Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Al-Tamash Medical Society VS Respondent: Dr.Anwar Ye Bin Ju & others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title: Al-Tamash Medical Society vs Dr.Anwar Ye Bin Ju & others Case No.: Suit No.2389 of 2014 Date of Judgment:2016-12-16 Reported As: 2016 SHC 51 Result: Civil Misc. Application dismissed
Judgment Muhammad Ali Mazhar , J: This is a suit for declaration, directions, cancellation and injunction. The declaration is beseeched in view of restrictive Clause No.20 of the Lease Deed of Amenity Plot No. ST-2, that the defendant No.1 was not entitled to sell the plot to Defendant No. 2; the sale deed executed by the defendant No.1 in favour of defendant No.2 is against the law hence it is liable to be cancelled. The plaintif f has also entreated for the directions against the defendant No. 3 to resume the suit plot and allot the same to the plaintif f society for expansion of their hospital. Permanent injunction has been sought for restraining the defendants from raising any construction on the plot in question. 2. The trivia and or minutiae of interlocutory applications filed vice versa are as under:- (1) CMA No.16156/2014. The plaintiff has filed this application under Order 39 Rule 1 & 2 CPC for suspension of the operation of the lease deed and sale deed as well as the demolition permission and approval of building plan with further prayer that defendant Nos.1, 2 and 4 be restrained from creating third party interest as well as raising any construction on the plot in question. (2) CMA No.1031/2015. The defendant No.1 has filed this application under Order 7 Rule 11 CPC for rejection of the plaint on the premise that plaint does not disclose any cause of action and the plaintiff is stranger to the suit property. The suit is also barred under Section 42 of the Specific Relief Act. (3) CMA No.17996/2015. The plaintiff has moved this application under Order 39 Rule 2 (3) CPC read with Article 204 of the Constitution and Section 4,5 & 6 of the Contempt of Court Ordinance, 2003 that despite status quo order dated 3.12.2014, the Contemnor No.2 in connivance with Contemnor No.1 fraudulently got the restoration of revised proposed building plan of the suit property . (4) CMA No.17997/2015. This is an application of the plaintiff under Section 94 read with Section 151 CPC moved to suspend revised proposed building plan allegedly issued in gross violation and disobedience of the order dated 3.12.2014.
---
## Page 2
(5) CMA No.18253/2015. This application has been filed by Defendant No.8 under Section 151 CPC for the reason that the above suit was partly heard, so this suit for hearing of inter locutory applications may be fixed before the same bench being a part heard matter . (6) CMA No.18326/2015. The defendant No.8 has moved this application under Section 151 CPC for converting this suit into fast track on the ground that the defendant No.8 is aged about 60 years and in view of notification issued by the hon'ble Chief Justice this case may be fixed on weekly basis. (7) CMA No.18327/2015. The Defendant No.8 has moved this application under Order 39 Rule 4 CPC to evacuate the status quo order dated 3.12.2014. (8) CMA No.18660/2015 The defendant No.3 (K.M.C) has moved this application under Order 7 Rule 11 CPC for rejection of plaint with the plea that plaintiff has no cause of action against the defendant No.3. 3. The transient features of this law suit are that the plaintiff is a Society registered under the Societies Registration Act. An amenity Plot No.ST-2/B, Block-3, Clifton Karachi was allotted to the plaintiff for constructing medical and dental complex as well as medical and dental college known as "Al-Tamash Institute of Dental Medicine" established in 2001. The plaintiff paid huge consideration to KDA for buying the said plot. An amenity Plot No.St-2 which is adjacent to plaintiff?s plot was allotted to defendant No.1 who was rendering services in the field of Acupuncture and Physiotherapy. The bone of contention is Clause 20 of the lease deed executed in favour of the defendant No.1 which reads as under:- "20. The lessee will not sell, transfer or assign his rights in respect of demised premises in any manner . The plot premises should not be used for any purpose other than which it has been allotted. No commercialization of any portion/part of the allotted plot shall be allowed by the Lessor . The facilities and services provided would not be restricted to any single community ." 4. The plaintif f has shown much dismay and disquiet that regardless of unyielding caution against the sale of the plot in the indenture of lease, the defend ant No.1 has sold out the plot vide conveyance deed dated 28.6.2013 to the defendant No.2. The plaintif f has avowed that the defendant No.1 has committed violation of lease so he lost the title. The plaintif f has also asserted right of easement for allotment of plot in question to them after its cancellation for the reason that they desperately need extra land to make some expansion in their present set up. 5. At some stage, three interveners Dr.Saadia Rasul Virk, Dr.Mumtaz Ahmed Mahar and Dr.Javaid Haider Rizvi filed C.M.A No.1030/2015 under Order 1 Rule 10 CPC for impleading them as party in the suit. Quite the reverse, the plaintiff had also moved C.M.A No.4125/2015 under Order 6 Rule 17 and Order 1, Rule 10 read with Section 151 CPC for impleading Dr.Saadia Rasul Virk and Dr.Mumtaz Ahmed Mahar. Both the applications were allowed on 16.9.2015. Consequently, the plaintiff filed amended plaint and impleaded three aforesaid interveners as defendant Nos.8 to 10. 6. The defendant Nos.1 and 2 filed counter affidavit with the plea that the plaintif f is stranger to the property . The defendant No.1 constructed Chinese Acupuncture Centre on the suit property and practiced till 2012. He desired to enhance the centre to advance health care facility with wider spectrum, therefore, his attorney requested the defendant No.4 for the permission to construct state of the art facilities hospital and demolish the old structure. Since defendant No.1 was not financially sound therefore, in order to raise the funds, he decided to rent out the subject property to the defendant No.10 vide tenancy agreement dated 7.4.2013 but he could not achieve the desired results therefore, the defendant Nos.1 and 2, 8 and 9 entered into a joint venture and decided to establish liver transplant unit and general hospital in the larger public interest. In order to achieve the aforesaid objective, a conveyance deed was executed in favour of defendant Nos.8 and 9. Despite sale, they have no intention to change the use of land. The plaintif f wants to blackmail the defendant Nos.1 and 2 to obtain property in question and even before filing this suit the plaintif f's representative approached the defendant Nos.1 and 2 for acquiring the suit property . The plaintif f is lessee of plot No.ST-2/B Block-3, Clifton Karachi which was allotted to them as amenity plot for construction of hospital but major portion of the plot is being used for residence of the family members/of fice bearers of the plaintif f and also as private dental college campus which is evident from the Nazir's reports dated 13.1.2014 and 22.1.2015 filed in C.P .No.D-6629 of 2014.
---
## Page 3
7. The defendant No.3 in its counter affidavit stated that the plaintiff is using the amenity plot as bungalow for residence over 2/3d of their plot and on the remaining portion using it as dental health science teaching facility and small dental clinic. The plaintiff has itself violated the terms and conditions of the lease particularly Clause 20 of the lease deed and changed the usage. It is further stated that despite sale of the amenity plot, at least the private defendants have not changed its use to any commercial or residential purpose. It is further averred that the plaintiff has no legal right or title or legal character to sue hence plaint is liable to be rejected. 8. The defendant No.4 in their counter affidavit stated that the owner submitted application for demolition permission which was granted on 10.4.2013. The matter was also forwarded to Town Planning Section SBCA for their NOC, which was accorded to. There was no violation of law and regulation on the part of defendant No.1 and the subsequent owners. 9. The defendant Nos.8 and 9 have not filed any counter affidavit to the injunction application but they have filed application under Order 39 Rule 4 CPC for the vacation of status quo order dated 3.12.2014. They reiterated that defendant No.1 is original lessee of the suit property who desired to expand his Chinese Acupuncture Centre into a hospital but since he was not financially strong, therefore, he required financial assistance and also approached to the defendant No.9 to establish liver transplant unit and general hospital. The defendant Nos.8 and 9 acquired the plot by virtue of a conveyance deed for the purpose of hospital and they have no intention to change the land use. 10. The learned AAG submitted his written submission that there is no cause of action against the defendant Nos.6 and 7, however , he pointed out breach of the terms and conditions of indenture of lease dated 17.8.1992. At the same time, he asserted that the plain tiff has no right to seek declaration and or cancelation of registered sale deed. He referred to the judgment authored by me in the case of Ilyas Ahmed v. Muhammad Munir reported in PLD 2012 Sindh 92 . 11. The learned counsel for the plaintif f with the aforesaid backdrop argued that plaintif f Society has constructed a state of art medical and dental complex as well as medical and dental college which was founded in 2001. The adjacent plot No.ST -2, measuring 1000 Sq. Yds., was allotted to Defendant No.1. The existing structure standing on the suit plot No.ST-2 was partly demolished and preparations were underway to construct a multi-storeyed building, therefore, the plaintiff Society made enquiries and came to know that the defendant No.1 in gross violation of the terms and conditions, more particularly the condition No.20 of lease deed dated 17.8.1992 has executed a sale deed on 28.6.2013 in favour of defendant No.2 whereas the defendant No.6 by misusing his official status and authority as Sub-Registrar for corrupt motives registered the sale deed on 28.6.2013 in favour of defendant No.2. It was further averred that during pendency of the suit, the plaintiff came to know that the defendant No.2 has sold out the plot to the defendants No. 8 & 9 vide conveyance deed dated 9.9.2014. The Sindh Disposal of Urban Land Ordinance, 2002 specifically provides that amenity plots shall only be disposed of for the purpose the plot is reserved through a public auction at a price not less than the market price and no plot shall be converted for any other purpose except with prior approval of the prescribed authority. The lease specifically placed a clog on the transfer of the property thus the sale deed cannot be treated lawful under the provisions of Section 23 & Section 56 of Contract Act 1872. The Transfer of Property Act specifically provides that amenities could not be leased, sub-leased, sold or transferred to any person for personal gains. He further contended that the defendant No.5 being a public functionary was bound to deal with the public property strictly in accordance with the parameters laid down by the law. The plaintiff has approached this court as whistle blower and need not be personally aggrieved in the strict sense. On the contrary, he argued that plaintiff has easement rights on the plot in question so after the cancellation of the lease deed and two sale deeds, the plot in question be allotted to the plaintif f. The learned counsel cited following judicial precedents: (1) 2010 CLC 1879 ( Muhammad Sabir v. Maj. (Rtd.) Muhammad Khalid Naeem Cheema and others). Order VII, Rule 11. Rejection of plaint. Contents of plaint could only be looked into for such purpose. Court could reject plaint, when allegations made therein, if assumed as proved to be correct would not entitle plaintiff to get relief. (2) 2015 YLR 550 [Sindh] (Naseem-Ul-Haq through Attorney and another v. Raes Aftab Ali Lashari through Guardian ad-litem and 5 others). Object of Section 42 of Specific Relief Act 1877. Any man'sr
---
## Page 4
legal character is generally taken as the same thing as a man's status. Words "right as to any property" are to be understood in a wider sense than "right to property" and words "interested to deny" denotes that defendant is interested in denying right of plaintiff or his legal character. Denial of right constitute a cause of action to maintain an action under Section 42 of Specific Relief Act, 1877. Relief of declaration is a discretionary relief and can be granted in the case where substantial injury is established and in absence of denial of right no relief of declaration can be granted. Provision of Section 42 of Specific Relief Act, 1877, is not exhaustive of circumstances in which declaration is to be given. Declaration can be given even in the circumstances not covered by Section 42 of Specific Relief Act, 1877, in which case general provision of law gives declaration sought. (3) 2004 CLC 1029 (Arif Majeed Malik and others v. Board of Governors Karachi, Grammar School). Grant of relief under Section 42 of Specific Relief Act, 1877. One reason for the divergence of judicial opinion is that when Specific Relief Act, 1877, was enacted, concept of rights which could be enforced through Courts was largely confined to `status' as understood in feudal social context or rights pertaining to property in laissez-faire economy. With the development of jurisprudence over more than a century, a large number of other rights which did not relate to status of an individual or deal with tangible property came to be recognized by law and some of them were in the form of guaranteed fundamental rights. Principle, "wherever there is a right there must be a remedy to enforce it", persuaded Courts not to remain bound within the technicalities of Section 42 of Specific Relief Act, 1877, for granting relief. (4) 2006 YLR 185 (Karachi Stock Exchange through Attorney and another v. Muhammad Ashaqeen and 6 others). Conversion of public/amenity plot into residential/commercial plot. Said plot was granted/leased out to the respondent through a resolution of the Municipal Corporation approved by the Mayor as well as the Provincial Government under Section 45(4) of Sindh Local Government Ordinance, 1979, but in violation of the provisions of Section 45(5) (ii) of the Said Ordinance. Grant after conversion of the plot, and its approval had been made without taking into consideration of certain rules and regulations, particularly, that an amenity plot could not be converted into a residential or commercial plot and furthermore, a plot measuring more than 40 sq. yards could not be granted except through public auction. Even if the appellants had failed to get the said plot transferred in their favour, it did not mean that they were estopped from challenging its grant in favour of the respondent in case it was illegal and void being a violation of the laws dealing with the use and conversion of amenity plots. (5) 2007 MLD 1880 (Naseem Ali Khan v. K. D. A. and others. Article 52-A of Karachi Development Authority Order , 1957, explicitly required that an amenity plot could not be converted into any other purpose without inviting public objections. Chief Minister had no authority whatsoever to allot plots under different schemes of the Authority . (6) 2016 SCMR 101 ( Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari). Allotment of amenity plot/land for commercial use was directly in conflict with Art.52-A of the Karachi Development Authority Order , 1957 which specifically provided for procedure for seeking of conversion of amenity plot for other use. Admittedly , in the present case, there was no order by the competent authority to sanction the use of amenity land for commercial purposes. (7) 2013 CLD 1263 (Najamuddin Zia and another v. Mst.Asma Qamar and others). The rejection of the plaint on technical ground amounts to deprive a person from his legitimate right of availing legal remedy in undoing the wrong done in respect of such right. This is a settled principle of law that in case of substantial question of facts or law the provisions of Order VII, Rule 11, C. P. C. cannot be invoked rather the proper course for the court in such cases is to frame issues on such questions and decide the same on merits in the light of evidence. Reference can be made to the judgment reported in 2011 CLC 88 (Mst. Bano alias Gul Bano and others v. Begum Dilshad Alam and others). 12. The learned counsel for the defendant No. 1, 2 8, 9 and 10 argued that the plot number of the suit property is ST-2 whereas the number of the plaintiff?s plot is ST-2B. The date of execution of lease of the plaintiff is 26.09.1992 and the date of execution of lease of defendant No.1 is 17.08.1992. Clause 20 which is a restrictive
---
## Page 5
clause is common to both the leases. The perusal of prayer clauses do show that clause (a) and (b) are coached in a negative sense and the plaintiff on its own showing has failed to seek any positive declaration in its favour. Section 42 of the Specific Relief Act, 1877 can only be invoked if any right, title and interest of the plaintiff in any property is denied. The prayer clauses (c) and (d) are related to cancellation of documents. Section 39 of the Specific Relief Act enables any person apprehending that a written instrument which is void or voidable and if left outstanding may cause him serious injury. The case of the plaintiff does not fulfil the above requirements. In this case there is no infringement or any threatened injury therefore the plaint is liable to be rejected. In response to the injunction application, they argued that so long as defendants are adhering to the covenants of lease and are willing to construct the hospital, they cannot be restrained from using their own plot for the purpose it was leased. The violation of covenant of lease if any can only be challenged by the lessor and not the strangers. The injunction cannot be granted when the conduct of the plaintiff has been such as to disentitle him to the assistance of the court. The plaintiff was allotted amenity plot for construction of a hospital only which they are using as residence and also as a Dental Clinic which fact is evident from Nazir Report submitted in Constitutional Petition No.D-6629 of 2014. It was further argued that the plaintif f itself is a wrongdoer and has violated the restrictive covenants of lease (Clause 20) by not establishing and constructing a hospital even after expiry of 23 years of execution of lease. It was further contended that there is a distinction between an individual ?s interest and the interest of public at large. It is a well settled principle of law that the individual interest yield to the national and public interest and the project of public interest must prevail. The learned counsel concluded that if this court does not deem proper to reject the plaint at this stage and feels some triable issues then the injunction application may be dismissed and the answering defendants may be allowed to raise the construction and build hospital in the larger public interest at their sole risk and peril. It was further contended that the plaintif f in fact without any legal character wants the plot in question by hook and crook which is obvious from the substance of the plaint where unconvincing plea of easement has been nurtured. The learned counsel referred to following judicial precedents: (1) 2007 SCMR 1446 (Atta Muhammad vs. Maula Bakhsh and others). Specific Relief Act Section 42. The courts should also keep in mind that relief of declaration is discretionary and a plaintiff who seeks discretionary relief must come to the court with clean hands. (2) 2010 CLC 14 (Abdullah and others v.Muhammad Haroon and others). No duty was cast up on the plaintiffs/respondents, to take the pain of filing a suit at huge expenses just to protect the government land. The question of fraud was brought to the notice of the relevant authorities. No grievance was caused to the respondents/plaintiffs by the order of the Member, Board of Revenue. Only the Government could have challenged the said order. (3) 1995 CLC 1012 (Barkat Ali and another v. Mst. Fatima Bai and 2 others). In the case of R. G.Sehwani Cooperative Housing Society Ltd., v. Haji Ahmed and others (PLD 1983 Kar. 11), while interpreting Section 105 of the Transfer of Property Act, it has been laid down that contraventio n of restrictive covenants of lease can be enforced only by the lessor and not the third parties. In view of the above legal position the submission of the learned counsel for the plaintiffs that the said defendants be restrained from raising construction on any area beyond one-fourth of the area of the plot in quest ion is prima facie without any substance. (4) PLD 2012 Sindh 92 (Ilyas Ahmed v. Muhammad Munir and 10 others). Any person entitled to any legal character or to any right to property can institute a suit for declaratory relief in respect of his title to such legal character or right to property. The expression, legal character has been understood as synonymous with the expression status. Section 42 of the Specific Relief Act applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. Section 42 would be attracted to a case in which the plaintiff approaches the court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved the suit is not maintainable.
---
## Page 6
(5) PLD 1978 Lahore 113 (Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others). Specific Relief Act. No declar ation, held, can issue outside provisio ns of Section 42 and court' s power to make declaratory decrees limited to instances mentioned in the section. (6) 1987 CLC 2416 (Chairman, Municipal Committee, Taxila v. Mohammad Jan and 4 others). Civil Procedure Code. A case standing in need of evidence having to be led for being established, cannot be considered a proper subject for issuing temporary injunction. Obligation of person desirous of having temporary injunction issued in his favour is to make out a prima facie case, in absence whereof a court cannot be deemed possessed of the power to issue it. (7) 1984 CLC 340 (Naseer Ahmed v. Hafiz Muhammad Ahmed and others). Transfer of Property Act. Section 105.Breach of restrictive covenant in respect of leases of urban lands could be resisted by lessor alone and not by other lessees unless there was tangible evidence that their rights as lessee will be infringed. (8) 2006 CLC 1736 (Mrs. Shahnaz and others v. Hamid Ali Mirza). We are of the view that when ostensible title has been transferred in favour of the appellants, who are also in possession of the disputed plot, it may not be altogether fair to deny them the benefit of its possession till such time that the matter is finally resolved and the respondent's claim is established. The defendant "vendee has absolute right to enjoy his possession of the area in dispute for so long as the decree for pre-emption is not passed against him and is not executed. (9) PLD 1983 Karachi 11 (R.G. Sehwani Co-Operative Housing Society Ltd. v. Haji Ahmad and others). Transfer of Property Act. Section 105. Lease can be enforced only by a party to such agreement. Building agreement providing for allotments of plots by Society to its members and such members having to continue to be liable for performance of several stipulations until grant of lease to society, lease deed providing for cancellation of lease in discretion of lessor in case of contravention of provisions of lease, such covenants, of lease, held, cannot be enforced by plaintiffs. 13. The learned counsel for the defendan t No.3 (K.M.C) in support of his applicatio n moved under Order 7 Rule 11 C.P.C argued that the plaintif f has no cause of action against them. Only lessor has right to object against the violation of lease if any. The private defendants have no intention to change the use of land which is basic condition of lease. 14. The learned A.A.G and State Counsel both relied upon and referred to their synopsis filed on 3.12.2015. 15. Heard the arguments. First I would like to take up CMA Nos.1031 and 18660 of 2015 filed under Order 7 Rule 11 C.P.C by the defendant No.1 and defendant No.3 (KMC). The defendant No.1 raised the plea that the plaint does not disclose any cause of action and the plaintif f is stranger to the property henceforth the suit is barred under Section 42 of the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.