GHULAM YAHYA through Attorney and Legal Representative vs ALI

ORDER

1. This Revision Application has been preferred against the impugned judgment dated 3-3-2004 passed by the Vth Additional District Judge, Karachi (East) in Civil Appeal No,91 of 2003 upholding the A Judgment and decree dated 17-3-2003 passed by the learned 1st Senior Civil Judge, Karachi

(East) in Suit No,336 of 2000. The facts for the purpose of disposing of the Revision Application can be summarized as that the Respondent as a Charitable Trust filed suit against the applicant seeking declaration that the applicant is a trespasser occupying Quarter No,2 built on. Plots of land Nos.S-4, 5 and 6, Block IV and V, KDA Scheme No,7. The respondent further sought relief for vacant possession of the premises in-question and mesne profit at the rate of Rs,1,800 per month with effect from 15-3-1997.

2. It is alleged in the memo. Of plaint that the Respondent allowed the applicant to occupy servant Quarter No,2 within the hospital premises looking to the nature of his duty. The applicant was asked to vacate the premises by giving one month's notice after termination of his service. Instead of vacating the premises applicant filed Suit No,278 of 1997 in the. Court of XIth Civil Judge Karachi

(East) for permanent injunction along with an application under Order XXXIX, Rules I and 2, C.P.C.

3. The applicant also filed before the Vth Labour Court at Karachi an application under Standing Order 12(3) of West Pakistan Industrial and Commercial Employment Ordinance. The application under section 35(5)(b) of IRO 1969 for suspension of the dismissal order dated 5-3-1997 was dismissed by the said Court vide order dated 2-4-1997. Likewise injunction application filed by the applicant in Suit No,278 of 1997 was also dismissed by the learned Civil Judge vide order dated 23- 7-1997. The respondent after dismissal of the application before the Labour Court as well as application before the Civil Judge approached the applicant time and again to vacate the premises in-question but on each occasion he avoided the same on one pretext or other. The suit filed by the respondent was valued at Rs,43,200. The applicant filed written statement and in the said written statement he raised preliminary objection that the suit is not maintainable in its present form, no cause of action has accrued to the plaintiff and the suit is liable to be dismissed, the suit is barred by law, relief claimed has been undervalued to unlawfully gain and cause revenue loss to State and the Court has no jurisdiction to entertain the suit. The applicant also filed an application under Order VII, rule 11 which was disposed of with the observation that issue about the maintainability of the suit has been framed and same required evidence. The learned Trial Court framed seven issues including issue No,1, whether the suit is not maintainable at law? Issue No,2, whether the suit' is undervalued? After recording evidence the suit was decreed only to the extent of vacant and peaceful possession of the suit property but relief in respect of mesne profit was not granted. The applicant preferred appeal against the said judgment and decree which too was dismissed vide the impugned judgment dated 3-3-2004. Heard Mr. Farid Gul Khan, learned counsel for the applicant and Mr. Ch. Muhammad Iqbal, learned counsel for the respondent. The learned counsel for the applicant questioned the legality of the judgment and decree passed by the learned Courts on the ground that the same is (i) bad in law for non-reading or misreading of evidence, (ii) the suit has been undervalued and no Court fee has been paid; (iii) the suit has been filed by an unauthorized person (iv) requirement of section 92 has not been complied with and further (v) that the suit is barred under section 42 of the Specific Relief Act. In support of his contention on objection No,(i) learned Advocate drew my attention to the evidence of the respondent's witness in which the respondent's witness stated that the respondent did not issue appointment letter to any employee of the hospital and no letter was issued to the applicant regarding his service. The respondent's witness further stated in his cross-examination that he had not produced any record of the salary of the applicant. In his cross-examination the respondent's witness admitted that in the compound of the hospital there is no servant quarter nor the hospital provides accommodation to any person except one which was given to the defendant/applicant. I have gone through the evidence of the applicant's witness and in his evidence he admitted. That the disputed property/house is situated within the boundary walls of the hospital. The applicant further admitted in his cross-examination that the applicant is using electricity connection provided by the respondent as well as using the facility of generator which respondent used as and when is required. From the perusal of the record it appears that the applicant had filed an application under Standing Order 12(3) of West Pakistan Industrial and Commercial Employment (Standing Order)

4. Ordinance, and in the said application he stated that the applicant was the employee of the respondent as Chowkidar on permanent job and the respondent had dismissed him on 5-3-1997 on the alleged ground of misconduct without issuing any charge-sheet. In the application filed before the Vth Labour Court, the applicant stated that he was provided a quarter in the hospital premises. Which quarter was previously provided to his father-in-law, who was an employee of the respondent. The applicant also filed Suit No,279 of 1997 in the Court of IX th Civil Judge, Karachi East and in the plaint of the said suit the applicant stated that the applicant is in the service of the respondent's Hospital and has special right and entitlement to use the accommodation facilities provided to him.

5. In view of the admission made by the applicant in the suit filed by him as well as in the application filed before the Labour Court admitting that he was allowed for use of the premises in-question being an employee of the respondent's Hospital it does not lie in his mouth now to say that he is in occupation of the premises in his own right. The findings recorded by the learned trial Court as well as the appellate Court does not suffer from any misreading or non-reading of evidence.

6. As regards the contention of the learned Advocate for the applicant that the suit has been undervalued same was in detail dealt with by the learned trial Court while deciding Issue No,2. The learned trial Court after discussing the various case-laws cited by the parties held that the suit by its nature was a suit for recovery of possession from the licensee as such the suit does not fall under clause (xii) of the Court Fees Act and the respondent was required to value subject-matter on the basis of annual rental value of the subject property and respondent has rightly valued the suit. As regards the objection that the Suit has been undervalued from the perusal of the impugned judgment passed by the Vth Additional District Judge it appears that perhaps applicant has not pressed this objection before the appellate Court. I have gone through the memo. Of plaint as well as judgment of the trial Court and appellate Court and failed to see that due to filing of the suit before the 1st Senior Civil Judge, which according to the applicant ought to have been filed before the 3rd Class Civil Judge same caused any prejudice in any manner to the rights of the applicant and or to the merits of the case. The learned Advocate for the applicant also failed to point out any prejudice caused to applicant by entertaining the suit by the 1st Senior Civil Judge instead of 3rd Class Civil Judge. In the case of Sardar Begum v. Mukhtar Ahmed reported in 2001 YLR 1435, the Honorable Court has held that:- "The accumulative effect of provision of section 8 of Suits Valuation Act, 1887, read with section 7, Clauses (iv) (c) of the Court Fees Act and Order VII, Rule 11, C.P.0 is that the value of the suit in a suit for declaration has to be determined on the basis of relief claimed for but if the value placed by the plaintiff in the plaint is arbitrary, it is rectifiable by exercising the power of review by the trial Court under Order VII, Rule 11, C.P.C. But in the absence of any such review or determination, the value of the suit given by the plaintiff in the Plaint would be taken as the basis for conferring pecuniary jurisdiction on trial Court as well as on the appellate Court. It would not be a correct proposition of law canvassed by the respondent that initially the value of the unit for the purpose of jurisdiction and the Court Fees has to be taken on the basis of relief claimed for and any arbitrary and erroneous values mentioned by the plaintiff to be ignored."

7. The objection about the overvaluation or undervaluation has to be taken before the Court of first instance and appellate Court while recording the reasons of satisfaction that suit or Appeal was overvalued or undervalued also record reasons that such overvaluation or undervaluation has prejudicially effected the disposal of the suit or appeal and in case although suit has been undervalued or overvalued but same does not cause any prejudice to the party taken such objection in disposal of appeal or suit on merits is concerned, the appeal is to be disposed of by the appellate Court ignoring the ground of defect of jurisdiction on account of undervaluation or overvaluation. My view finds support from the case of Ali Muhammad v. Muhammad Shafi, PLD 1996 SC 299. Coming to the objection that the suit has been filed by an unauthorized person the learned Advocate for the applicant relied upon the case of National Bank of Pakistan v. Karachi Development Authority, PLD 1999 Karachi 207, where the Honourable Single Judge of this Court held that "........ Mere existence of clause empowering the attorney to initiate proceedings in the Powers of Attorney in the absence of Articles of Association and exercise of authority in terms thereof, does not stand the test prescribed in the judgment reported in PLD 1997 Karachi 62. The unfortunate conclusion which I am constrained to record is that the plaintiffs have failed to show that the suits are instituted by persons duly authorized in this behalf or are maintainable."

8. The principle laid down in the case of National Bank of Pakistan (supra) does not attract to fact of the case. The respondent's witness, namely, Shahabullah Khan in his examination-in-chief stated that the suit has been filed on behalf of the Trustee by the Managing Trustee of the respondent and produced original Power of Attorney as Exh.P/2 as well as "Deed of Trust." The Managing Committee has authorized Mr. Ismail Lashkari, Managing Trustee to proceed with the matter and I have been appointed as attorney by Mr. Lashkari. He further stated that the resolution does not authorize Mr. Lashkari to appoint any person as his attorney.

9. From the perusal of the plaint it appears that the same has been signed by Ismail Yousuf Lashkarwala as trustee/administrator of the hospital. It is not the case of the applicant that Ismail Yousuf Lashkarwala was not trustee/administrator of the Trust or was not competent to file the suit.

10. The only objection raised by the applicant is that the witness who appeared to give evidence was appointed by Mr.Lashkari as attorney whereas he was not authorized to appoint any person as his attorney. It is an admitted position that the plaint was signed and suit was filed by the trustee/administrator, as such same cannot be termed as filed by the competent person. In the written statement the applicant has not taken specific plea that the suit has been filed by an unauthorized person nor any issue in this regard has been framed.

11. 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.0 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. For the foregoing reasons, the revision application has no merit and these are the reasons for short order dated 22-7-2004.