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Petitioner: JAVED IQBAL VS Respondent: PROVINCE OF SINDH through Chief Secretary and 3 other
Court Name: Sindh High Court Judge(s): Shabbir Ahmed Title: JAVED IQBAL vs PROVINCE OF SINDH through Chief Secretary and 3 other Case No.: Suit No,684 of 1999 Date of Judgment:2002-09-02 Reported As: 2003 MLD 22 Result: Order accordingly
Judgment ORDER ' The defendants through C.M.A. No,3817 of 2000 seek rejection of the plaint, inter alia, on the grounds (i) that the plaint does not disclose any cause of action, (ii) that the present suit for inter alia, specific performance, was in any event not maintainable, (iii), that there was subsequent suit pending (Suit No,793 of 1999) for declaration and injunction in respect of the suit property filed by the plaintiff as attorney on behalf of the principal donors defendants Nos.2 to 4 and the same has been dismissed as withdrawn by order dated 16-5-2000. Suit No,1017 of 1997 filed by the plaintiff as attorney of defendants Nos.2 to 4 was dismissed on the grounds that no power of attorney has been executed by Shaukat Ali, Abdul Majeed and Liaquat Ali in favor of plaintiff Javaid; (iv) that no land in Karachi has been allotted in their favor particularly the land bearing Nos.310, 311 and 312 in Deh Okerwari, District East Karachi measuring 10 acres. ' The factual background of the case needs recapitulation in detail:-- ' That the plaintiff, as attorney of defendants Nos.2 to 4 first filed Suit No, 1017 of 1997 against defendant No,1 and its officers for declaration and injunction in respect of the subject-matter of present suit. Defendants Nos.2 to 4 in pursuance of order dated 13-11-1999 passed in aforesaid suit appeared in Court on 11-4-2000 and filed their affidavit maintaining therein that they have never executed any power of attorney in favor of any person by name Javed Iqbal and title suit has been filed without their knowledge and authorization and that they are not aware of any allotment of land in Karachi in their favor and more particularly Survey Nos.310; 311 and 312 in Deh Okerwari, District Karachi East measuring 10 acres. The suit was dismissed with special costs. It may also be pointed out that the plaintiff; as attorney, also filed Suit No, 793 of 1999. In this Court on behalf of defendants Nos.2 to 4 for declaration and injunction with the following reliefs:--
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(A) For a declaration that the plaintiffs are the lawful co-owner of the suit property, namely an area of 10 acres of land in Deh Okerwari, District East Karachi, bearing Survey Nos.310, 311 and 312, which is in plaintiff's possession since 1981, and that the plaintiffs are entitled to hold and enjoy the suit property without any type of interference hindrance and/or threat from any of the defendants. (B) For a declaration that the orders dated 22-2-1999 (P-17) passed by the defendant No,1 is null, void ab initio, imperative, illegal, without jurisdiction and lawful authority, and has no legal effect, and that the said order has been passed by the defendant No,1 in violation of and in conflict with the aforesaid confirmed status quo order passed by this Hon'ble Court in Suit No, 1017 of 1997. (C) For a declaration that the order dated 22-2-1999 (P-17) passed by defendant No,1 has not affected in any manner whatsoever plaintiffs' right, title interest, possession and construction in respect of the suit property. (D) For permanent injunction restraining the defendants, their agents, representatives, assigns, officers, or any other person/persons acting directly or indirectly through them jointly and severally, from acting upon the aforesaid illegal order dated 22-2-1999 (p-17) and/or from cancelling the allotment and mutation of the plaintiffs in respect of suit property and or from interfering in any manner whatsoever in plaintiff's peaceful possession and title of the suit property and the construction carrying thereon." ' On 16-3-2000 on the statement of the plaintiff's counsel namely Ms. Masooda Siraj that since the plaintiff has disowned the authority of their attorney namely Javed Iqbal, the attorney be allowed to withdraw the suit on behalf of the plaintiff in view of order dated 11-4-2002 passed in Suit No,1017 of 1997. The suit of the plaintiff was dismissed as not pressed, however, with no order as to costs. The attorney was allowed to file suit on his own right, if any. ' The plaintiff had already filed the present suit on 26-3-1999 against the Province of Sindh and defendant Shaukat Ali, Abdul Majeed, Liaquat Ali for specifc performance of contract, declaration, cancellation, damages, mesne profits, permanent and perpetual injunction based on agreement of sale dated 8th January, 1996 and between the plaintiff and defendants Nos.2 to 4 in respect of 4100 P.I.Us. Approved through supplementary appendix dated 28-8-1985, whereby vendors agreed to sell P.I.Us. And allotment orders backed by irrevocable power of attorney by defendants Nos.2 to 4 (hereinafter referred to vendors) to the plaintiff hereinafter referred to as the (vendee), the outstanding 4100 P.I.Us., vide supplementary appendix B (Form MRV) Part I, Book No,601, Form No,204038 and the vendee agreed to purchase the claims from the vendors for sale consideration of Rs,5,00,000 and paid a sum of Rs,2 lacs in advance, the remaining amount of Rs,3 lacs was to be paid fully and finally at the time of executing the irrevocable power of attorney in favor of the plaintiff. Though, according to agreement entire sale consideration was paid at the time of execution of sale agreement acknowledged by separate receipt. The agreement of sale dated 8-1- 1996 has been filed through statement, its salient features are that vendors own 4100 produce index units approved by the Secretary (RS&EP), Board of Revenue, Karachi vide Supplementary Appendix-D (Form MRV), Part I, Book 601, Form No,204038 dated 20-8-1985 and some of the units are settled by separate allotment orders detailed as follows:-- (i) Allotment Order No,143, dated 11-8-1994 in respect of allotment of three acres land in South Karachi (ii) Allotment Order No,143 dated 11-8-1994, for allotment of eleven acres in Karachi East. (iii) Allotment Order No143 dated 11-8-1994 in respect of allotment of 7 acres in District Malir Karachi. ' The vendors are owners and entitled to the claim. The vendors have agreed to sell the said claim, units/allotment to the vendee and the vendee has agreed to purchase the said property for lump sum Rs,5 lacs. That the vendors will extend their cooperation and shall get the land approved for the remaining units from Secretary RS&EP, Board of Revenue at their own cost by executing
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irrevocable general power of attorney in favor of the vendee whenever required by the vendee. The vendee will also extend much cooperation in getting the units transferred. ' It is case of the plaintiff that Secretary (RS&EP) Board of Revenue in terms of section 2(2) of Evacuee Property and Displaced Persons (Repeal) Act XIV of 1975, by exercising the power conferred on him as notified authorities, allotted 10 acres of urban land available in Survey Naclass No, 193 Deh Okerwani in favor of vendors on 11-6-1996 and communicated the order to Deputy Commissioner, for compliance. The order is reproduced as under:- No,SECY/RS& EP) WING, BOAR OF REVENUE, SINDH, KARACHI, dated 11-6-1996 ' The Deputy Commissioner, Karachi. ' Subject: ALLOTMENT AND ENTRY IN RECORD OF RIGHTS OF AREA 10.0 ACRES URBAN LAND AVAILABLE IN DEH, OKERWARI, DISTRICT EAST, KARACHI. ' Ref. CLAIMANT/APPLICANT OF (1) MR. SHAUKAT ALI, (2) MR. MUSHTAQUE ALI, (3) MR. LIAQUAT SON OF MR. ABDUL _ MAJEED, UNDER SECTION 2(2) OF THE EVACUEE PROPERTY AND DISPLACED PERSONS LAWS (REPEAL) ACT XIV, 1975. ' SOLICITING ORDERS IN THE MANNER; ' In exercise of the power conferred notified authority under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act XIV of 1975 the Government of Sindh in Secretary (RS&EP) Department hereby accepted on the grounds mentioned in the case referred to above particularly in view of the following facts:-- (1) The claimant/applicant (1) Mr. Shaukat Ali, (2) Mr. Mushtaq Ali, (3) Mr. Liaquat son of Mr. Abdul. Majeed, is entitled to the grant of area which is not disputed in any manner. The applicant/claimant having been pressing hard for allotment of the entitled area since a long time this case shall be deemed to be a case pending in the Department for which there is no objection if the area is allotted to the claimant in satisfaction of this claim. (2) The possession of the claimant/applicant over Naclass No,193, Deh Okerwari, since 1981 uptii now. (3) There is no dispute over the said land and is free from all encumbrances. (4) The affidavit, of applicant is also on record regarding possessionn (5) The evacuee land now totally vests in the Provincial Government. ' In any case the claimant/applicant should not be deprived of his just claim. Section 2(2) of Repeal Act is fully discussed and present case also falls within the definition of section 2(2) of Repeal Act and the Authority is satisfied that the claim of claimant/applicant is a pending claim prior to the year 1974 and hence the claimant is allowed and they are entitled for allotment of 10 acres land Naclass Nos.193, Deh Okerwari, Taluka and District East, Karachi, on the North by Bashir Para and Kachhi Para, on the East by National Cement Employees Cooperative Housir. g Society on the West by National Cement Factory and Majeed Para, on the South by: Nehro Gate Village and Graveyard (sketch attached herewith), free from any dispute whatsoever being in possession. Allottees be transferred and mutate in the records of rights accordingly. ' That the Deputy Commissioner, Karachi East is hereby requested to make compliance of this order in the terms more specifically discussed in above concluding paragrahps. (SD.) SECRETARY (RS&EP) BOARD OF REVENUE, SINDH. ' The Member (RS&EP) Board of Revenue, Sindh exercised suo motu revisional jurisdiction against the order referred to above after issuance of show-cause notice, inter alia, on the grounds that the order passed by the Secretary E & P Board of Revenue Sindh was without jurisdiction. The plaintiffs as attorney of the allottees/vendors contested the proceedings through his counsel. The Member, Board of Revenue, after considering the reply to show-cause notice decided the suo motu
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proceedings in the light of the relevant law as well as case-law on the subject by detailed order dated 22-2-1999 with the conclusion that the impugned order is null and void, arbitrary, without jurisdiction and has resulted in miscarriage of justice. ' This order was impugned by the plaintiff as attorney on behalf of the vendors, in suits referred to above, which were dismissed by orders dated 11-4-2000 and 16-5-2000. It is the case of the plaintiff that he got allotted 11 acres in District East Karachi, 3 acres in District South and 7 acres in District Malir and the remaining unsatisfied units are yet to be adjusted and such agreement is binding on the defendants. Since the sale of units in the year 1994, the plaintiff was continuously harvesting the land and secured the same under valid claim and satisfied unit on the basis of claim pending prior to 1974. Some portion of which is still to be satisified. The plaintiff tried level best to conciliate the matter amicably and reprimanded the defendants to get the registered sale-deed in favor of the plaintiff/nominee without any further loss of time but defendants 2 to 4 have refused to execute the sale-deed of the suit land the defendants tried to back out from the execution of lease deed and they threatened to get the land cancelled. Therefore the plaintiff was compelled to file Suit No,1017 of 1997 and obtained stay order. Defendant No,1 is not authorized to cancel the land allotted in lieu of the claim mentioned above. The suit for specific performance of contract by impugning the order dated 22-2-1999 was filed with following reliefs: "(a) That the Hon'ble Court may pass the judgment and decree, directing the defendants to perform their part of performance by registering the registered sale-deed in respect of each property separately in favor of the plaintiff, in respect of the units sold and the lands. (b) Declare that the order dated 22-2-1998 is based on mala fide without jurisdiction, not maintainable, void, illegal, ultra vires and not binding upon the plaintiff and be treated as cancelled. (c) That the defendants be restrained through themselves, their attorneys, their agents, their employees, their assignees and anybody also working under their control, not to disturb the possession/position of the plaintiff from the suit-land and may not interfere in the title and possession etc. They also be restrained from mortgaging, alienating, entering in any sort of agreement of contract, any sort of encumbrance upon the suit-land except in favor of the plaintiff and may not execute power of attorney, sub-attorney or any sort of authority to anybody. (d) Pass the decree of damages for an amount of Rs,50,000,000 (five crore) tentatively the damages and mesne profits may be calculated before passing of the final decree through Commissioner or any other authorized officer appointed by the Hon'ble Court. (e) Costs of the suit." ' During the pendency of C.M.A. No, 381 of 2000, the plaintiff through statement dated 11-5-2000 filed (1) sale agreement dated 8-1-1996, (ii) irrevocable general power of attorney executed by vendors dated and C.M.A. No, 3307 of 2000 for amendment of pleadings. ' During the hearing Mr. Mirza Adil M. Baig, learned counsel for the plaintiff presented an application under Order 23, Rule 1, C.P.C. Read with 151, C.P.C. For withdrawal of the suit with permission to file a fresh, inter alia, due to lacuna and of formal legal defect in the suit. ' I have heard Ms. Sana Minhas, learned counsel for the defendant Mr. Abbas Ali, learned Additional Advocate-General, has supported the contentions raised by Ms. Sana Minhas and Mr. Mirza Adil M. Baig for the plaintiff. ' Ms. Sana Minhas learned counsel for the defendant contended that where an application for rejection of plaint and an application for amendment of the pleadings are pending for disposal, the former application has to be taken first in view of the pronouncement in State Life Insurance Corporation v. Ibrahim Management Ltd. (1990 CLC 206). ' Ms. Sana Minhas has contended that in view of order dated 11-10-2000 passed in Suit No, 1017 of 1997 and order dated 16-5-2000 passed in Suit No, 793 of 1999 filed by the .Plaintiff as Attorney on
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behalf of defendants Nos.2 to 4 the present suit is hit by the provisions of res judicata and under sub-rule (3) of Rule 1 of Order 23, C.P.C. Ms. Sana contended that in respect of the same subject- matter the plaintiff had filed Suit No,1017 of 1997 for declaration and injunction. The defendants Nos.2 to 4 appeared in person and filed their affidavit disowning the filing of the suit through the plaintiff as attorney as a consequence thereof the suit was dismissed. She also contended that the , plaintiff as attorney on behalf of defendants Nos.2 to 4 had also filed Suit No, 793 of 1999 in respect of the same subject-matter and on 16-5-2002 on the statement of Ms. Masooda Siraj, representing the plaintiff, to the effect that since the plaintiff has disowned the authority of their attorney namely Javed Iqbal, he be allowed to withdraw the suit on behalf of the plaintiff in view of order dated 11-4- 2000 disowning Suit No,1017 of 1997, as a consequence thereof the suit was dismissed as not pressed with no order as to costs, with observation the attorney may file suit on his own right, if any. Thus, she contended that the present suit on the same cause of action is barred by the provisions of res judicata, whereas due to the subsequent order in Suit No,793 of 1999 the present suit is hit under the provisions of sub-rule (3) of rule 1 of Order 23, C.P.C., which provides that "where the plaintiff withdraws from the suit or abandons part of claim without permission referred to in sub- rule (2) he shall be liable for such cost as Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim". ' Ms. Sana Minhas also pointed out that the order dated 22-2-1999 passed by the Member (RS&EP) Board of Revenue was also challenged being illegal, ultra vires and want of jurisdiction in later suit. She further contended that though the attorney was allowed to file a suit at his own right, if any, the plaintiff claims right from the defendants, who themselves, have abandoned the claim against the order referred to above, therefore, the plaintiff has no cause of action to file the suit. ' So far the contention of Ms. Sana Minhas that the suit is hit by sub-rule (3) of Rule 1 of Order 23 is concerned there cannot be cavil with the proposition that once the claim has been abandoned in respect of the impugned order it cannot be reagitated by another suit. However, the question whether the plaintiff on his own right can file a suit is to be examined. ' So far the question of res judicata based on order of dismissal in Suit No, 1017 of 1997 is concerned, I do not find any force in the contention raised by Ms. Sana Minhas. In order to press the provisions of section 11, five conditions have to be spelled out (i) the matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in former suit, (ii) the former suit must have been a suit between the same parties or between the parties under whom they or any of them claim, (iii) the parties as aforesaid must have litigated under the same title in the former suit, (iv) the Court which decides the former suit must have been a Court competent, to try the subsequent suit in which such issue is subsequently raised and (v) the matter directly or substantially in issue in subsequent suit must have been heard and finally decided by the Court in the first suit. ' In the instant suit, the first four conditions are, no doubt, available, but the fifth condition is not available as issues have not been heard and finally decided in former suit. Order dated 11-2-2000 in Suit No,1017 of 1997 can maximum be termed an order of disclaimer as the plaintiffs, therein, have disowned the authority of the attorney to file a suit. Therefore, the provision of section cannot be pressed into service. ' While canvassing the question of want of cause of action, Ms. Sana maintained that upon enforcement of the Evacuee Property Displaced Persons (Repeal) Act, 1975, all the properties, other than those attached to charitable, religious or educational trust stand transferred to the Provincial Government and were no longer available for allotment to displaced persons as such, the allotment effected after enforcement of the repealing Act was void ab initio. No right can be claimed on the basis of such order, thus no cause of action as at the time of enforcement of the repealing Act, 1975, no proceedings under the laws pertaining to the Evacuee Property of displaced
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persons were pending before any Court or Authority, which could have been subsequently decided by Officers notified by the Provincial Government under section 2(2) of the Act. The verified claim purchased by the plaintiff could not be treated as "pending proceedings" in terms of section 2(2) of the Act, 1975. The officer passing order dated 11=6-1996 was not competent to do so in terms of Notification dated 15-9-1985 conferring authority fat deciding the pending proceedings. Therefore, no right can be claimed by the plaintiff on the basis of an agreement or irrevocable power of attorney as claimed by the plaintiff. Therefore, the plaintiff has no cause of action to bring the suit. ' Mr. Mirza Adil Baig learned counsel for the plaintiff maintained that the plaintiff, on the basis of agreement coupled with irrevocable power of attorney executed by defendants Nos.2 to 4 in favor of the plaintiff a valuable right has been created in favor of the plaintiff and the plaintiff can bring suit based on such right and he further contended that the plaint presented on behalf of the plaintiff suffers from formal legal defect and factual lacuna though the amendment application has been moved yet even if an amendment is allowed the lacuna and the legal defect cannot be cured as such the plaintiff has filed an application for withdrawal of the suit with permission to file afresh and contended that the plaintiff may be allowed to withdraw the suit with permission to file afresh and further contended that the Court may impose condition for such permission. ' Learned counsel for the defendants have vehemently opposed the application for withdrawal of suit with permission to file afresh suit by contending that the plaintiff has no right and no cause of action as such he can withdraw the suit unconditionally but opposed the grant of permission. It is now well-settled that Court can grant or refuse the application for withdrawal of suit with permission to institute afresh, but the Court has no jurisdiction to grant permission for withdrawal and withheld the permission to institute a fresh suit. Therefore, I intend to dispose of the application for rejection of plaint on the ground whether the plaintiff has no cause of action to file the suit, if such finding is recorded in negative then I would consider the request on merits. ' While controverting the plea raised by the defendant's counsel that there was no "pending proceedings" therefore the Notified Officer has no jurisdiction to allot the land and that any order passed allotting the land in exercise of such powers such exercise by such officer is nullity in the eye of law and without jurisdiction. Mr. Adil Mustafa Baig, learned counsel for the plaintiff's contention was that the Member (RS&EP), Board of Revenue, Sindh had suo moto initiated proceedings in the matter of the allotment of 10.0 acres of urban land available in Deh Okewari, District East, Karachi allotted by the Secretary (EP), Board of Revenue, Sindh in the capacity of Notified Officer. The aforesaid land was illegally cancelled as per order dated 23-2-1999 by Member (RS & EP), Board of Revenue. He further contended that the Notification dated 15-9-1985 duly vests the powers to the "Notified Authority" under section 2(2) of the Act, 1975 to hear all cases before the enactment of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The Secretary (EP) as Notified Officer adjudicated the pending cases. ' In order to appreciate the respective contention of the learned counsel for the parties, it may be proper to refer to the admitted facts and relevant legal background. ' The plaintiff's case is that Shaukat Ali, Abdul Majeed Liaquat Ali (defendants Nos.2 to 4) were holders of 4100 produce ex units approved by Secretary (RS&EP), Board of Revenue, Sindh vide Supplementary Appendix-B (Form) MRV, Part I, Book No,601, Form No,02408 dated 20-8-1985 and the plaintiff purchased the claim. Some of the units were utilized in allotment of land by order dated 11-8-1994. The plaintiff purchased the allotment order as well as claim for a consideration of Rs,5,00,000 with promise by the defendants that they will cooperate and sign the required documents during pendency of claim. The plaintiff's further case is that the Notified Officer by exercising powers under section 2(2) of the Act, 1975 passed order dated 11-6-1996 whereby in satisfaction of the claim of area of 11 acres out of Survey No,Naclass 193, Deh Okerwari, was allotted which was in possession of the vendors since 1981 till allotment. The Member (RS&EP), Board of
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Sr.No. Designation of OfficerPending cases/proceedings 1. Secretary (Evacuee Property, Board of Revenue, Sindh)Appeals or Revisions under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as The Registration of Claims (Displaced Persons) Act. 1956 (since repealed) remanded by a Court including the Supreme Court and the High Court."Revenue by exercising suo motu revision proceedings cancelled the allotment by order dated 22- 2-1999 and the defendants are avoiding to execute the sale-deed in respect of the suit land. No transfer of evacuee property had taken place either under section 12 of the Displaced Persons (Land Settlement) Act, 1958 or under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 till both these Statutes were repealed in the year 1975. The claim was verified vide supplementary appendix in the year 1985 after the repealing Act, 1975. ' It may also be pertinent to briefly examine the provisions of repealing Act, 1975. Under section 2(1) a number of laws including (i) Registration of Claims (Displaced Persons) Act, 1956, (ii) Displaced Persons (Compensation and…
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