IN THE HIGH COURT OF SINDH AT KARACHI

(Original Jurisdiction)

Suit No. 1134 of 2007.

Present:

Mr. Justice Irfan Saadat Khan.

Plaintiff,  M/s.  United  Paper  Board  &  Cone  Industries, through Mr. Abdul Muqtadir Khan, advocate.

Nemo for the defendant.

Date of hearing:   31.08.2010.

JUDGMENT

IRFAN SAADAT KHAN, J:– The plaintiff  has filed this suit against the defendant for Declaration, Injunction, Specific Performance and Cancellation of Documents and in the alternative damages in the sum of Rs.Ten Crores. The prayer clause reads as under:

i. Declaration that the plaintiffs in (sic) possession and entitlement of the lease hold right in accordance with law.

ii. Permanent injunction restraining the defendants, their servants, agents working at their instance from taking the possession of the plot in question in the manner.

iii. To adjudge of any documents as void which may have been created at the back of the plaintiffs in respect of the suit plot in favour of any person by the defendants.

iv. To direct/order the defendant to execute valid lease deed in favour of the plaintiffs in respect of the suit plot, in case the defendant avoids to do the same, order the Nazir of this Hon’ble Court to execute proper lease deed in favour of the plaintiffs in respect of the suit plot.

v. In the alternative the plaintiffs prays for a decree against the defendants in favour of the plaintiffs in the sum of Rs.Ten Crores with reasonable increase in terms of time and inflation rates.

vi. Any other relief as this Hon’ble Court may deem, fit and proper.

2. Brief facts of the case are that on 15.11.1983, the plaintiff applied to defendant for the allotment of  land/industrial plot in defendant’s Nooriabad S.I.T.E. and alongwith the application form, the plaintiff also paid a sum of Rs.15,060/- vide pay order No.OAO-A 609137, dated 16.11.1983.  In response to the said application, the defendant vide their letter dated 19.01.1984 allotted an Industrial Plot of one Acre. It is stated that on persistent representation on the part of the plaintiff, the defendant vide their letter dated 08.05.1985 allowed additional area of one acre on the same terms and conditions.  On 02.09.1985 the plaintiff applied for water connection and in this regard application was received by the defendant on 05.09.1985 but the same was not allowed as, at the relevant time, there was no infrastructure ready for the allottees/lessees. It is further stated that on plaintiff’s application, on 05.09.1985, the name of the plaintiff was changed from United Paper and Paper Board Industries to United Paper and Paper Board Cone Industries. It is averred that pursuant to the above facts and on making the payments as per defendant’s demand on 03.10.1985 the possession of four acres was delivered to the plaintiff which fact was acknowledged vide their letter dated 03.10.1985. It is asserted that the plaintiff submitted a drafted lease for execution and in the meantime entered into an agreement to lease dated 21.09.1985, therefore, in the manner stated above the plaintiff is in possession of plot measuring four acres, bearing No.A/140, Nooriabad. It is also the case of the plaintiff that on 17.08.2007 some people appeared at the site claiming that they have been allotted the said plot and started taking measurement of the same. The plaintiff stopped them and appropriate intimation was filed with the area police in this regard. As per the plaintiff due to the aforesaid facts and reasons a cloud has been cast over the title and entitlement of the plaintiff in respect of the suit plot, hence this suit has been filed with the above prayer.

3. Notices were issued to the defendant who was served vide Additional Registrar’s diary dated 08.11.2007 and Mr. Z.K. Jatoi, advocate filed power on its behalf. However, subsequently, due to the non-appearance the defendant was debarred from filing written statement vide order dated 19.5.2008. 

4. As per the plaint, the cause of action arose, lastly, on 17.8.2007, when some persons allegedly claimed the suit plot.  There is no averments whatever that the defendant herein, i.e. Sindh Industrial and Trading Estate, had refused to execute lease in favour of the plaintiff. The only apprehension of the plaintiff is that some cloud has been cast on the title and entitlement of the plaintiff in respect of the suit plot.  However, there is nothing on the record to show that any lease in favour of any other person has even been executed by the defendant in respect of the said plot allotted to the plaintiff.  It was the duty of the plaintiff to have approached the defendant to confirm whether any lease in respect of the plot allotted to it was issued in favour of any other person.  Rather than adopting this rational and prudent approach the plaintiff preferred to file the present suit on the basis of apprehensions only.  There is also nothing on the record to show that the persons who allegedly came to the suit plot ever approached the suit plot again or claimed the suit plot having been leased to them.  There might be an inadvertence on the part of such persons as they might have been allotted some other land and after realizing their mistake they did not approach the suit plot again.  A civil suit can only be filed for recovery of individual right or redress of individual wrong.  Although the plaintiff has sought cancellation of documents but the court cannot pass a decree canceling documents which do not exist.

5. It is also pertinent to note that in para 3 of the plaint it is mentioned that 1.0 acre land was allotted and in para 4 it is averred that another plot of 1.0 acre allotted to the plaintiff but then it is mentioned that “making to the total area of four acres”.  It is not clear as to how four acres of land was allotted when according to the plaintiff’s own averments, one acre was allotted vide letter dated 19.1.1984 and one acre was allotted vide letter dated 8.5.1985 i.e. the plaintiff, according to its own version, was allotted only two acres.  The learned counsel for the plaintiff, during the course of arguments, was also referring to “four acres” of land.  In para 12 of the plaint also it has been mentioned that the size of the plot was revised from one acre to four acres.  However, according to the averments made in the plaint, this claim is false.

6. Prayer clause (iii) relates to cancellation of documents but since no specific document or documents have been mentioned in the averments made in the plaint or in the prayer clause itself, a general and vague order cannot be passed canceling non-existent documents.

7. Apart from the above prayer clause, no other prayer clause has any nexus with the averments made in the plaint as neither it is claimed that the defendant is canceling the allotment or that the defendant is taking over the suit plot.    

8. In view of the above discussion, I find no merit in this suit which is dismissed.  If the plaintiff has any grievance against the defendant, such suit may be filed with proper averments and prayer clause in conformity with the averments made in the plaint.

9. Before parting with the judgment it may be noted that the defendant in this case is a statutory organization and it is highly undesirable on their part to remain aloof from these proceedings.  Though an advocate was appointed who also filed his vakalatnama on behalf of the defendant but no appearance was made in this regard although he sought time on 3.12.2008 to file application for recalling of the ex-parte orders.  Let a copy of this judgment be sent to the Director General, SITE, for future guidance.

Karachi, the ____ September, 2010.                                                                Judge