Mst.HAWABAI Versus KARACHI METROPOLITAN CORPORATION
These three revisions are directed against the common order and they involve common point of law, I would, therefore, dispose of the above revisions by this common judgment.
2. The brief facts leading to the filing of the above revisions are that the petitioners in the above three revisions arc the lessees of small portions of land measuring 75, 40 and 103 sq. yds. They allegedly obtained additional leases for the additional areas measuring 25, 16 and 22 sq. yds. Petitioner in Revision No.33 of 1986 Abbas and petitioner in revision No.34 of 1986 Mst.Hawabai got addenda deeds executed and registered in their favour on or about 21st July, 1981 which are at pages 67 and 77 respectively in the files of the above two revision applications, whereas there is no such addenda deed executed in favour of the petitioner Ali Muhammad in Revision No.35 of 1986. It appears that the above three petitioners were served with notices under MLO‑130 which notices were challenged by them by filing suits. In the aforesaid suits the respondent filed applications under Order VII, Rule 11, C.P.C. which were allowed by order dated 27‑4‑1982 on the ground that the suit was barred by Article 15(5) of the P.C.O., tt 1981. It appears that after the above rejection of the plaint, somehow respondent No.2 issued fresh notices dated 8‑2‑1953 for the cancellation of the above addenda deeds. After the receipt of the above fresh notices the three petitioners filed suit No.584 of 1983,585 of 1983 and 667 of 1983. The respondent again filed applications under Order VII, Rule 11, C.P.C. which were allowed by orders all dated 26‑4‑1983 on the ground that the plaint of the previous suits were rejected under Order VII, Rule 11 C.P.C. and, therefore, the second suits could not have been maintained. The petitioners Abbas, Mst.Hawabai and Ali Muhammad filed Civil Appeals No.166 of 1983,167 of 1983 and 169 of 1983 respectively against the above orders which were dismissed by the learned Additional District Judge South Karachi by order ‑dated 22‑1‑1986. The petitioners have filed the present revisions.
3. As regards the Revision Petitions No.33 of 1986 and 34 of 1986, it may be mentioned that the fresh notices leaving apart the question whether the issuance of notices under MLO‑130 and rejection of the plaint would debar the above petitioners from asserting any title to the above disputed portions of the land, the fact remains that the above fresh notices were issued for cancellation of the above addenda deeds and, therefore, prima facie, Order VII, Rule 11, C.P.C. was not applicable as fresh cause of action Nvas alleged which should have been accepted as correct for the purpose of Order VII, Rule 11, C.P.C'. for the time being. I am, therefore, of the view that the learned trial Court was not ,justified in rejecting the plaints under Order VII, Rule 11, C.P.C. in respect of the above two petitioners and, therefore, I would allow their revisions and would set aside the two orders and remand the case to the learned trial Court to proceed with the same from the stage at which they were when the impugned orders were passed. There will be no order as to costs.
4. However, the case of the petitioner Ali Muhammad in Revision No.35 of 1986 stands on different footings as no addenda deed in his favour has been executed by the respondent for the additional portion of the land. His case is that his application for regularisation in respect of the above additional portion of the land is pending with the respondent. In my view the pendency of such application cannot nullify the aforesaid order of rejection of‑the plaint in the suit earlier filed by the above petitioner, the second suit was not competent. His revision is, therefore, dismissed with no order as to costs.
5. Before parting with the above discussion I may observe that Mr. Muslim Naqvi has invited my attention to clause (6) of rule 13 of the Local Council Land Rules which provides that no plot or portion coming under road alignment or affected by street or land reserved for the alignment purposes shall be leased out and if any such plot is under unauthorised occupation the council may cause it to be vacated without payment of any compensation whatsoever. On the basis of the above clause it was submitted that factually the above portions of the land are part of the street or they are reserved for street and, therefore, no lease could have been granted in respect of the above two portions. In my view, it is not necessary for me to express any opinion on this aspect, as it will be open to the respondent to raise this plea before the learned trial Court when the matter is proceeded with.
The above three revision petitions stand disposed of in the above terms.
M.Y.H./H‑89/K Order accordingly.