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Petitioner: NOOR MUHAMMAD VS Respondent: CIVIL AVIATION AUTHORITY and another
Court Name: Sindh High Court Judge(s): Tanzil-ur-Rehman Title: NOOR MUHAMMAD vs CIVIL AVIATION AUTHORITY and another Case No.:Suit No. 457 in Civil Miscellaneous Applications Nos. 3241, 3310 and 3311 of
1986 Date of Judgment:1986-08-28 Reported As: 1987 CLC 393 Result: Stay granted. Judgment ORDER ' These are three applications bearing Civil Miscellaneous Applications Nos. 3241, 3310 and 3311 of 1986 filed by the plaintiff under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Arising out of the suit filed by the plaintiff on 13-7-1986 for declaration that the plaintiff is a tenant in respect of shop situated near Air Freight Unit, Terminal No.1, Karachi Airport, Karachi, and permanent injunction restraining the defendants from dispossessing or otherwise interfering with the rights of the plaintiff to occupy and to use the said shop and further restraining them from disposing of or allotting or transferring the shop to any other person. The first application for interim injunction pending hearing of the suit was filed alongwith the suit which came up for Chamber orders before me on 14-7-1986. A notice of this application was ordered to be issued to the defendants for 23-7-1986. On 23-7-1986 when the matter came up in Court for hearing of the said application, the matter was also fixed for orders on the other two applications filed by the counsel for the plaintiff. In the said two applications it was submitted that the defendants after the service of notice of Civil Miscellaneous Application No. 3241 of 1986 have forcibly taken over possession of the shop in question on 22-7-1986. This fact was admitted by the learned counsel for the defendants. Learned counsel for the defendants received a copy of the said application and waived notice. It contains two prayers, namely; (i) to unseal the shop in question and (ii) to restore to the plaintiff the articles of the plaintiff which the defendants had removed and taken away. The defendant's counsel with Mr. Nisar Alam, Senior Legal Officer of the defendants gave an undertaking to return the said articles to the plaintiff, according to inventory of articles as prepared by them at the time of taking possession of the shop. I, however, at the joint request of the counsel for the parties appointed the
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Official Assignee as Commissioner to take possession of the said articles from the defendants and deliver the same to the plaintiff. The application was, however, adjourned to consider the prayer of unsealing the shop in question in order to enable the defendants to file counter-affidavit. The 3rd application (Civil Miscellaneous Application No. 3311 of 1986) was also adjourned by me to enable the defendants for filing the counter-affidavit. Meanwhile the defendants were restrained from reletting or allotting the said shop or otherwise dispose of the same to any one else till the hearing of the said application. It was, however, noticed that the possession of the shop was taken away by the defendants forcibly after the service of the notice issued by this Court. In thatcircumstance, the official Assignee was appointed to be the Receiver in the case to take possession of the shop in question and retain the same with him till further order of this Court. For new developments that had taken place in the case I also adjourned the first application. Now, these applications are heard together. 2. Mr. Khalid M. Ishaque, learned counsel for the defendants took a preliminary objection that the prayers for permanent injunction as contained in sub-clauses (ii) and (iii) of the prayer clause cannot be granted as the plaintiff was no more in possession. He further submitted that mere relief as contained in clause (i) of the prayer clause that the plaintiff is a tenant in respect of the shop in question cannot, in the said circumstance, be granted to the plaintiff under section 42 of the Specific Relief Act, 1877, unless the plaintiff amends the plaint and prays for possession also. In view of this objection which the learned counsel described as 'basic' objection or 'question' it deemed proper and necessary to decide first the Civil Miscellaneous Application No. 3310 of 1986. 3. It is an admitted position that the plaintiff was dispossessed by the defendants after the service of the notice of the injunction application on them. It is, however, submitted on behalf of the defendants that the plaintiff was permitted by the predecessor-in-interest of defendant No. 1 to occupy shop premises at terminal No. 1 at Karachi Airport and do business there as a licensee for a period of one year commencing from 1-9-1976. The relationship between the plaintiff and defendant No. 1/its predecessor-in-interest was always that of licensor or licensee. The plaintiff did not have the right to use the said shop to the exclusion of the defendants. It was further submitted that the relief for unsealing the shop cannot be granted as the defendant No.1 is in lawful possession of the shop and the plaintiff who was merely a licensee was not entitled to restoration of possession. The defendants being owners of the property cannot be denied the right to use the shop as they desire. 4. On the other hand, it was submitted by Mr. Shahenshah Hussain, learned counsel for the plaintiff that the plaintiffs forcible dispossession by the defendants was wrongful and it will be proper and in the interest of justice that the plaintiffs possession is restored to him without going into the merits of the case, at this stage, while considering the two applications. He placed his reliance on the case of J. Edward Jones v. Securities and Exchange Commissioner reported in United States Supreme Court Reports Book 80, Lawyers Edition, which seems to be Report of cases argued and decided in Supreme Court of the United States, October Terms, 1935, published by the Lawyers Co- operative Publishing Company, Rochester, New York, 1936. It was observed at page 1021 column 1 of the said Report that:- "The rule is well-settled, both by the Courts of England and of this country, that where a suit is brought to enjoin certain acts or activities for example the erection of a building or other structure, of which suit the defendant has notice, the hands of the defendant are effectually tied pending a hearing and determination, even though no restraining order or preliminary injunction be issued." ' It was further observed that:- "The Supreme Court of Pennsylvania in several cases has followed the same rule. Clark v. Martin, 49 Pa. 289, 298, 299; Easton, S.E. & W.E. Pass. R. Co. v. Easton, 133 Pa. 505, 519, 19-A, 486; Cooke v. Boynton, 135 Pa. 102, 19-A, 944; Meigs v. Milligan, 177 Pa. 66, 72, 76, 35-A, 600; Fredericks v. Huber, 180
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Pa. 572, 575, 37 A 90. In Cooke v. Boynton, a bill in equity had been filed praying for a preliminary and perpetual injunction preventing defendants from interfering with a certain tramway of the plaintiff. Before a preliminary injunction was obtained, the defendants, on three separate occasions, had torn up the track which the plaintiffs had replaced. The third incident occurred while plaintiff was obtaining a preliminary injunction. The Court said, "The writ was served just as they had finished the work of demolition, and this coincidence is strongly suggestive of a race against the law." The trial Court had dissolved the injunction, in part, on the ground that the act sought to be restrained had already been done, and that it was without power at that stage of the cause to restore the property to its former condition by mandatory injunction. The Supreme Court reversed. 'What we did in the Eastern Case,' the Court said, 135 Pa. P. 110, 19-A. 944, 'we will do here. We will restore the injunction without passing upon the merits of the case. They will be considered when it comes here upon final hearing." ' In new Haven Clock C. v. Kochersperger, 175 III, 383, 51 N.E. 629, the state Supreme Court held that the forced payment of a tax after the Court has acquired jurisdiction a bill to enjoy its collection may be restored by the Court, even though no preliminary injunction was granted; and that such payment cannot be availed of as a defence upon the ground that the tax having been paid there is nothing to enjoin. The same Court in Turney v. Shriver, 269 III. 164, 172, 109 N.E. 708, held the rule to be that where a bill for injunction has been filed and the Court has acquired jurisdiction of both the person and the subject-matter of the suit and the defendant does any act which the bill seeks to enjoin, such party acts at his peril and subject to the power of the Court to compel a restoration of the status. ' See also Konig v. Baltimore, 126 Md. 606, 627, 95 A. 478. ' The conclusion to be drawn from all the cases is that after a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the Court to restore the status, wholly irrespective of the merits as they may be ultimately decided." 1 High, Inj. 4th ed. 5(a). 5. Learned counsel for the plaintiff also cited the case of Daniel v. Ferguson (1891) 2 Ch. 27 (CA). In this case a suit had been brought "to restrain defendant from building so as to darken plaintiffs lights." Notice of motion for a temporary injunction to be made upon a designated future day was served on the defendant put on a large number of men and proceeded with his building, running a wall upto a height of about 39 feet from the ground before the injunction was granted. The Court, without regard to the ultimate rights of the parties, held that the wall thus, run up by defendant should be torn down at once, as an attempt to anticipate the order of the Court. A like situation was presented in Von Joel v. Hornsey (1895) 2 Ch. 774-C.A. In that case, the evidence showed that defendant had repeatedly evaded attempts to serve him with process, and in the meantime had gone on with the building. Again, without regard to the ultimate rights of the parties, the Court directed defendant to pull down that part of the building thus erected. 6. Learned counsel for the plaintiff also cited two Indian decisions reported as Maganlal Punjasa v. Chhotalal Gheal and another I L R 26 Born. 136 and Nadan Pictures Ltd. v. Art Pictures Ltd. And others AIR 1956 Cal. 428. In the Bombay case, the plaintiff sued for permanent injunction to restrain the defendant from erecting or re-erecting a Khadki. Almost immediately after the commencement of the suit in August, 1899, he applied for an interim injunction, which, however, he failed to obtain. At the time when the suit was filed the defendant had not proceeded with his building so far as to make it necessary for the plaintiff to ask in his plaint in specific terms for a mandatory injunction. But after the plaintiff's application for an interim injunction had been rejected, the defendant proceeded with the building, so that when the case came on for hearing the mischief which had been
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apprehended by the plaintiff was an accomplished fact and the building had been erected. On that ground both the lower Courts did held that the plaintiffs suit must be dismissed. They agreed, in thinking that, under the circumstances which had come into existence when the suit was brought on for hearing, a preventive injunction would be of no avail to the plaintiff, as there was no longer any reason to prevent what had been done. It was thus, observed in the judgment that:- "We cannot agree with that view which the lower Courts have taken of the plaintiff's claim. The suit was rightly framed in the light of the circumstances which existed when it was brought. But it was the defendants subsequent conduct which rendered it necessary that the plaintiff should be given, as prayed for in his plaint, such other relief as the Court might think fit. The plaintiff was entitled under the circumstances to a mandatory injunction, if he proved the right alleged in his plaint. ' We, therefore, reverse the decree and remand case for a re-hearing and disposal on the merits by the Court of first instance. If the Court thinks that the plaintiff has made out a case for a mandatory injunction, it should grant it. In saying that, we do not intend to indicate any opinion as to the merits of the plaintiffs claim. If the first Court finds that no case is made out for a mandatory injunction, it is competent for it to award damages, if the plaintiff proves his rights." 7. In the Calcutta case it was observed that:- "It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. The one case in which a mandatory injunction is issued on an interlocutory application is where, with notice of the institution of the plaintiff's suit and the prayer made in it for an injunction to restrain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claimed his relief. An injunction issued in such a case in order that the defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survived and a new cause of action for a new type of suit had arisen. When such is found to be the position, the Court grants a mandatory injunction even on an interolcutory application, directing the defendant to undo what he has done with notice of the plaintiff's suit and the claim therein and thereby compels him to restore the position which existed at the date of the suit." 8. Learned counsel also placed his reliance on a passage from page 947, Halsbury's Laws of England, Fourth Edition, Vol. 24, which reads as follows:- "A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the Court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application." 9. Mr. Khalid M. Ishaque, learned counsel for the defendants in reply to the submissions made by the learned counsel for the plaintiff on the above two applications submitted, on my query, in all frankness, that the action of the defendants in dispossessing the plaintiff was 'inappropriate'; they should have waited for the decision of this Court on the injunction, and that he apologise for it. 10. On the basis of the law, referred to above, I am of the view that the principle of the law laid down by the English, American as well as Indian superior Courts, as referred to above, is applicable to the present case. When the proceedings were instituted by the plaintiff and a notice of the injunction application was issued to the defendants calling upon them to show cause why a stay order should not be issued, its practical effect was, to lay off for the time being, owing to the Court notice, as it is expected that the Government Institution and their functionaries will assist the Court in
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administration of justice and they will not try to change the factual position unilaterally to their advantage, in normal circumstances, particularly when a Court notice is received by the said Authority or functionary and the matter is fixed for hearing in the Court just the other day. 11. It seems settled law that an injunction in the mandatory form can be issued to restore status quo as on the date of the institution of B the suit. If reference is needed, the same may be found in Mst. Sughra Bai v. Mst. Rabia 1982 CLC 344, Adamjee Paper and Board Mills Ltd. v. Maritime Agencies Ltd. 1984 CLC 440 and Ghulam Muhammad v. Ch. Khushi Muhammad and another 1985 CLC 457. He would, therefore', order restoration of possession of the shop in question to the plaintiff. The official Assignee is directed accordingly. Civil Miscellaneous Application No. 3310 stands disposed of. 12. As regards Civil Miscellaneous Application 3241 of 1986 and 3311 of 1986, in view of the order passed herein on the Civil Miscellaneous Application 3310 of 1986, the 'basic objection' as raised by the learned counsel for the defendants that unless the plaint is amended no relief of interim injunction, as prayed for, can be granted to the plaintiff, has lost its force. I now to proceed to consider the other pleas as raised in these two applications. 13. Learned counsel for the plaintiff submitted that the plaintiff is a tenant of the defendants in respect of a shop in question measuring 240 sq. Ft. Which was leased out to him on 1-9-1976 on a monthly rent initially fixed at Rs.240. From December 1976 an additional open space admeasuring about 18.2 sq. Yds., adjacent to his shop, was also leased out to him at the rate of Rs.18.20 per month. The rent of the shop was, however, increased from time to time and the current monthly rent of the shop is Rs.480 per month, plus Rs.18.20 for the land, which stands duly paid upto July 1986. It was further submitted that although the agreements executed in respect of the premises as well as the land are described as licence agreements, they are, for all intents and purposes, lease agreements and the relationship between them from its very inception has always been that of the landlord and tenant. The plaintiff was given exclusive possession of the demised premises. The defendants did not have any control or supervision over the possession and use of the said shop of the plaintiff who has been using the same exclusively without any interference from the defendants for the last about 10 years. Now the defendants have invalid tenders for reletting the said shop which is not available, in fact or law, for disposal by the defendants. 14. The learned counsel for the defendants, on the other hand, submitted that the agreements (Annexures 'A' and 'B' to the plaint) are mere licences, which have since expired as long back as 1977 and no further agreement in writing is in existence; the plaintiff is a mere licensee and has no right to remain in possession of the premises as under the terms of the agreement itself the licence is terminable at any point of time, without any notice. In this respect learned counsel referred to paragraphs 1 and 15 which read as under:- "(1) This agreement shall remain in force for a period of one year commencing from 1-9-1976, provided that the Licensor reserves to himself the right to terminate it any time without notice or at the end of the first month and thereafter subject to one month's previous notice in writing without any cause being assigned. (2) Subject to one month's previous notice in writing, the President reserves the right to cancel his licence without any liability for the payment of any compensation. Upon the Licence being so cancelled the Licensee shall forthwith hand over the said premises together with the fixture and fittings therein back to the President in good or torn condition, reasonable wear and tear accepted." 15. Learned counsel for the plaintiff, in support of the above applications, placed his reliance on a number of decisions namely: ' Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106, Abdul Rehman v. Haji Mir Ahmad Khan and another PLD 1982 Kar. 532, Ahmed Din v. Abdullah Bhai and others PLD 1962 (W.P.) Kar. 663,
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Ebrahim Brothers Limited Karachi v. Wealth Tax Officer PLD 1985 Kar. 407 and Goalundo Fishing Industries, Faridpur v. Pakistan and others 1970 D L C 304. 16. In the first named case PLD 1964 SC 106 while drawing a line of demarcation between a lease and a licence it was observed as under: "The line of demarcation between a lease and licence will sometimes be a very thin though there is no doubt as to the principle applicable. A lease as will appear from section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e. The right of enjoyment of the property, for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed the rights in rem and not in personem and by the lease a right in rem is transferred to the lessee. On the other hand a 'licence' as will appear from its definition in section 52 of the Easements Act is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licence or and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee. Examples of a licence are a permission to cut grass from the land of another or to hold fares or run stalls on land in the possession of another. The right to cut grass from land belongs to the owner of land, being a part of the right of ownership. When the owner grants to another person a licence to cut grass, it does not even mean that the right to cut grass in so far as it is a right in the land (a right in rem) passes to the licensee. If a right in the land itself passed an interest in the land would pass and it would not be a licence. When the owner of land grants licence to another to cut grass there is a simple personal contract that the owner will not interfere with the cutting of grass by the licencee. This contract may be specifically enforced, but it grants only a right in personem." 17. In the second named case PLD 1982 Kar. 532 the agreement was held to be creating a tenancy though it described the tenant to be a 'Contractor'. It was thus observed as under:- "The language employed by the parties in the first agreement would seem to indicate that the parties wanted to avoid the incidence of the old Ordinance. It is very difficult to agree with such an argument because basically an agreement of tenancy comes into existence when person agrees to let out premises on a fixed rental, or terms to another. If such basic requirement is fulfilled, the relationship of landlord and tenant will come in existence, and, in such circumstances, whether the parties chose to call themselves contractors, or contracting parties, the basic relationship between them is not altered. In our view, despite the use of the words 'first party' or 'contract' or 'a contractor', the parties are landlord and tenant, and the transaction between them is that of a tenancy agreement." 18. In the third named case PLD 1962 Kar. 663 (DB) discussing the distinguishing feature between a lease and licensee, it was observed that:- "That most distinctive feature between a lease and a licence is that, in the former there is transfer of interest in immovable property whereas in the latter that element is expressly excluded. The transfer of interest in a case of a lease consists of the grant to the lessee exclusive right of possession of the demised premises. This right, in the first instance, vests in the lessor and is one of the most important incident of ownership. In granting a lease the lessor transfer this important right to the lessee. The right of exclusive possession involves an element of ouster and when the lessor grants this right to the lessee he totally excluded himself from that right, though it may be only for a certain time. This right is assignable and heritable and constitute property. On the other and, in the case of a licence there is a total absence of transfer interest in the immovable property. A licence is a personal right granted to an individual or to an ascertained number of individuals, to
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do or continue to do something in or upon the immovable property of the grantor, which in its absence would be unlawful. It is purely a permissive right and is neither assignable nor heritable. Notwithstanding the permission the grantor retains control over the property. The fact that a licensee occupies the property, that occupation does not confer upon him the right of exclusive possession as understood in law. Under the Transfer of Property Act, apart from the transfer of the right to enjoy property,…
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