LAKHANI & CO. Versus TRUSTEES OF THE PORT OF KARACHI

The applicant had filed a suit No.2233/1983 in the Civil Court at Karachi, against the Trustees of Karachi Port Trust, who are respondents, for declaration and permanent injunction. The plaint was rejected under Order 7, Rule 11, C.P.C. by the learned XXVIth Civil Judge, Karachi, vide his order dated 3‑10‑1984. An appeal filed against this order by the applicant, was also dismissed by the learned IVth Additional Sessions Judge, Karachi, vide his order dated 12‑5‑1985. Both the Courts below came to the conclusion, that the suit was not maintainable as no notice under section 87 of the Karachi Port Trust Act, 1886 (hereinafter called the Act), was given to the respondents. By this Revisaonl Application the applicant has challenged the said two orders of the Courts below.

2. Admittedly, no notice under section 87 of the said Act was served by the applicant on the respondents. It is contended by Mr. M.M. Pirzada, learned counsel for the applicant, that such notice was not necessary, because the impugned action of the respondents, which gave cause of action to the applicant to file suit, was neither done nor purported to be done in pursuance of the said Act. The applicant/ plaintiff has described in para 6 of the plaint the action of the respondents, which gave him cause of action and which he challenged in the suit, which is reproduced as under:‑

"That the defendants have served the plaintiffs with notice dated 19‑5‑1983 calling upon them to remove their goods from said Strong Room failing which the plaintiffs have been threatened with action to stop receipt of incoming cargo in the said Strong Room."

3. This notice has admittedly been issued by the respondents under section 8 of the Port Authority Lands and Buildings (Recovery of Possession) Ordinance 1962 (hereinafter referred to. as the Ordinance). Under this notice, the applicant was ordered to vacate the premises, viz. bounded compartment in MI Yard, K.P.T., and hand over the possession to the Port Authorities before expiry date of notice failing which the action would be taken against the applicant under the said Ordinance. He was further informed, that the orders had been issued to stop receipt of the incoming cargoes in the compartment in question.

4. It was submitted by Mr. Hamid Hussain, learned counsel, appearing for the respondents, that the K.P.T. Authorities had authority under bye‑law 33 to get the premises vacated after one Week's notice. Admittedly, such notice under bye‑law 33 had not been issued to the applicant by the respondents but the notice was issued under section 8 of the said Ordinance in which also he was informed, that if he failed to vacate the premises action would be taken against him, under the said Ordinance. Mr. Hamid Hussain has further stated, that the respondent is contemplating to take action or has started taking action under the said Ordinance against the applicant for vacation of the premises. Be that as it may, neither this order directing the applicant to vacate the premises has been issued nor proceedings for getting the premises vacated have been taken under K.P.T. Act.

5. Under the second part of this notice, the applicant was informed, that orders had been issued to stop the incoming cargo. Mr. Hamid Hussain contended, that at least this action of the respondents was under K . P. T . Act, but when asked to point out any particular provision or bye‑law under which such order could be passed by the respondents, he was unable to point out any such provision of law. His contention, that every action of K.P.T. employee would be deemed be an action under the K.P.T. Act, does not appeal to reason or logic. It, therefore, cannot be accepted. He has relied upon two cases decided by this Court, reported in P L D 1978 Kar. 892 and P L D 1978 Kar. 1041. In both the cases the question at issue was the renewal of the licence of stevedoring, after it was cancelled or after its expiry and it was held by the Court, that act of cancellation as well as renewal was an act that was done under the provisions of K.P.T. Act, and bye‑laws made there under, an d/B as such, notice under section 87 was necessary, before institution suit. Under the K.P.T. Act, admittedly, the authorities have powers to issue or cancel such licence, therefore even if they cancel it wrongfully, such an act would be deemed to have been done purported to have been done under the Act.

6. In the instant case, neither the action of the respondents t eject the applicant from the premises, was taken under the Act, no under any provision of the Act, or bye‑laws the respondents have got powers to stop incoming cargoes. Therefore, their impugned action cannot be considered as action done or purported to be done and the Act or bye‑laws.

7. It was contended by Mr. Hamid Hussain that even under section 9 of the Ordinance, the jurisdiction of the Court is barred. Be that as it may, this point was not raised before the trial Court or the Appellate Court, not it was considered by the Courts below. As such C this plea cannot be raised in the Revision Application at this stage.

The plaint was rejected on the ground, that notice under section 8 of the Act was not given to the respondents, and only that order challenged in this Revision Application.

8. Mr. M.M. Pirzada has argued, that under the circumstances of the case no notice is necessary. In support he has relied upon PL D 1984 Kar. 34, wherein it held, "Notice under Article 131 to K . D . A . was not necessary in every case but such notice was necessary before instituting suit against K . D.A. , if filed in respect of any act purporting to be done under Order or Rules or Regulations made thereunder." In the reported case the plaintiffs had challenged the action of the K . D.A. on the ground, that their action for dispossessing them was illegal, without jurisdiction and not in accordance with law.

9. In view of the aforesaid discussion, in my opinion the orders of the Courts below rejecting the plaint under Order 7, Rule 11, C.P.C. are based on the non‑reading or misreading of the averments in the plaint and are therefore, set aside. The case is remanded the trial Court to proceed with it in accordance with law. The respondent is at liberty to agitate the question of maintainability o the suit under section 9 of the Ordinance before the trial Court. The Revision Application is allowed in above terms with no orders as to costs.

A . A . /L‑14/ K Revision allowed.