Order Sheet

IN  THE  HIGH  COURT  OF  SINDH  AT  KARACHI

Suit No. 1698 of 2012

Date	Order with signature of Judge

M/S Abid S. Zuberi and Ahmed Ali Hussain, advocates for the plaintiff.

Mr. Khalid Javed, advocate for defendants 1 to 4.

Mirza Iqbal Baig, Deputy Manager, on behalf of defendant No.5.

ORDER  ON  C.M.A. No. 154 of 2015

NADEEM AKHTAR, J. – Through this application under Order VI Rule 17 CPC, the plaintiff-company has sought amendment in paragraph 23 and prayer ‘A’ of the plaint. This Suit has been filed by the plaintiff against the defendants for declaration, cancellation of sanction letter, restoration of all original entrances / roads, removal of encroachment, development of area, mesne profits, permanent injunction and damages.

2.         The case of the plaintiff, as averred in the plaint, is that defendant No.4 / MEO invited bids on behalf of defendant No.2 / Federation of Pakistan for sale of nine plots listed in paragraph 3 of the plaint forming part of Survey No.183/1, Abbasi Saheed Road, Karachi ; the plaintiff participated in the proceedings and upon acceptance of its bid, Plot No.1 (suit property) was allotted to it by the competent authority ; as per the master plan, the said Survey No.183/1 was reserved for a commercial complex comprising nine plots and several roads including four roads leading to the suit property from main roads ; after demarcation etc., entire agreed sale consideration and development charges were paid by the plaintiff whereafter possession of the suit property was handed over to it by defendant No.4 along with site plan confirming existence of the above mentioned roads as per the master plan ; on 07.11.1990 lease in respect of the suit property was executed in favour of the plaintiff whereafter the plaintiff got approved architectural plan in respect thereof from the competent authority for construction of a building ; despite repeated requests by the plaintiff, defendant No.4 failed to develop the roads and infrastructure ; after nine years of execution of the lease, defendant No.4 informed the plaintiff that a fresh lease in respect of the suit property would have to be executed and registered, and approval in this behalf was issued by defendant No.2 on 21.09.2011 ; in April 2012 it transpired that site plan attached to the fresh lease was different from the one originally issued and approved by the competent authority and agreed to by the plaintiff as roads on two sides of the suit property had been replaced by AWT land ; fresh lease was executed by the plaintiff after objecting to the above alteration in the site plan with the understanding that the roads shown in the original site plan will be restored by the defendants ; and, despite such understanding and repeated requests by the plaintiff, the defendants did not restore the original site plan nor did they take any step for removal of encroachments from the roads.

3.         It has been alleged in the plaint that defendant No.1 (AWT) wanted a new master plan of Survey No.183/1 from official defendants in order to usurp valuable land situated on Shahrah-e-Faisal and for this purpose it succeeded in obtaining the impugned sanction letter dated 21.10.2002 from defendant No.2. In the above background, the plaintiff has prayed for a declaration that the impugned master plan dated 23.07.2002 and impugned sanction letter dated 21.10.2002 are illegal, null and void ; for a direction against defendants 2, 3 and 4 to restore the original master plan of Survey No.183/1 ; for directions against defendant No.4 to issue revised site plan as per the site plan attached to lease dated 07.11.1990, to amend schedule of property in the lease dated 27.04.2012 as per lease dated 07.11.1990, to remove all debris from roads of the area in question and to complete the development and infrastructure work ; and, for directions against defendant No.1 to remove encroachment from all roads and entrances as per original master plan of Survey No.183/1, to pay general damages to the plaintiff to the tune of Rs.300.000 million and Rs.10.000 million and further to pay future damages at the rate of Rs.12.500 million per month.

4.         This application has been filed by the plaintiff seeking amendment in paragraph 23 and prayer ‘A’ of the plaint. It is contended by Mr. Abid S. Zuberi, learned counsel for the plaintiff, that the proposed amendments are necessary in view of an important statement made by defendant No.1 in its written statement and some subsequent developments in view of the orders passed by the Hon’ble Supreme Court on 20.10.2009 and 27.08.2015 in Suo Motu Case No.10/2009. In support of this contention, he contended that in paragraph 13 of its written statement, it is stated by defendant No.1 that it is the bonafide and lawful owner of the plots in question by virtue of title documents executed in its favour by the competent authority. He further contended that the title documents claimed and relied upon by defendant No.1 came into existence on the basis of sanction letter dated 21.10.2002 which is impugned in the present Suit. He submitted that in Suo Motu Case No.10/2009 decided vide order dated 20.10.2009 and reported as 2010 SCMR 885, certain notifications and allied actions taken by Federation of Pakistan in respect of subject Survey No.183/1 were examined and it was held by the Hon’ble Supreme Court that lease hold rights in respect thereof granted to defendant No.1 were not legitimate and were in gross violation of ACR Rules 1944 and CLA Rules 1937. Learned counsel further submitted that the above order was not in the knowledge of the plaintiff as plaintiff was not a party in the said proceedings. He further submitted that the said order was stayed in the year 2010 in a Review Petition which was finally dismissed by the Hon’ble Supreme Court on 27.08.2015. It was urged by him that the proposed amendments are necessary in the above circumstances which will not change the complexion, nature and or cause of action of the Suit in any manner whatsoever. In support of his above submissions, learned counsel relied upon (1) Mst. Amina Begum and others V/S Mehar Ghulam Dastagir, PLD 1978 SC 220, (2) Mst. Arshan Bi through Mst. Fatima Bi and others V/S Maula Bakhsh through Mst. Ghulam Safoor and others, 2003 SCMR 318, and (3) Lahore Development Authority and others V/S Sultan Ahmad and another, 2007 SCMR 1682.

5.         Mr. Khalid Javed, learned counsel for defendant No.1, contended that the documents executed and registered in pursuance of impugned master plan and sanction letter cannot be cancelled unless specific prayer for such relief is made in the present Suit or a separate Suit is filed as vested rights have been created in favour of defendant No.1 and other third parties who are not parties in the present Suit. He heavily relied upon the counter affidavit filed by defendant No.1 wherein the entire claim made in this Suit by the plaintiff has been disputed by denying that there were four roads leading to the suit property and also by denying the execution, genuineness and authenticity of the master plan relied upon by the plaintiff. In its counter affidavit the grant and lease of land in its favour through the impugned sanction letter dated 21.10.2002 has been justified by defendant No.1, and it is stated that the present location, measurement, dimensions and surroundings of the suit property have been admitted by the plaintiff in the lease already registered in its favour. In the end, it was urged by the learned counsel that the nature, cause of action and complexion of the Suit will be changed altogether if the proposed amendments are allowed. He prayed for dismissal of the application.

6.         I have heard learned counsel for the parties at length and have also examined the material available on record with their able assistance. In the judgment delivered on 20.10.2009 in Suo Motu Case No.10/2009 (2010 SCMR 885), Sanction Letter No.55/79/Lands/2002-G/2198-A/D-12/ML&C/02 dated 21.10.2002 issued by Ministry of Defence, Government of Pakistan, conveying sanction of the President of Pakistan for transfer of lands described therein in favour of defendant No.1 (AWT), has been examined and discussed by the Hon’ble Supreme Court. According to the above sanction, lease in respect of subject Survey No.183/1 measuring 8.48 acres, which includes the suit property, was sanctioned in favour of defendant No.1 for a period of 90 years for commercial purposes. It was held inter alia by the Hon’ble Supreme Court that “As it stands, the so-called sanction of the President appears to be wholly arbitrary and lacking in transparency. It is also violative of the Acquisition Custody and Relinquishment (ACR) Rules referred to in the Summary dated 20.9.2002”. Amendments proposed by the plaintiff in paragraph 23 and prayer ‘A’ of the plaint show that findings in the above judgment of the Hon’ble Supreme Court declaring the above sanction letter as arbitrary and violative of ACR Rules have been pleaded in paragraph 23 in addition to the original contents thereof, and in addition to the existing prayer ‘A’ that the impugned master plan and sanction letter be declared as null and void, further declaration has been sought therein that the documents executed on the basis of the impugned sanction letter are illegal, null and void.

7.         It may be noted that the counter affidavit of defendant No.1 is completely silent with regard to the above findings and judgment of the Hon’ble Supreme Court, and it has also not been disputed by defendant No.1 that the present plaintiff was not a party in the above proceedings before the Hon’ble Supreme Court and the review petition against the said judgment was finally dismissed by the Hon’ble Supreme Court on 27.08.2015, that is, much after filing of the present Suit. As far as the assertions made by defendant No.1 in its counter affidavit regarding the plaintiff’s claim in this Suit, disputed or present location of roads and suit property, and genuineness and authenticity of the master plan relied upon by the plaintiff are concerned, needless to say that all these questions cannot be decided without evidence and the same are not relevant at this stage or for the purpose of the application at hand. In my humble opinion, the main controversy in this Suit regarding the purported grant / lease in favour of defendant No.1 cannot be decided unless the proposed amendments relating exclusively thereto are allowed, and in case the same are not allowed, this Court will not be able to frame issues in order to adjudicate upon all the material questions involved in this Suit completely and effectually and the parties will not be entitled to lead evidence in this behalf. It may be noted that in the existing prayer ‘A’, the plaintiff has already prayed that the impugned master plan and sanction letter be declared as null and void. Therefore, in case the amendments proposed by the plaintiffs are allowed, the nature, complexion or cause of action of the Suit will not change, and same evidence will be led by the parties whether amendments are allowed or not.

8.         It is well-settled that amendments relating to any subsequent event or development that may have direct bearing to the issues involved in the Suit, the cause of action thereof and or the prayer made therein, must be allowed, and such amendments can be allowed by the Court even suo motu. In Mst. Barkat Bibi V/S Khushi Muhamamd and others, 1994 SCMR 2240, it was held inter alia by the Hon’ble Supreme Court that an alteration in the relief does not ordinarily change the character or substance of the Suit if it is based on the same averments, and if such an amendment is allowed, no injustice would be done to the other party ; and, amendment is refused only in cases where new cause of action is substituted for the original one or when a new claim based on new set of facts is introduced. In Semco Salvage Pte. Limited V/S M.V. Kaptan Yusuf Kalkavan and another, 1993 SCMR 593, the Hon’ble Supreme Court was pleased to hold that since the proposed amendments were directly connected to the cause of action, same would not alter the nature or cause of action of the Suit.

9.         In view of the above discussion, the application is allowed as prayed. Foregoing are the reasons of the short order announced by me on 31.05.2017.

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   J U D G E