IN THE HIGH COURT OF SINDH AT KARACHI
SUIT
NO.1144/2010
Plaintiffs : Owais Ahmed Rafi & another,
Through
Mr. Kashif Paracha, advocate.
Defendants : Noor
Muhammad Brohi and others,
Through Mr. S.
Abid Hussain Shirazi advocate for
Security Company,
Mr. Khalid
Hussain Shaikh advocate for SBCA
Mr. Iqbal Khurram
advocate for MDA.
Date of hearing : 07.05.2015.
Date of announcement : 26.05.2015.
This
order will dispose of applications under section 151 CPC filed by the
plaintiffs being CMA Nos.14840/2014 and 5756/2015. Through application Under
Section 151 CPC (CMA No.14840/2014) the plaintiffs have prayed that:
“……recall the order dated 24.9.2014 through which an application filed by an applicant namely M/s Black Star Security Consultant (Pvt) Ltd. bearing CMA No.12059 and Nazir Reference are disposed off without notice to the plaintiff and plaintiff is directed to make payment of Rs.640,000/-(Rupees Six Lac Forty thousands only)…”
While through separate application U/s 151 CPC
(CMA No.5756/2015), the plaintiff prayed that:
“..and direct the Security Company to repair the damage done to the site office and the subject property or alternatively, pay Rs.15,00,000/- so that the site office can be repaired’
2.
A brief back ground of the instant suit is that
the plaintiffs filed the suit for Declaration & Perpetual injunction with
following prayers:-
a) A
declaration that the plaintiff No.1 is the lawful and bonafide owner of the suit
property and that the defendant no.1 to 4, has no right, title, interest, share
in the same;
b) A
perpetual injunction restraining the defendant No.1 to 4 from claiming to be
owner to any extent in the suit property and further a prohibitory injunction restraining
the defendant No.1 to 4, their agents, attorneys, representatives, assigns etc.
from dispossessing, encroaching upon plaintiff’s land or threatening to disturb
the launching of the Mateen Dream Paradise ‘Project by any means;
c) A
prohibitory injunction restraining the defendants No.5& 6 namely Malir
Development Authority (MDA) and Karachi Building Control Authority (KBCA) from
acting in any manner prejudicial to the launching of the project of Mateen
Dream Paradise and the interest of plaintiffs;
d) A
direction to the defendant No.7& 8 Town Police Officer (TPO) Gaddap Town,
Karachi and SHOGulshan-e-Maymar to provide security to the plaintiffs from
harassment, threats and illegal and unlawful activities interfering in their
lawful business by the defendants and their land mafia group;
e) Any
other or addition relief (s) as this Hon’ble Court may deem fit and proper in
the circumstances of the case;
f) Cost
of the suit;
The
plaintiffs claim to be registered partnership firm dealing in a business of purchase
of lands /estates, developing and constructing commercial and residential
projects. Plaintiffs entered into an indenture with of Lease in relation to
Flat Site bearing plot No.FL-17, area 5832.75 Sq. yards out of 80 acres of land
of M/s Safari Associates situated at Sector No.1 & 3 hence became owner of
said land and took possession of same in November, 2007; allotment was issued
and land was mutated in name of plaintiff in Form No.7. The predecessor in interest of plaintiffs i.e
M/s Safari Associates purchased a land measuring 80 acres and 12.13 acres situated
in Sector No.T and S-1 of Scheme No.45DehTaiser bearing Survey Nos.37,36, 29/2,
32, 34, 35 of DehTaiserTappoSongal, Gaddap Town, Karachi from M/s Karachi
Timber Merchants Co-operative Society; after purchase of said 80 acres , the
Maleer Development Authority (MDA) issued approved layout plan and on strength
of such approved Layout plan and ownership of plaintiffs, the KBCA approved the
building plan so also permission for construction of a temporary site office at
suit property which the plaintiff did construct and the boundary wall on the
suit property. The plaintiffs also entered into a contract with Metropolitan
Management Services (Pvt) Ltd. for the protection and preservation of the suit property
from encroachers / land mafia group. It is further case of plaintiffs that in
month of September, 2008 a Civil suit bearing No.1353/2008 “Muhammad Anwar v.
Captain (R) Talat&Ors) was filed for Declaration and Permanent Injunction
wherein an order was passed and property was attached, which the plaintiffs
challenged by filing an appeal before High Court bearing No.38 of 2008 (Ovais
Ahmed Rafi & Others vs. Muhammad Anwar & others). However, later in such proceedings, it came
to surface that subject matter in that suit (1353/2008) falls in a Goth namely
TharoMengal and property (subject matter of this suit) of plaintiffs was not
subject matter in that suit hence appeal of appellants was dismissed being
infructuous as plaintiffs. Plaintiffs further claimed that defendant Nos.1 to
4, belong to land mafia /land grabbers group and have already encroached on
some of the Flat Sites and a Park shown in the approved Layout Plan by the
defendant No.5 (MDA) in the near vicinity of the suit Property and the defendants
along with their land mafia group have also encroached on the road adjacent to
the Suit Property despite the orders of this Hon’ble Court passed in Suit
No.1353 of 2008 thereby violating the easmentary and fundamental rights of the
plaintiffs. It was further pleaded that due to the defendants illegal and
unlawful activities surrounding / near the Suit Property, the Project has been
stopped in order to avoid any irreparable loss which the defendants can cause
to the project by encroaching upon Suit Property or by other illegal and
unlawful means. The encroachment of other Flat sites and a Park by the
encroachers clearly proves that the Defendants are just waiting for the
launching of the Project so that the whole project can be destroyed by doing
illegal and unlawful activities or by encroaching on the Suit Property. In the
moth of April, 2009 the plaintiffs constructed the site office and in the
process of launching the project, the defendant No.1 to 4 threatened the
plaintiffs of dire consequences in case their illegal and unlawful demands are not
accepted by the plaintiffs.Thus,plaintiffs pleading apprehensions filed the
instant suit.
3. Learned counsel for the plaintiffs has
argued that the order dated 24.9.2014 was passed without providing any opportunity
of hearing hence the same is against the principle of natural justice
therefore, same be recalled. As regard other application regarding direction to
Security Company to pay damages, it has been argued that since property was in
protection of security company therefore security company is liable to pay the
damages.
4. Before commenting upon the merits of the
CMA No.14840/2014 it would be relevant and proper to refer the operative part
of the order dated 24.9.2014 which is:-
‘Order dated 16.8.2011 reflects that Nazir of this Court was directed to take over the possession of the subject plot of the land of the plaintiff and to post security guards on the subject property of the plaintiff at the cost of the plaintiff. The Plaintiff is directed to deposit initially a sum of Rs.1,00,000/- to the Nazir of this Court within a period of two weeks time. Nazir shall decide as to how many security guards are required to secure the land.
Further, it is mentioned in said order that:-
Since it is a matter of record that the deploying / posting of the guards was entirely at the cost of the plaintiffs, therefore, plaintiffs cannot avoid their such legal obligation and duty only by remaining absent or by not responding to the notice (s) of the office of Nazir of this Court which were meant to remind the plaintiffs of their such legal duty. Such liability would, at all times, be recoverable as land revenue.
However, perusal of above, it appears that Plaintiff not only failed to continue paying the amount for security of the subject matter nor came forward for recall of the basic order although it was made very much clear for the plaintiffs that such deployment / posting of the guards was at the cost of the plaintiffs. The record also spells that plaintiffs have been negligent towards their such obligation for a considerable period of about three (3) years. Situation, which compelled moving of the instant application and reference, is alarming and even has put the office of the Nazir of this Court and security company in an uncertain situation. The Security company cannot part from security of the subject matter nor the office of the Nazir of this Court can continue paying payment to the company from its own fund (pocket).
Even today, the plaintiffs and their counsel are not in attendance. The plaintiffs cannot earn undue advantages by remaining absent nor such absence could help them in getting an exception from their obligations to pay required amount for security guards. However, to avoid any prejudice to interest of plaintiffs, earned under basic order, I feel it proper not to recall the same whereby Nazir was appointed for taking over the possession of the subject plot at the very request / application of the plaintiff.
From
above, following facts are undisputed:-
i)
the deployment of Security guard was at request /
move of the plaintiffs themselves;
ii)
plaintiffs failed to pay the cost / charges for
such security guards, deployed under order of the Court for protection of
property of the plaintiffs;
Thus,
it is no more disputed that direction to plaintiffs to pay the outstanding and
to continue paying future amount was in fact not an order creating any
new liability or obligation but it was a direction to discharge liabilities
which were / are shouldered by the plaintiffs themselves and were existing even
at time of passing the order, sought to be reviewed/recalled. At this juncture,
it would be conducive to have glance over the judgment of honourable Supreme
Court, reported as 2014 PLD SC 585 wherein it was held that:
’24. The principle of audialterampartemor
that no body should be condemned unheard is a time honored principle of natural
justice. However, facts of each case have to be considered before delay can be
condoned and this principle cannot be made an inflexible rule to give license
to someone who knowing fully well that a lis is pending against him or that a
judgment has been passed against him refused to appear and when the judgment is
passed fails to challenge it in time’
From
above, it should stand clear for all purposes that where an order, even if
penal in nature, is the result of consequence of failure of one’s own act /
omission then the principle of audi alteram partem shall not be used in
such eventuality; let me insist that the plea of ‘opportunity of hearing’ may
be available to a party when a penal action is ordered or a new liability /
obligation is created without his knowledge but it (this plea) shall not be
available to a party where he/ they, as the case may, is/ are directed to
discharge an already existing legal liability as was / is in the instant case
because in such event the party cannot come forward with a plea of ‘not
having knowledge and notice’ which is required to be established mandatory
before asking for application of principle of ‘audi alteram partem’. In
short this maxim i.e audi alteram partem shall not prejudice to another
known maxim ‘As you make your bed, so you will sleep on it’ (one has to
accept the consequences of one’s actions, as any result is the logical
consequence of preceding actions). Thus, I find no substance in the application
i.e CMA No.14840/2014 and same is hereby dismissed.
5. Reverting to other application (CMA No.
5756/2015), it would suffice to say that claim of recovery of damages against
security company cannot be legally entertained in the instant lis through an
interlocutory application for following legal reasons:-
i)
the recovery of damages is an independent claim
which has to be proved through independent suit;
ii)
the plaintiffs cannot claim an order, having
force of determining rights (decree as defined U/s 2(2) of the Code), in a suit
not filed for such purpose;
iii)
no order, having object of a decree, can be
passed against a stranger (not sued as party for determination of such claim)
It
is a matter of record that instant suit (lis) is not filed against Security
Company nor pleading, based on such pleading of plaintiffs, contain any
allegation against the Security Company therefore, I, without making any
comments on claim of plaintiffs or liability of Security company, can safely
say that instant application is entirely misconceived and is dismissed as such.
6. While
scanning the available record, from the pleadings, I have found that as a
matter of fact the plaintiffs appear to be not an ‘issue’ with private
defendants or with official defendants. To make my view point clear let’s have
a look at the stand of the defendants.
7. The defendant No.6 (KBCA) in
written statement does not deny ownership and title documents of plaintiff
while defendant no.5 (MDA) admitted claim and assertions of plaintiff, made
with reference to defendant no.5. The obligations or rights, arising from such
admitted documents, are not disputed in the instant lis which, however, shall
have their own independent force subject to strict resort to law.
8. The defendant Nos.3 and 4 in
their written statement with regard to subject matter stated as:
“Para-3. “Denied as the answering defendants are concerned with their own land detailed above. They have no concern with the suit land provided the grant does not affect the right and interest of the answering defendants.
“Para-11. “Denied as set up. It may be submitted that the plaintiff neither applied for joining as party to the suit or contested the same. The suit of the answering defendant is at final stage. The plaintiff has filed instant suit belatedly with malafide object to defeat the purpose of suit of the answering defendant. Further, according to his own admission his land is different from that of the answering defendants, therefore, no cause of action to file instant suit did accrue to the plaintiff. The plaint therefore merits to be dismissed under Order 7 Rule 11 CPC.
Worth
to add here that the defendant No.3 Muhammad Anwar is the plaintiff in suit No.
1353/2008 “Muhammad Anwar v. Captain (R) Talat&Ors”. For such suit and
property, involved therein, the plaintiffs specifically state in the para-9 of
their plaint as:-
9. That,
however, the Nazir conducted Survey on 16th June 2010 as per Order
of this Hon’ble Court passed in Suit No.1353 of 2008 and it has been pointed
out by the Assistant Mukhtiarkar and Survey Superintendent Karachi Tapedar that
the suit property in Suit no.1353 of 2008 has wrongly been pointed out by the
plaintiff in the said Suit and the plaintiff’s land / suit property in this
suit is not a matter of dispute in the Suit No.1353 of 2010. It is also pointed
out that the suit land mentioned in the Suit No.1353 of 2008 falls in a Goth
namely TharoMengal Goth. Thus, the plaintiff’s Property / suit property
is not a subject matter of the said Suit. Therefore, the High Court
appeal filed by the plaintiff also became infructuous in view of the Nazir
Report and plaintiffs cannot became a party to the said suit as it is not
relevant to the Suit property of the plaintiff.
(Underlining is for emphasis).
The
above position makes it clear that title and claim of the plaintiffs in respect
of subject matter is not disputed rather admitted by official defendants while private
defendants have confined their entitlement to a property which, per plaintiffs
themselves, is not related with them. Thus, prima facie the title and
neither status of the plaintiffs nor that of subject matter is at issue. At this point, a reference to Section 42 of
the Specific Relief Act, being material is made for convenience and clarity
which reads as:
“42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its
discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
The
above provision is quite clear that a declaratory decree shall be recorded
where there is a denial to one’s legal character but where there is no such
denial an admitted legal character or any right as to any property needs not be
declared (decreed) with reference to a person who is neither interested in such
status or right nor denying the same.
9. Further, reference to concluding
paras of the plaint of the plaintiffs will also make it clear that plaintiffs
filed the instant suit on future apprehensions which is evident from following
paras of the plaint:-
“13. That the plaintiffs spent huge amount in developing and
launching the Project for residential purposes according to the Layout Plan and
as per condition of the KBCA. It is within the knowledge of all people from the
neighbourhood that the project in the name of ‘Mateen Dream Paradie’ is going
to be launched in the near future as all the requirements for above mentioned
purpose have been completed. However, due to the defendants illegal and
unlawful activities surrounding / near the Suit Property, the Project has been
stopped in order to avoid any irreparable loss which the defendants can cause
to the project by encroaching upon Suit Property or by other illegal and
unlawful means. The encroachment of other Flat sites and a Park by the
encroachers clearly proves that the Defendants are just waiting for the
launching of the Project so that the whole project can be destroyed by doing
illegal and unlawful activities or by encroaching on the Suit Property.
14. That, in the moth of April, 2009 when the
plaintiffs constructed the site office and in the process of launching the
project, the defendant no.1 to 4 threatened the plaintiffs of dire consequences
in case their illegal and unlawful demands are not accepted by the plaintiffs.
The defendants have asked for hefty amount from the plaintiffs if the
plaintiffs want to launch the project. The defendants have threatened that they
will encroach upon plaintiff’s land and will not allow the general public to
visit and create havoc in the area so that no prospective customer can buy
flats in the project ‘Mateen Dream Paradies’ from the plaintiffs and will
not allow construction on the suit property.
15.
That in case the defendant No.1 to 4 encroach upon the suit land and destroy
the whole project of the plaintiff by doing illegal and unlawful activities as
threatened by them the plaintiff’s goodwill will be badly tarnished and suffer
irreparable loss, as all the perspective customers will not book flats in the
said project. The plaintiff has spent huge amount in the process to launch the
project and in case the customers find such encroachment and illegal activities
of the defendant no.1 to 3 and of land mafia , no prospective customer will
come forward to buy the flats in the project.
16.
That, in case the defendant no.1 to 4 becomes successful in their
nefarious design of stopping the project and encroaching upon the Suit property
in collusion with other defendants, the plaintiff shall suffer irreparable loss
and injury which cannot be compensated in monetary terms. Therefore an
Order of injuncting directing the defendants not to dispossess, encroach upon
Suit property or interfere in the project of Mateen Dream Paradise is very much
necessary to save the plaintiffs from suffering irreparable loss and injury.
Hence this suit.
(Underlining
is for emphasis)
10. The above paras are sufficient to prima
facie show that suit was filed with reference to some future apprehensions
or acts, if any of the defendants, in respect of other subject matters. In
either case, a declaratory suit shall not sustain because a cause of action
always accrues with certain acts and omission by a party which amounts to
denial to a legal character of a person or his right in specific property. The
acts or omission of one with reference to other properties, even if in
surrounding area of a specific property, shall not give a right to file a suit
unless and until there is a specific threat or denial to legal character or
right to a property in respect of specific property. Even otherwise, when there is no denial to
such claim and status of the plaintiffs hence in such eventuality the
maintainability of the suit requires to be determined first. This makes me to
resort to frame the following question of law, as is the object of the Order
XIV rule 2 of the CPC as preliminary issue which shall be heard and
decided first.
‘Whether on specific denial of defendants having
no claim, right and interest in title of plaintiffs and his right to specific
property (subject matter) the suit is sustainable in law or otherwise?
Needless to add that
the above issue is purely a question/issue of law, therefore, the parties are
directed to come prepared on next date of hearing to argue the above said
issues first.