IN   THE   HIGH   COURT   OF   SINDH   AT  KARACHI

Suit No. 429 of 2008

 

 

Plaintiff:-                        Shaikh Iqbal Ahmed S/o Muhammad Ahmed through his duly constituted Attorney Imran Iqbal S/o Iqbal Ahmed, through M/s. Muhammad Arif Khan and Liaquat Hussain, Advocates.

 

Defendants:-                  Sindh Industrial Trading Estate Ltd (SITE),

                                      Manghopir Road, SITE, Karachi.

None present for the defendant.

                                     

Date of hearing       24.03.2010

Date of Judgment   04.05.2010

 

J U D G M E N T

 

SYED HASAN AZHAR RIZVI, J          The present suit has been filed by the plaintiff who is an industrialist and is doing business of manufacturing and import at Karachi. The defendant is a Company established under the Corporate Laws of Pakistan. The plaintiff contends in the memo of plaint that the plaintiff being desirous to set of pharmaceutical and allied items in response to the advertisement of the defendant applied for allotment of an industrial plot to establish a pharmaceutical industry at SITE North Karachi, Scheme No.33, vide letter dated 6th October, 1994 enclosed therewith Application Form No.8501 dated August 31, 1994, copies of NIC, Bank Certificate, last assessment order, NTN number, Pay Order dated 6.10.1994 for Rs.72,600/- and feasibility report. The said letter was duly received and acknowledged on 9.10.1994 by the defendant. The plaintiff was held successful applicant in the Computerized Ballot held by the defendant and in accordance with Balloted List dated 11.6.2002 of the defendant, the plaintiff's name had appeared at Sr. No.95, File No.1116 as the successful allottee/ Ballotte in respect of Plot No.16 F, according to the plaintiff the said plot was a corner plot and situated on 176 feet wide main road. The plaintiff enclosed copies of the Balloted List dated 11.6.2002 and Layout Plan of the scheme issued by defendant with the memo of plaint. In pursuance of the application of the plaintiff and the ballote held by the defendant, the defendant issued offer letter for allotment of an industrial plot bearing No.F/16-a, Phase-II, measuring 0.5 acre, situated in their Industrial Estate, known as Super Highway Phase-II, Karachi. It is further contended by the plaintiff in the memo of plaint that on inquiry the plaintiff was informed by the staff of the defendant that Plot No.F/16 and F/16-a are one and the same plot and the suffix 'a' only denotes area of half acre of the plot. The plaintiff vide letter dated 19.2.2002 accepted the offer in terms of the letter and paid the amount by three Pay Orders. The plaintiff enclosed the copies of the offer letter of the defendant and three Pay Orders with the memo of plaint. The plaintiff was finally allotted the suit property by the defendant referred to above vide Allotment Letter No.SITE/Land/NK/2145/4202 dated 30.7.2005, on payment of the full premium and advance annual rent by the plaintiff to the defendant. The plaintiff was further requested by the defendant to execute the Agreement of Lease/ License and take possession vide letter referred to above the copy of which the plaintiff enclosed with the plaint. In pursuance of the allotment of the subject plot the plaintiff had been requesting the defendant to hand over the vacant peaceful physical possession of the suit property to the plaintiff, but the office of the defendant has been given evasive replies. The plaintiff vide letters dated 15.12.2005, 18.3.2005 and 6.3.2007 requested the defendant to deliver the vacant peaceful physical possession of the suit plot and to lease the same. The plaintiff vide letter dated 7.6.2007 paid to the defendant a further sum of Rs.10,000/- and once again requested the defendant to issue lease of the suit property and hand over the vacant peaceful physical possession of the same. Again on 30.8.2007, 01.09.2007 and 06.09.2007 the plaintiff further requested the defendant to give vacant peaceful physical possession of the suit property and lease out the same. The plaintiff enclosed the copies of all the aforementioned letters with the memo of plaint. All the aforementioned letters bears the seal/stamp of the defendant and signatures of the official who received the same. The defendant did not reply any letter of the plaintiff mentioned above. However, the plaintiff was orally informed by the staff of the defendant that the possession would be delivered after internal and external development of the industrial area. The plaintiff through his counsel's letters dated 12.9.2007, 9.10.2007 and 1.2.2008 requested the defendant to demarcate the suit property and hand over the vacant peaceful physical possession of the suit plot as per the original Layout Plan of the scheme of the defendant, but the defendant did not give any reply to the said notices. The plaintiff enclosed copies of three aforementioned Legal Notices and the courier receipts with the memo of plaint. The defendant failed/ neglected to give reply to the said Legal Notices issued by the counsel of the plaintiff. The  plaintiff further stated in the memo of plaint that the plaintiff had come to know through reliable source that the defendant was attempting to allot the suit property to any other person without due process of law and rules governing allotment of the suit property. It is contended in the plaint by the plaintiff that the defendant on the one hand was refusing to handover the vacant peaceful physical possession of the suit property to the plaintiff and on the other hand had the defendant issued notice in the newspaper daily Dawn Karachi dated 25.8.2007 threatening the allottees to take possession letters of their respective plots or face cancellation. The plaintiff enclosed photocopy of public notice referred to above with the memo of plaint. The plaintiff in the memo of plaint submits that the suit property was allotted by the defendant to the plaintiff after complying with all the legal formalities, including Computerized Balloting on receipt of full premium and ground rent. The plaintiff feared and apprehended that for reasons other than those contemplated by law the defendant is illegally, unlawfully and with malafide intent is desirous to usurp the rights, title and interest of the plaintiff in the suit property by allotting the suit property to some favourite, which will result in great financial loss to the plaintiff. The plaintiff is a bonafide purchaser and lawful allottee for valuable consideration of the suit property and is entitled to protection of law as well as equitable relief against the malafide and arbitrary actions of the defendant. The plaintiff is entitled to equitable relief and mandatory injunction directing the defendant to deliver the vacant peaceful physical possession of the suit property to the plaintiff as per the original Layout Plan of the scheme and for the lease of the suit property and/or an order restraining the defendant from allotting the suit property to any other person or any other plot without due process of law, rules and regulation of the allotment. The plaintiff has suffered financial and mental losses due to delaying and unlawful action of the defendant. The plaintiff cannot commence construction on the suit property and start industrial production and has suffered losses amounting to Rs.5.00 million. The plaintiff is further suffered losses amounting to Rs.1.00 million per month as loss of profit and is entitled to recover the same from the defendant due to the act of omission and commission of the defendant. The plaintiff is also entitled to compensation amounting to Rs.2.00 million for causing mental torture and agony being suffered by the plaintiff. The plaintiff has filed the present suit through his son and duly constituted Attorney Mr. Imran Iqbal with the following prayer:-

"A.       To declare that the plaintiff is the lawful allottee of the suit property, having bonafidely acquired the same for lawful consideration and the defendant is not entitled to cancel and revoke the allotment.

 

B.        To grant mandatory injunction directing the defendant to deliver the vacant peaceful physical possession of the suit property to the plaintiff as per the original Layout Plan of the scheme and for the lease of the suit property.

 

C.        To grant restraining order against the defendant from allotting the suit property to any other person or any other plot without due process of law and rules and regulations of the allotment and further not to take any action to the detrimental interest of the rights of the plaintiff including allotment of the suit property to any other person and/or granting permission to raise construction on the same.

 

D.        That if for any reason this Hon'ble Court comes to the conclusion that under the given facts and consideration the plaintiff is not entitled to the above relief(s), then in the alternative to direct the defendant for allotting alternative plot not less than 0.5 acres abutting on the main road 176 feet wide in the same vicinity or in the alternative to grant compensation amounting to Rs.25,000,000/- (Twenty five million only) with interest/mark up/ bank charges/profit at 4% above the bank rate, from the date of filing of the suit till the date of payment, as costs of the alternative plot.

 

E)        Direct the defendant to pay to the plaintiff's sum of Rs.10,000,000/- (Rupees ten million only) as damages/compensation, for causing mental torture, agony and financial loss to the plaintiff.

F)        Cost of the suit.

 

G)        Any other or better relief which this Hon'ble High Court may deem fit and proper under the circumstances of the case."

 

2.         The process/summons were issued to the defendant on 25.3.2008 for 20th May 2008 and were received by the Law Officer of the defendant on 25.3.2008 at 1.15 p.m. alongwith the memo of plaint, the bailiff obtained the signatures of the official of the defendant which affixed the seal/stamp of the defendant on the different pages of the summons. On 31.3.2009 the suit was fixed before this Hon'ble Court for orders on the injunction application. This Hon'ble Court passed the orders to issue notices to the defendant for 14.4.2008 meanwhile the defendant was directed not to create third party interest in the suit plot. Notices were issued to the defendant on 5th April, 2008 which were received in the office of the defendant on 8th April, 2008 at 2.30 p.m. The notices bears signatures, seal/stamp of the defendant. On 12.4.2008 Mr. Z.K. Jatoi, Advocate Registration No.HC-3306 Karachi and Mr. Zaheer Z. Jatoi, Advocate having Registration No.HC-8572 Karachi filed their Vakalatnama in the present suit duly signed by the Secretary of the defendant. On 20th May, 2008 according to the diary of learned Additional Registrar of this Court the summons issued to the defendant returned duly served and for which time was granted to the defendant to file the written statement. Thereafter on 18.8.2008 learned Additional Registrar in his diary sheet mentioned that the defendant was served on 25.3.2008, power filed by the counsel for the defendant on 12.4.2008, but since no written statement has been filed and in the interest of justice two weeks time was granted to the defendant to file the written statement. Despite of service of summons on the defendant who was duly represented by Advocates since 12.4.2008, the defendant had failed to file the written statement, therefore, by the order dated 4.11.2008 of the Additional Registrar of this Court, the defendant was debarred from filing the written statement. On 20.3.2009 the matter was fixed in the Court for hearing of injunction application and for final disposal when the learned counsel for the plaintiff present and Malik Bahadur, Advocate was holding brief for Mr. Z.K. Jatoi, Advocate for the defendant and the matter was adjourned to 26.3.2009 at the request of plaintiff's counsel for production of original documents. On 26.3.2009 Mr. Z.K. Jatoi, Advocate for the defendant requested to this Court for one week time for filing application for settling the matter between the parties outside the Court and the case was adjourned to 3rd April 2009. On 3rd April, 2009 the learned Advocate for the plaintiff filed original documents in compliance of the order of this Court and none was present for the defendant on that date. The matter was reserved for orders. On 20.4.2009 this Court was pleased to direct the parties to appear in Court on 27.4.2009. The office issued the intimation notices to both the learned counsels of the parties. On 27.4.2009 the learned counsel for the plaintiff was present, but none appeared for the defendant. The learned counsel for the plaintiff stated that he will produce the documents in respect of present market value of the property and also satisfy the Court regarding Prayer-E on the next date of hearing. On 26.1.2010 after hearing, the case was fix for final disposal and the counsel for the plaintiff was directed to file the affidavit-in-exparte proof.

3.         On 29.1.2010 the learned counsel for the plaintiff filed an statement in compliance of the Court's direction and submitted that the plaintiff has

received letter dated 9.11.2009 from Trustable Associates Real Estate Consultant, estimating the expected current market value of the subject plot to be Rs.16,000,000/- and letter dated 15.10.2009 from Al-Raafay Associates Real Estate Consultant, estimating the expected current market  value of the said property to be Rs.15,000,000/-, the copies of the letters of the Estate Consultants are enclosed with the statement.

4.         The learned counsel for the plaintiff on 18.2.2010 filed the affidavit-in-exparte proof of Imran Iqbal son and duly constituted Attorney of Iqbal Ahmed as exhibit  P/5/1.

5.         On 4th March, 2010 the plaintiff's attorney Imran Ahmed appeared before this Court and produced the following documents:-

Statement in compliance of the order dated 26.1.2010 as Ex-PW-5/2. List of documents which were filed on 26.3.2009 as per order of this Court as Ex-PW-5/3. Copy of application Form dated 31.8.1994 as Ex-PW-5/4. Photocopy of Pay Order No.OAO/J-669414 dated 06.10.1994 as Ex-PW-5/5. Photocopy of Certificate issued by HBL dated 6.10.1994 as Ex-PW-5/6. Photocopy of Receipt No.043002 dated 19.10.1994 as Ex-PW-5/7. Photocopy of office copy of plaintiff's letter dated 20.11.1994 as Ex-PW-5/8. Original letter dated 23.11.1994 of the defendant as Ex-PW-5/9. Original letter dated 10.4.2002 as Ex-PW-5/10. Photocopy of letter dated 6.5.2002 as Ex-PW-5/11. Original Receipt No.BA-009251 issued by the defendant dated 9.5.2002 as Ex-PW-5/12. Original Receipt No.Ab-009739 issued by the defendant dated 09.05.2002 as Ex-PW-5/13. Photocopy computer print out of list of allottees issued by the defendant dated 11.6.2002 as Ex-PW-5/14. Photocopy of layout plan of Super Highway Phase-II, SITE as Ex-PW-5/15. Original offer letter No.SITE/Land/NK/2145/1002 issued by the defendant dated 14.2.2004 as Ex-PW-5/16. Office letter of the plaintiff dated 19.2.2004 as Ex-PW-5/17. Photocopy of Pay Order No.0001777 for Rs.30,000/- dated 19.2.2004 as Ex-PW-5/18. Photocopy of Pay Order No.0001778 for Rs.3,250/- dated 19.2.2004 as Ex-PW-5/19. Photocopy of Pay Order No.0001779 for Rs.3,75,000/- dated 19.2.2004 as Ex-PW-5/20. Original Allotment letter No.SITE/Land/NK/2145/4202 issued by the defendant dated 30.7.2005 as Ex-PW-5/21. Office copy of letter dated 6.3.2007 of the plaintiff as Ex-PW-5/22. Office copy of the letter dated 7.6.2007 of the plaintiff as Ex-PW-5/23. Photocopy of Pay Order No.0020248 dated 7.6.2007 as Ex-PW-5/24. Original stub of Pay Order No.0200248 dated 7.6.2007 as Ex-PW-5/25. Original newspaper of public notice issued by the defendant dated 25.8.2007 as Ex-PW-5/26. Office copy of the plaintiff's letter dated 30.8.2007 as Ex-PW-5/27. Office copy of letter dated 1.9.2007 of the plaintiff as Ex-PW-5/28. Office copy of letter dated 1.9.2007 of the plaintiff as Ex-PW-5/29. Original courier receipt No.3002303360 dated 1.9.2007 as Ex-PW-5/30. Office copy of letter dated 6.9.2007 of the plaintiff as Ex-PW-5/31. Original newspaper of public notice issued by the defendant dated 5.9.2007 as Ex-PW-5/32. Office copy of legal notice dated 12.9.2007 of the plaintiff alongwith the original courier receipt as Ex-PW-5/33. Office copy of legal notice dated 9.10.2007 of the plaintiff alongwith courier receipt as Ex-PW-5/34. Office copy of legal notice dated 1.2.2008 of the plaintiff alongwith original courier receipt as Ex-PW-5/35. Original Power of Attorney dated 30th January, 2008 executed in favour of Imran Iqbal as Ex-PW-5/36.

 

6.         The defendant was debarred from filing the written statement since 4.11.2008 and the matter was fixed for final disposal since long period, therefore, the arguments of the learned counsel for the plaintiff were heard.  Learned counsel for the plaintiff argued that the defendant had already been served, their counsel appeared before this Court filed Vakalatnama on behalf of defendant, the defendant duly served with the present suit on 25.3.2008 and 12.4.2008, the counsels for the defendant filed their Vakalatnama in the Court and represented the defendant on several hearings before this Court and later on disappeared and the defence of the defendant was debarred to the information and knowledge of the defendant and its counsels. The contents of the memo of the plaint are un-rebutted, unchallenged and have not been denied by the defendant. The plaintiff has produced ample proof that the Industrial Plot No.F/16-a at SITE, Super Highway , Phase-II, Karachi, measuring 0.5 acre was duly allotted to Shaikh Iqbal Ahmed C/o M/s. Hilal Impex Karachi. The plaintiff has paid the amount of premium, advance rent, utility service charges etc on the demand of the defendant, but the defendant without any just cause or reason has failed to hand over the vacant peaceful physical possession of the suit property to the plaintiff. The conduct of the defendant as such that the defendant even not cared to reply the letters, notices and even the memo of plaint. The learned Advocate for the defendant Mr. Z.K. Jatoi, who filed his power for the defendant on 12.4.2008 appeared before the Court on 26.3.2009 but did not refuted, challenged and denied the claim of the plaintiff as stated in the memo of the plaint contrary to that the learned counsel for the defendant sought one week time for filing application for settling the matter between the parties outside the Court, but has failed to appear thereafter in the present suit, despite of the fact that intimation notice issued for 27.4.2009 by this Court was duly received at his office on 25.4.2009. The learned counsel for the plaintiff submits that the suit be decreed. The learned counsel for the plaintiff submits that the plaintiff has suffered financial and mental losses due to delay and lawful actions of the defendant as the plaintiff cannot commence construction on the suit property and started industrial production and has suffered financial losses.

7.         After perusal of the record of the present suit, hearings the submissions of the learned counsel for the plaintiff, I am of the view that the suit plot was allotted to the plaintiff by the defendant after Computerized Balloting. The defendant issued allotment letter of the subject plot to the plaintiff, the plaintiff accepted the offer of the letter of the defendant for the allotment of the suit plot and paid amount as and when demanded by the defendant. Despite of the requests made by the plaintiff through letters and notices the defendant has failed to hand over vacant peaceful physical possession of the suit property and to issue lease of the subject property with the result that the plaintiff has filed the present suit for declaration, mandatory injunction and possession. Even the defendant has failed to file the written statement to the memo of plaint or take any objection at the time of hearings before this Hon'ble Court when the counsel for the defendant appeared before this Hon'ble Court. Since the plaintiff is a bonafide lawful allottee of the subject plot and has paid the valuable consideration, therefore, plaintiff is entitled protection of law as well as equitable relief against the malafide and arbitrary actions of the defendants. The claim of the plaintiff on the face of record is lawful, legal, just and proper. The defendant has not controverted, denied or challenged the claim of the plaintiff in any manner.

8.         Under the facts and circumstances mentioned above the plaintiff is entitled to equitable relief and direction to the defendant to deliver the vacant peaceful physical possession of the suit property i.e. Industrial Plot No.F/16-a, SITE Super Highway, Phase-II, Karachi to the plaintiff as per the original Layout Plan of the Scheme for the lease of the suit plot and restraining the defendant from allotting the suit property to any other person. Since the plaintiff has failed to provide the proof of causing mental torture and agony suffered, therefore, the plaintiff is hereby allowed the reliefs prayed for in Clause 'A to G' except Clause 'E'. Since the plaintiff in compliance of the order of this Court dated 09.11.2009 filed expected current market value of the subject property as Rs.16,000,000/- and Rs.15,000,000/- vide statement dated 26.1.2010. In prayer Clause 'D' of present suit the plaintiff has prayed that in alternate for grant of plot compensation the amount of Rs.25,000,000/- (Rupees twenty million only) with mark up but in view of own statement of plaintiff's counsel dated 9.11.2009 in alternative for grant of plot compensation of Rs.16,000,000/- (Rupees Sixteen million only) is allowed in prayer clause-D of the plaint to the plaintiff with mark up at agreed bank rate. The suit is hereby decreed except Clause-E in the aforementioned terms.

JUDGE