SAKINA Versus EXCISE AND TAXATION OFFICER, A' DIVISION, KARACHI

1. This Revision Application filed under section 115, C.P.C. is directed against the judgment dated 15‑3‑1981, passed by the learned IInd Additional District Judge, in Civil Appeal No.226/1981, whereby he dismissed the appeal of the applicant filed against the judgment dated 8‑4‑1980, passed by the learned Senior Civil Judge, Karachi, whereby he rejected the plaint filed by the applicant in the suit No.1092/1977.

2. The brief facts leading to this litigation are, that deceased Hussain and after his death the present applicants who are his wife and daughters, were in occupation of plot in question and the record of the respondent No.l was mutated in their favour on 20‑10‑1970. One Mah Khatoon, who is neither party to the suit, nor to those proceedings, claiming to be in possession of the said plot, also applied for the mutation, but failed in the first instance, but subsequently, she was able to get lease of plot in her name from respondent No.3. The applicants, therefore, filed the suit seeking the following reliefs:‑---

3. "(a) Declaring, that the plaintiffs by virtue of their continued undisturbed and peaceful possession of plot No. AK‑20‑71 S.6/A, situated at Singu Lane, Karachi, are the occupants /owners thereof as per orders marked 'B' and 'C'.

(b) Grant mandatory injunction directing the defendants Nos.1 and 3 to mutate/lease out the aforesaid property in the name of the Plaintiffs and cancelling the same in the name of Mst. Mah Khatoon in whose name it was illegally and wrongfully mutated and leased out.

(c) Any further relief, that this Hon'ble Court may deem fit and proper under the circumstances of this case.

(d) Costs of the suit."

4. The plaint of the applicant was rejected by the learned trial Court holding, that the suit was barred under sections 42 and 54 of the Specific Relief Act. Their appeal was also rejected by the learned Additional District Judge vide the impugned judgment.

5. Mr. Ameer Ahmed Khan, learned counsel appearing for the applicant, was unable to show as to what legal character the applicants are entitled to or what right they had in the said property. Admittedly, at the time of institution of the suit they had been in possession of the suit property for 11 years and, therefore, their right, even by way of adverse possession was not perfect. The mere fact, that they had been paying taxes to the Excise and Taxation Officer, did not create any right in the property in the applicants or their predecessor‑in‑title. Admittedly, the possession of the applicants or their predecessor‑in‑title, was unauthorised and no lease‑deed was ever executed by KMC in their favour.

6. Mr. Abdul Rahim Kazi, learned Additional Advocate‑General, Sind, has relied upon a D.B. decision of Dacca High Court in case of Burmah Eastern Limited v. Burmah Eastern Employees' Union PLD 1967 Dacca 190 while discussing the expression 'legal character' used in section 42 of the Specific Relief Act, their Lordships observed as under:‑---

7. "The expression 'legal character' or 'status' denotes a character or status conferred by law on an individual or a number of individuals, viewed as a unit of Society and not shared by the generality of the community but only by individuals, placed in the same category of' character. The character itself must be conferred by law on persons viewed from the standpoint of membership of the community. It is a 'status' or 'character' conferred by law. It is not a creature of contract but of law. Indeed, in most cases one cannot contract out of the 'status' with which the law clothes one. For example, a minor cannot contract into majority nor can one, who has attained majority, under law, contract himself into minority."

8. Their Lordships, while discussing the principle involved In provisions of Rule 11, Order VII, C.P.C. further observed as:‑-----

9. "It is necessary incidence in the trial of judicial issues that a suit which is, on the face of it, incompetent, not because of any formal, technical or curable defect but because of an express or implied embargo imposed upon it by or under law, should not be allowed to further encumber legal proceedings. Order VII, Rule 11, of the Code of Civil Procedure, is obviously directed towards that end and is not exhaustive.

10. If, as a result of the provisions of law, the suit is barred, would be barred under law, although, strictly speaking it may not be specifically barred by law in express terms. The Court should, in such a case reject the plaint under its inherent power."

11. Under section 42 of the Specific Relief Act a person can seek declaration only if he is entitled to some legal character or any right as to any property, otherwise Court will refuse to give any declaration. Similarly, under section 54 of the Specific Relief Act, the Court would grant injunction to prevent the breach of obligation existing in favour of the applicant. Neither the plaint discloses as to what obligation existed in favour of the applicants nor the learned counsel for the applicants was able to show any obligation, that existed in favour of the applicants, which was enforceable against the respondents.

12. This suit is for declaration and injunction and the prerequisite for grant of such declaration or injunction are not disclosed in the plaint. As such, the Court could not grant reliefs that the applicant were seeking, and consequently, the Court below cannot be said to have committed any illegality while dismissing the appeal against the said order of rejection of plaint. I find no merit in this Revision Application, which is dismissed with no order as to costs.

13. The Revision Application was dismissed by a short order dated 18‑5‑1987. The above are the reasons in support of the said order.

14. M. Z. S./S‑293/K ??????? ??????????????????????????????????????????????? Revision Application dismissed.