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Petitioner: MOHIUDDIN KHAN VS Respondent: M/s. STATE LIFE INSURANCE CORPORATION OF PAKISTAN
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title:MOHIUDDIN KHAN vs M/s. STATE LIFE INSURANCE CORPORATION OF PAKISTAN
JUDGMENT
Reported As: PLJ 2018 Karachi 1 Result: Suit dismissed. Judgment JUDGMENT The Plaintiff has filed the instant suit on 11th May, 1999 for Declaration and Permanent Injunction with the prayers as below:-- a. to declare that the Plaintiff is a tenant of the Defendants in respect of land bearing Survey No, 7, Sheet RY-5, situated at Lakie Road, Karachi. b. to declare that the Plaintiff being a tenant of the Defendants in respect of plot of land bearing Survey No, 7. Sheet RY-5. situated at Lackie Road, Karachi cannot be ejected/evicted therefrom otherwise than in due course of law. c. to declare that the Plaintiff being lawful tenant of the Defendants is entitled to carry on the business of parking of vehicles on plot of land bearing Survey No, 7, Sheet RY-5, situated at Lackie Road, Karachi without any hindrance from the Defendants jointly and severally. d. permanently restrain the Defendants jointly and severally their agents, servants employees, officials successors-in-interest and or any other person claiming through or under them from ejecting/evicting the Plaintiff from the plot of land bearing Survey No, 7. Sheet RY 5. situated at Lackie Road. Karachi. e. permanently restrain the Defendants jointly and severally their agents, servants, employees, officials successors-in-interest and or any other person claiming through or under them from causing hindrance or let in lawful business of parking of vehicles being carried on by the Plaintiff on the plot of land bearing Survey No, 7, Sheet RY 5, situated at Lackie Road, Karachi. f. any other relief or reliefs which this Hon'ble Court deems fir and proper, in the circumstances of this case.
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g. cost of the suit. 2. The brief facts relevant for the purpose of deciding of this suit as disclosed in the plaint are as follows. 3. Defendant No, 1, is a Corporation established by the Life Insurance (Nationalized) Order, 1979. Defendant No, 2, is a Private Limited Company incorporated in Pakistan under the Companies Ordinance, 1984 and stated to be owner of land bearing Survey No, 7, Sheet RY 5, Lackie Road, Karachi [hereinafter referred to as 'subject plot/. Defendant No, 2, is wholly owned subsidiary of Defendant No, 1 and the latter has full power and authority to deal with the properties belonging to Defendant No, 2. As averred in the plaint, by a 'Public Notice' dated 19.4.1985. published in daily Newspaper of Karachi, Defendant No, 1 had invited tenders for renting out the 'subject plot' for Car parking purpose. The Plaintiff No, 1 in response, submitted his bid for acquiring the 'subject plot' on rent which offer/bid was accepted by Defendant No, 1. Per Plaintiffs version rent was payable for the subject plot from the date of handing over of possession of the subject plot to the Plaintiff. 4. On acceptance of Plaintiff's offer/bid an agreement dated 25.8.1985 [Annexure '13' to the Pliant], was executed between the Plaintiff and Defendant No, 1 which contains the mutually agreed terms' and conditions' for and in respect of subject plot. According to the Plaintiff's stand, Plaintiff and Defendant No, 1 under the said agreement of 25.8.1985 acted as 'tenant' and 'landlord'. The use of words 'Licensor' or 'Licensee' in the said agreement, according to the Plaintiff, in no manner can control or negate the 'relationship' of `landlord' and 'tenant'. Defendant No, 1, as per assertions made in the plaint used to issue receipts invariably for 'rent' and not for 'license charges'/`fee'. Moreover, upon execution of agreement dated 25.8.1985, the Plaintiff submitted a detailed plan of gates and site plan of the `subject plot' for approval of Defendant No, 1. Pursuant to approval of Defendant No, 1, complete actual and physical possession of the `subject plot' was handed over to the Plaintiff. 5. The Plaintiff as alleged, after taking over actual and physical possession of the 'subject plot' developed the same by spending quite a big amount on construction of RCC beams, steel gates, water well with pump and an office room. Thereafter, the plaintiff started using of the 'subject plot' for public parking of vehicles. According to plaintiff since, taking over 'possession' of the subject plot, the Plaintiff is enjoying un-hindered physical possession of the 'subject plot'. The relationship between the Plaintiff and Defendant No, 1, according to the Plaintiff stand is that of a tenant and landlord. Not only this, upon expiry of the agreement dated 25.8.1985 [Annexure 'IV to the plaint], on 30th September, 1988, the Plaintiff has become a 'statutory tenant' of Defendant No, 1. 6. Defendant No, 1, no doubt, under its' letter dated 19.1.1989 forwarded a 'draft of fresh agreement' to the Plaintiff but thereby. Defendant No, 1, in actual fact had attempted to convert tenancy rights of the Plaintiff in respect of the 'subject plot' to that of a licensee. The terms and conditions as contained in the Draft Agreement sent to the Plaintiff were materially different not only in `form' but also in 'substance' from the original license agreement of 25.8.1985. Upon refusal of Plaintiff to sign/execute such Draft Agreement, Defendant No, 1, nevertheless. continued to receive rent in respect of the subject plot. On 8.4.1989, Defendant No, 1, however, refused to accept the same. Plaintiff, thereafter, started to deposit rent in the Court of VIth Senior Civil & Rent Controller, Karachi (South), in Misc. Rent Case No, 697/1989. 7. Per Plaintiffs version, right from the date of execution of the 'License Agreement' dated 25.08.1985 and handing over of possession of the 'subject plot', Defendant No, 1, never exercised any, control over the subject plot. The 'parking plot' is/was always open for use of general public and not restricted to 'tenants', visitors' and `employees' of Defendant No, 1. The 'Electric charges' etc. in respect of the 'subject plot' was exclusively payable by the Plaintiff. Per Plaintiffs stand, payments made by Plaintiff to Defendant No 1 be deemed as `rent' under the Sindh Rented Premises Ordinance, 1979, [XVII of 1979]
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8. Plaintiff viz. Mohiuddin Khan s/o Niaz Muhammad Khan in the plaint of the above suit, has further averred that on or about 06.05.1999, some people claiming to be employees/officials of the Defendant No, 1, came over to the 'subject plot' and then they had attempted to `dis-possess' the Plaintiff from the 'subject plot' forcefully and illegally. Nevertheless, at the intervention of the people who had gathered there, the employees/officials of Defendant No, 1, did not succeed to take over the vacant possession of the 'subject plot'. The employees/officials of Defendant No, 1 while, going back, however, had extended threats to the plaintiff for dis-possessing him from the `subject plot'. For and in view of such circumstances, the matter was also reported to the Deputy Commissioner, District South, Karachi, the Senior Superintended of Police, District South, Karachi and the Station House Officer. Mithadar Police Station, Karachi. Again, on 10.05.1999, according to the plaintiff version, some/officials of Defendant No, 1, came at the 'subject plot' and they again tried to `forcibly' and 'illegally' take over possession of the 'subject plot'. But this time as well, due to the 'security arrangements' made in advance, the `employees'/'officials' of Defendant No, 1 were compelled to go back without any success. 9. Under the aforesaid scenario the instant suit was filed on 11th May, 1999 for DECLARATION & PERMANENT INJUNCTION against the defendants with the prayers reproduced hereinabove. 10. On 11.05.1999, when the above suit came-up before the Court then the following order was passed:-- 1. For Orders on Misc. No, 3453/99 2. For Orders on Misc. No, 3454/99 3. For Orders on Misc. No, 3455/99 Mr. Abul Inam, advocate for the plaintiff 11.5.1999 1. Allowed 2. Time for payment of Court-fees is extended by one week. 3. It is the case of the Plaintiff that agreement dated 25.8.1985 was executed between the Plaintiff and Defendant No, 1. After taking over the actual and physical possession of the plot in question, the Plaintiff started using the same for parking the public vehicles and since then was enjoying the said facility unhindered. In May, 1989 Defendant filed Suit No, 583/1989. This Court passed the order which has been reproduced in Para 8 of the affidavit of plaintiff. On 6.5.1999 some persons claiming to be the employees of Defendant No, 1 came to site plot and attempted to forcibly dispossess the plaintiff from the said plot. This matter was reported by the plaintiff to the Deputy Commission, District South, SSP and also to SHO Mithadar Police Station, Karachi. On 10.5.1999 another attempt was made. In view of above-mentioned facts, ad-interim injunction is granted as prayed against the defendants till the next date of hearing i,e, 28.5.1999. Notice be issued to defendants for the next date. [Underlining is mine]. Sd/-11.5.99 JUDGE" 11.Upon service, Defendants filed 'common written statement' on 23.6.1999, wherein, the adverse 'averments' and `assertions' leveled by the Plaintiff were specifically and forcefully denied. In the 'written statement', it was averred that the `relationship' between Mohiuddin Khan s/o Niaz Muhammad Khan [Plaintiff herein] and Defendant No, 1 viz. M/s. State Life Insurance Corporation is that of 'licensee' and 'licensor'. The 'LICENSE AGREEMENT' dated 25.8.1985 executed between Defendant No, land Plaintiff, as such, is not enforceable under law. Per Defendants' stand. Plaintiff has no legal character or otherwise, has any right in the 'subject plot'. Plaintiff, thus has no 'locus standi' to institute the above suit and that too merely on the basis of an expired license agreement dated 25.8.1985 [Annexure 'IT to the Plaint]. 12. Per Defendant No, l's stand. Defendant No, 2, is the owner of 'subject plot' of land bearing Survey No, 7. Sheet RY-5, situated at Lakie Road, Karachi, which is wholly owned sub-sidiary of Defendant
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No, 1 i,e, M/s. State Life Insurance Corporation of Pakistan. Per averments, made in the 'written statement', Defendant No, 1 besides, not only authorized and empowered to issue LICENSE. TERMINATE, RENEW it but also fully authorized and competent to take all necessary steps inclusive but not limited to litigation, claiming `mesne profit', seeking injunction and/or ejecting/evicting of trespassers from the 'subject plot'. 13. According to Defendants' stand, 'quotations' were invited for 'open space' of 'subject plot' on 'LEAVE AND LICENSE BASIS', being sufficient for parking of 360 Cars through 'public notice' of 19.4.1985, having published in 'Daily Newspaper' English 'DAWN' Karachi and not on renting out basis, as alleged, by Plaintiff. Further, the 'quotations' were invited for CAR PARKING with a right to reject any 'offer'/' bid' without assigning any reason. Plaintiff, in response thereof, no doubt, offered for 'specified' use of 'subject plot' through his letter dated 29.4.1985. Per 'written statement", Plaintiff's offer was found suitable, as such, the same was accepted by the management of the Plaintiff. The acceptance of such. 'offer' was also apprised/communicated to the Plaintiff's through Defendants' letter dated 21st July, 1985 [Annexure 'A/1' to the Plaint]. Upon acceptance of the Plaintiffs 'bid'/' offer', a 'license agreement' dated 25.8.1985 [Annexure 'B' to the Plaint], was consequently executed between Defendant No, 1 and Plaintiff. Under the mutually agreed 'terms' and `conditions' thereof, the 'relationship' between Defendant No, 1 and Plaintiff was that of a 'Licensor' and the 'licensee' and not that of `landlord' and 'tenant' as being claimed by plaintiff. 14. In the 'common written statement', it was also averred that the 'subject plot' is under 'control' and 'possession' of Defendants. The claim of Plaintiff regarding so called 'exclusive possession' of `subject plot', was specifically and vehemently denied. Besides, the alleged 'relationship' of 'landlord' and 'tenant' as having been claimed by the Plaintiff, was not only categorically controverted but also specifically denied as being false and incorrect. According to the Defendants' stand, under the provisions of the 'License Agreement' dated 25.8.1985 [Annexure 'B' to the Plaint]. Plaintiff is merely a `licensee' and not a tenant. This factum is also evident from 'handing' and 'taking over' letter of 9th September. 1985 [Annexure 'C' to the Plaint]. 15. Per Defendants, stand, the object of the License Agreement dated 25.8.1985, was only to grant a license to plaintiff. Calling such 'License Agreement of 25.8.1985, now as 'Tenancy Agreement' by no means affects and/or alters the 'relationship' of `Licensor' and 'licensee' created under their 'terms' and 'conditions' of the said License Agreement dated 25.8.1985, signed between the Defendant No, 1 and the Plaintiff. Under the said 'License Agreement' Plaintiff had been allowed only to do certain things, such as, collecting of Car Parking Charges. Reference in this regard, can be made to `Clause 7' of the License Agreement dated 25.8.1985, which reads as follows: "7. The LICENSEE shall always and at all times be under the control and supervision of the LICENSOR, its agents, servants and employees and shall observe all directions and orders as may from time to time, be issued by the LICENSOR, its agents, servants and employees regarding part thereof the anybody else in any event." [Underlining is mine]. Besides, a further reference can be made to 'Clause 5' [wrongly mentioned as 'Clause 4'] of said License Agreement dated 25.8.1985 where-under, the 'subject plot' was to remain in 'joint possession' of Plaintiff and Defendants. Per mutual agreed 'terms' & 'conditions' each lock' of gate shall have 'two keys', one of which was to remain in possession of Defendant No, 1/Licensor and the other one with Plaintiff/Licensee. The said 'Clause 5' of the License Agreement dated 25.8.1985 [Annexure `B' to the Plaint] reads as follows:-- "5. Each lock of the above said gates shall have two keys one of which shall remain in the possession of LICENSOR." [Underlining is mine]. 16. Accrual of any 'cause of action' in favour of the Plaintiff on the dates referred to and mentioned in `para 13' of the plaint or any other date was specifically denied by Defendants. Lastly, in 'common written statement' it was asserted/prayed that the instant suit as `framed' and 'filed' by
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Plaintiff besides, having been filed with 'ulterior motives' and `malafide intentions', is not maintainable, as such, the same is liable to be dismissed with cost. 7. Before proceeding further, at this juncture I would like to refer to Defendants' suit bearing No, 583 of 1989 IMIs. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin & another Khan./ filed on 21.5.1989 for DECLARATION. PERMANENT INJUNCTION. MESNE PROFIT AND POSSESSION before this Court and an order passed therein, on 19.10.1989. Being relevant, order dated 19.10.1989 is reproduced here-in-below:-- "1. For Hg. of CMA-6995/89 2. For Hg. of CMA-6996/89 3. For Hg. of CMA-6997/89 19.10.1989 Mr. Makhdoom Ali Khan, Advocate for Plaintiff. Munir A. Malik, Advocate for defendant. By consent it is ordered that the defendants shall furnish bank guarantee in the sum of Rs, 100.000 with 6% mark-up within three days hereof with the Nazir of this Court, whereupon order dated 15.10.1989 whereby the defendants, their agents and employees were restrained from allowing third' parties to park their cars at the plot question and/or from collecting car parking charges from them shall stand vacated. Again by consent, the defendants are restrained from using the plot for purposes other than car parking or parting with the physical possession of the plot in question to any one till disposal of the suit or till further orders. The learned counsel for the defendants also undertakes on behalf of the defendants to deposit all the arrears of license fee deposited by them in the Lower Court within four weeks hereof and to further deposit further license fee payable by them in this Court every month till disposal of this suit. In view of this consent order CMA No, 6995/89. CMA-6996/89 and CMAs-6997/89 & 3683/89 stand disposed off. [Underlining is mine]. Sd/- JUDGE" 18. Plaintiff herein [Defendant No, 1 in Suit No, 583 of 1989], it appears, had also filed an application under Order XXXIX Rules 1 & 2, CPC [CMA No, 6484 of 1998] in Suit No, 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & Another v. Mr. Mohiuddin Khan]. The said application [CMA No, 6484 of 1998], filed by present plaintiff [who is Defendant No, 1 in Suit No, 583 of 1989], when came- up before the Court on 18.7.1998 then, the following order was passed: "1. For orders on CMA No, 6483/98 2. For orders on CMA No, 6484/98 18.07.1998 Mr. Arif Hussain Khilji, Advocate Defendant No, 1. 1. Granted. 2. It is contended by Mr. Arif H. Khilji that plaintiffs are closing the entrance gate of Building No, 1 situated at Chundrigar Road which in fact will amount to illegal & unauthorized dispossession of the Defendant No, 1. It was argued that if the, plaintiffs are permitted to raise hindrance or destruction then it will also amount to violation of this Courts order dated 19.10.1989. Issue notice to Plaintiffs for 24.07.1989. Till then Plaintiffs are directed to maintain status-quo. [Underlining is mine]. Sd/- JUDGE" 19. Later on, in view of 'pro' and 'contra', assertions and averments made in pleadings on 13.12.2006, the following six [06] issues were settled in the suit in hand:-- 1. Whether the suit is not maintainable? 2. Whether the suit is time barred? 3. Whether the suit is barred by promissory estoppels?
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4. What relationship the Plaintiff and the Defendant had i,e, either of tenant or of a licensee? 5. To what relief, if any, the Plaintiff is entitled to? 6. What should the decree be? 20. Subsequently by order dated 21.2.2007 and with consent of parties. Mr. Yousuf Moulvi, Advocate, was appointed as 'commissioner' for recording evidence of the parties. Order dated 21.2.2007 as being relevant, is also reproduced here-in-below:-- "21.2.2007 Mr. Zia-ul-Haq Makhdoom. Advocate for the plaintiff Mr. Kh. Shamsul Islam Advocate holding brief for Mr. Siddiq Mirza, Advocate for the defendants. Mr. Zia-ul-Haq Makhdoom has submitted that in this matter a commissioner may be appointed to record the evidence of the pal-ties. Mr. Kh. Shamsul Islam on instructions from Mr. Siddiq Mirza has extended his no objection for appointment of a commissioner to record the evidence of the parties. By consent of the learned counsel for the parties Mr. Yousuf Moulvi, Advocate, is appointed Commissioner to record the evidence of the parties. The parties may file their respective affidavits- in-evidence alongwith the relevant documents before the learned commissioner. The commission to be concluded within six months. The fee of the learned commissioner will be Rs, 10,000/- per witness to be borne by the respective parties." [Underlining is mine]. SD/- JUDGE" 21. In the evidence, recorded before the learned commissioner, Mohiuddin Khan [PW-1'], in his 'examination-in-chief besides, producing his 'affidavit-in-evidence' as 'Exh-4' produced other documents as 'Exh-P/4/1' to 'Exh-P/4/31'. Like-wise, Defendants' witness viz. Hafiz Arshad , Hussain Shaikh NDW-11, in his `examination-in-chief , apart from producing his 'affidavit-in-evidence' as 'Exh-D/1' produced other documents as 'Exh-D/2' to 'Exh-D/16'. Upon conclusion of evidence, the report submitted by the learned commissioner was taken on record vide order dated 24.8.2009 and then, the above suit was ordered to be fixed for arguments. 22. On 19.10.2016, 1.11.2016, 7.11.2016, 23.11.2016; 8.12.2016 and 21.12.2016 when the above Suit No, 606 of 1999 [Mohiuddin Khan s/o Niaz Muhammad Khan Vs State Life Insurance Corporation of Pakistan & another], filed by the Plaintiff for 'DECLARATION' AND `PERMANENT INJUNCTION' and Suit No, 583 of 1989 [M/s. State Life Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another], filed by the Defendants herein for DECLARATION. PERMANENT INJUNCTION, MESNE PROFIT AND POSSESSION, came-up before me then, I heard Mr. Moin Qamar a/W Mr. Zia-ulMakhdoom, learned counsel for the Plaintiff in Suit No, 606 of 1999 and Defendants in Suit No, 583 of 1989 and Mr. Zeeshan Abdullah, learned counsel for the Defendants in Suit No, 606 of 1999 and Plaintiffs in Suit No, 583 of 1989 and also gone through the available record before me minutely with their valuable assistance. ISSUE NO. 1:-- 23. Mr. Moin Qamar a/w Mr. Zia-ul-Haq Makhdoom, learned counsel for the Plaintiff while, arguing Suit No, 606 of 1999 'issue-wise' forcefully contended that as far as, Issue No, 1 which is to the effect as to Whether the suit is not maintainable is concerned, it is in fact for the Defendants to establish that the Plaintiff's suit as 'framed' and 'filed' is not maintainable. So far, Plaintiffs stand is concerned, per Mr. Moin Qamar, the above suit filed by plaintiff is not only maintainable but also deserves to be decreed in favour of Plaintiff as prayed. Mr. Moin Qamar while, advancing his arguments on the maintainability of the suit, emphatically contended that Plaintiff, as being a 'tenant' of Defendants in respect of the 'subject plot' i,e, Survey No, 7, Sheet RY-5, situated at Lakie Road. Karachi, in no manner, is liable to be ejected by show of force on the part of Defendants. In this regard, learned counsel, focused the attention of this Court towards' pares 10 & 11 plaint and forcefully contended
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that on or about 6.5.1999, some un-known people claiming to be `employees'/'officials' of Defendant No, 1, had come at the 'subject plot' and had attempted to dis-possess the Plaintiff from the `subject plot', indeed, forcibly and without observing 'due process' of law. But due to 'intervention' of people who had gathered there, the illegal attempt so made by Defendants for dispossessing the Plaintiff forcibly could not succeed. Per learned counsel, on 10.5.1999, officials/employees of Defendant No, 1, once again came on the `subject plot' obviously with an intention to dispossess Plaintiff from the `subject plot' forcibly and without adopting due course of law. Even this time as well, the malafide attempt meant for dis-possessing the Plaintiff from the 'subject plot' stand failed because of prior security arrangements made by Plaintiff in view of repeated threats having been advanced to Plaintiff by Defendants. For and in view of the above scenario, the Plaintiff was constrained to file the above case for relief sought in the plaint. 24. Against the above, Mr. Zeeshan Abdullah, learned counsel for the Defendants while, arguing Issue No, 1, submitted that in suit in hand, the controversy between the parties, in fact, revolves around the `License Agreement' dated 25.8.1985 [Exh-P-4/31. Per Mr. Zeeshan Abdullah, learned counsel for the Defendants, the 'relationship' between the Plaintiff and Defendants is that of 'licensee' and `Licensor' and not of 'tenant' and 'landlord', as claimed by Plaintiff. The paramount element/nucleus point involved needs to be ascertained is the intention of the parties. Such intentions of parties can and surely be ascertained from the contents of the said License Agreement [`Exh.P-4/31. Per Mr. Zeeshan Abdullah, learned counsel for the Defendants, the said License Agreement dated 25.8.1985, is an undisputed document. Being, this is the position, the 'terms' & `conditions' of 'Exh.P-4/3' are fully and absolutely binding on parties to the License Agreement dated 25.8.1985 [Exh.P-'4/3'1.. The Plaintiff, it is needless to say, has not only admitted the execution of License Agreement dated 25.8.1985 in Para 3 of the plaint but it was later-on also produced and exhibited in plaintiffs 'examination-in-chief as ExhP-'4/3' of course, without any objection. Moreover, the contents thereof, have also been admitted by the Plaintiff during his 'cross examination' in words as "I see exhibit rExh-P-4/31 and say it is correct that the document is signed by me". Like-wise, Plaintiff herein [who is Defendant No, 1] in Suit No, 583 of 1989 [M/s. State Life- Insurance Corporation of Pakistan & another v. Mr. Mohiuddin Khan & another], has also admitted the factum of execution of the said License Agreement of 25.8.1985 in his cross examination where, he states that "I see the agreement 'exhibit 9' and it is signed by me. The agreement was read over to me and signed the same after I understood the same. "[It is worth to mention herein that Exh.9 is equivalent to `Exh. P'4/31 25. With regard to Issue No, 1, it is significant to note, the Defendant No,…
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