IN THE COURT OF DISTRICT JUDGE KARACHI CENTRAL
Civil Appeal No.
Tariq Khan Abbasi ……………………………………………… APPELLANT
V E R S U S
S. Khalid Mumtaz ……………………………………..………… RESPONDENT
CIVIL APPEAL U/S. 96 CPC
Being aggrieved and dissatisfied with the order passed on Application Under XXXIX Rule 1 & 2 CPC by the Learned.. , in Civil Suit # …, dated … , thereby rejecting the plaint under Order VII Rule 11 CPC, the Appellant prefers this Appeal & prays that this Hon’ble Court may be pleased to call for the record & proceeding of above mentioned suit & after scrutiny of the legality & sanctity of the impugned Order & hearing, set aside the impugned Order of rejection of plaint/ judgment/Decree & restore the plaint in its original position & to allow the appeal on consideration of the facts & grounds mentioned herein under :-
Certified Copy of impugned Order is enclosed herewith & marked as Annexure “A”)
F A C T S
1. That the Plot NO.A-30, Sector 15-B, North Karachi, measuring Sq. Yards (Hereinafter referred to as the Said Property) was originally allotted to one Qadeer ur Rehman S/o. A. Rehman vide serial No. 15, at Book No. 55 of Allotment Orde dated 11.02.1978 & physical possession was also handed over to him on the same day by the KDA, Director of Housing & Town Resettlement.
(Photo Copy of Allotment Order Serial # 15, Book # 55 enclosed herewith & marked as Annexure A/1)
2. That the said Qadeer Rehman sold the said Plot to one Mst. Nasima Begum w/o. A. Ghaffar which was duly Transferred in her name by the Assistant Land Manager North Karachi Zone Karachi Metro Corp. after payment of all charges.
(Copies of: -
1. Transfer Order…
2. Paid Challan …
3. Site Plan of the Plot are enclosed herewith and marked as Annexure /2, A/3 & A/4)
3. That the Appellant purchased the said Plot from Mst. Nasima Begum
W/o. A. Ghaffar against a total consideration of Rs.200, 000/= (Rupees two hundred thousand only) vide Sale Agreement dated 6th Dec, 1988 alongwith Delivery of peaceful physical possession & all original documents as well and as such the Appellant is bonafide purchaser & lawful owner of the said plot and too is in peaceful physical possession since 6th Dec, 11988. it is pertinent to mention here that the Appellant is residing in Plot No. A-29 which is just adjacent to the said Plot.
(Copies of:
a). Sale Agreement dated 6th Dec 1988
b). Payment Receipt of Rs.200, 000/=
are enclosed herewith & marked as Annexure “ A/5 & A/6.”
4. That all of sudden on 25.6.2003 the Respondent alongwith some ghunda elements visited the said Plot & tried to dispossess the Appellant forcibly claiming him to be an owner of the said Plot but due to intervention of Muhalla people they could not succeed but they extended threats for dire consequences to the appellant & his family with the result that the Appellant sent Telegram to the higher authorities including Hon’ble Chief Justice High Court of Sindh, IG Police Sindh, etc. against unlawful acts of the Respondent and his companions/ Ghunda elements.
(Copies of:
i. Telegramme
ii. Postal Receipts.
Are enclosed herewith & marked as Annexure “A/7 & A/8 ”.)
5. 5. That on 27.6.03 the Respondent again alongwith some Ghunda elements visited the site armed with dundas tried to enter in the said plot in the absence of the appellant where boundary wall has been erected but again when family members of the @ were crying the Muhalla people intervene & the Respondent left the said Plot by giving final notice to vacate the said Plot by Sunday, 29th June 2003 otherwise he will dispossess the @ forcibly on 30th 2003 & also extended threats for dire consequences to the @.
6. That due to said unlawful acts & threats for dire consequence & dispossession of the said Plot by the Defendant forcibly without due course of law & such the @ was left with no alternative remedy except to seek shelter of Hon’ble Court & filed the present suit for Permanent Injunction wherein after service of summons the Status-quo order was granted on 7.7.2003.
Copies of:
i.) Plaint of Suit No.655/03
ii.) Application U/O 39 R 1& 2 CPC & its supporting affidavit.
iii.) Status-quo Order dated 7.7.03
iv.) Written Statement
v.) Counter Affidavit to stay Application.
Are enclosed herewith & marked as Annexure “A/9 to A13).”
7. That it is submitted that the Respondent filed his W/S. & counter affidavit to stay application and after hearing the parties counsel the learned Trial Judge rejected the plaint U/O. VII Rule 11 CPC. Hence this appeal on the following grounds:-
G R O U N D S
1.) That the impugned order of the learned Trial Court is the result of patent illegality.
2.) That the learned Trial Court has totally failed to look into the proper provision of law and observation.
3.) That on the basis of which document the plaint has been rejected, admittedly the same is not in the same of the Defendant and Power of Attorney executed in favour of the Defendant is a forged document as per verification of document by Micro Filming Unit Karachi vide No.113/MFU/DR/2003 dated 3.9.03 and as such the impugned order is liable to be set aside.
(Photocopy of letter of the same is annexed herewith and marked as “Annexure P/ .”)
4.) That the learned Trial Court has erred in law by holding that Suit for Permanent Injunction without seeking relief of Declaration is not maintainable especially where the appellant has only come to the Hon’ble Court for permanent injunction that he may not be disposed without due course of law.
5.) That the order passed the learned Trial Court is quite illegal, arbitrary & against the principal of natural justice, law and equity.
6.) That the learned Lower/Trial Court has committed serious error in law holding the plaint is liable to be rejected U/O. VII Rule 11 CPC.
7.) That the learned Trial Court has wrongly exercised the observations in rejecting the plaint without considering the correct provisions of O. VII R11 CPC.
8.) That the impugned order is to be set aside and suit/plaint is liable to be decreed under the law.
9.) That the appeal is within time and no appeal has been preferred against the impugned order except the present one.
10.) That the appellant craves permission to urge additional grounds at the time of hearing.
Karachi.
Dated:
A P P E L L A N T
S.M ZUBAIR
COUNSEL FOR THE APPELLANT
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