2004 CLC 308 KARACHI-HIGH-COURT-SINDH

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MUHAMMAD ASLAM VS KARACHI DEVELOPMENT AUTHORITY 1979 CLC 742, 1987 MLD 305, 1989 SCMR 836, 1999 CLC 723, 2002 CLC 1275, PLD 1987 SC 145, PLD 1993 Lah. 183, PLD 1995 SC 406, Civil Procedure Code --Order VII of C.P.C. Plaint--11 , Code of Civil Procedure 1908--11 , Sindh Public Property (Removal of Encroachment) Act 1975--11 , Sindh Public Property (Removal of Encroachment) Act 1975--12 , Sindh Public Property (Removal of Encroachment) Act 1975--13 , Sindh Public Property (Removal of Encroachment) Act 1975--3 , Sindh Public Property (Removal of Encroachment) Act 1975--9 , Specific Relief Act 1877--42 , Specific Relief Act 1877--54 , ----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.11 & O.VII, R.11---Sindh Public Property (Removal of Encroachments) Act (V of 1975), Ss.3, 9, 11, 12 & 13---Suit for declaration, injunction and damages---Initiation of proceedings under S.3 of Sindh Public Property (Removal of Encroachments) Act, 1975 for eviction of plaintiff from disputed land---Plaintiff first filed Constitutional petition, and after its dismissal filed petition before Supreme Court, but withdrew the same--Plaintiff thereafter filed the present suit---Defendant sought rejection of plaint on the ground that suit was hit by S.11, C.P.C. and thus was barred by law---Plaintiff's plea was that since the suit was also for damages, plaint was not liable to be rejected under O. VII, R.11, C.P.C.---Validity---Relief for damages in itself was not a new cause of action, but a consequential relief---Unless and until plaintiff first established his right over the disputed land, he could not claim damages---If plaintiff failed to establish his claim over disputed land, his claim for damages would evaporate in the air---After dismissal of Constitutional petition and petition for leave to appeal before the Supreme Court, plaintiff could not claim any title or interest in the disputed land---Suit was, thus, hit by principles of res judicata---Without first availing remedy of appeal before Tribunal as envisaged under S.12, Sindh Public Property (Removal of Encroachments) Act, 1975, suit being premature was hit by Ss.9,_11 & 13 of the said Act and barred by principle laid down in Tariq Transport Company's case PLD 1958 SC (Pak.) 437---High Court rejected the plaint under O. VII, R.11, C:P.C.