IN THE HIGH COURT OF SINDH AT KARACHI
PRESENT:
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Mahmood A. Khan
H.C.A. No.370 of 2018
Mohsin Raza Khan . .Appellant
Versus
Syed Shoaib ur Rehman . .. ... ....Respondents
H.C.A. No.371 of 2018
Syed Muhammad Rizwan .Appellant
Versus
Syed Shoaib ur Rehman and others ... ....Respondents
Appellants : Through Mr. Obaid-ur-Rahman Khan & Mr. Noor Z. Khattak, Advocates in HCA No.370/2018.
AND
Mr. Amel Khan Kasi, Advocate in HCA No.371/2018.
Respondents : Through Mr. Muhammad Nawaz, Advocate in both the HCA.
Dates of Hearing : 16.04.2021 and 27.05.2021
Date of Short Order : 27.05.2021
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O R D E R
Above High Court Appeals have been filed against an order dated 13.09.2018 passed by the learned Single Judge in Suit No.498 of 2013, whereby, an application under Order VII Rule 11 CPC being CMA No.3780/2017 filed on behalf of the respondents No.1 to 3 has been allowed and the suit has been dismissed while holding that claim of plaintiff in Suit No.498/2013 to possession can no longer be maintained, as the plaintiff in the above suit has no further interest in the suit property or standing to pursue the suit.
2. Briefly the facts as stated by the appellant in HCA No.370/2018 are that the appellant Mohsin Raza Khan was the owner of house admeasuring 594 sq. yards situated at Block 13-D/1, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi, who entered into a sale agreement with respondents No.1 to 3 on 01.09.2008 for the sale of subject property for a total consideration of Rs.260,00,000/- (Rupees Two Crore Sixty Lacs only), whereas, an amount of Rs.60,00,000/- (Rupees Sixty Lacs only) was paid in advance by the respondents and the balance amount of Rs.20,000,000/- (Rupees Two Crore only) was to be paid within sixty (60) days from the date of execution of sale agreement. However, according to appellant, without making payment of balance amount or executing the sale deed the respondents No.1 to 3 illegally dispossessed the appellant and gained the illegal possession of the said property. The appellant filed complaint before the Police Authorities, however, no action was taken. Thereafter, Suit No.323/2009 was filed by the appellant before the IXth Senior Civil Judge (East) Karachi, for possession and permanent injunction against the respondents. The said suit, in view of jurisdiction defect was later withdrawn with permission to file afresh. In the meanwhile, after expiry of sixty (60) days period and in view of non-payment of balance sale consideration by the respondents, the appellant published a Notice on 07.11.2009 in the Newspaper, whereby, the sale agreement executed between the appellant and respondents No.1 to 3 was cancelled. The appellant filed a fresh Suit No.498/2013 before the learned Single Judge of this Court seeking declaration, cancellation of document, possession, recovery of damages and permanent injunction. Since the sale agreement executed between the appellant and respondents No.1 to 3 was cancelled, therefore, the appellant entered into a new sale agreement and executed a sale deed with Syed Muhammad Rizwan on 02.09.2016 (the appellant in HCA No.371/2018), who paid the entire sale consideration to the appellant and thereafter, the subject property was transferred and mutated in the name of Syed Muhammad Rizwan. However, since possession could not be handed over to Syed Muhammad Rizwan as the possession of subject property was with respondents No.1 to 3, he filed CMA No.599/2017 under Order 1 Rule 10 CPC in Suit No.498/2013, which was dismissed vide order dated 16.01.2018. In the meanwhile, respondents No.1 to 3 filed an application bearing CMA No.3780/2017 under Order VII Rule 11 CPC with the prayer to reject the plaint in the suit for being time barred. Respondents No.1 to 3 subsequently, also filed a Suit No.532/2017 against the appellant for specific performance of the sale agreement, declaration, cancellation, injunction and damages. Whereas, being aggrieved by the impugned order dated 13.09.2018, the appellant, namely, Mohsin Raza Khan filed HCA No.370/2018, whereas, HCA 371/2018 has been filed by Syed Muhammad Rizwan, whereby, the appellants have prayed that the impugned order may be set-aside and the suit may be restored and decided on merits after recording evidence along with two other suits filed in respect of the same subject property.
3. Learned counsel for the appellant in HCA No.370/2018 while re-iterating aforesaid facts has vehemently argued that in view of facts and circumstances of the instant case, it has come on record that appellant was the lawful owner of the subject property, who entered into sale agreement with the respondents No.1 to 3, who failed to make payment of balance sale consideration within the stipulated period (sixty) days and also did not execute any sale deed in respect of the subject property, whereafter, the appellant cancelled the sale agreement and published a Notification in the Newspaper to this effect and entered into a fresh sale agreement with Syed Muhammad Rizwan, the appellant in HCA No.371/2018, who paid the entire sale consideration, whereafter, sale deed was executed, which was duly registered with the concerned Registrar and consequently the subject property stood transferred/mutated in favour of Syed Muhammad Rizwan. However, according to learned counsel, since the respondents No.1 to 3 illegally dispossessed the appellant and gained illegal possession of the subject property, therefore, the appellant was constrained to file a Suit No.232/2009 initially in the Court of IXth Senior Civil Judge, Karachi East, for permanent injunction and possession against the above respondents. However, according to leaner counsel for appellant, on account of jurisdictional defect, the above suit was dismissed as withdrawn with the permission to file a fresh, whereafter, the appellant filed the fresh Suit No.498/2013 before the learned Single Judge of this Court, for declaration, cancellation of documents, possession, recovery of damages and permanent injunction. Learned counsel for the appellant submits that admittedly the respondents No.1 to 3 have not paid balance sale consideration and have no legal right or title over the subject property nor could produce any document or evidence to justify their illegal possession on the subject property, which according to learned counsel for appellant, was forcibly taken over by the respondents from the appellant. Per learned counsel, without prejudice to the legal position which has emerged from perusal of the facts and circumstances in the instant case, the claim of possession of the appellant to the subject property is otherwise not time barred, whereas, the appellant feels under legal obligation to pursue his suit seeking physical possession of the subject property from the respondents No.1 to 3 and to hand over the same to the lawful owner i.e. Syed Muhammad Rizwan, the appellant in Suit No.371/2018, who has acquired the lawful title of the subject property pursuant to a registered sale deed, whereas, his name already stands mutated in the record of KDA. According to learned counsel for the appellant, the learned Single Judge has erred in law and facts while allowing the application filed under Order 7 Rule 11 CPC, which has a limited scope, whereas, the applicant filing such application has to show that plaint is liable to be rejected, if (i) proper court fee is not paid (ii) the plaintiff has no cause of action and (iii) suit is barred by law. Whereas, according to learned counsel, in the present case, neither the issue of insufficient court fee is involved nor the suit is time barred by any, whereas, the appellant has the sufficient and lawful cause of action to pursue his Suit No.498/2009 seeking possession of the subject property as it was illegally taken over by the respondents No.1 to 3. According to learned counsel for the appellant, the appellant is under legal obligation to discharge his legal duty to handover the vacant possession of the subject property to its lawful owner with whom the appellant has entered into a sale agreement, received the entire sale consideration, executed the registered sale deed before the concerned Registrar, whereafter, property has been transferred/mutated in the name of Syed Muhammad Rizwan (the appellant in HCA No.371/2018). It has been further contended by the learned counsel for appellant that instead of dismissing the suit the learned Single Judge could have formulated the consolidated issues in all the suits pending before the learned Single Judge in respect of same subject property, by framing the consolidated issues and after taking evidence, the above suits could have been decided through common judgment in accordance with law. It has been prayed that the impugned order may be set-aside and suit may be restored to its original position and learned Single Judge may be directed to tag all the suits by framing consolidated issues and thereafter, to pass the judgment and decree after recording evidence in accordance with law. Learned counsel for the appellant in HCA No.371/2018 while adopting the arguments advanced by the learned counsel for appellant in HCA No.370/2018 has added that all the suits pending before the learned Single Judge relate to the same subject property, which can only be decided after recording of evidence, whereas, the issues relating to title and possession as well as the fate of sale agreement executed between the appellant in HCA No.370/2018 and respondents No.1 to 3 as well as the sale deed executed in favour of appellant in HCA No.371/2018 requires evidence, therefore, the learned Single Judge was not justified to dismiss the Suit No.498/2009 while passing an order on application filed for rejection of plaint. It has been prayed that the impugned order may be set-aside.
4. We have heard the learned counsel for the parties, perused the record and the impugned order passed by the learned Single Judge of this Court with their assistance. Admittedly, the subject property in all the three suits, as referred to hereinabove, is the same, whereas, the relief sought by the parties in the above suits would decide the fate of the sale agreement executed between the appellant and the respondents No.1 to 3 in HCA No.370/2018 as well as the fate of sale deed executed between the appellant and the respondent No.6 in HCA No.371/2018 in respect of the same property, which is subject matter of these appeals. Perusal of the impugned order reflects that the learned Single Judge has decided an application under Order VII Rule 11 CPC (CMA No.3780/2017) while holding that the claim to possession can no longer be maintained vide Suit No.498/2013 filed by the appellant in HCA No.370/2018 for the reason that the appellant had subsequently sold the subject property to one Syed Muhammad Rizwan, the appellant in HCA No.371/2018, through a registered sale deed. The claim of the appellant in HCA No.370/2018 is that in view of default on the part of the respondents No.1 to 3 the sale agreement executed between the appellant and the above respondents has been cancelled and, thereafter, the appellant had entered into another sale agreement and executed sale deed in favour of Syed Muhammad Rizwan, the appellant in HCA No.371/2018, consequent to which, the subject property has been transferred/mutated in his favour. However, according to the appellant, respondents No.1 to 3, who were never handed over the possession of the subject property by the appellant, have illegally occupied the subject property, therefore, the appellant feels obliged to get the vacant possession of his property from the respondents No.1 to 3, and to hand over the same to one Syed Muhammad Rizwan, the appellant in HCA No.371/2018, who has paid the entire sale consideration to the appellant. Whereas, pursuant to sale deed executed between the appellant and Syed Muhammad Rizwan, the subject property stands transferred/mutated in his favour. The provisions of Order VII Rule 11 CPC provide for rejection of plaint at any stage of the proceedings, in case, (i) plaintiff has paid insufficient Court-fees; (ii) plaintiff has no cause of action; and (iii) suit is barred by any law. However, the impugned order reflects that the plaint of the Suit No.498/2013 has not been rejected on any of the above grounds, on the contrary, the learned Single Judge, has dismissed the suit alongwith pending applications. We may clarify that while deciding an application under Order VII Rule 11 CPC, instead of dismissing the suit, plaint could have been rejected only on any of the three grounds, as referred to hereinabove. However, there seems no finding by the learned Single Judge to this effect. We may further clarify that suit for possession is different in scope from the suit seeking cancellation of agreement, therefore, to be decided on its own merits after recording the evidence. Moreover, since the appellant in HCA No.371/2018 has no privity of contract with the respondents No.1 to 3 in HCA No.371/2018 and the possession of the subject property has not been taken over from Syed Muhammad Rizwan, appellant in HCA No.371/2018, therefore, it would be appropriate that the claim of possession of the subject property is decided in Suit No.498/2013 in accordance with law.
5. In view of hereinabove facts and circumstances of the case, we are of the opinion that the application under Order VII Rule 11 CPC (CMA No.3780/2017), under the facts and circumstances as detailed hereinabove, was misconceived, therefore, the impugned order passed by the learned Single Judge is not sustainable. Accordingly, vide our short order dated 27.05.2021, the above High Court Appeals were allowed in the following terms: -
After hearing the learned counsel for the parties and for reasons to be recorded later on, instant High Court Appeals are allowed and the impugned order is set-aside. Counsel for the parties may submit consolidated issues in their Suits Nos.498 of 2013, 2546 of 2017 and 1493 of 2019, which will be considered by the learned Single Judge for the purposes of consolidation of the suits, where-after evidence may be recorded and suits may preferably be disposed of through combined judgment within a period of six months from the date of this order.
6. Above are the reasons of the said short order.
J U D G E
J U D G E
Nadeem/PA