IN THE COURT OF CIVIL JUDGE VI CENTRAL KARACHI
SUIT NO. 711/2006
Moinuddin Farooqui……….….……..Vs……….……………Javed Raza
REJOINDER ON BEHALF OF THE PLAINTIFF IN REPLY TO
THE COUNTER AFFIDAVIT FILED BY THE DEFENDANT JAVED RAZA ON APPLICATION OF THE PLAINTIFF FOR ISSUANCE OF DIRECTION TO THE DEFENDANT TO CROSS EXAMINE THE PLAINTIFF WITHIN THE AMBIT OF THE PLEADING _____________
I, Moinuddin Farooqui S/o Haleemuddin Farooqui, Muslim, adult, R/o Karachi do hereby state on oath as under :-
1. That I am the plaintiff in the above matter and as such well conversant with the facts of the case.
2. That I have been readover and explained the contents of the counter affidavit and I deny the same as false and baseless with all its legal implication.
3. That it is established view of the supreme judicial authority that first to state then to plead.
4. That the contents of para 1 need not reply, however the same is not in accordance with the Sindh Civil Court Rules.
5. That the contents of para 2 of the counter affidavit are denied as false and baseless with all its legal implications. It is denied that the contention of my application appeared incorrect, false, baseless and against the law and prescribed procedure of adjudication. It is denied that in fact such application is challenging judicial powers/abilities of presiding officer of this Hon able Court. It is false to say and as such denied that on the admitted facts the alleged allegations relates with the procedure/manner of adjudication for deciding the matter on merits. It is fasle to say that my application is liable to be rejected being merit less as well as against the law with special compensatory cost to the defendant.
6. That the contents of para 3 of the counter affidavit are denied as false and baseless with all its legal implications. It is denied that it is undisputed there is no any provision of law available for such manner in the country law particularly in Qanun-e-Shahadat Order 1984. It is again denied that it is crystal clear the such manner of applying application is a crude attempt to misguide this Hon able Court to create own mistake.
7. That the contents of para 4 of the counter affidavit are denied as false and baseless with all its legal implications. It is denied that it is in the Qanun-e-Shahadat Order 1984 that during the course of examination of the witness and cross under article 130 it is clear that the court at liberty as well as having power to apply its own procedure by way of its practice for recording evidence as well as for deciding the matter on merits. It is admitted as admittedly pleading means plaint and written statement as per orders rule 1 CPC. In fact the defendant as per his habit and practice has again attempted to misguide this Hon able Court. For instance before the Hon able Rent Controller, the defendant admitted the tenancy agreement. I sent legal notice to the defendant and in para one of the said legal notice it has been clearly mentioned as under:-
“1. That you are the tenant under a tenancy agreement dated
18/11/1996 in respect of the single storey house consisting two badrooms, one dringroom and TV launch and other amenities constracte over plot No. R-320, Sector 11-C-3, Sir Syed Town, North Karachi, Karachi on a monthly rent of Rs. 3,500/- plus electric, Sui gas and other charges to be paid by you.”
The defendant through his learned advocate namely Mushtaq Ahmed, advocate High Court replied 1st para of my legal notice as under:-
“2. That the contents of para 1 of your notice are admitted upto
the extant that my client is tenant of your client under a tenancy agreement dated 18/11/1996 at the rate of Rs. 2,800/- P.M. and presently at Rs. 3,500/- per month.
7(a). That in ejectment proceeding RC No. 396/2004 the defendant admitted and has not disputed the above position and in para 2 of the written statement has stated the opponent for the period of tenancy ship never defaulted in payment of rent and always proved to be good pay master. The defendant was proved under the law to be defaulter and he was evicted from the tenement.
8. That in the present suit the first of para of the legal notice repeated and typed but there is no specific denial of the facts mentioned in the plaint. Even evasive denial of the facts mentioned in the plaint has not been pleaded and according to the legal advice which I believe to be true and correct, facts not specifically denied presumed to have been accepted.
9. That under the above circumstances and the pleadings, the defendant put several unnecessary questions, disputing the tenancy agreement so also the judicial proved facts that the defendant is my tenant and is liable to pay rent.
10. That it is established view of the superior courts that no cross examination on admitted documents but the defendant causing unnecessarily harassing me by putting irrelevant question it is admitted position from the judicial records that I came into possession of the tenement under the orders of the Hon able Rent Controller.
REPLY OF THE LEGAL OBJECTIONS
1. That the contents of para 1 of the legal objection are denied as false and baseless. It is denied according to the legal advice which I believe to be true and correct that the suit is barred under the law of stopple and law of limitation. This contention clearly shows lack of knowledge of the defendant regarding “Stopple” and law of limitation. I filed first suit being No. 612/2005 in this Hon able Court for the arrears of rent from May 2004 to June 2005 for Rs. 49,000/- as pleaded in para 9 of the plaint and the present suit is filed on 4th September 2006 for the rent from July 2005 to August 2006 for 14th month amounting to Rs. 49,000/-. It is submitted that when on 26/04/2006 when suit No. 612/2005 was filed, no cause of action had arisen for claiming rent from July 2005 to August 2006 as such my suit Is not barred under the law of Stopple and Law of Limitation. The suit has been filed within time.
2. That the contents of para 2 of the counter affidavit are also denied as false and baseless with all its legal implications. According to the legal advice which I believe to be true and correct the suit is not barred under the law of declaration/entitlement.
3. That the contents of para 3of the counter affidavit are denied as false and baseless with all its legal implications. That according to the legal advice which is believe to be true and correct my suit is very much maintainable in the eyes of law and is not based on misstatement, fraud, malicious, malafide, and vexatious application based of no evidence/relation.
4. That the contents of para 4 of the counter affidavit are denied as false and baseless with all its legal implications That according to the legal advice which I believe to be true and correct my suit is very much maintainable and it is false to say that the same is not maintainable.
PARA WISE REPLY
1. That the contents of para 1of the counter affidavit are denied as false and baseless with all its legal implications. It is denied that the facts stated by me is based on no relation, cause of action locus standie or any evidence and the plaintiff has not annexed any sort of documents to prove his entitle in any way. I along with the plaint filed P-1 tenancy agreement P-2 legal notice sent to the defendant along with the annexure P-3/1 showing the records bearing signature of the defendant so also P-3/2 the TCS report “delivered” and reply of the letter of Mushtaq Ahmed Advocate and annexure P-5 is the postal receipt bearing No. 348 and so also the judgment dated 26/04/2006 passed in Civil Suit No. 618/2005.
2. That the contents of para 2of the counter affidavit are denied as false and baseless with all its legal implications. It is submitted that the defendant falsely submits that his title to the property in question has been cleared after execution of sale agreement by the plaintiff that the purchaser Dildar Ali in the month of April 2004 in the rent case as well as execution possession of the premise obtained by the plaintiff from the purchaser so deliberately and purpose with the malafide intention the necessary party Dildar Ali has not impleaded for avoiding actual and real facts by way of adopting malafide intention beside the above defendant in possession till April 2004 and was paying rent regularly for the last several years regularly, same facts asked by the defendant from the plaintiff during the course of evidence in this matter. It is denied that such malafide act already effected in the legal proceeding from the side of the plaintiff in the Karachi Central and civil suit No. 618/2006 in this Hon able Court on the same footing manner version and alleged claim thus the jurisdiction of the court also barred in view of point of law the provision of order 2 rule 2. It may be appreciated that the defendant has put question showing the legal notice to me that I failed to file any proof to the fact that I sent legal notice to the defendant and when I draw his attention towards the postal receipt and other proof as well as reply of Mr. Mushtaq Ahmed learned advocate on behalf of the defendant, the learned advocate misbehaved with me. The learned advocate has put several compound question which are not permissible under the law.
3. That the contents of para 3of the counter affidavit are denied as false and baseless with all its legal implications. In suit No. 618/2006 the defendant was served, he engaged his previous advocate who filed Vakalatnama and also filed the written statement, I was cross examined by the said learned advocate and thereafter the defendant as per his habit abanded the proceeding, judgment was pronounced, execution filed which the defendant too avoided and when salary was attached then the defendant came and filed application under section 12(2) without mentioning the fraud and misrepresentation. When the defendant was served and he appeared contested the matter then no fraud or misrepresentation. As regards the orders passed by this Hon able Court is only to the extant of framing the issue with regard to the fraud and misrepresentation and the same order has been assailed in the revision and the same is being contested by the defendant and even then he is reluctant rather suppressing these facts malafidely as per his habit and under ill advice by some fertile mind. Suppression of facts making false statement is the routine practice of the defendant.
4. That the defendant attempted to misguide this Hon able Court on factual as well as on legal ground. Under all circumstances, law does not permit to cross examine the witness out side the pleading and under the law the defendant can not put any question on admitted documents.
5. That the according to the legal advice which I believe to be true and correct my application is very much maintainable.
6. That using indecent language, words in a very humiliating manner and compelling me to answer the question according to the whims and choice of the defendant, is the practice of the learned advocate for the defendant and when my advocate objected, the learned advocate for the defendant became furious and at one occasion in a highly indecent manner and using indecent words said “I am going to leave the court room” or the court should allow me to put the question out the side the pleading in harsh and using indecent language. This Hon able Court has observed and mentioned during cross examination that both the advocates should maintain the decorum of the court. The court in a decent manner disallowed irrelevant question upon which the learned advocate for the defendant was much annoyed.
7. That the counter affidavit has not been sworn as required under Sindh Civil Court Rules and as such inadmissible and is liable to be discarded.
8. That unless my application is allowed I shall be seriously prejudice and shall suffer irreparable loss.
9. That whatever I have not admitted is hereby denied by me as false and baseless.
10. That whatever stated above is true and correct to the best of my knowledge and belief.
Dated :- 7/10/2010 Deponent
Identified by me
Solemnly affirmed before me by the deponent on this 7th day of October 2010 who is identified by Mr. Mirza Moazzam Baig Advocate, who is known to me personally.
COMMISSIONER FOR TAKING AFFIDAVITS
The contents of the above paras were read over and explained to the deponent in Urdu being ignorant of the English language in which it is written and she appears to have understood the same and put her signature in my presence.
COMMISSIONER FOR TAKING AFFIDAVITS