MUHAMMAD YOUSUF Versus GOVERNMENT OF SINDH
ORDER
1. MUHAMMAD FAISAL KAMAL ALAM, J.--- Despite providing an opportunity on last many dates, no one has appeared today on behalf of Plaintiffs. C.M.A. No.8106 of 2008 under Order I, Rules 10(2) and (4) of C.P.C. has been filed by M/s. Al-Feroz Enterprises, seeking to join the proceedings as one of the Defendants on the ground that the said Intervener has a claim over the suit property, description whereof is mentioned in Paragraph-1 of the Plaint, viz. 'Qasim Gabole Goth', situated at Na-Class No.21, Sector 34-A, Deh Dozan, Scheme No.33, Karachi.
2. Primarily, through instant proceeding Plaintiffs have called in question the Notice dated 28.02.2003 available at Page-163 (Annexure P/7) to the Plaint, issued by Official Defendant, whereby, the grant in favour of Plaintiffs with respect to the above Goth was cancelled as the same was found as Dummy Village.
3. Mr. Muhammad Anwer Tariq, learned counsel for Intervener has referred to various documents appended with his listed application, which includes copy of a registered Conveyance Deed entered into between the present intervener and M/s. Pakland Housing (Pvt.) Ltd., for sale of Land admeasuring 8 acres and 23 ghuntas in Sector No.34-A, KDA Scheme-33, Karachi.
4. Learned counsel for Intervener (M/s. Al-Feroz Enterprises) submits that Plaintiff in fact through instant suit proceedings is claiming portion of the property of which the intervener is a lawful owner. He has further referred Form-II in order to show that the property in question was duly mutated in favour of Intervener. A detailed order of 27.11.1998 passed by the then Deputy Commissioner is also annexed with the above application, whereby, after taking into consideration all the facts and record, the Deputy Commissioner had reached the conclusion that the above Qasim Gabole Goth is a Dummy Village and earlier grant was cancelled and the land was restored, to the Government. This very order of Deputy Commissioner has been mentioned in the above mentioned impugned Notice.
5. Learned counsel for Intervener contended that before present suit, a Constitutional Petition was also preferred by same Plaintiffs with regard to the same subject matter/land in question, which was after hearing all the parties was dismissed by the Judgment dated 15.09.2006, copy whereof, the counsel has placed on record today, where after, the present Plaintiffs went into C.P.L.A. No.504-K of 2006 before the Hon'ble apex Court, but the same was later withdrawn by them (Present Plaintiffs). It means that it is yet another ground of litigation and interestingly present intervener has not been made party in the present proceedings, though its name has been mentioned in Paragraphs 4 and 5 of the Plaint.
6. Taking into account the overall conduct of Plaintiffs it is obvious that for mala fide reason, the present Intervener is not made party.
7. I have perused the decision of learned Division Bench handed down in the above Petition, wherein, the afore mentioned letter of Deputy Commissioner (of 27.11.1998), whereby, the grant was cancelled, has also been mentioned and considered, while observing that certain material facts were not disclosed by the Plaintiffs. Ultimately, the Petition of present Plaintiff's was dismissed. However, in Paragraph-9, the learned Division Bench has further observed that Petitioner, that is, present Plaintiffs have failed to establish their title, particularly in the wake of decision of 27.11.1998 passed by the then Deputy Commissioner.
8. Another C.M.A. No.51 of 2009 under Order VII, Rule 11 of C.P.C. is also pending and listed for hearing today. Even if this application was not filed, the Courts have ample powers to take suo motu notice about maintainability of a case, in terms of the above provision (Order VII, Rule 11 of C.P.C.). Both listed applications are pending for more than five years but till date, no Counter-Affidavits to oppose such applications have been filed by Plaintiffs. It is observed that though in earlier cases the present Plaintiffs have impleaded the afore-mentioned Intervener-M/s. Al-Feroz Enterprises, but has not impleaded them (the said Intervener) in the present suit.
9. Perusal of the Plaint shows that neither the present Intervener-M/s. Al-Feroz Enterprises has been impleaded nor contents of the Plaint have mentioned the afore-referred decision of the learned Division Bench handed down in Constitutional Petition No.D-733 of 2006, inter alia, by dismissing the Petition of the present Plaintiffs with certain observations, which already have been discussed in the preceding paragraphs. This shows yet another mala fide on the part of Plaintiffs as it wanted to keep the Intervener, which is otherwise a proper and necessary party, out of the context. It further proves that the present Plaintiffs have invoked the jurisdiction of this Court with unclean hands by suppressing the material facts related to the controversy in issue.
10. In view of the above discussion and looking at the overall conduct of Plaintiffs, who resorted to various round of litigation, it will not be out of place to observe that Plaintiff's have failed to establish that they have any legal right or interest in respect of the afore-mentioned property/land in question, more particularly, if the observations contained in the above mentioned decision of learned Division Bench are followed. Thus in terms of section 42 of Specific Relief Act, 1877, the present Plaintiffs also lack legal character to file the proceedings of the nature and hence no cause of action can be said to have accrued to them against the lawful actions taken by the Land Revenue Authority/Official Defendants, which till date is holding the field, although, they have remained under judicial scrutiny for the past many years, as mentioned in the preceding paragraphs.
11. It is a classic case of abuse of process of Court. Interestingly, the case has not been contested by official Defendants and Defendants Nos.1 and 3 were debarred on 27.08.2009, whereas, against Defendant No.2-Project Director, Goth Abad Scheme, the Plaint was struck off on 13.05.2010, which shows a collusion between official Defendants as well as Plaintiffs. It is not out of place to observe that such category of litigation is pending in the Courts in a huge number, which is not only consuming valuable time of the Court but also adversely affecting the genuine litigation and litigants.
12. In these circumstances, learned Advocate General Sindh is directed to take action against those delinquent officers who opted to remain silent and did not contest the present suit. A report in this regard be filed with MIT-II of this Court, within a fortnight from today.
13. The upshot of the above is that Plaint of the present suit is rejected. All pending applications are also disposed of accordingly.
14. ZC/M-53/Sindh Plaint rejected.