Malik MUHAMMAD MISKEEN Versus GENERAL MANAGER, CIVIL AVIATION AUTHORITY
ALI BAIG, J.--- Through the instant Civil 1st Appeal the appellant/ plaintiff has challenged the validity and propriety of judgment/decree dated 10.12.2011 passed by the learned Senior Civil Judge Gilgit whereby the learned trial Court has dismissed the suit of the appellant/plaintiff.
2. Precise facts forming the background of the captioned appeal are that the present appellant/plaintiff instituted a suit for recovery of 60,00,000/- (rupees sixty lacs) as damages sustained by the appellant/ plaintiff owing to imposition of ban on construction of his Hotel known as OASIS international Hotel situated at Jutial Gilgit against the defendants/present respondents in the learned trial Court.
3. The present respondents being defendants in the suit hotly contested the suit by way of filing their written statement in the trial Court wherein the answering defendants/respondents have raised certain legal objections and on facts the answering respondents/defendants have also repudiated the averments of plaint by asserting/pleading that the answering defendants/respondents had not imposed any ban of the construction of OASIS Hotel and the plaintiff/appellant has filed the suit with mala fide intention to extort the suit amount from the answering defendants/respondents.
4. Out of the divergent pleadings of the parties the learned trial after taking the proposed issues from both the parties has framed the following seventeen issues:-
1. Whether the defendants for the purpose of construction of modern airport had imposed ban on all kind of construction in the area from R.T.C. to Hotel Oasis International? OPP
2. Whether the defendants 1, 2 and 6 imposed ban and forcibly stopped construction of the Oasis Hotel through the defendants 3 to 5? OPP
3. Whether due to stoppage of construction work of the hotel the labourers left-away causing waste of constructional material and the plaintiff forced to pay the daily charges of the constructional machinery? OPP
4. Whether due to ban and stoppage of constructional work by the defendants the plaintiff could not complete the construction of hotel and as such deprived of a probable income of Rs. 400,000/-p.m.? OPP
5. Whether the defendants have willfully and maliciously caused losses to the plaintiff as such the plaintiff is entitled to the suit amount? OPP
6. Whether the plaintiff is entitled to a decree as prayed for? OPP
7. Whether the plaintiff has no cause of action against the defendants as such the plaint is liable to be rejected under Order VII, Rule 11, C.P.C.? OPD
8. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD
9. Whether the suit of the plaintiff is not maintainable in its present form? OPD
10. Whether the Suit is liable be rejected being against facts and procedure? OPD
11. Whether the defendants 3 to 5 on the behest of defendants 1, 2 and 6 had imposed ban on construction in the area from R.T.C. to Oasis Hotel and the Hotel of the plaintiff was not included in the said area but the defendants had stopped the construction of hotel of the plaintiff? OPP
12. Whether the plaintiff without any order or ban of the defendants has by himself stopped the construction of the Hotel? OPD
13. Whether the defendants are not bound to pay the damages and the suit amount to the plaintiff? OPD
14. Whether the defendants 1, 2 and 6 had not instructed the defendants 3 to 5 to impose ban on construction? OPD-1,2,6
15. Whether despite being made to understand the defendants intentionally stopped the construction of the Hotel of the plaintiff with the apology that the Hotel falls within the premises wherein raising of construction was banned? OPP
16. Whether the defendants have never stopped the construction of the Hotel of the plaintiff? OPD
17. Relief?
5. After framing of the above mentioned issues, the learned trial Court directed the parties to produce their evidence as they wished to adduce. Accordingly in support of his claim the plaintiff/appellant has produced two oral witnesses besides recording of his statement through his attorney namely Abdul Fareed. The plaintiff has also produced two documents Exhs. P/1 and P/2.
6. Likewise the defendants/ respondents have recorded their statements through their Departmental representatives and have also produced documentary evidence Exhs. D/1 to D/3.
7. On conclusion of trial of case, the learned trial Court after hearing arguments on behalf of both the parties has dismissed the suit of the appellant vide the impugned judgment/decree dated 10-12-2011.
8. Feeling aggrieved and dissatisfied with the impugned judgment/decree passed by the learned trial Court, the appellant/plaintiff has preferred the instant appeal in this Court.
9. The learned Counsel appearing on behalf of the appellant contended that the impugned judgment/decree passed by the learned trial Court is contrary to law and facts on the record of the case as such the impugned judgment/decree passed by the learned trial Court is not maintainable and liable to be set aside. The learned Counsel for the appellant further argued that the impugned judgment passed by the 1st Appellate is outcome of an erroneous and mis-appreciation of facts resulting miscarriage of justice. The learned Counsel for the appellant further argued that the impugned judgment/decree passed by the learned trial Court is a result of misreading and non-reading of evidence of the parties, hence the impugned judgment/decree passed by the learned trial Court is not tenable and liable to be reversed by this Court.
10. On the other hand the learned Counsel for the respondents and Deputy Advocate General (Civil) controverted the arguments advanced by the learned counsel for the appellant and supported the impugned judgment/decree passed by the learned trial Court by contending that since the appellant/plaintiff has failed to prove his claim by adducing reliable and cogent evidence in the trial Court and the learned trial Court has rightly dismissed the suit of the appellant through the well reasoned impugned judgment/decree which may be maintained. The learned Counsel for the respondents and Dy. Advocate General (Civil) further argued that in response to the application of the present appellant addressed to the Chief Secretary Gilgit-Baltistan, the respondent No.4/Settlement Officer Gilgit vide his letter dated 14th January 1996 addressed to the appellant/plaintiff Exh. D/4 has stated that no any ban has been imposed on the construction of the disputed Hotel of the appellant nor any notice in this connection has been issued to him as such no ban was imposed on the construction of OASIS Hotel Jutial owned by the appellant.
11. We have given our anxious consideration to the arguments of learned Counsel for the parties and have also gone through the record with due care and caution.
12. Admittedly it is the case of the plaintiff/appellant that the appellant/ plaintiff is the owner of under constriction Hotel i.e. OASIS International situated at jutial Gilgit. The respondents/defendants No. 1,2 and 6 were intending to construct a modern Airport in the area of Sakwar/ Jutial. Accordingly the respondents/ defendants had imposed ban on construction of buildings within the area of KKH to river on the two sides and from R.T.C. Sakwar to the OASIS Hotel Jutial. Thus the defendants/respondents Nos. 3 to 4 have allegedly stopped construction of Hotel of the appellant/ plaintiff. Resultantly the appellant/ plaintiff has suffered losses of Rs. 60,00,000/-.
13. In order to substantiate his claim the appellant/plaintiff has produced two oral witnesses namely Ghazi Shah and one Aleemullah in the trial Court. We have gone through the statements of above named P.Ws. recorded before the learned trial Court who have testified that they were working as laborers in the construction of OASIS Hotel and one Tehsildar Ghulam Rasool came to the spot and stopped the construction work of the above said Hotel in their presence. But it is astonishing to observe that the appellant/plaintiff has failed to produce any documentary evidence in support of his claim as usually the Government functionaries do not issue verbal directions rather the Government functionaries issue written orders in such like cases. Moreover, the appellant/ plaintiff has submitted an application Exh. C/7 to the then Chief Secretary Gilgit-Baltistan regarding imposition of ban on the construction of OASIS Hotel. In response to the aforesaid application of the appellant, the respondent No.3/ Settlement Officer Gilgit vide his letter dated 28th May 1995 Exh D/3 and letter dated 14th January 1996 Exh. D/4 has stated that no any ban has been imposed by the respondents on the construction of OASIS Hotel Jutial Gilgit nor any notice in this regard was issued to the appellant/ plaintiff.
14. From perusal of contents aforesaid letters Exhs. D/3 and D/4 it shows that no any ban was imposed on the construction of OASIS Hotel Jutial Gilgit and the appellant/plaintiff had himself stopped the construction of the OASIS Hotel till recent past.
15. The learned Counsel for the appellant has relied on sole case law/authority titled "Abdul Majeed Khan v. Tawseen Abdul Haleem and others" cited in PLD 2012 SC page 80. We have perused the said case law and are afraid that the authority cited above has no relevancy with the case in had as the case cited above pertains to a suit for recovery of damages by a Civil Servant on account of some official orders passed by the respondents.
16. In view of what has been discussed hereinabove, the impugned judgment/decree passed by the learned Senior Civil Judge Gilgit being well reasoned and well based does not warrant interference by this Court. This appeal being devoid of merit is dismissed leaving the parties to be their own costs. Consequently the impugned judgment/ decree dated 10-12-2011 passed by the learned trial Court is upheld. File.
ZC/41/GB Appeal dismissed.