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2003 Y L R 1837

 

[Karachi]

 

Before Muhammad Moosa K. Laghari, J

 

Mrs. UNSIA BANG and others—Plaintiffs

 

Versus

 

Messrs SHELL PAKISTAN LTD. and others—Defendants

 

Suit No.807 of 2001, decided on 8th February, 2002.

 

Waqar Muhammad Khan for Plaintiff.

 

Ms. Rizwana Ismail for Defendant No.2.

 

 

ORDER

 

By this order, I intend to dispose of the two listed applications.

 

1. The plaintiffs have tiled this suit for possession under section 9 of the Specific Relief Act, 1877 and permanent injunction.

 

2. The facts of the case as disclosed in the plaint-are that the plaintiffs are legal heirs of deceased Muhammad Ismail who entered into an agreement with defendant No.1 on 29-12-1961 whereby he was granted a Dispensing Pump and Selling Licence in respect of a piece of land being Plot No.F.C/4, approximately admeasuring 15000 sq. feet with structures thereon and the facilities provided therein by defendant No. 1. According to the preamble of the Agreement, the term, “licensee” was deemed to mean and include its successors, executors and administrators. The predecessor-in-interest of the plaintiff discharged all his obligations in pursuance of the said agreement and during the continuance of the licence remained in possession of the suit property. He invested his entire capital in the said business and also carried out certain additions and alterations and structural work at his own expenses amounting to lacs of rupees. It is averred that in the year 1995 some functionaries of defendant No.1 with mala fide intention started harassing the plaintiffs’ father and predecessor-in-interest and from time to time required him to improve sale performance of the petroleum products. The plaintiffs’ predecessor-in-interest made every possible effort to do what he could, and also put additional structures incurring huge expenses. Since the defendant No. 1 were motivated by mala fide considerations, and were bent upon to replace the predecessor-in-interest of the plaintiffs, on 28-10-1985 they issued a notice of termination of the arrangement between the predecessor-in-interest of the plaintiff and defendant No.1. The said termination was challenged by the plaintiff’s predecessor-in -interest in Suit No.833 of 1985 before this Court. On the application under Order 39, rules 1 and 2, C.P.C., this Court directed the parties to maintain status quo vide order dated 25-11-1985. On 21-5-1986 Mr. Justice (Retd.) Noorul Arfin was appointed as sole arbitrator with the consent of the parties. Evidence was led by both the parties before the learned sole arbitrator. In the meantime, Muhammad Ismail, the predecessor-in-interest of the plaintiffs, died at Karachi on 5-9-1991, therefore an application under Order 22, rule 3, C.P.C. was moved before the learned sole arbitrator but since the arbitrator was not competent to bring the L.Rs. of the deceased Muhammad Ismail on record, the file was returned to this Court. It is stated that after the death of Muhammad Ismail, a suit for administration, partition and rendition of accounts was also filed in this Court. In the year 1996 one Iqbal Mustafa, defendant No.2, claiming to be the owner/landlord in respect of the suit property, filed two applications, one under section 15 for ejectment and another under section 10 of the Sindh Rented Premises Ordinance, 1979 for fixation of fair rent respectively against defendant No. 1 and the plaintiff No.4 being Rent Case Nos.559 of 1996 and 578 of 1996. However, defendant No. 1 moved application under Order 1, rule 10, C.P.C. in both the rent cases for striking off the name of plaintiff No.4 from the said proceedings. On dismissal of the said application by the learned Rent Controller, appeals were filed before this Court being F.R.As. Nos.512 of 1998 and 513 of 19916 respectively. However after the amendment in law, the said appeals were sent to the District Judge, Karachi Central.

 

It was further pleaded in the plaint that plaintiff No. 4 being the only male member of the family was running and looking after the petrol pump business after the demise of Muhammad Ismail. While he was away from the city on 9-6-2001, defendant No. 1 alongwith defendant No. 2 arrive at the site of the suit property/petrol pump with a large number of Police officials and forcibly and illegally took over the possession of the petrol pump alongwith all the building structure, furniture, fixtures and fittings. A wall was also constructed on the

 

Front side of the petrol pump, blocking thereby the entrance and the office building show rooms and six shops and car service station were also demolished. The defendants allegedly removed from the site following articles belonging to the plaintiff. Apart from that, the defendants also smashed/bulldozed four mechanical dispensing pumps:–

 

(i) Four electronic dispensing pumps duly packed in wooden boxes purchased by plaintiff from Messrs Shaheen Pumps (Pvt.) Limited, G.T. Road, Gujrat.

 

(ii) Computer alongwith Laser Printer.

 

(iii) All Business Record.

 

(iv) Case Files.

 

(v) Seven Revolving Chairs.

 

(vi) One Office Table.

 

(vii) One Computer Table.

 

(viii) Four Wooden Almirahs.

 

(ix) One Steel Almirah.

 

(x) Five Ceiling Fans.

 

(xi) Empty Oil Drums etc. worth of rupees several lacs.

 

It was pleaded that on account of illegal acts of the defendants, the plaintiffs suffered irreparable mental agony and heavy/considerable monetary losses. It was alleged that the plaintiff seriously plaintiffs of their rights of repossession, the defendants in connivance with each other were taking steps to create a third party interest in the suit property and as such the defendants were liable to be permanently restrained. The plaintiffs also claimed that on accounts of having suffered heavy damages, they reserve their right to file a separate suit for recovery of damages, cost, expenses etc.

 

So far the cause of action for filing the present suit is concerned, it was averred 9-6-2001 when the defendants illegally entered upon the subject property which had remained in the actual possession of the plaintiffs and wherefrom the plaintiffs were illegally dispossessed. The plaintiffs accordingly prayed for the following reliefs:-

 

(A) The defendants may be directed to put the plaintiffs above named in peaceful vacant possession of the suit property forthwith and in case of their failure to comply with such directions the Nazir of this Honourabel Court be directed to take over possession of the suit property and deliver the same to the plaintiffs above named.

 

(B) That the defendants, their servants, agents and/or their representatives may be permanently restrained from creating any charge, lien of third party interest in respect of the suit property and/or act in any manner so as to adversely affect the interest of the plaintiffs and/or the plaintiffs’ right to possession of the suit property:

 

(C) Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case.

 

(D) Cost of the suit.

 

3. Alongwith the suit an application under Order 39, rules 1 and 2, C.P.C. was filed praying therein that the defendants be restrained from creating any charge of whatsoever nature and/or to create any third party interest and/or to part with the possession of suit property until the final disposal of the suit. Counter-affidavit was filed by the defendant No.2 against this application.

 

4. Written statement containing preliminary legal objections was filed by defendant No.2.

 

5. An application under Order VII, rule 11, C.P.C. read with section 151, C.P.C. was filed on behalf of defendant No.2, against which counter-affidavit was filed.

 

6. Arguments on both the applications viz. application under Order 39, rules 1 and 2, C.P.C. and under Order VII, rule 11, C.P.C. have been heard and the same are being disposed by this single order.

 

7. It was contended by the learned counsel for the defendant No.2 that father of defendant No.2 was the owner of the property and after the termination of the agreement between the plaintiff and defendant No. 1, petroleum supply was stopped. It was further argued that the plaintiffs did not produce any proof to show that the plaintiffs were in possession on 9-6-2001 when they allege to have been dispossessed.

 

It was argued that the plaintiffs have no cause of action to maintain the suit for declaration. It was pointed out that the plaintiffs have already filed a suit for damages on the same cause of action. It was further contended that the legal representatives of a licensee were not competent to maintain the suit.

 

Apart from that, it was argued that the suit was not maintainable being barred by time. In support of the contentions raised by the learned counsel for defendant No.2, reliance was placed on the following cases:

 

(i) 1987 CLC 1566, (ii) 1994 MLD 527, (iii) 2000 CLC 1267, (iv) AIR 1984 Kerala 224, (v) AIR 1975 Raj. 178, (vi) PLD 1999 Karachi 181 and (vii) AIR 1967 J&K 52.

 

8. Conversely, it was contended on behalf of the plaintiff that the preamble of the agreement itself reveals that the licence could not be terminated as the same created interest in the property in favour of the plaintiffs. The, plaintiffs’ father was in the peaceful possession of the property since 1961. The plaintiffs who were in actual possession have been illegally dispossessed. As the possession relates to an immovable property and they cannot be dispossessed without adopting due course of law, the suit was maintainable. It was further contended that the plaintiffs, being successors-in-interest of the licensee, were competent to file a suit for possession and that the suit for damages was a remedy available to the plaintiffs independent of the remedy available under section 9 of the Specific Relief Act. It was further contended that the dispossession was motivated by malice as defendant No.1 was looking for an opportunity to dispossess the plaintiffs being annoyed with them since the year 1995.

 

It was argued that for disposal of an application under Order VII, rule 11, C.P.C. only the contents of the plaint are to be looked into and the defence plea is not to be taken into consideration.

 

9. In reply to the contentions of the learned counsel for the defendant No.2 to prove the possession on the date viz. 9-6-2001 when the plaintiffs were allegedly dispossessed by the defendants, learned counsel for the plaintiffs has relied upon the proceedings in the rent cases which were filed in the year 1996 and, 1998 respectively. Relying upon a letter sent by defendant No. 1 to the S.H.O., Police Station Sharifabad Karachi which has been annexed by defendant No.2 alongwith his written statement, the learned counsel argued that according to the stand taken by defendant No. 1, the last fuel supply to the plaintiffs’ petrol pump was, made on 16-10-2002. He has further relied upon the certificate of relinquishment by certain other persons who were also occupying certain shops on the said plot which was annexed by the defendants with their written statement which bear the date of 11-6-2001. It was contended that after dispossession of the plaintiffs on 9-6-2001, the other persons who were also occupying certain portions of land were made to vacate the possession on 11-6-2001 which supports the case of the plaintiffs, He, therefore, submitted that the present suit was within time.

 

He has, however, conceded to the fact that no interim orders could be passed in the matter. However, he submitted that in order to protect the interest of the plaintiffs, he seeks the orders to the extent that no third party interest be, created in the property as it may give rise to multiplicity of litigation.

 

In support of his contentions, learned counsel cited; (i) 1981 CLC 654, (ii) 1991 MLD 1312 and (iii) 1982 SCMR 741.

 

10. I have given my anxious consideration to the arguments advanced at the bar, and also perused the contents of the plaint and the documents referred to by the respective parties. I have also benefited from the case-law relied upon by the learned counsel for the parties.

 

11. Firstly, I propose to discuss the case law relied upon by the learned counsel for the plaintiffs.

 

(a) In the case referred by the learned counsel for the plaintiffs and reported in 1982 SCMR 741 the Honourable Judges of the Supreme Court of Pakistan were pleased to define the ingredients for an action under the provisions contained in section 9 of the Specific Relief Act in then following words:–

 

“Firstly, the person suing must have been dispossessed. Secondly, such dispossession must be immovable. Thirdly, the dispossession should be without his consent. Fourthly, dispossession should be otherwise that in due course of law.”

 

In fact this legal proposition is not disputed.

 

(b) Insofar as the authority reported in 1981 CLC 654 is concerned, there is no cavil to the proposition of law that where a person who is in lawful possession of the property is dispossessed, his possession shall be restored irrespective of the title in the property within the prescribed limit of six months.

 

(c) It is also not disputed that while rejecting a plaint, normally the Court has to consider averments made in the plaint as observed in 1991 MLD 1312.

 

12. On perusal of the documents placed on record by the plaintiffs, alongwith the plaint, it is abundantly clear that the litigation relating to rent proceedings which has been referred to by the learned counsel for the plaintiffs pertains to the years 1996 and 1998 and was not enough proof of the plaintiffs’ possession on 9-6-2001 when, according to the plaintiffs, they were dispossessed notwithstanding the plea taken by the defendant No.1 in the said proceedings to extent that the plaintiffs’ predecessor-in- interest having no concern was not a necessary party in those proceedings. The letter dated 9-10-2001, annexed as “Annexure 8” with the written statement relied upon by the plaintiffs has been addressed by Shell Pakistan Limited, defendant No.1, to the S.H.O., Sharifabad Police- Station. This is apparently in reply to the letter dated 9-10-2001 of the S.H.O. whereby the information was required. According to the information supplied to the S.H.O., the last fuel supply to the PBS outlet ‘possessed’ by the plaintiffs was made by the defendant company on 17-10-2000 vide Invoice No.1201165 through Vehicle No. LSB6254 in pursuance of Order No.30020640 dated 16-10-2000. This letter reveals that there was no fuel supply after 17-10-2000 to the petrol pump possessed by the plaintiffs which is the suit-property.

 

12. It was urged on behalf of the plaintiffs that the defendants removed certain valuable articles belonging to the plaintiffs as mentioned in para. 19 of the plaint on the date when the plaintiffs were alleged to have been forcibly dispossessed.

 

On perusal of the pleadings, it prima facie appears that apart from civil action of dispossession, the defendants allegedly committed a criminal offence by removing certain valuable properties. But there is nothing in the plaint to show that any sort of complaint was made by the plaintiffs or any F.I.R. was registered by him for such criminal act the plaint itself is quite silent. On enquiry, the learned counsel for the plaintiffs admitted that neither any F.I.R. was registered nor any complaint was lodged. During the arguments it was conceded that the plaintiffs have also filed a separate suit for damages. The ‘Certificates of Relinquishment’ filed by the defendants which related to certain other persons, will not, in any manner, advance the case of the plaintiffs in order to arrive at the conclusion that the plaintiffs were, in fact, dispossessed on 9-6-2001 as alleged by them.

 

Section 9 of the Specific Relief Act gives a specific privilege to person in possession who takes action promptly. All that is necessary is that it must be shown that the plaintiff was in possession, he was dispossessed by the defendant without due course of law, and last but not the least, that the suit has been brought within six months from the date of dispossession. This view has been expressed by the Honourable Supreme Court in the case reported in 2001 SCMR 345.

 

Learned counsel for the plaintiffs could not point out anything from the record from which he could urge that on 9-6-2001 they were in possession of the suit property. For example, the plaintiffs could have at least submitted any utility bill having been paid by them in respect of the suit-property which being a petrol pump was a commercial establishment and could, not be run without necessary utilities, such as Telephone, electricity, water, drainage etc., which according to them remained in their “actual possession” uptill 9-6-2001 viz. the date on which they alleged to have been dispossessed by the defendants without their consent. Even at the time of hearing of these applications, learned counsel was not in a position to place on record any proof from which he could ex facie show that the plaintiffs retained the possession of the suit property in any shape/form till the crucial date. This position knocks out the case of the plaintiffs completely. They had obviously no cause of action to institute the suit.

 

Article 3 of Schedule I of Limitation Act, 1908 provides a limitation of six months from the date of dispossession. The letter issued by the defendant-Company to the S.H.O. which has been referred to by the learned counsel for the plaintiffs itself reveals that the last supply was made on 17-10-2000.

 

It is an admitted position that the suit property is a petrol pump which can only be used as an outlet for retail supply of the petroleum products received by them from defendant No.1 company. In case no supply was made since October, 2000, admittedly there was no business activity. This fact coupled with the factum that the licence of the plaintiffs was terminated by defendant No.1 as back as in the year 1997, would show that the plaintiffs were not in possession of the suit property on 9-6-2001 as alleged by them. Learned counsel for the plaintiffs was unable to rebut this fact and also admitted that the termination of the licence was not challenged by the plaintiffs anywhere since then as, according to him, the said relinquishment of dealership licence was not acted upon. In any case, the fact remains that the dealership of the plaintiffs predecessor-in-interest stood terminated. Besides, there is no denying of the fact that relationship between the plaintiffs- and defendant No. 1 virtually came to an end on 17-10-2000 when the last supply was made to the plaintiffs by defendant No. 1.

 

It may be observed that the law or limitation, which is a statute of repose, is designed to quieten title and to bar stale and water-logged disputes and is to be strictly complied with. The Courts cannot refrain from applying the law of limitation whenever it is applicable.

 

I have also benefited from the principles laid down in the case-law referred to by the learned counsel for the plaintiffs, however with utmost regard, I must say that most of it was of little relevance.

 

Having said so, I have no option but to hold that the suit does not disclose cause of action, and is also barred by time. This leads me to the conclusion that this still born suit must be buried, so that no further time is consumed in the fruitless litigation.

 

The application under Order VII, Rule 11, C.P.C. is accordingly allowed and the plaint is rejected.

 

M.B.A./U-31/K Order accordingly.

 

 

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