1. The relevant facts for the purpose of this application are that the plaintiff filed suit for declaration, injunction and refund of the sum of Rs,8.91 lacs, praying for the relief as under:--
(a) For a declaration that defendant No,1 is not owner of the Godown Premises bearing No,GOB-16 on Plot Survey No,RY-16/2, Railways Quarters, Talpur Road, Karachi.
(b) That the defendants be restrained permanently from claiming any rent in respect of above premises from the plaintiff.
(c) That the defendants be directed to refund a sum of Rs,7 lacs realized by them from the plaintiff on account of the rent from 1-6-1991.
(d) Cost of the suit be awarded to the. plaintiff.
(e) That any other further relief or reliefs that this. Honourable Court may deem proper in the circumstances of case.
2. The facts stated by the plaintiff in the plaint are that the defendant No,1 claiming to be the owner of a Godown/Office premises bearing No,GOB-16 on the plot bearing Survey No,RY-16/1, situated at Talpur Road, Railways Quarters, Karachi, executed a tenancy agreement with the plaintiff dated 22- 5-1991. The parties agreed for the monthly rental of Rs,6,000 commencing from 1-6-1991. The plaintiff paid a sum of Rs,1,14,000 to the defendant No,1 on signing of the tenancy agreement being advance rent for the months of July and August, 1991 and 50% advance rent for the period commencing from September, 1991 to 30th June, 1994. The remaining 50% future rent from October, 1991 onward at the rate of Rs,3,000 per month was to be paid by the plaintiff to the defendant No,1 on or before 5th of each calendar month. According to plaintiff, the agreed rent was paid by him regularly after the tenancy agreement but the defendant No,1 filed eviction application against the plaintiff being Rent Case No,1954 of 1994 in the Court of IVth Senior Civil Judge and Rent Controller, Karachi South on the ground that the plaintiff had agreed to pay increased rent at the rate of Rs,7,800 per month from 1-7-1994 but failed to pay the same. The plaintiff filed written statement denying the allegation of defendant No,1. The Rent Controller passed a tentative rent order. The plaintiff failed to comply with the direction of Rent Controller with the result that the learned Rent Controller by order dated 1st April, 2000 directed the plaintiff to be evicted from the subject premises. The plaintiff failed to pay an amount of Rs,91,200 on or before 10th November, 1999 and hence his defence was struck off. The plaintiff filed appeal being First Regular Appeal No,446 of 2000, which is still pending decision.
3. It is further averred that the plaintiff has come to know that the subject premises is not in the plot bearing Survey No,RY-16/1 but it is on the adjacent plot i.e, RY-16/2, which is owned by Messrs R.B.
4. Shbrattan Goverdhandas Mohatta arid the lease of that plot has also expired on 3-7-1990. It is further averred that defendant No,2, K.M.C. called upon the defendant No,1 vide their letter dated 10- 4-2001 as to why the land may not be resumed as said R.B. Mohatta failed to pay Rs,2,73,97,205 for renewal of the lease. According to plaintiff plot was ultimately resumed. It is also stated that Pakistan Railways also claims to be owner of the, plot which comprises the godown premises in occupation of the plaintiff.
5. For the foregoing reasons the plaintiff alleged that the defendant No,1 is not the owner/landlord of the subject premises rented out to plaintiff and the defendant No,1 is illegally realizing the rent from the plaintiff by playing fraud and deception on the plaintiff. It has been pleaded that the plaintiff is therefore, entitled to a declaration that the defendant No,1 is not owner/landlord of the subject premises and is not entitled to realise the rent from the plaintiff in respect thereof. According to him he is further entitled to a permanent injunction restraining the defendant No,1 from realizing any future rent from the, plaintiff and not to proceed with the eviction proceedings against the plaintiff in respect of the subject premises. It is also alleged that the plaintiff is entitled to refund of Rs,8.91 lacs paid to the defendant on account of rent of the subject premises.
6. The defendant No,1 filed the written statement pleading that the plaintiff being a tenant is estopped from challenging the title of defendant No,1 and that the suit was not maintainable.
7. An application under 'Order 7, Rule 11, C.P.C. was also submitted seeking rejection of the plaint on the ground that the suit is barred under section 42 of the Specific Relief Act, according to which declaration can be granted as to the entitlement of the plaintiff in respect of his title, character or his right and that the declaration sought in the suit cannot be granted under the said provision of law. Secondly, the plaintiff being admittedly a tenant of defendant No,1 is estopped under the law to challenge their title.
8. The plaintiff has filed counter-affidavit reiterating the contentions raised in the plaint have heard Mr. Shahenshah Hussain, learned counsel for the defendant and Mr. Latif A. Shakoor, learned counsel for the plaintiff.
9. Mr. Shahenshah Hussain, learned counsel for the plaintiff has contended that under section 42 of the Specific Relief Act, any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion that make therein a declaration that he is so entitled. He has submitted that the sole right/character claimed by the plaintiff in the plaint is that in pursuance of a tenancy agreement executed between him and the defendant No,1, the plaintiff occupied the subject premises as tenant and has been paying the rent regularly. So far the averments pertaining to expiry of lease in favour of original lessee of the premises in question and the resumption of land by the K.M.C. or claim of Pakistan Railways is concerned, it is a matter between the defendant No,1 and K.M.C./Railways. The plaintiff has no concern with these matters.
10. Mr. Shahenshah Hussain has next contended that the plaintiff after admitting in so many words that he is tenant of the defendant No, 1 and after production of tenancy agreement alongwith the plaint Annexure P.1, is clearly barred from denying the title of defendant No,1. In this regard he has placed reliance on Article 115 of the Qanun-e-Shahadat Order, 1984 which reads as follows:-- "115. Estoppel of tenant and of licensee of person in possession.---No tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
11. Mr. Shahenshah Hussain has argued during the continuance of the tenancy which is admittedly there, the plaintiff is absolutely barred from disputing the title of the defendant No,1. According to him, the estoppel is complete and the suit as framed is not maintainable under the law. He has maintained that admittedly the possession of the property has been given to the plaintiff by defendant No,1 in pursuance of tenancy agreement and the possession has been taken with the permission of landlord/defendant No,
1. According to Mr. Shahenshah Hussain, on fulfilment of these two conditions the tenancy become subject to the estoppel and remain subject to it, so long as he remains in possession. In support of his contention, he has placed reliance on a Single Bench Judgment of the Lahore High Court in the case of Muhammad Rafique Malik v. Mst. Surriyya Khanum 1995 CLC 1933. A learned Single Judge of the Lahore High Court whi'e deciding a writ petition considered a similar question and held as follows:-- "8. Turning to third point it is necessary to note that a tenant cannot dispute title of a landlord/landlady without surrendering the possession of the rented premises to landlord/ landlady. This principle was firmly laid down by the Supreme Court in Province of Punjab v. Abdul Ghani PLD 1985 Supreme Court 1 and was reiterated in Malik Wahid Bakhsh v. Mst. Fazal Bibi 1985 SCM R 1256 and Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCM R 443 and Madrissa Darul Uloorn v. Additional District Judge PLD 1992 SC 401. Applying this principle to the facts of this case it is as evident as a day that the petitioner occupied the property as tenant of Mst. Surraya Khanum vide Rent Note dated 4-4-1973. The petitioner's contention' is that the allotment of property in dispute was cancelled by the L.D.A. as back as in 1971. This point is not between the petitioner and respondent No,1. This controversy is between L.D.A. and Mst. Surraya Khanam. The petitioner has no right to raise this question before the Rent Controller before surrendering possession of 'property' to Mst. Surriya Khanum. The point No,3 is so found to be wholly untenable and deserves to be rejected."
12. On the other hand Latif A. Shakoor learned counsel for the plaintiff has contended that, holding possession of any immovable property is a legal character and therefore, the plaintiff is entitled in law to seek a declaration that the defendant No,1 is not the owner of suit premises. However, he is not able to deny that the plaintiff occupied the suit premises in pursuance of the tenancy agreement executed between the plaintiff and defendant No,1 and the plaintiff accepted the defendant No,1 as landlord of the premises and has been paying rent to the defendant No,1. In support of his contention that, the suit is maintainable and the plaintiff is entitled to relief sought in the plaint, has placed reliance on the provisions contained in section 18 of the Specific Relief Act, which reads as follows:-- "18. Purchaser's right against vendor with imperfect title.---While a person-contracts to sell or let certain property, having only an imperfect title thereto, the purchaser or, lessee (except as otherwise provided by this Chapter) has the following rights:-
(a) If the vendor or lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;
(b) where the concurrence of other persons is necessary to validate the title, and they are bound to convey, at the vendor's or lessor's request, the purchaser or lessee may compel him to procure such concurrence;
(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money, and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain conveyance from the mortgagee;
(d) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit (if any) with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and cost on the interest of the vendor or lessor in the property agreed to be sold or let."
13. In the end he has submitted that for the purpose of Order 7, Rule 11, C.P.C. the averments in the plaint, are to be seen only and no other material is to be taken into consideration.
14. I have carefully considered the contentions raised by the learned counsel for the parties and have gone through the averments made in the plaint. A bare perusal of the plaint shows that the plaintiff has himself admitted in very clear words that the defendant No,1 rented out the subject premises to him and handed over the possession of the property to him in pursuance of the tenancy agreement. It is further stated in the plaint. that- a monthly rent of Rs,6,000 was agreed and the plaintiff started paying the rent accordingly. After this clear admission in the plaint, there is no necessity of looking into any other material or document and on the basis of clear and unambiguous admissions in the plaint, the estoppel contained in Article 115 of the Qanun-e- Shahadat Order, 1984 becomes applicable. The plaintiff is completely estopped from challenging the title of defendant No,1 so long the tenancy agreement is in existence. If the plaintiff intends to challenge the title of defendant No,1, he can do so after surrendering the subject premises to defendant No,1, which shall have the effect of determining the tenancy agreement between the parties. However, the plaintiff cannot be permitted to continue with the possession of the subject premises in pursuance of tenancy agreement and at the same time to challenge the title of the defendant No, 1 . This cannot be done without doing violence , to the complete estoppel contained in Article 115 of the Qanun-e-Shahadat Order, 1984. I totally agree with the findings of, the learned Single Judge of the Lahore High Court in the case of Muhammad Rafique Maiik (supra) which has been reproduced in the earlier part of this judgment. The proposition of law is so well established that no further discussion is required. Respectfully following the judgments of Honourable Supreme Court referred to in the Single Bench Judgment of Lahore High Court in the case of. Muhammad Rafique Malik, it is found that the plaintiff is estopped from challenging the title of defendant No, 1 in respect of the suit premises being a tenant under him, as admitted in the plaint. So far the provisions contained in section 18 of the Specific Relief Act, are concerned, they are not attracted to the facts contained in the plaint. Reliance placed thereon is totally misconceived. The suit is held to be barred, under the law, and therefore, the plaint is hereby rejected with cost. The application under Order 7, Rule 11, C.P.C. is allowed accordingly.
15. After hearing the learned Advocates for the parties today in Court, the application under Order 7, Rule 11, C.P.C., was allowed and the plaint was rejected by a short order. These are the reasons in support thereof. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.