2014 P L C (C.S.) 219
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar, J
GHULAM HUSSAIN
Versus
CHAIRMAN/SECRETARY S&GAD, HOUSING ALLOTMENT COMMITTEE,
QUETTA and 2 others
Civil Revision No.233 of 2012, decided on 6th February, 2013.
(a) Civil Procedure Code (V of 1908) ---
----O. VII, R. 11 ---Rejection of plaint ---Documents essential to be considered by court ---Scope --
-Only contents of plaint would be seen.
(b) Residential Accommodation at Quetta (Procedure for Allotment) Rules, 2 009---
----Rr. 10(11) & 11(14) ---Official residence, allotment of ---Preferential right of allotment
claimed by a person having come into possession of such residence without permission of
authorities concerned ---Validity ---Government servant in order to claim such allotment would
have to establish his right within parameters provided in Residential Accommodation at Quetta
(Procedure for Allotment) Rules, 2009 ---Such person could not claim to be an "informant" of
subletting and his possession would be as a n "illegal occupant" ---Notice to such person for
vacation of the premises, if issued by authorities, would not be illegal in circumstances.
(c) Civil Procedure Code (V of 1908) ---
----O. VII, R. 11 ---Exercise of powers by court under O.VII, R.11, C.P. C.---Scope ---Court could
reject plaint, but could not dismiss suit.
Tahir Ali Baloch for Petitioner.
Amanullah Baloch along with Akbar Kamal, Civil Estate Officer S&GAD for
Respondents Nos.1 and 2.
Sarwar Awan for Respondent No.3.
Date of hearing: 14th November, 2012.
JUDGMENT
MRS. JUSTICE SYEDA TAHIRA SAFDAR, J. ---- Feeling aggrieved of the order and
decree dated 5th November, 2011 of the Senior Civil Judge -I, Quetta, whereby the suit filed by
the petitioner was dismissed, and order d ated 22nd June, 2012 of Additional District Judge -II,
Quetta, whereby the appeal preferred against the order also met with the same fate, the petitioner
filed the instant petition. It was his contention that in contravention of the law and in
misappreciati on of the facts, and the material on record the impugned orders were passed.
Further, neither the issues were framed, nor the parties were allowed to produce their respective
evidence. Furthermore, the oral, and the documentary evidence was not considered. Therefore,
resultantly the decision arrived by the courts below was in contravention of the facts. It was
further contended that the rent of house in question was regularly deducted from his (petitioner's)
salary, being a supporting fact, was not duly con sidered, thereby prejudiced his right. It was
prayed that the impugned orders be set aside and the suit be remanded to the trial court with a
direction to dispose of the same on its own merits.
2. Brief facts as reflected from the papers annexed with the petition that the suit was filed by
the present petitioner Ghulam Hussain, with a prayer of declaration of his entitlement for
allotment of the premises in question i.e. Quarter No.H -4 Wahadat Colony, Quetta. Further, the
allotment of the premises in ques tion in favour of respondent No.3 was questioned with a prayer
to be declared as illegal, and arbitrary, with a further prayer for its cancellation. In addition
thereto an injunction was sought to restrain the official defendants from his (petitioner's) fo rcible
dispossession from the questioned premises.
3. Further, respondents Nos.1 and 2 in their joint reply and respondent No.3 in his separate
reply raised similar plea. It was their contention that initially the premises in question was
allotted in fav our of one Kamran Ahmed, Assistant Director P&D Department, who approached
the concerned authorities with a request that the suit premises be allotted in favour of Ghulam
Hussain, Junior Clerk, Agriculture Extension Department (the petitioner), as he was s hifting in
his own residence. It was further their contention that as a request of respondent No.3 for
allotment of the suit premises, earlier in time, was under consideration, therefore, it was allotted
in his (respondent No.3) favour. But, the previous a llottee with mala fides refused to hand over
the possession of the suit premises to the legal allottee, which resulted into issuance of a notice to
the ex -allottee to hand over the vacant possession within seven days. But, instead of handing
over the posse ssion to respondent No.3, a civil suit was filed by the present petitioner. There was
also a specific objection for rejection of the plaint under Order VII, Rule 11, Civil Procedure
Code (C.P.C.).
4. The papers further reveals that the trial court vide o rder dated 12th May, 2011, while
deciding the application under Order XXXIX, Rules 1 and 2, C.P.C. also dismissed the suit while
holding it to be filed without any cause of action. This order was challenged by way of filing an
appeal, which was decided by the appellate court i.e. District Judge (Ad hoc), Quetta on 14th
September 2011, thereby the suit was ordered to be remanded to the trial court with a direction to
frame issues, and decide the suit in accordance with law. On remand the trial court failed t o
frame any issue, but again heard the parties, and thereby arrived to the decision that the petitioner
filed the suit without having any locus standi, and without a prima facie case in his favour, and
dismissed the suit under Order VII, Rule 7, C.P.C. vid e order dated 5th November, 2011. Still
feeling aggrieved, an appeal was preferred, but the appellate court vide order dated 22nd June,
2012 concurred with the findings of the trial court. But, the petitioner still remained un -
contended, and preferred the instant petition for a favourable order.
5. Learned counsel for the petitioner argued the matter at length. Learned counsel stated that
the trial court failed to frame proper issues, while decided the matter through a non -speaking
order, thereby committe d an illegality. He contended that the case be remanded to the trial court
with a clear direction to frame issues arising from the pleadings and called for evidence of the
parties, and on completion decision be made. On merits the learned counsel was of th e view that
the rules applicable in the matter were not followed by the concerned authorities. A reference
was made to the Rule 3 and Rule 7 of the Residential Accommodation at Quetta (Procedure for
Allotment) Rules, 2009 (herein after referred as the Rule s, 2009). It was his contention that the
petitioner was very much eligible for allotment of the suit premises, but his application was not
entertained by the concerned authorities in violation of law. Further, the preferential right for
allotment of the su it premises in favour of the petitioner was ignored, and in its complete
disregard the premises was allotted in favour of respondent No.3, by the concerned authorities,
which was of no legal effect. He again requested that the case be remanded for retrial of the
matter.
6. In reply the Government Pleader, representing the official respondents, also agreed with
the request for remand of the case. But, in addition it was contention of the learned counsel that
the petitioner was a trespasser, having no legal title in respect of the suit premises, which was
allotted in favour of respondent No.3 on 25th January, 2011, by the concerned authorities. The
learned counsel contended that the petitioner was in illegal possession of the suit property,
therefore, no dec laration can be made in his favour. Furthermore, as no cause of action existed in
favour of the petitioner, therefore, the trial court passed an order suitable in the matter. The
learned counsel was of the view that the trial court might have rejected the plaint under Order
VII, Rule 11, C.P.C. instead of making an order for dismissal of the suit.
7. The learned counsel for respondent No.3 also supported the judgment of the courts below
with a contention that the petitioner was an illegal occupant, theref ore, have no locus standi, nor
any cause of action in his favour for filing a civil suit. Learned counsel referred to Rule 10, sub -
Rule (1), and Rule 11, sub -Rule (14) of the Rules, 2009, with a contention that the right alleged
by the petitioner was non -transferable, therefore, the ex -allottee did not have any authority to
pass the possession to the petitioner. He prayed for dismissal of the petition being without merits.
8. The petitioner as per contents of his own plaint claimed himself to be in occupa tion of the
suit premises i.e. Quarter No.H -4 Wahdat Colony, Quetta, which was previously allotted to one
Kamran Ahmed. According to his (petitioner's) own plea he was residing in the questioned
premises with Kamran Ahmed, who was shown to be his relative, who (Kamran Ahmed) had
already been shifted in his own house while leaving possession with the present petitioner. It was
his (petitioner' s) case that said Kamran Ahmed submitted an application for allotment of the
questioned premises in his favour. The petitioner further, raised a plea of preferential right for
getting allotment of the suit premises, thereby challenged the allotment made in favour of
respondent No.3. The official, and private defendants filed written statements, and strongly
contested th e suit.
9. It was observed that on remand of the case by the order of the appellate court dated 14th
September, 2011, the trial court was bound to frame issues, and to proceed with the matter in
accordance with law. But the trial court failed to comply with the order, and the issues were not
framed. But, heard the counsel for the parties, and decided the fate of the suit on basis of
objection "E" taken in the written statement. This objection was to be effect: ---
"That the plaintiff is an illegal occu pant of the Quarter in dispute as the previous allottee
i.e. Mr. Kamran Ahmed while leaving the said Quarter, illegally handed over it to the plaintiff."
10. It seemed that the trial court noted down wrong preliminary legal objection in the order,
as the suit was dismissed under Order VII, Rule 11, C.P.C. The relevant objection would be "B"
of the written statements, which was to the effect:
"That the plaintiff has no prima -facie case nor has locus standi to institute case, as such
the same deserves to be rejected under Order VII, R.11, C.P.C."
11. The trial court though in disregard of the order of the appellate court decided the matter
without assigning any reason for its decision. But, the appellate court though ignored the fact of
non-framing of t he issues, but not only considered the material on record, but also observed the
relevant law, thereby concluded the matter. In view of nature of the case, though there was an
error on part of the courts below about non -framing of issues, but remand of the case would
amount to abuse of the process of law. Because, it is a matter pertaining to a residence owned by
the Provincial Government, and to be dealt with in -accordance with the Rules applicable in the
matter. Therefore, the plea taken in the plaint is to be assessed with the relevant Rules to exercise
jurisdiction under Order VII, Rule 11, C.P.C. As it is an established principle that for rejection of
plaint under the referred Order only contents of the plaint has to be seen.
12. Certain facts appeare d from perusal of the plaint, which need consideration. As per his
(petitioner's) own plea till date no valid order for allotment of the suit premises issued in his
favour. Rather, the same was allotted in the name of respondent No.3, which was in field ti ll
date. The law applicable in the matter is the Residential Accommodation at Quetta (Procedure
for Allotment) Rules, 2009. Therefore, to claim a right for a residence owned by the Provincial
Government, a government servant has to establish his right for the same within the parameters
provided in the Rules 2009. It was not a denied fact that the petitioner was a government servant,
and still in service, but only this fact not make him entitled for allotment of a government
residence. Rather, the eligibilit y is to be assessed as per Rule 3 of the Rules, 2009. Further, a
proper procedure for allotment is also provided in the relevant Rules. Further, the petitioner
might have applied for allotment of the questioned premises, but it was also an admitted fact th at
his request was never allowed by the competent authority, as no valid order was issued in his
favour, rather the suit premises was allotted in favour of respondent No.3. If he was aggrieved of
the order he may have availed the remedy provided under Rule 6, sub -Rule (4) of the Rules,
2009, by way of filing an appeal, but it was not done.
13. In addition thereto a preferential right had been claimed by the petitioner, but with no
explanation. The learned counsel for the petitioner before this court asser ted with vehemence that
the petitioner being the first informant, therefore, the concerned authorities were bound to allot
the premises in question in his (petitioner's) favour. Rule 10, sub -Rule (11) of the Rules, 2009 is
relevant, which describe the righ t of a first informant. It would be beneficial to reproduce the sub
Rule: ---
"The first informant of sublettery case of retention of accommodation after seizing of the
entitlement shall be rewarded by allotment of that particular accommodation on vacati on of the
allottee, "
14. The case of the petitioner surely not covered by this Rule. He never informed about
subletting of the questioned premises to the concerned Authorities. Rather, according to his own
plea he without permission of the concerned aut horities came into possession of the questioned
premises, which turned his own status as of illegal occupant. Furthermore, sub -Rule (14) of Rule
11 of the Rules, 2009 provide a complete procedure to be held against an unauthorized occupant.
Therefore, in v iew of the narrated facts the cancellation of the allotment from the name of
Kamran Ahmed, and issuance of notices for vacation of the premises in question to the ex -
allottee, and also to the present petitioner were not illegal in the circumstances.
15. Furthermore, the petitioner though claimed himself to be a relative of ex -allottee Kamran
Ahmed, but this declaration of relationship also not create any right for allotment of the premises
in his favour. Rather, Rule 11, Sub -Rule (4) of the Rules 2009, de scribed the entitlement of the
close relatives such as, father, mother, real brother, real sister, real son, wife or husband of the
allottee for retention, and allotment of the residence. The case of the petitioner was also not
covered under this Rule, nor he can derive any benefit therefrom. Furthermore, the petitioner in
his plaint and also before this court strongly asserted that rent of the premises had been regularly
deducting from his salary. It may be so, but this deduction of rent from his salary do es not create
any right in favour of the petitioner in absence of a valid allotment order in his (petitioner's)
favour. He may have asked for return of the money so deducted. In view of the narrated facts,
there was no case in favour of the petitioner, as no cause of action accrued to him to approach a
court of law, as there was no denial of any lawful right available to him.
16. In view of above discussion it is noted with pain that the petitioner is not only enjoying
the possession of the suit premises without having any legal right, during all these years, but
succeeded to gain enough time by prolonging the proceedings, thereby deprive the person having
lawful allotment order in his favour. In view of the same though proper issues were not framed,
and t he courts below committed irregularity. But keeping in view the nature of the case, and the
conduct adopted by the petitioner, it will neither be just, nor proper to remand the case for re -
decision of the matter with a direction to frame issues. The courts below fortunately arrived to
the right conclusion, which need no interference. The petitioner, as discussed hereinabove, in
view of his own pleadings have no legal character nor any cause of action accrued in his favour.
The only error committed by the co urts below was dismissal of the suit in exercise of powers
under Order VII, Rule 11, C.P.C., rather the plaint was required to be rejected. It can easily be
rectified.
17. In view of the above discussion the impugned order dated 5th November, 2011 of the
Senior Civil Judge -I, Quetta, and the order dated 22nd June, 2012 of Additional District Judge -II,
Quetta are hereby upheld with modification, that the plaint is rejected under Order VII, Rule 11,
C.P.C. Decree sheet be corrected accordingly.
The petit ion stand disposed of in the above terms with no orders as costs.
SAK/31/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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