IN   THE   HIGH   COURT   OF   SINDH   AT  KARACHI

Suit No. 47 of 2009

 

Plaintiff:-                        Dawat-e-Islami Trust through its Trustee

Mr. Ahmed Ubed Raza Attari

S/o Mr. Muhammad Ilyas Qadri

Through his duly constituted attorney Muhammad Sadiq S/o Mehfooz Ali,

 

through Ms. Shamim Akhtar,

Advocate for the plaintiff.

 

Defendants:-                  Imtiaz Muhammad Khan

S/o Azaz Muhammad Khan,

 

None present for the defendant

 

 

Date of hearing       19.05.2010

Date of Judgment   04.06.2010

 

J U D G M E N T

 

SYED HASAN AZHAR RIZVI, J          The plaintiff has filed the present suit for declaration, cancellation of documents, permanent injunction, possession and compensation/mesne profit. The plaintiff is a Public Religious Trust (Waqf) duly registered under the Trust Act (II of 1882) for religious purposes. The present suit has been filed through attorney Muhammad Sadiq S/o Mehfooz Ali duly constituted, nominated, authorized by Mr. Ahmed Ubed Raza Attari Trustee/General Secretary of the Dawat-e-Islami Trust vide Resolution of the Board of Trustees dated 22.2.2008. The subject property situated at Plot No.158-A, Block-1, Federal "B" Area, Scheme No.16, Karachi admeasuring 200 square yards, dedicated and declared in 1994 by its owner Mst: Qudrat Begum widow of Ilyas Muhammad Khan as Waqf by executing the Deed of Declaration of Waqf presented at Sr. 3791 on 6.12.1994 before Sub-Registrar T-Division IX who registered at No.6/III, Book No.III, M.F. Roll No.3994 B-IV dated 1.1.1995 in the name of Dawat-e-Islami. The defendant forcibly, illegally and unlawfully occupied, criminally trespassed and daringly occupied the said property. Mst:Qudrat Begum died on 21.7.1999. The resident Mohallah informed the plaintiff about death of Waqif. The plaintiff's authorized officials contacted the defendant shown the Deed of Declaration of Waqf and granted him to stay in suit property upto Chelum Fateha of Mst: Qudrat Begum, the plaintiff's authorized officials again met with the defendant and demanded to the defendant for peaceful and vacant possession of the aforementioned dedicated property. The defendant extended threats of dire consequences. The officials of plaintiff's Rabita Committee made a complaint about the incident at Gharibabad Police Station. The defendant on the basis of bogus and fabricated documents filed a false and fabricated Civil Suit  No.511/1999 for permanent injunction against Hakeem Ahsan and Tahir Shamsi the defendants Nos.1 and 2. The defendant No.1 in that suit filed Counter Affidavit wherein in para-9 of the Counter Affidavit it is stated that the suit property had been given by a Waqf Deed to the plaintiff. On 25.9.2000 Xth Civil Judge, Karachi-Central rejected the plaint in that suit under Order VII Rule 11 CPC. The plaintiff repeatedly through respectable people approaching the defendant to vacate the suit premises, but the defendant has not accepting the demands of the plaintiffs. The defendant is trying to transfer the possession of the suit property to some other persons after taking huge amount. The plaintiff submits that the time to recover possession of the immovable property conveyed or bequeathed in trust is 12 years and the present suit has been filed within the limitation period. The plaintiff has filed the present suit on 12.1.2009 in this Court against the defendant for the following relief (a) to (g):-

a)                 :That it may be declared the property bearing No.158-A, measuring 200 square yards, located in Block-1, area known as Scheme No.16, Federal 'B' Area, Karachi is dedicated property and was dedicated by the real and absolute owner Ms: Qudrat Begum without undue influence, pressure, threat and/or deception to the Dawat-e-Islami Trust through its Trustee/General Secretary on 6.12.1994 and is valid and operative.

 

b)                 And consequently all the other papers/documents which may be in the possession of defendant in respect of the dedicated property, or which may be disclosed in his written statement/presently not known by the plaintiffs may be cancelled and may declard as null and void and illegal abinitio in operative and not maintainable under any law.

 

c)                  That it may be declared that the possession of the defendant on the dedicated house in question is unlawful and void abinitio and consequently the defendant may be directed to deliver, hand over and vacant/peaceful physical possession of the dedicated house in question hereinabove to the plaintiffs through their duly constituted attorney or any one to be appointed by the plaintiff esp: for this purose.

 

d)                 That the defendant may be directed to pay the compensation/mesne profit @ of Rs.15,000/- (Rupees fifteen thousand only) per month w.e.f. 21.7.1999 since the defendant retained the possession of the dedicated house in question by adopting unfair, illegal foul play and clever tactics to avoid the delivery of vacant/peaceful and physical possession of the dedicated house/property in question to the plaintiff abovenamed.

 

e)                 The permanent injunction may be granted against the defendant to his representatives, agents, assigns, attorneys, servants, helpers and all other persons and functionaries to desist, keep away and divested from the possession/ corpus of the said dedicated house in question or handing over its possession/ parting with possession of the dedicated house in question to any other person or persons directly or indirectly or in any way or manner which may cause prejudice to the plaintiffs/Trust.

 

f)                    That in failure of the defendant above named to comply with the direction/judgment/decree which may be passed by this Hon'ble Court in the above said suit the same may be implement through the Nazir of this Hon'ble Court by adopting the due course of law and procedure of this Hon'ble Court to meet the ends of justice.

 

g)                 Award costs throughout to the plaintiffs against the defendant together with such other relief(s) as this Hon'ble Court be pleased to give, grant and provide under the circumstances of the case.

 

2.         The summons/notices issued to the defendants on several times through bailiff as well as registered A.D. post and courier service. On 22.10.2009 the plaintiff filed application for substituted service under Order-V Rule 20 read with Section 151 CPC, stated therein that the defendant is knowingly, deliberately and intentionally keeping himself out of the way for the purpose of avoiding service of process in the ordinary way and prayed for the substituted service by publication in newspaper and through other modes. Application of the plaintiff for substituted service was granted. Summons for 18th December, 2009 of the present suit published on 19th November 2009 in daily Jang. The summons/notices were also issued through registered A.D. post and courier service and the copy of the summon/notice has also been affixed by the bailiff on the Court Notice Board. On 18.12.2009 the Additional Registrar held the service good upon the defendant. On 18.1.2010 this Court ordered that the present suit be proceed exparte against the defendant. On 12.3.2010 Mr. Muhammad Sadiq S/o Mehfooz Ali duly constituted attorney of the Trustee/General Secretary of the plaintiff filed affidavit-in-exparte proof. On 19.5.2010 Mr. Muhammad Sadiq S/o Mehfooz Ali was examined before this Court and produced the relevant documents before this Court as follows:-

 

            "Affidavit in exparte proof as Ex-PW-1/1. Deed of Declaration of Trust as Ex-PW-1/2, original seen and returned. Memorandum Appointment of New/Substituted Trustees and Amendment of the Plaintiff's Trust as Exh-PW-1/3, original seen and returned. Authority/Nomination Letter dated 22nd February, 2008, Special Power of Attorney executed by Ahmed Ubed Raza Attari son of Muhammad Ilyas Qadri,  on 23rd December, 2008 as Ex-PW-1/4 and Ex-PW-1/5, original seen and returned. Photocopy of Indenture of Registered Lease in respect of the Plot No.158-A, Block-1 Scheme No.16, Federal B Area, Karachi issued by the KDA on 24th December, 1983 in favour of Mst: Qudrat Begum registered at No.2966 pages 34 to 37 at Book-I Additional, before the Sub- Registrar T-Division, Karachi on 26-9-1984 as Ex-PW-1/6, original seen and returned.  Deed of Declaration of Waqf executed on 26th December, 1994 by Mst. Qudrat Begum, widow of Ilyas Muhammad Khan as Waqf in respect of immovable property situated at Plot No.158-A, Block-1, Federal B Area, Karachi admeasuring 200 square yards in favour of Dawat-e-Islami Trust vide Registration No.6/111 before Sub-Registrar T-Division on 6.12.1994 as Ex-PW-1/7, original seen and returned. Photocopy of the receipt/acknowledgement of the application submitted by Trust for mutation of the Plot No.158/A, Block-1, Federal B Area, Karachi as Exh-PW-1/8. Mutation Order issued by the City District Government Karachi on 1.11.2008 in the name of Dawat-e-Islami Trust for the mutation of the property situated on Plot No.158/A Block-1, Federal B Area, Karachi as Ex-PW-1/9, original seen and returned. Certified copy of the application submitted by the Rabta Committee Dawat-e-Islami to the SHO Police Station Sharifabad as Ex-PW-1/10. Certified copy of the Civil Suit No.511/1999 filed by Imtiaz Muhammad Khan in the Court of IVth Civil Judge, Karachi Central as Ex-PW-1/11. Certified copy of the counter affidavits filed in Suit No. 511/1999 by Hakeem Ahsan Ali Arif S/o Muhammad Arif and Muhammad Tahir Shamsi S/o Shuja-ur-Rahman as Ex-PW-1/12 and PW-1/13. Certified copy of the order passed on 25.9.2000 by the Xth Civil Judge, Karachi-Central in Suit No.511/1999 as Ex-PW-1/14."

 

3.         On 23.2.2009 the objection regarding recourse to Section 92 CPC which requires the approval of the Advocate General Sindh for intimation of the proceedings was deferred and notices were ordered to be issued to the defendant.

 Section 92 of the CPC:-   

"92.     Public charities:- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentious or not in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the [Provincial Government] within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree-

 

(a)               removing any trustee;

(b)               appointing a new trustee;

(c)               vesting any property in a trustee;

(d)               directing accounts and inquiries;

(e)               declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f)                 authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g)               setting a scheme; or

(h)               granting such further or other relief as the nature of the case may require."

 

4.         The learned counsel for the plaintiff referred to PLD 2005 Karachi  page No.240 the case of Ghulam Yahya through Attorney and legal representative Vs. Ali Muhammad Jamal Maternity Homes, judgment passed by Hon'ble Mr.Justice Khilji Arif Hussain as the Lordship then was observed as under:-

            "Now I will deal with the objection of the learned Advocate that the suit is barred under section 92 of the Civil Procedure Code (C.P.C.) and the same has been filed without taking permission from the Advocate General, Sindh. Through section 92, C.P.C. some restriction has been imposed upon the filing of the suit by Public Trust  of religious or charitable character or filing suit against it, and as such same has to be construed strictly. The consent of Advocate General, before filing the suit by or against the Trust created for public purposes of a charitable or religious is required only if there is an allegation of a breach of Trust or that direction from the Court is necessary for the administration of the trust is required in respect of either of the relief specifically mentioned in the section. As no such relief has been asked in suit, there was no need of taking consent of Advocate General before filing the suit."

 

5.         Hence Section 92 of the Civil Procedure Code is not applicable in the present case as the plaintiff has filed the present suit for preservation and protection of the property of the trust transferred through Waqf Deed the suit property is in illegal and unlawfull possession of the defendant. The present suit has been filed for cancellation of bogus documents if any in possession of defendant and possession of the suit property.

6.         The claim of the plaintiff as stated in the memo of plaint, the averments on which has been stated on oath by the legally authorized representative/ witness of the plaintiff. The plaintiff has enclosed the relevant title documents of the suit property alongwith plaint. The authorized person of the plaintiff filed affidavit-in-exparte proof produced the title documents of the suit property the original of the same have been produced before the Court. The copies thereof were taken on record and the original returned back to the authorized representative/witness of the plaintiff. The claim of the plaintiff which has been stated on oath and has gone unrebutted, unchallenged and has not been denied by the defendant. The claim of the plaintiff is legal and lawful. The prayer clause marked a,b,c,e,f and g of the plaint are allowed as prayed for with cost of the suit.

JUDGE