IN THE HIGH COURT OF SINDH AT KARACHI

 

BEFORE:

Mr. Justice Muhammad Shafi Siddiqui

 

Second Appeal No. 54 of 2010

 

Zafar Aziz Osmani

Versus

Lt. Col. (R) M. Yousuf Satti & others

 

Date of Hearing:

21.02.2018, 30.03.2018, 10.05.2018, 21.05.2018 and 29.05.2018

 

Appellant:

Through Mr. Muhammad Haseeb Jamali Advocate.

                                               

Respondent No.2:

Through Mr. Nazar Hussain Dhoon Advocate.

 

Respondent No.3:

Through Mr. Ovais Ali Shah Advocate.

 

 

J U D G M E N T

 

Muhammad Shafi Siddiqui, J.-The orders impugned in this Second Appeal concern the rejection of plaint under order VII rule 11 CPC.

2.       Very brief facts are that the appellant filed a suit for declaration and permanent injunction before this Court bearing Suit No.1200 of 2001 in respect of a residential plot bearing No.30, 59th Street Phase-IX, measuring 600 sq. yards situated in Defence Officers Housing Authority Karachi. On account of change in the pecuniary jurisdiction, the suit was transferred to the Court of I-Senior Civil Judge Karachi South and assigned new No.1641 of 2002.

3.       Respondent No.3, in the aforesaid suit, filed an application under order I rule 10 CPC having interest in the property as he claimed to have acquired the same from the legal heirs of respondent No.1. On acquiring knowledge of the sad demise of respondent No.1, an application for impleading his legal heirs and for amending the plaint was filed. Respondent No.3 moved an application under order VII rule 11 CPC on the ground that the suit was not competent as no declaration could have been sought on the basis of an agreement to sell. The plaint was rejected under order VII rule 11 CPC vide order dated 31.10.2006 and, as contended, without hearing the application under order VII rule 11 CPC and order VI rule 17 CPC. The order was assailed before appellate Court in Civil Appeal No.213 of 2006 and the appeal was dismissed vide order dated 13.04.2010, maintaining the order of the trial Court hence this Second Appeal is filed.

4.       I have heard the learned counsel appearing for parties and perused the material available on record.

5.       The questions involved in this Second Appeal are simple and precise which are:

1.    Whether the requisite documents (between buyer and seller), meant for transfer of the subject plot were available with the Administrator DHA at the relevant time?

2.    Whether on the basis of such document/set of documents, the Defence Officers Housing Authority through its Administrator, subject to their own verification method, could have transferred the allotment order in favour of the appellant?

3.    Whether respondent No.1 during his life time had already performed his duty/part under the agreement by virtue of signing and presenting an affidavit for transferring the subject plot in favour of appellant?

6.       Answers of these questions are perhaps very material. No doubt suit against dead person cannot be maintained however if other parties are also arrayed as defendants then such defect can always be cured and the plaint can also be subjected to amendment. The two Courts below maintained that on the basis of an agreement to sale, a suit for declaration/injunction cannot be maintained and that remedy for plaintiff/appellant was a suit for specific performance. None of the parties here i.e. appellant or respondent No.1 are enjoying/having any registered instrument; it is only an allotment order, which was sought to be transferred on the basis of affidavit of the original allottee, which affidavit is available on record.

7.       Prima facie on the basis of subject documents it appears that original allottee has already done what he could have. There was no registered instrument required for the Administrator of DHA to act upon. All that was required at the relevant time on the basis of the rules prevailing by then, was a verification to be made by the DHA in respect of an affidavit of allottee. On these facts question arises as to whether a suit for specific performance could have been maintained or a declaration and mandatory injunction against the officials of DHA was maintainable. Unfortunately, the trial Court as well as appellate Court failed to answer such material questions.

8.       No doubt, against none performance of every sale agreement, remedy against vendor/seller as a remedial measure, a suit for specific performance would have been filed but where it is claimed that vendor has already performed his job and the authority required to implement it is avoiding, a suit for mandatory injunction could have been filed. It is always a registered instrument which is required to be executed in consonance with the previous registered instrument. However situation here is not a routine one. The subject title here is only an allotment order which is to be transferred on the basis of “affidavit” and nothing else (emphasis provided). Ousting the appellant by rejecting the plaint under order VII rule 11 CPC on these facts amount to travelling beyond limits prescribed by Order VII rule 11 CPC, which are as follows:-

“11.    Rejection of plaint.—The plaint shall be rejected in the following cases:

(a)      where it does not disclose a cause of action;

(b)     Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c)      where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d)     where the suit appears from the statement in the plaint to be barred by any law.”

9.       Since it was adjudged to be not maintainable it could have been dismissed and that too after framing of issue with regard to maintainability of the suit, however, such recourse was not adopted and the plaint was rejected summarily. I do not want to further comment regarding merits of the case, the outcome of the presentation of the subject documents or refusal to accept without any justification, and the authority of the Administrator of DHA, as it may affect the case of either party. However, considering the two impugned orders that rejected the plaint, I am of the view that these orders are not in accordance with law, particularly in view of non-consideration of the above questions framed in Para 5, facts and circumstances of the case. Hence, the evidence is inevitable, even for deciding the issue regarding maintainability of the suit.

10.     Prima facie the 1981 Hand Book for Guidance to Members of Pakistan Defence Officers Housing Authority Karachi also appears to be applicable in the instant matter and relevant clause 27, consisting of clauses a. to j. is reproduced as under:-

“27.    The formalities required to be completed for effecting the transfer of plot are as under:-

a.       All outstanding dues of the plot have to be cleared.

b.       Requests for transfer of the plot is to be made on an Affidavit (Specimen at Annexure “F”) to be executed on Rs.6.00 non-judicial stamp paper which should be duly attested by an Oath Commissioner.

c.       Original and two copies of the said Affidavit along with original Allotment Order or Transfer Order, as the case may be, will be required to be submitted to the Authority.

d.       An undertaking (Specimen at Annexure “G”) is also required to be given by the transferor.

e.       A Transfer fee, as prescribed, is to be paid through a Pay Order or Bank-Draft.

f.       An application is to be addressed to the Administrator requesting transfer of the plot to another member quoting his full address and other particulars such as Registration No., Category and the particulars of plot under transfer.

g.       The transferor is required to appear personally before a designated officer of the Authority (presently Administrative Officer (Record) for verification of his/her signatures and documentation check. Signature of the transferor are verified by the authorized officer from the records held and an endorsement to this effect is made.

h.       In case the transferor is unable to visit the Authority office for verification of signatures due to being at an outstation, his signatures are required to be arrested/verified on the application requesting transfer by a serving officer of the Armed Forces not below the rank of a Colonel/Captain PN/Group Captain under his official seal with Unit Stamp, giving his full particulars of Name/Designation. This will be accepted by the Authority subject to further check/scrutiny.

j.       All transfer documents after verification by the Administrative Officer (Records) or any other authorized officer are required to be submitted at the Counter and proper receipt obtained which will also indicate the tentative date of collection of transfer order.”

11.     Thus, all that is required and as incorporated in the ibid rule, the Administrator has to act upon and make compliance thereof in the shape of mandatory injunction.

12.     In view of the above, the two impugned orders dated 31.10.2006 13.04.2010 passed by I-Sr. Civil Judge Karachi South and VI-Additional District Judge Karachi South, respectively are set side, suit is restored and the trial Court shall proceed in accordance with law and dispose it off preferably within four months in view of long pendency of dispute.

Dated: 03.09.2018                                                                      Judge