6/27/24, 10:17 AM 2024 C L C 18

2024 C L C 18
[Sindh]
Before Muhammad Shafi Siddiqui, J
ALI MUSHTAQ and others----Plaintiffs
Versus
FEDERATION OF PAKISTAN and others----Defendants
Suit No.02 of 2016, decided on, 19th January, 2023.
Specific Relief Act (I of 1877)---
----S. 42---Civil Procedure Code (V of 1908), S. 10 & O.VII, R. 11---Suit for
declaration---Stay of suit---Object, purpose and scope---Rejection of plaint---Suit
filed by plaintiff in year 2016 was on the same subject matter in which an earlier
suit filed in year 2009 was pending adjudication---Defendant / Federation of
Pakistan sought rejection of plaint---Validity---Object of S. 10, C.P.C., is to prevent
Courts of concurrent jurisdiction from simultaneously trying two parallel suits in
respect of same matter in issue---Insertion of S. 10, C.P.C., is to avoid two parallel
trials on same issues---Even if cause of action and some consequential relief prayed
for is added and/or some of the issues in a former and subsequent suits may differ,
that may not be a ground for non-application of S. 10, C.P.C., if it is being observed
that the final decision in earlier suit may either operate as res judicata or would
materially affect proceedings and trial of subsequent suit---Legislature has
purposely carved out language of S. 10, C.P.C., to include all those issues which are
directly and substantially in issue in previously instituted suit and does not talk
about identical and similar nature of issues and reliefs---Relief claimed in
subsequent suit was somehow directly and substantially linked with earlier one---
Any formal or informal addition of a party having no substantial effect to
proceedings and relief claimed, would not materially affect operation of S.10,
C.P.C.---High Court stayed trial of the suit till decision of connected suit filed
earlier in year 2009 by invoking provision of S. 10, C.P.C.---Application was
disposed of accordingly.
Shri Ram Tiwari v. Bholi Devi AIR 1994 Patna 76 and S.K. Rangta Et Co. v.
Nawal Kishore Debi Prasad AIR 1964 Calcutta 373. rel.
Sarmad Hani for Plaintiffs.
Qazi Ayazuddin Qureshi, Assistant Attorney General for Defendant No.1.
Suresh Kumar, Assistant Advocate General for Respondents Nos.2 and 3.
Muhammad Vawda for Pak PWD Karachi.
Shoaib Khatyan for Defendant No.4.
Dates of hearing: 24th November and 1st December, 2022.

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JUDGMENT
MUHAMMAD SHAFI SIDDIQUI, J.---Application under consideration is one
under Order VII, Rule 11, C.P.C. (C.M.A. No.12891/2016) filed on behalf of
defendant No.1 i.e. Federation of Pakistan in this suit for declaration, possession
and permanent injunction. The application seeks rejection of plaint on the count
that the status of plaintiffs' predecessor has not been recognized in the earlier round
of litigation and hence cause to file instant proceedings does not exist. Further that
no such status in frame of Section 42 of Specific Relief Act is availed by plaintiffs
in these proceedings except that plaintiffs be declared as bona fide transferee of suit
lands whereas that could only be subject to plaintiffs' principal's suit (and/or his
predecessor's suit), already pending as Suit No.432 of 2009.
2. It is pleaded by the Assistant Attorney General, in support of his application
that in the earlier round of litigation plaintiffs' predecessor has failed to
demonstrate their title, therefore, nothing could have passed on to the successors on
the strength of a Power of Attorney, which is claimed to be "coupled with interest",
hence seeks rejection of plaint within frame of Section 42 of Specific Relief Act.
The arguments are supported by Mr. Vawda, who is appearing for defendant No.1(i)
Ministry of Housing Works through its secretary, as well as for the intervener in the
connected suit.
3. Mr. Sarmad Hani, learned counsel appearing for plaintiffs, has objected to the
maintainability of this application on the point of law as well as on the facts. It is
claimed that the learned Division Bench, in the earlier round has enabled
"plaintiffs' predecessor" to exhaust the remedy by approaching the Civil Court to
establish their right, if any, which they did and on considering the arguments on an
application under Order VII, Rule 11, C.P.C. in the connected suit bearing No.432
of 2009 such application was rejected, which order was maintained by division
Bench of this Court.
4. I have heard learned counsel for the parties and perused material available on
record.
5. The case has checkered history as far as disputed questions of facts are
concerned however for the purposes of deciding application under Order VII, Rule
11, C.P.C., it may not be of much relevance however what is important is that the
status of the subject plot remained under litigation and it still is in the shape of
connected Suit No.432 of 2009.
Brief history:
There was a dispute with regard to auction rights of some parties in the property
in question which measures 7947 sq. yards. The predecessor of plaintiffs who is
defendant No.4 (plaintiff in the connected suit bearing No.432 of 2009) claimed to
have acquired the property by way of an auction wherein a part of consideration
was through cash and part was through compensation books of two individuals
which were presented for consideration before Settlement Authority/ auctioneer.
The title of land of the predecessor of plaintiffs/defendant No.4 (Shafaat Ahmed

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Akhlaq son of Akhlaque Ahmed) claim to have remained under litigation by virtue
of numerous petitions such as:-
i) C.P. No. D-28 of 1996, which was disposed of on 22.09.1998 when case was
remanded;
ii) C.P. No.D-681 of 2000 which was disposed of on 23.05.2000 when matter
was again remanded to the concerned authority;
iii) C.P. No.D-894 of 2004 wherein order of Secretary (RSEtEP), Board of
Revenue dated 17.04.2004 (passed in compliance of order of petition at Sr.
No.ii) was challenged. Petition was dismissed vide order dated 31.10.2006
by learned Division Bench of this Court however it carved out a room for
plaintiffs' predecessor to approach civil Court for redress of the grievances,
if it is so desired, to establish rights, if any.
iv) The above order was assailed before Hon'ble Supreme Court in CPLA
No.543-K of 2007 which CPLA was not pressed on 15.01.2009 on the count
of disputed questions of facts and the petitioner of the petition before
Hon'ble Supreme Court, who is predecessor of plaintiffs i.e. defendant No.4,
was left at liberty to seek redress, if any, from appropriate forum.
7. It is claimed that in consequence of above order of Hon'ble Supreme Court,
connected suit was filed on 01.04.2009 for declaration that the order of 17.04.2004
passed by the Board of Revenue was illegal and that the plaintiff (therein) namely
Shafaat Ahmed Akhlaq/defendant No.4 here and plaintiff in the connected suit, be
recognized as lawful transferee of the title by virtue of the aforesaid auction.
8. The significant conclusion, drawn by the Board of Revenue while deciding the
fate of land's title on 17.04.2004, is as under:-
"Moreover as Notification dated 15.10.1995 i.e. prior to auction the property
bearing No. CL-7/ 16 (6930.223) sq. yds., CL-7/17/1 (7947) sq. yards. And
CL-7/17/3 (368) sq. yds. were acquired by the Federal Government for the
construction of HAJI CAMP in exchange of plot No.LY-22/ 1 belonging to
government. The contents of letter No.SCK/79-442 dated 2nd April, 1979 of
the Settlement Commissioner, Sindh, Karachi issued to the Director (Hajj)
Ministry of Religious Affairs, Hajj Directorate, Karachi and its copy to
Asstt. Commissioner, South Karachi as under:-
"Plot No.LY-22/ 1 belonging to Government had been given to the Settlement
Origination in exchange of the aforesaid plots. Since then the aforesaid plots
and the Hotel Building standing thereon wholly vested in the Government of
Pakistan through Ministry of Religious and Minority Affairs for the purpose
of housing Haji Camp.
As per city survey record the entries in record of Rights in respect of property
No.CL-7/ 16, CL-7/17/1 and CL-7/17/3 Civil Lines Karachi have been made
in favour of Ministry of Religious and Minority Affairs Government of
Pakistan.

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A correspondence file available on record further reveals that the articles of the
Hotel bearing No.CL-7/ 16 (CALTON HOTEL) were auctioned by the
Settlement Organization/ Department in the year 1965 after due publication,
but there is no mention of auction of property No.CL-7/ 17/ 1 in favour of
petitioner. The subject property CL-7/17/1 and 3 were acquired by the
Federal Government, therefore, in 1959 the property in question was not
part and parcel of compensation pool and was not available for disposal.
The Director Haj, Ministry of Religious Affairs (Hajj Directorate) Karachi were
also issued notices but he has informed under his letter No. 1-20/ 94-DH(S)
dated 7.1.2002 that the Ministry of Religious Affairs is not a party in the
relevant case, hence they were not in a position to offer any comments in the
subject matter.
After consultation of available record and the written statement filed by the
petitioner's advocate, I am of the opinion that the auction of the subject
property bearing No.CL-7/ 17/ 1 in favour of petitioner was not held at all as
the subject property was not available for disposal in 1959. The property in
question was acquired by the Federal Government for construction of HAJI
CAMP in 1958. As such there is no auction proceedings/ approval of the
Chief Settlement Commissioner required under rules, therefore no auction
was held in favour of petitioner, therefore the question of cancellation does
not arise. The letter bearing No.SECY(RS&EP)/BOR/96-03 dated 14.1.1996
issued by the then Secretary (RS&EP) has been misinterpreted.
Thorough scrutiny of file reveals that there is nothing available which
substantially suggest the inference that the subject property was ever
allotted to any body through public auction.
The petitioner has no case and hereby the petition is dismissed, thus the property
No. CL-7/16, CL-7/17/1 and CL-7/17/3 will remain intact on the khata of
Ministry of Religious Affairs (Haj Directorate) Government of Pakistan."
9. The reason for highlighting the relevant conclusion, as reached by the Board
of Revenue is that in their wisdom, the property was never auctioned. It was rather
articles of the "Calton Hotel", which hotel was built on subject land i.e. CL-7/16,
which (articles) were auctioned by the Settlement Department in the year 1965 after
due publication but there was no mention of auction of the land itself in favour of
petitioner (defendant No.4 in this suit). The subject land is claimed to have been
acquired in 1959 by federal government and thus never formed part of the
compensation pool to be made available for disposal against consideration; be it
cash or through compensation book of "other individuals".
10. The learned Division Bench of this Court while deciding the above referred
petition perused coloured photostat copy of the bid sheet, placed on record along
with statement of the Deputy Secretary Evacuee Property. Name of plaintiffs'
predecessor Shafaat Ahmed Akhlaq/ defendant No.4, per order of learned Division
Bench, was visible to have been added in red ink at Sr. No.1 where name of Feroz
Ahmed was mentioned. It was with different ink whereas highest bid as shown was
of Feroz Ahmed, as recognized. Its genuineness (red ink insertion), as insisted in

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the connected suit is under adjudication on the count that invariably and on
numerous occasions and for valid reasons, we as a Court also direct offices/officers
of branches to amend the order or pleading with red ink so why should such
addition or insertion be doubted, hence the trial as claimed, will determine the
cause in the connected suit and will take the questions to this logical end.
11. It is further concluded by the learned Division Bench that before repeal of
evacuee laws in 1975, subject property was transferred and vested in the federal
government through Ministry of Religious Affairs.
12. If the documents including the order impugned, presented before learned
Division Bench concludes that it was Feroz Ahmed who was highest bidder (not
clarified whether he was bidder of articles or land), then perhaps it was him who
had bid either for articles or for land. It is also required to be determined in the trial
whether it was articles which were auctioned as the land of Hotel had already been
acquired as claimed. It is this order (17.04.2004 ibid) which says that the property
was acquired in 1959 for federal government (Haji Camp). These facts are
reproduced to keep facts alive in the connected suit only, however for the present
controversy I further deliberate as under.
13. This suit was filed in the year 2016 by the so-called successors of Shafaat
Ahmed Akhlaq. Now as attorney of plaintiffs in the connected suit he is not obliged
to file present suit as the principal has already invoked the jurisdiction of this Court
by filing Suit No.432 of 2009 and plaintiffs of this suit are party to it. Further, in a
capacity of successor in interest, under irrevocable Power of Attorney, which is
being read by plaintiff as "coupled with interest", Section 10, C.P.C., may have its
implication for the purpose of trial of this suit. The successor of Shafaat Ahmed
Akhlaq, as claimed in the pleadings, was late Raja Mushtaque Ahmed son of Haji
Zaman Ali who was survived by four sons and a widow, arrayed as plaintiffs in this
suit. Apparently there was no dispute between plaintiffs' father Raja Mushtaq
Ahmed and his so-called predecessor Shafaat Ahmed Akhlaq and on this
understanding there was no litigation between them. This suit in fact is against
government functionaries to recognize plaintiffs' predecessor's title, followed by
them as being its transferee.
14. Raja Mushtaq Ahmed (plaintiffs' father) claimed to have acquired subject
property by virtue of an Irrevocable Power of Attorney on 27.05.2000 which is
claimed to be coupled with interest and consideration claimed to have been paid,
however proper stamp duty has not been levied on alleged consideration except that
it was on Rs.500/- stamp paper. However what is important for the purposes of this
suit is whether plaintiff or plaintiffs' father were successor of title which could
enable them to pursue their remedy under the law. Plaintiffs' predecessor never got
their title cleared from any Court of law therefore it is difficult to presume if any
valid title is passed on to them through aforedescribed Power of Attorney, except
for enforcement of rights as pressed in Suit No.432 of 2009. As attorney, they could
not continue the "instant suit" in view of pendency of principal's own suit. Plaintiffs
in this suit have not sought any declaration that they are successors of title of
Shafaat Ahmed Akhlaq i.e. plaintiff of the connected suit. Let us now compare the
two prayers/reliefs sought in the two suits:-

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Suit No.02 of 2016 Suit 432 of 2009

I) Declare that the order dated I) Declare that the order dated
17.04.2004 passed by 17.04.2004 passed by the
defendant No.2 is void ab- defendant No.1 is based on
initio, illegal, of no legal mala fide intention, in
effect and consequences. violation of the order dated
22.9.1998 passed by the
Hon'ble High Court in C.P.
No.28 of 1996 and has tried
to make out a false case
based on new, fake and
illegal documents neither
agitated nor relied prior to
the passing of the order
dated 17.4.2004.
II) Set aside the order dated II) Declare that documents
17.04.2004 passed by the relied upon by the plaintiff
defendant No.2. are on the record of the
defendant No.1 having
attained period more than 40
years are presumed to be
correct, genuine and
undisputed under the
provisions of Article 100 of
Qanun-e-Shahadat and the
defendant No.1 is therefore
debarred to deny the same
and question the genuineness
and legality of documents of
his own record.
III) Declare that the plaintiffs III) Declare that where proper
are bona fide transferees of adjudication of transfer price
the suit property being Plot is pending it is not available
No.CL-7-17/1-VC-64, property and is not open to
Bonus Road, Karachi settlement authorities to
admeasuring 7,947 sq. cancel the transfer on the
yards. ground of non-payment of
full transfer price, without
prior notice to the plaintiff.
IV) Declare that the defendants IV) Declare that the defendants
No. 1(i) and (ii) have no had not issued any demand
right, title, claim or interest notices to the plaintiff.
in the suit property being
Plot No.CL-7-17/1-VC-64,
Bonus Road, Karachi

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admeasuring 7,947 sq.

yards.
V) Declare that the notification V) Declare that the proceedings
dated 15.10.1959 application of the plaintiff
(Annexure Y-4) issued by having remained pending
the Government of Pakistan and are still pending the
in the absence of payment property auctioned to the
of compensation to the plaintiff is not liable to be
plaintiffs under the Land transferred to anyone except
Acquisition Act, 1894 is to the plaintiff.
void, illegal and of no legal
effect and consequences.
VI) Direct the defendants VI) Direct the defendant No.2 to
No.2(i) and (ii) to issue dispose of the matter legally
Challan in favour of the under section 4 of the Act
plaintiffs for the balance XIV of 1975, exercising his
consideration in respect of jurisdiction and issue
suit property being Plot demand notice and on
No.CL-7-17/1-VC-64, payment of amounts by the
Bonus Road, Karachi plaintiff PTO be issued
admeasuring 7,947 sq. within a period to be
yards. specified by the Hon'ble
Court.
VII) Direct the defendant No.2(i) VII) That this Hon'ble Court may
and (ii) to execute lease be pleased to pass any other
deed in favour of the order as deemed appropriate
plaintiffs after the payment in the interest of justice and
of challan and other equity.
ancillary dues for the suit
property being Plot No.CL-
7-17/1-VC-64, Bonus Road,
Karachi admeasuring 7,947
sq. yards. Or upon their
failure to execute the Lease
Deed, direct the Nazir of
this Hon' ble Court to
execute the Lease Deed in
favour of the plaintiffs.
VIII) Direct the defendant No.1(i)
to hand over vacant and
peaceful possession of the
portion of the suit property
being Plot No.CL-7-17/1-
VC-64, Bonus Road,
Karachi admeasuring 7,947
sq. yards in their unlawful
possession after demolition

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of the unlawful construction

raised thereat.
IX) A prohibitory injunction
restraining the defendants,
their respective officers,
representatives, agents,
employees, successors-in-
interest, assigns, and/or any
other person or persons
acting under their control or
guidance of the defendants
from harassing, intimidating
coercing the plaintiffs, their
agents, employees,
associates, representatives,
etc. and from taking any
adverse, coercive or
punitive action against the
plaintiff in any manner
whatsoever.
X) Any other or additional
relief as this Hon'ble Court
may deem fit and proper in
the circumstances of the
case; and
XI) Costs of the suit

15. The principle reliefs in this suit are similar that touches upon title of the
subject land. Apparently, some of the reliefs in this suit are being pressed "for
plaintiffs" of the connected suit, hence a second suit, for same causes and reliefs
does not lie. Nothing could have passed on to these plaintiffs unless the title of
plaintiff in connected suit is recognized. On the strength of Power of Attorney alone
title is not passed on to anyone to claim himself/ themselves as successors of
plaintiff of connected Suit No.432 of 2009. At the most they act only as agent and
only carries the object of his principal forward and cannot maintain its own suit as
being transferee under the above facts and circumstances. Nothing of the sort that
they are owners by virtue of Power of Attorney is pleaded or prayed except that
they are transferee. Now this could only be done and claimed if and when earlier
suit succeeds.
16. As to the limitation point, instant suit was filed in the year 2016 when all
sons of Raja Mushtaq Ahmed became major hence a material denial from plaintiffs
of the connected suit is a crucial date to start a countdown to enforce limitation
even if this suit is presumed to have been filed against defendant No.4 for
performance.
17. While the Power of Attorney claimed to have been executed in favour of
plaintiffs' father in the year 2000, precisely on 27.05.2000 yet connected suit

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No.432 of 2009 was filed by principle for the declaration cited above. It is plaintiff
in the connected suit who was and is claiming ownership in the property to the
exclusion of plaintiffs and it was all the more necessary to seek such declaration
which plaintiffs failed, nor any application for such amendment was filed.
18. With the above understanding of facts, in the present set of pleadings, as set
out, at the most it concludes that it is rather a suit by attorney for almost similar
reliefs as claimed in the earlier suit, however even if plaintiffs' additional claim,
that they are lawful transferees of property is considered as a main relief, which
they and their father agitated to have acquired from the plaintiff of the connected
suit, then also unless the connected suit is decreed, to me present suit appears to be
a case hit by Section 10, C.P.C., as plaintiffs in this suit claims through and under
plaintiff of the connected suit.
19. For the convenience Section 10 is reproduced as under:-
"10. Stay of suit. No Court shall proceed with the trial of any suit in which the
matter in issue is also directly and substantially in issue in a previously
instituted suit between the same parties, or between parties under whom
they or any of them claim litigating under the same title where such suit is
pending in the same or any other Court in Pakistan having jurisdiction to
grant the relief claimed, or in any Court beyond the limits of Pakistan
established or continued by the Federal Government and having like
jurisdiction, or before the Supreme Court.
Explanation. The pendency of a suit in a foreign Court does not preclude the
Courts in Pakistan from trying a suit founded on the same cause of action."
20. The object of Section 10 is to prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect of same matter in issue and thus
the insertion of section 10 is to avoid two parallel trials on the same issues. Even if
the cause of action and some consequential relief prayed for is added and/or some
of the issues in a former and subsequent suits may differ, that will not be a ground
for non-application of Section 10 ibid, if it is being observed that the final decision
in the earlier suit may either operate as resjudicata or would materially affect the
proceedings and trial of subsequent suit, which effect could be seen is the instant
case. Reliance is placed on the case of Shri Ram Tiwari v. Bholi Devi reported in
AIR 1994 Patna 76.
21. The legislature has purposely carved out the language of Section 10 to
include all those issues which are directly and substantially in issue in previously
instituted suit and does not talk about identical and similar nature of issues and
reliefs. It is enough if the relief claimed in the subsequent suit is somehow directly
and substantially linked with the earlier one. Any formal or informal addition of a
party having no substantial effect to the proceedings and the relief claimed, will not
materially affect the operation of Section 10 CPC. Reliance is placed on the case of
S.K. Rangta and Co. v. Nawal Kishore Debi Prasad reported in AIR 1964 Calcutta
373.
22. In view of above facts and circumstances, I am of the view that there is
enough material to invoke the provisions of Section 10, C.P.C. hence I, by invoking

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the provision of Section 10, C.P.C. ibid, stay the trial of the instant suit till decision
of the connected Suit No.432 of 2009 by this Court. Application in hand under
Order VII, Rule 11, C.P.C. stands disposed of in these terms.
MH/A-29/Sindh Order accordingly.

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