ADMINISTRATOR, KARACHI PUBLIC SCHOOL Versus DAWOOD AHMED SALAR

ORDER

1. This revision application has been filed against the judgment dated 14-12-1995, passed by the learned District Judge, Malir, in Civil appeal No. 1 of 1995, whereby the appeal of respondents Nos.1 to 100 was allowed against the order of the Senior Civil Judge, District Malir, dated 19-4-1995 passed in Suit No.52 of 1995, whereby the plaint was rejected under Order 7, Rule 11, C.P.C.

2. The brief facts of the case are that the applicants run a private school by the name of Karachi Public School with branches situated at three different places in Karachi. The school provides education for matriculation as well as for O-Level and A-Level and keeping in view the advancement in computers it provides computer teaching also. The School also provides facilities of purchasing the uniform and text books. The school management, due to enhancement in the cost of running the school, the rise in the teacher's salaries and providing computer teaching, was compelled to increase the tuition fees from April, 1995 and as such issued a notice to all the parents of its students. After receipt of the said notice respondent No. 1 who poses himself as Convernor of K.P.S. Parents Action Committee filed a complaint to the Directorate of School Education, Government of Sindh (Respondent No. 102), against the school. A notice dated 22-3-1995 was issued by the said respondent to which a reply dated 18-5-1995 was immediately sent by the applicants denying the allegations mentioned in the said notice. After the said reply no further action was taken by the said respondent against the school.

3. Having failed to obtain any result of the complaint the respondents Nos.l to 100 filed Suit No.52 of 1995 before the learned Senior Civil Judge, District Malin On notice to the present applicants, written statement as well as counter affidavit to the stay application was filed and an application under order 7, Rule 11, C.P.C. was also filed praying for rejection of the plaint. The said application was heard and after considering the counter affidavit and rejoinder filed by the parties, and contentions raised, the learned Senior Civil Judge by his order dated 19-4-1995 allowed the application under order 7, Rule 11, C.P.C. and rejected the plaint. Against this order the respondents Nos. l to 100 filed Appeal No. 1 of 1995 before the learned District Judge, Malir, who after due notice and hearing the present applicants, by judgment dated 14-12-1995 allowed the appeal and set aside the order dated 19-4-1995 and while passing the said judgment the learned appellate Court granted interim injunction during pendency of the suit.

4. Mr. Abid Zuberi, learned counsel for the applicants contended that the learned District Judge erred in law and failed to appreciate the legal effect of Order 7, Rule 11, which enjoins on a Court to reject the plaint on the ground as mentioned in the said Order. His next contention was that the judgment does not advert to the point of legal character of respondents Nos. l to 100 on which the plaint was rejected and that the judgment is arbitrary and capircious and based on surmises and conjectures by stating in the judgment that the applicant admitted the averments of the respondents whereas in 'the counter affidavit filed in the suit as well as objections to the appeal the averments of the respondents Nos.l to 100 were categorically denied. His next contention was that no mandatory injunction could be granted at the interlocutory stage when no prima facie case was established by the plaintiff and by granting the said injunction the learned District Judge has actually granted the main appeal. Further, that the suit was not maintainable under section 42 of Specific Relief Act.

5. On the other hand Mr. S. Waqar Hussain, Advocate contended that the trial Court was wrong in rejecting the plaint as he was the aggrieved party and his fundamental rights were violated and that since he had a prima facie case against the present applicants, the Appellate Court was justified in passing the interim order which is according to law. Further that, there has been violation of law under which the registration was granted to the applicants.

6. Mr. M. Sarwar Khan, Additional Advocate-General appeared on behalf of respondents Nos.101 and 102 and supported the respondents stating that the applicant violated terms and conditions under which the certificate was granted as under clause 7 no power for enhancement or collection of any other fee was granted. His further contention was that the word "property" in Explanation under section 9, C.P.C. includes money also.

7. I have heard both the counsel and have perused the record and relevant Rules/Laws.

8. The applicant's school was registered under subsection (3) of section 4 of the Registration of unrecognized Educational Institution Ordinance, 1962 (The Ordinance 1962). Subsequently, the Private Schools (Management and Control) Act, 1974, which is an act to control and manage the private schools in the Province of Sindh (Act 1974), was legislated. Under section 3 of the said Act the Controlling authority i.e. the Minister for Education or his nominee, for the purpose of Management and control of a school, is required to establish the Board of Governors consisting of four members nominated by the parent body, five members nominated by the controlling authority, one member elected by the parents/guardians of the students on the roll of the school from amongst themselves and further details as given under the said section. Both, the Ordinance of 1962 and. Act of 1974 are in the field. One, for the purposes of Registration and the other to manage and control the Private Schools. The terms and conditions are mentioned to the Registration Certificate granted under the Ordinance 1962. Condition at Serial No.5 specifies the amount of tuition fees for different classes to be charged by the school and No.6 specifies the admission fees. Condition No.7 is as follows.

9. "That no other Fee/Fund except approved Tuition fee, Admission fee and students funds at the rate of Rs.2 p.m. per student shall be charged."

10. Condition No.18 is "that non-fulfilment of any of the above condition shall cause withdrawal or suspension of Registration of the School" granted under the Ordinance, 1962.

11. The School after its Registration issued admission forms to all the intending students which were duly signed by the parents/guardians of the students and the Principal. Among other terms and conditions mentioned on the admission form, Condition No.5 is that the school reserves the right to make revision in fees without prior notice to parents. The respondents, by signing this form accepted all the conditions mentioned thereon including enhancement of fee. The proper course for them, which they-did adopt was to complain to the concerned authorities, who could take action against the School for breach of terms and conditions. Admittedly, the Registration Authority issued notice to the School and after reply thereof did not take any further action. The indifference and inaction of the Registration Authority after receiving the complaint, the abject negligence in setting up the Board of Governos as required by law are the clear indication as to the appalling conditions in the educational field. In the circumstances the contention of learned A.A.-G. that School violated the terms and condition is rather negation of their own in-action.

12. Mr. Abid Zuberi, the learned counsel for the applicants contended that the Government failed to constitute the Board of Governors and frame the Rules as such School had no option but to act on its own to safeguard its smooth working. He referred to the case of M.U.A. Khan v. Rana M. Sultan and another (PLD 1974 SC 228), wherein it was observed as under:--

13. "It is universally recognised that as regulatory statutes have to deal with a variety of situation and subjects, it is not possible for the Legislature itself to make detailed regulations concerning them, and, therefore, the Legislature delegates its powers to specified or designated authorities to make such detailed regulations, consistent with the statute, for carrying out purpose of the parent legislation. The power so conferred is generally in the nature of an enabling provision, intended to further the object of the statute, and not to obstruct and stultify the same. As a consequence, the failure of or omission of the designated ----------authority to frame the necessary rules and regulations, in exercise of the power conferred on it by the Legislature, cannot be construed as having the effect of rendering the statute nugatory and unworkable. Such eventuality could arise only if the Legislature indicates an intention to this effect in clear and unmistakeable terms. "

14. Mr. Abid Zuberi's contention that the Government failed to perform its obligation in constituting the Board is no doubt correct but the School under the circumstances could have applied to the Registration Authority which had fixed the tuition fee and other related fee.

15. However, be that as it may, the revision application has been filed inter alia on the ground that the Appellate Court has acted illegally and with material irregularity by granting injunction while disposing of the appeal. According to the learned counsel, it amounts to granting of the main relief which could not be granted at this stage.

16. Mr. Abid Zuberi, the learned counsel for the applicants referred to the case of Muhammad Idris v. Collector of Customs, Karachi and another (PLD 1971 Kar. 736), wherein it was held that "although the powers of the Court to pass a mandatory injunction in appropriate cases even at interlocutory stage cannot be doubted but such order are rare and granted only to restore the status quo and not to create a new situation which may be irretrievable or to establish a new state of things different from those which existed at the time the relief granted. He further relied on the case of Nathu Ram v. Mula and others (AIR 1937 Lah. 25), wherein it was held that section 42 of the Specific Relief Act will not be applicable to the suits in respect of rights arising out of a contract affecting only pecuniary relationship.

17. Reliance was also placed on the case of Ferozuddin Ahmed v. Trading Corporation of Pakistan, (NLR 1987 CLJ 140), wherein it was claimed that the Trading Corporation of Pakistan had agreed to grant house building loan to its employees and the same was approved but after payment of two instalments the third instalment was withheld and the suit was filed seeking interim relief by issuance of mandatory injunction directing the defendant to pay third instalment of the house building loan. The suit was resisted on two grounds. Firstly, that the grant of interim relief would tantamount to the grant of final relief claimed in the suit which could seriously prejudice the defendant. Secondly, perpetual injunction sought by the plaintiff should not be granted as he can be compensated by granting of damages. It was held that "interim relief sought by the plaintiff cannot be granted as it would tantamount to passing of a decree in his favour in respect of at least a part of this claim and if such order is passed at this stage and the plaintiff ultimately fails to succeed in his suit the same is bound to prejudice the defendant for which there can be no compensation for in the future and as such the application was dismissed.

18. In the instant case the Appellate Court has restrained the School from recovery of additional fee but the same can be realised if the case is decided in their favour as such adjudication by the Appellate Court may have caused inconvenience to the applicant but the same is not irretrievable.

19. In the present case the plaint was rejected by the Trial Court being not maintainable under section 42 of the Specific Relief Act as neither the defendant had legal character nor there was any property involved. The Appellate Court has discussed the maintainability of the suit under section 42 of the Specific Relief Act and on page-17 of the judgment has held that the money is "moveable property".

20. The word property has been defined in Black's Law Dictionary as:--

21. "The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate. "

22. The most comprehensive definition of the property is given in Corpus Juris Secundum (Volume LXXIII) as:--

23. "--------In law it is not the physical material object which constitutes property. The term means, something more than the mere thing which person owns, and in its more appropriate and true legal sense property is not alone the corporeal thing or physical object itself, and is not alone the land or chattel itself. In fact, it has been said that there are no property rights innate in object; themselves. The physical object constitute only the foundation and material of property, and, although the subjects of property, they are, when coupled with possession, only the indicia, the visible manifestations of invisible rights, the evidence of things not seen, and the idea of property springs out of the connection, or control or interest which, according to law, may be acquired in or over things.

24. In the strict legal sense the word 'property' signifies valuable rights or interest protected by law, and this is the primary, appropriate, and broader signification of the term.

25. In modern legal systems, property includes practically all valuable rights, the term being indicative and descriptive of every possible interest which a person can have, in any and every thing that is the subject of ownership by man, including every valuable interest which can be enjoyed as property, and recognized as such, equitable interests as well as legal interests, and extending to every species of valuable right or interest in either real or personal property, or in casements, franchises, and incorporeal hereditaments.

26. .............................................................

27. .............................................................

28. Property is considered to be the highest right which a man can have to anything, real or personal, being a complex bundle of. rights, duties, powers, and immunities, comprising a vast variety of rights, with certain rights such as the right of use, the right of enjoyment, and the right of disposal considered to be the constituent elements or essential attributes of property."

29. All definitions include corporeal and incorporeal tangible or intangible wealth in fact it includes all the rights that a man can have. In view of these definitions it is clearly established that the word property includes money. The finding of the appellate is upheld to this extent.

30. The suit was filed for declaration and injunction wherein the prayers were as follows:--

31. "(1) Declare that the defendants Nos.l and 2 cannot enhance the rate of the fees as they had already enhanced the same 1-1/2 year earlier and that also without prior permission of the defendants Nos.3 and 4 and the defendants Nos.3 and 4 cannot grant this permission for any unreasonable amount and the decision of enhancement of fee of the defendants Nos.l and 2 is illegal unlawful and without any lawful authority and is nullity in the eyes of law; and that the defendants Nos. l and 2 are bound to receive fees from the plaintiffs with respect to their children, studying in the Karachi Public School, Star Gate, Karachi at the rates prevailing in the month of March, 1995;

(2) Declare that the defendants Nos.l and 2 s charging Rs.5,000 as admission fee is also illegal, unlawful and without any lawful authority and the admission fee could be only double to the monthly tuition fee of the relevant class in the School;

(3) Declare that the Defendant Nos. l And 2 are bound provide;

(i) All the trained teaching staff in the School;

(ii) Minimum place for per student as required under the law and mop new admissions beyond the capacity;

(iii) properly equipped laboratory and school library with books lending facility;

(iv) Sports facilities and extra-curricular activities arrangements.

(v) Dispensary/Sickroom/First Aid facility;

(vi) Waiting room for the parents/guardians who come to collect their wards;

(4) Declare that the uniform as is already adopted cannot be changed;

(5) Declare that the purchased of books and note books is not necessary to be purchased by the students from the school.

(b) Declare that the wards of the plaintiffs cannot be harassed by withholding their results on account of note-payment of the fee on enhanced rates and cannot otherwise be harassed or subjected to ally discrimination. "

32. All tile prayers are in the form of declaration, which means grant of a declaratory decree. To pass, such decree, the suit must fall within the requirement of section 42 of the Specific Relief Act. The section provides that any person entitled to any legal character, or to any rights as to any property may institute a suit against any person denying or interested to deny his title to such character or rights.

33. In the case of Sripatrao Sadashiv Upre v. Shankarrao (AIR 1930 Bombay 331), it was held that alleged right arising out of a contract cannot find a subject-matter to a declaratory suit.

34. In the case of Nathu Ram v. Mula and others (AIR 1937 Lahore 25), it was held:--

35. ... that a suit for declaration that the plaintiff would be entitled to contribution from the defendant if and when occasion arose did not fall within section 42 of the Specific Relief Act where a declaratory relief was sought in respect of rights arising out of a contract which would affect only the pecuniary relationship between the parties to the contract. "

36. The section will not be applicable.

37. In view of the case-law cited during arguments injunction in a suit in respect of rights arising out of contract effecting only pecuniary relationship cannot be granted. In the present case also relationship between the parties arises out of a contract signed by the School and the Parents and the declaration which have been sought in the suit are of pecuniary nature.

38. Considering the above definitions and applying the same to the present case, it is clear that the interim relief granted by the Appellate Court at the time of disposing of the appeal and remanding the same to the trial Court amounts to grant of main relief.

39. The principle laid down under Order 7, Rule 11, C.P.C. enjoins a duty on the Court to reject the plaint, on perusal thereof if it appears that the Suit is incompetent. Rule 11 (d) of Order 7 clearly stipulate that where the suit appears from the statement in the plaint to be barred by any law the plaint shall be rejected. In the case of Mst. Zubeda Begum v. Muhammad Saeed, (1991 MLD Karachi 1312): it was held that:--

40. "The plaint should be rejected if the Court comes to the conclusion that even if the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief, but the Court cannot consider either the pleadings of the defendant nor any material outside the plaint for rejection thereof. Therefore, the grievance of the learned counsel that the Appellate Court has failed to examine and consider documents placed by the appellant on the record is of no substance. The Appellate Court would have acted in violation of the aforesaid settled principle of law, if it had done so. "

41. Next contention of the learned counsel for the applicant that in spite of the fact that the averment made in the plaint were denied by the respondent, but the learned Appellate Court still held that the applicant admitted the averments of the respondent, is supported by different paras of the counter-affidavit and objection filed in the suit appeal. In para. 15 of the Appellate order the learned District Judge has observed that "On facts most of the averments of the appellants are admitted," which is contrary to the contents of the counter affidavit.

42. Admittedly, a party has a right to approach the Court if they are aggrieved by actions of the others but it is the forum which is to be correct one. If the plaintiffs in the suit were aggrieved of the actions of the defendants and their fundamental rights were violated, the law provides a proper forum where the grievance could be retrieved. One such forum to which the plaintiff in the suit approached was the` "Controlling Authority" where they lodged their grievance.

43. Without going into the merits of the case or giving any finding as to the legal status of Respondents Nos.l to 100 this revision is accepted and the judgment dated 14-12-1995 passed by the learned Appellate Court is set aside. The case is remanded back to the trial Court of Senior Civil Judge, District Malir, which will decide all the issues being raised by the parties in the case according to law.

44. A.A./A-139/K Case remanded.