Judgment  Sheet

IN  THE  HIGH  COURT  OF  SINDH  AT  KARACHI

Suit No. 1102 of 2005

Date	Order with signature of Judge

Plaintiff               :  Abdul Majeed Abdani,

        through Mr. Zaheerul Hassan Minhas, Advocate.

Defendants        :  Rabia Construction Company and Saleem Akhter

        Yousufi, called absent.

Date of hearing  :  05.12.2012.

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J U D G M E N T

Nadeem Akhtar, J. – This Suit has been filed by the plaintiff against the defendants for declaration and permanent injunction in respect of Shop No.42/A, Ground Floor, Rabi Arcade, constructed on Sub-Plot No.15, Plot No.E, SNCC-12, Block No.3, Karachi Cooperative Housing Societies’ Union Limited, Karachi, hereinafter referred to as “the suit property”.

2.         The case of the plaintiff, as averred in the plaint, is that he purchased the suit property in May 2004 from defendant No.1, which is a registered partnership firm, and defendant No.2 is its Manager ; the entire sale consideration was paid by him, but defendant No.1 avoided to execute the sub-lease in his name and then demanded additional amount from him for doing the needful, or in the alternative, to surrender his rights in the suit property and to get the refund of the amount paid by him ; because of the intervention of common friends, defendant No.1 finally executed the sub-lease in his favour, which was duly registered on 25.06.2005 with the Sub-Registrar concerned ; and, after acquiring the title of the suit property and receiving the possession thereof, he became the sole and absolute owner thereof. The plaintiff has alleged that despite all the above, the defendants started pressurizing him to vacate the suit property and to surrender the sub-lease on the pretext that they wanted to install an electric transformer therein with the assistance of KESC. He has averred that the transformer cannot be installed in the suit property as it belongs exclusively to him, and also as a separate space for the transformer was specifically reserved in the building plan approved by KBCA.

3.         In the above background, this Suit for declaration and permanent injunction was filed by the plaintiff against the defendants praying that the plaintiff be declared as the absolute owner of the suit property ; and, the defendants be restrained from illegally occupying the suit property, or from dispossessing him therefrom, or from interfering in his title or possession in respect of the suit property. Summons was issued to the defendants, whereafter Mr. Abid Feroz advocate filed power on behalf of defendant No.1. The record shows that as per the bailiff’s report dated 27.01.2006, summons was received personally by defendant No.2 on 27.01.2006, but he never appeared before the Court nor did he file his written statement. As defendant No.1 also did not file its written statement, it was ordered on 22.05.2006 that the Suit shall proceed ex-parte against it.

4.         On 05.02.2012, the plaintiff examined his attorney / witness whose examination-in-chief was recorded as Exhibit PW-1. He produced his affidavit in    ex-parte proof as Exhibit PW-1/2, wherein he reiterated the contents of the plaint and the claim made therein. He also produced original general power of attorney dated 29.11.2012 executed in his favour by the plaintiff as Exhibit PW-1/3 ; original registered indenture of sub-lease dated 09.06.2005 in respect of the suit property executed in favour of the plaintiff as Exhibit PW-1/4 ; and, original undated letter addressed to the plaintiff by defendant No.1 as Exhibit PW-1/5. The plaintiff’s witness was not cross-examined by any of the defendants.

5.         The learned counsel for the plaintiff contended that after executing the indenture of sub-lease in favour of the plaintiff, which was duly registered with the Sub-Registrar concerned, defendant No.1 ceased to have any right, title or interest in the suit property. He further contended that by virtue of the said registered indenture of sub-lease, the plaintiff acquired valuable vested rights, title and interest in the suit property, which could not be taken away even by the lessor / defendant No.1. It was urged that the impugned actions taken by the defendants were malafide and illegal, and the plaintiff is entitled to protection of his valuable vested rights, title and interest in the suit property. He pointed out that the defendants did not file their written statements although defendant No.1 is being represented by a counsel, and defendant No.2 was duly served. It was urged that the plaintiff is entitled to a decree as prayed for in this Suit, as the submissions made by him in his plaint as well as the evidence produced by him have remained un-rebutted.

6.         I have heard the learned counsel for the plaintiff and have also carefully examined the material available on record. Exhibit PW-1/4, which is the registered indenture of sub-lease dated 09.06.2005 in respect of the suit property in favour of the plaintiff, clearly shows that the leasehold rights in the suit property were granted in favour of the plaintiff for a period of 99 years. Such leasehold rights enjoyed by the plaintiff shall remain intact unless the same are transferred to a third party by the plaintiff himself, or unless the said registered indenture of sub-lease is cancelled by a competent civil Court. Since the plaintiff never had any intention of transferring his said rights nor has the said sub-lease in his favour been cancelled by any civil Court, the defendants have not right or authority whatsoever to ask or compel the plaintiff to vacate and handover the suit property to them or to surrender his sub-lease.

7.         As noted above, Mr. Abid Feroz advocate filed power on behalf of defendant No.1. In fact, he appeared before the Court on two dates of hearing, that is, on 30.10.2006 and 11.12.2006, when the ex-parte order against defendant No.1 had already been passed. However, defendant No.1 not only failed in filing its written statement, but it also did not take any step for recalling or setting aside the ex-parte order passed against it on 22.05.2006. Defendant No.2 never appeared before the Court nor did he file his written statement despite proper service. As the defendants chose not to contest the plaintiff’s claim, there is no doubt that the averments and allegations made in the plaint and the evidence produced by the plaintiff have remained unchallenged and un-rebutted. In view of the above, the plaintiff has successfully discharged his burden and has succeeded in proving his claim. Accordingly, the plaintiff is entitled to a decree as prayed for in this Suit.

8.         Forgoing are the reasons of the short order announced by me on 05.12.2012, whereby this Suit was decreed with costs as prayed by the plaintiff.

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        J U D G E