over to plaintiff as soon as it was received from the defendant No.2. Since death of Yousuf Khan in January, 1991 plaintiff has been going to meet defendant No.1 of and on and she used to send messages from inside house that she cannot hand over possession as defendant No.2 has not vacated plaintiff’s plot. Plaintiff then sent a notice dated 21.9.2001 through courier to defendant No.1 and gave them 3 days’ time to hand over possession and to desist from alienating plaintiff’s plot in any manner and / or selling / purchasing the above said 15 plots of the plaintiff. Plaintiff claimed that since 1980 defendants have conspired together to deprive the plaintiff of the possession of his plots and claimed that both are jointly and severally liable to pay mense-profits at rate of Rs.1000 per plot per month for last three years.

 

3.                     Defendant No.1 in her written statement raised preliminary legal objections that the suit is not maintainable in law; plaintiff has not come with clean hands; no cause of action has accrued and that suit is bad in law for non-joinder of proper/necessary parties. Defendant No.1 further pleaded that she had acquired 10 acres 8 Ghuntas land from Settlement department in early Seventies which was mutated in her name in record of the rights. Entire suit property was sold out by defendant No.1 and Dr. Zarina Naseer (joint vendors) to Syed Haider Ali vide agreement of sale dated 08.12.1972 in full and final sale consideration of Rs.4, 88,125/- except a piece of land measuring 2783 Sq. Yards in survey No.354, 20 Ghuntas in commercial area of the Lay Out plan to be approved by competent authority. Out of entire sale consideration Syed Haider Ali had paid Rs.40, 000 to defendant No.1 and Dr. Zarina Naseer at the time of execution of agreement but thereafter he committed default in payment of the balance consideration of Rs.100, 000/- approximately who had started project under the name and style of ‘Hyderabad Housing Project Landhi, Karachi’ but he expired in 1985-86. After his death, his legal heirs or any other person interested in the said land pieces / plots of the said project has never demonstrated the interest claiming any right. The piece of land in S.No.354 was measuring 3783 Sq. Yds and defendant No.1 had sold 10890.00 Sq. Yds=2.10 acres to the said deceased vide agreement of sale dated 08.12.1972 and remaining 2783 Sq. Yds in the said piece of land in this survey which is being held and possessed by defendant No.1. The said piece of land has been occupied by Tauqeer Ali and his company M/s Associated Driller Pvt. Ltd. The defendant No.1 has filed suit No.1201/2001 in this Court for possession alongwith the relief. Pleading so, the defendant No.1 asserted that plaintiff filed the instant suit in association of said Tauqeer Ali with common collusion as a counter blast to suit of the defendant.

 

4.                     The record shows that the defendant No.2 despite service did not appear hence was declared exparte vide order dated 05.8.2002.

5.                     Out of the pleadings of the respective parties the following issues were framed which were submitted jointly by counsels of either sides:-

 

                                    1.         Whether the suit is not maintainable according to law?

                                    2.         Whether there is any privity of contract of sale between the plaintiff and defendant No.1?

                                    3.         Whether the plaintiff has not come with clean hands to this Court?

                                    4.         Whether the defendant No.1 had got approved Town plan for her housing project, namely “Hyderabad Housing Project’ (also known as GULISHTAN-E-LANDHI) on her lands bearing s.Nos.90-A, 352, 353 and 354 in Deh Landhi?

                                    5.         Whether defendant No.1 authorized deceased Syed Hyder Ali son of Syed Mohiuddin as General Attorney to deal with her lands and to get modification of the Town Plan already approved on 05.02.1973 and to sell, gift, mortgage or dispose of the land in any manner and to receive moneys on her behalf?

                                    6.         Whether in view of the payments made by plaintiff to Attorney of the defendant No.1 vide receipts annexure ‘B/1 to B/15’ and allotments Annexures ‘C/1 to C/8’ issued by the Attorney of the defendant No.1, the plaintiff is entitled to claim specific performance of the commercial plots and ten residential plots as shown in para 6 of the plaint?

                                    7.         Whether the plaintiff, after the death of the defendant No.1’s General Attorney Syed Hyder Ali in 1985-86, at the instance of defendant No.1 contacted Mr. Yousuf Ali Khan from 1986-1991 and if Yousuf Ali Khan confirmed payment of plaintiff vide his NOC dated 21.1.1991?

                                    8.         Whether the defendant No.1 refused to perform her part on 20.9.2001?

                                    9.         Whether the plaintiff is not entitled to recover mesne profits from the defendant No.1 at the rate of Rs.1000 per month per plot i.e @ Rs.15000.00 per month for the 15 suit plots, if so, since when?

                                    10        What should the decree be?

 

6.                     The matter was referred to the Commissioner for recording of evidence in the month of January, 2010 who returned the matter with his report dated 23.10.2012. The report of the Commissioner shows that from 19.02.2010 till 10.7.2010 the plaintiff did not appear; on 07.8.2010 plaintiff appeared before Commissioner and his evidence was recorded but on objection of the defendant’s counsel towards production of photo copies, the time was sought for by plaintiff’s side for production of the certified copies on next date hence further examination was adjourned to 28.8.2010 at 11:30 a.m. The Commissioner submitted such report to this Court upon which this Court granted four months more time for recording evidence vide order dated 20.9.2010.

7.                     The record further shows that despite grant of further time of four months the plaintiff did not appear hence the Commissioner again submitted his report on 12.02.2011 upon which again this Court granted two months’ time for recording of evidence vide order dated 28.8.2012. The report of Commissioner further shows that plaintiff did not appear till 06.10.2012 when Commissioner closed the side of the plaintiff.

8.                     In such eventuality, the defendant also opted not to lead any evidence and closed her side vide statement dated 22.10.2012.

9.                     Heard learned counsel for plaintiff and defendant, perused available record.  Albeit, learned counsel for the plaintiff has argued main suit but he has emphasized on application U/s XXVI R VIII r/w section 151 CPC (CMA No.5538/2014) for allowing the plaintiff to examine himself; call any witness therefore, has insisted that it would meet the ends of justice to allow such application first.

10.                   On the other hand, learned counsel for the defendant stoutly argued that the plaintiff has failed to prove/establish his case despite number of opportunities hence suit is liable to be dismissed. Regarding the CMA No.5538/2014 he insisted that same is not sustainable in law and merits dismissal.

11.                   Before discussing the merits of the case for disposal on available material, it would be in all fairness and equity that CMA No.5538/2014 be decided first.

12.                   The application (CMA No.5538/2014) has been filed Under Order XXVI r VIII CPC which no way applies to the request but since it is always the contents which matter and not the heading/itle thereof.

13.                   The perusal of the affidavit of the plaintiff, filed in support of above application, it appears that plaintiff has placed all the liabilities upon his counsel as is evident a portion of such affidavit which is:

“3.       …..it is unfortunate that the counsel of the plaintiff did not inform the plaintiff of various dates even if otherwise the plaintiff was not in contact with the counsel. The counsel was obliged to inform the plaintiff through a notice vide TCS or courier service. On the contrary thereof, he appeared in the Court on 30.1.2013 and made a statement that the evidence has been concluded and the case be fixed for arguments instead of filing of the application for setting aside the order of the Commissioner. It is further surprising that on 18.3.2014 the learned counsel of plaintiff appeared in the Court and categorically stated that the plaintiff appeared in person before the Hon’ble Court on 13.2.2014 and said that he would not like to proceed with this matter. As such the Counsel wants to serve the notice to withdraw the Vakalatnma. But on perusal of order dated 13.2.2014, it does not speak so. However, the counsel of the plaintiff never served any notice upon the plaintiff for withdrawal of his Vakalatnama or any application before this Hon’ble Court for withdrawal of their power, which makes the case doubtful on the part of the counsel of the plaintiff, which means to say that they have join hands with defendants.

 

Needful to add that by making such allegations against the counsel, the plaintiff cannot seek any exception to his own legal, moral and bounden obligations which always expect a plaintiff to remain vigilant in pursuing his/her own case. The plaintiff has not taken any exception to the facts that:

i) in month of January, 2010 the matter was entrusted to the Commissioner for recording the evidence;

ii) his examination was recorded on 07th August, 2010 but at his (plaintiff’s) own request his further examination was adjourned for want of production of certified true copies;

Thus, it can safely be concluded that the present plaintiff was in active knowledge about the fact it was him to appear for recording evidence and not his counsel; it was him to produce the certified copies of documents and not his counsel. Even otherwise, the plaintiff never authorized his counsel to depose on his behalf. The record further shows that from August, 2010 to 25.4.2014 (i.e date of filing of CMA No.5538/2014) , the plaintiff did not bother to inquire from his counsel; Commissioner and even Court therefore, he cannot legally seek an exception to his own fault rather an abnormal behaviour and attitude which cannot be allowed, else it shall amount to give a license to bring a person and a property under litigation for an indefinite period because the law is clear that person, initiating a lis, must prove himself to be vigilant. I have no hesitation in saying that the failure of plaintiff on date, fixed for recording his evidence, permits legal action(s) within meaning of Order IX and Order XVII of the Civil Procedure Code respectively, which jurisdiction undeniably include an action of closing the side of the plaintiff.

14.                   It is not a disputed fact that on 07th August, 2010 the plaintiff had sought adjournment of the matter for continuity of his examination-in-chief and then slept for an abnormal period of about four (04) years. Worth to add here that during such period this Court extended time for recording of the evidence; during such period number of last & final opportunities were obtained by the counsel for the plaintiff for no other purpose but for completion of the evidence of the plaintiff. The plaintiff legally cannot take an exception to the fact that every adjourned date before Commissioner was for specific purpose of ‘recording of evidence’ hence failure at every occasion was permitting to the legal course, provided by Order XVII rule 3 CPC which comes into play where:-

                                    i) time is granted at request of party;

                                    ii) specifically for evidence or to produce documents;

 

15.                   Be that as it may, I am conscious that the party, suffered from an action Under Order IX or even XVII 2 and 3 of the Code (where judgment is not passed) , shall have to prima facie establish ‘sufficient cause’ which might have prevented him from appearing on adjourned date. The affidavit of the plaintiff does not explain that ‘sufficient cause’ and in absence whereof he cannot seek ‘undoing’ of a legal action which otherwise was/is result of fault of the plaintiff himself. The application of the plaintiff for allowing him to examine himself is also not supported/back with any application for condonation of the delay for making such application. In absence thereof, suffice to say that request of the plaintiff cannot be legally allowed. Reference can be made to the case of Rana Tanveer Khan v. Naseer-ud-Din & Others (2015 SCMR 1401) wherein it is held that:

 

‘Be that as it may, once the case is fixed by the Court for recording the evidence of the party, it is the direction of the court to do the needful, and the party has the obligation to adduce evidence without there being any fresh direction by the court, however, where the party makes a request for adjournment the matter to a further date (s) for the purpose of adducing evidence and if it fails to do so, for such date (s), the provision of Order XVII Rule 3 CPC, can attract, especially in the circumstances where adequate opportunities on the request of the party has been availed and caution is also issued on one of such a date (s), as being the last opportunity(ies). In the resent case we have seen that the appellant was cautioned on two occasions, which means that the appellant was put to notice that if he fails to adduce evidence, action shall be taken. …’

(Emphasis provided)

 

 

16.                   As regard the request of the plaintiff that he be allowed to examine himself, it would be pertinent to say that plaintiff cannot insist for such right when he remained avoiding his own obligation to examine himself for an abnormal period, expanding years together. The plaintiff nowhere took the plea of his ignorance of his obligation to examine himself nor can he legally because he did appear into witness box; did give part examination and himself obtained time (adjournment) for completion of his evidence yet never bothered to approach the Commissioner or his Counsel even.  This question was also attended in the case of Rana Tanveer supra and held that:

‘As far as the question that at least the statement of the appellant should have been recorded, suffice it to say that such issue had been considered in the judgment reported as Muhammad Aslam v Nazir Ahmed (2008 SCMR 942) in which it was held that if the plaintiff was in attendance the court should have allowed him to appear in the witness box so as to get his statement recorded. The above judgment of this Court has been taken into account in the latest pronouncement of this Court in Syed Tahir Hussain Mehmoodi and others v Agha Syed Liaquat Ali and others (2014 SCMR 637) in which similar question was involved, and though other evidence of the delinquent party was closed, but it was argued that the statement of plaintiff / defendant, at least, should be allowed to be recorded; and it was held as under:-

 

”5. In the above context, it may be held that in every case where the action against a delinquent party is imperative and his evidence has to be closed because the case squarely and eminently falls within the mischief of Order XVII, Rule 3 C.P.C the court while closing the evidence is not in any manner obliged to adjourn the case and require or ask the litigant to appear and examine himself as a witness on a subsequent date. Obviously, if the party is present in the court and desires to appear as a witness the court should not decline his request, rather it shall be appropriate that where the party is present, the court while applying Order XVII, Rule 3 C.P.C and closing the evidence on a given date should itself ask the party to avail the chance of appearing as his own witness, and should also record such fact in its order (order sheet) that a chance was given to the litigant which has not been availed.  However, if this fact is not so recorded by the court though the party was present and sought its examination such party should initially move an application to the court for examination if the case has not yet been decided. But where the case if finally decided a ground should be specifically set in the memo of appeal / revision as the case may be about the presence of the party and asking for the examination, which should be supported by an affidavit of the counsel of the said party to the above effect.

(emphasis supplied)

 

In the instant case, it is not the case of the plaintiff that he was present before the Commissioner yet he (plaintiff) was not asked to examine himself. The record however speaks that the plaintiff, having obtained time to complete his examination, never appeared before the Commissioner hence the request of the plaintiff cannot be legally entertained as it shall be in deviation to what was held by honourable Supreme Court in the case of Tahir Hussain (2014 SCMR 637) that:

'’Once the case of a delinquent litigant squarely fell within the purview and mischief of O.XVII r 3 CPC then neither any concession should be shown to such litigant nor a lenient view favouring him should be resorted to; this should not even be permissibly done on the touchstone of exercise of discretionary power of the court and / or on the approach that technicalities of procedure should not be allowed to impede the interest of justice, and / or that the litigants should not be knocked out on technical grounds, and that adversial lis should be settled on merits. If such an approach was liberally followed and resorted to there would be no discipline in the adjudication of civil litigation and the delinquent whose case though was squarely hit and covered by the penal provisions of O. XVII R 3 CPC would be given a chance to his advantage and to the disadvantage of his opposing side.

 

( Emphases provided )

 

 

Further, there is another interesting aspect in the instant application whereby the present plaintiff has sought examination of any witnesses.  Worth to state that a party cannot seek examination of any witness but is always required to specify the witness and even document, intended to be examined and produced so is intended by Order XVI rule 2 of the Code which reads:-

‘A party shall not be permitted to call (or produce) witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the court grants such permission, it shall record reasons for doing so.’

 

The provision of Order XVI rule 7 of the Code vests the Court(s) with power to require any person to give evidence or to produce document but such jurisdiction is subject to presence of such person in Court hence is of no help for the plaintiff.

17.                   In view of what has been discussed above, I am of the clear view that the instant application (CMA No.5538/2014) is devoid of substance and merits hence the same is hereby dismissed accordingly.

 

18.       Now, I would like to record the judgment on basis of available material.

                        MY FINDINGS.

1. Issue No.1                                                            affirmative.

2. Issue No.2                                                            Negative

3. Issue No.3                                                            not proved.

4. Issue No.4                                                            as discussed.

5. Issue No.5                                                            as discussed.

6. Issue No.6                                                            negative

7. issue No.7                                                 negative

8. Issue No.8                                                            as discussed.

9. Issue No.9                                                            as discussed.

10. Issue No.10                                                        Suit is dismissed.

ISSUE NO.2,5,6 & 7.

19.                   These issues are interlinked with each other and onus probandi thereof falls upon the plaintiff. The plaintiff has produced nothing to substantiate his claim of having entered into a legal & enforceable contract with legal attorney of the defendant No.1. There can be no denial to the legal position that pleading never earns the status of evidence; it is the evidence which determines the right and not the pleadings alone. Reference can well be made to the case of Muhammad Nawaz v. Member Judicial, Board of Revenue 2014 SCMR 914) wherein it is held that:

‘7….Granted that averments made in pleadings do not constitute evidence but the evidence led in their support must be consistent therewith.

 

The plaintiff did not produce the original documents so as to establish the legal authority of the attorney of the defendant No.1 so also the document (qualifying agreement) and payment of receipts thereof to such attorney. In absence thereof question of privity of contract bringing the defendant No.1 under any liability cannot be said to have been proved/ or established. Accordingly, these issues are answered in ‘negative’.

ISSUE NO.8

20.                   The burden to prove this issue also falls upon the plaintiff because to claim shifting of the burden the plaintiff was to prove existence of a legal & enforceable agreement which the plaintiff has failed. Therefore, efficacy of this issue has become redundant.

ISSUE NO.9

21.                   The issue relates to entitlement of the plaintiff for mesne profit. It would suffice to say that question of entitlement shall come into play only where claimant first established that:

                                    i) he was entitled to retain possession; but

                                    ii) was wrongly kept out of the possession;

 

An agreement to sell only creates a right to seek enforcement thereof but does not legally make the claimant an owner of the property. Since, the plaintiff failed to establish his entitlement for possession hence a relief dependant upon such issue cannot be granted.

ISSUE NO.3 & 4.

22.                   The burden to prove these issues falls upon the defendant. It is a matter of record that in result of failure of the plaintiff the defendant had chosen to close her side without leading any evidence hence failure of the defendant even to prove or otherwise in getting Lay Out Plan by self or through attorney makes no difference at all rather have become redundant.

ISSUE NO. 3

23.                   The burden to prove this issue squarely falls upon the defendant but the defendant has produced nothing to prove this issue hence the issue is answered as ‘not proved’.

ISSUE NO.1

24.                   This issue is partly legal and partly factual. It involved question of legal status of character of the present plaintiff to file the instant suit with reference to a transaction, claimed to had happened between him and attorney of defendant No.1 and since the plaintiff had claimed to have made payment of full consideration in year 1977 hence it was obligatory upon him to establish the reasons for approaching the Court with such delay. The plaintiff however brought nothing on record by leading the evidence. The plea of the plaintiff that he did not insist for his rights for decades together for simple explanation, furnished by attorney of the defendant No.1, regarding initiation of rent litigation or litigation of any other kind because the remedies, arising out of a contract, are not necessarily to one of ‘specific performance’ rather it is discretionary and normally court are not bound to grant such relief merely for its being lawful. Reference can well be made to the case of Anwar Ahmed v. Nafis Bano ( 2005 SCMR 152) wherein it is held that:

 

‘29. There is another aspect of the case, which needs serious consideration. Grant of specific performance is always discretionary and the Court is not always bound to decree specific performance, even in a case where the contract is proved. Such discretion, however, must be exercised judiciously and not arbitrarily. Refer Arif Shah v Abdul Hakeem Qureshi PLD 1991 SC 905, Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189 and Amina Bibi v Mudassar Aziz PLD 2003 SC 403.

 

 

Reference to case, reported as 2012 SCMR 1526 and 2012 SCMR 900 to strengthen such view.

                        Further, the plaintiff at no occasion attempted to establish the cause within meaning and objective of Article 17(2) of Qanun-e-Shahadat Order, 1984 nor even attempted to examine the persons (witnesses) of alleged transaction between him and the attorney of the defendant No.1 hence failure of the plaintiff shall result in conclusion that suit of the plaintiff is also not maintainable.

 

 

ISSUE NO.10

 

25.                   In result of the discussion, made hereinabove on above issues, the suit of the plaintiff is hereby dismissed alongwith pending applications; parties shall bear their own costs.

                                                                                                    J U D G E

IK/PA