' This suit has been filed by the plaintiffs Messrs Pakistan Cables Limited for possession under section 9 of the Specific Relief Act and permanent injunction.
2. The summarized facts, as per the contents of the plaint, are that the plaintiff is lawful tenant of the premises, officecum-godown bearing Nos.3 and 4 situated at Mandviwala Building, Old.
Queens Road, Karachi admeasuring 5360 sq. Feet. Initially the rent was fixed at the rate of Rs,2,680 per month, however, from time to time it was enhanced by mutual consent and lastly the rent was fixed at Rs,9,586 per month.
' It was pleaded that in the year 1998 scuffle between the parties started when the new management of the defendants with mala fide intention started claiming enhancement in the rent as well as water tax etc. And asked the plaintiffs to clear the outstanding dues. On 8-9-1999 defendants demanded the plaintiffs to vacate the premises on the pretext of demolition of the building. In reply the plaintiffs agreed to vacate the premises subject to the condition that plaintiffs shall be given equal space in the newly constructed premises as agreed by the previous management but this proposal was not accepted by the defendants who threatened dispossession of the plaintiffs without due process of law. The plaintiffs, therefore, started depositing the rent in M.R.C. No,2208 of 2000, after service of legal notice, as the defendants refused to accept the rent.
' It was further pleaded that the defendants mischievously trespassed into the premises in question by breaking open the lock of the premises and removed the goods/finished goods stock of the plaintiffs from the premises without knowledge and consent of the plaintiffs. The plaintiffs moved various complaints to law enforcing agencies and ultimately lodged an F.I.R. At Itharadar Police Station. It is averred that the plaintiffs apprehended that defendants might create third party interest, as such, the plaintiffs filed the instant suit for possession and permanent injunction.
3. In pursuance of the summons, the defendants entered their appearance and filed written statement.
4. In the written statement the defendants denied the allegation of forcible dispossession of the plaintiffs without his consent. It was pleaded that the plaintiffs always made late payment of the rent. In the year 1998 due to increase in the water tax etc. The defendants requested the plaintiffs to increase the rent which was accepted by the plaintiffs but subsequently they failed to fulfil their commitment, as such the defendants informed the plaintiffs that they were defaulters in payment of rent since 1997 and requested them to clear the outstanding amount. Ultimately the defendants issued notices dated 8-7-1999 and 25-9-1999 to the plaintiffs to vacate the premises as the same were required by the defendants for their personal bona fide use.
' It is the case of the defendants that the plaintiffs themselves agreed to vacate the premises in question on the condition that their goods may temporarily be located to another place till such time the plaintiffs may find alternate accommodation. On 26-7-2001 the defendants informed the Marketing Director of the plaintiffs that as per the request of the plaintiffs, their goods were transported at another premises of the defendants in Quaidabad and that the plaintiffs may take their goods within a period of seven days. When the plaintiffs did not lift their goods, the defendants again vide letter dated 7-8-2001 informed the plaintiffs that in case the goods were not lifted by the plaintiffs till 13-8-2002, the defendants will not be responsible for the same. However, on receiving the said letter the plaintiffs demanded huge amount from the defendants failing which they threatened of dire consequences and thereafter they malafidely lodged F.I.R. At Police Station Kharadar against the directors of the defendants in which the directors of the defendants were granted bail.
' According to the defendants, as the premises in question was got vacated with the consent of the plaintiffs, no cause of action accrued to the plaintiffs for filing the present, suit.
5. On the pleadings of the parties following issues were framed on 11-11-2002 :
(i) Whether the plaintiff has vacated the premises in question voluntarily? If so, its effect?
(ii) Whether lease agreement dated 1-7-2001 is fabricated document?
(iii) What should the decree be?
6. In support of their case, the plaintiffs examined (i) Muhammad Ishaque Farooqui, Assistant Manager of the plaintiffs, as Exh.5 who produced his affidavit in evidence as Exh.5/1 and photostat copies of various documents as Exh.5/2. To Exh.5/31, (ii) Shahpur Channa, Deputy Chief Executive of the plaintiffs as Exh.6, (iii) Qasim Rehman, Assistant Manager Marketing of the plaintiffs as Exh.7, (iv)
Ashiq Ali, Marketing Service Officer of the plaintiffs as Exh.8.
' On the other hand, the defendants examined only one witness viz. Ali Mandviwala, one of the directors of the defendant-company.
7. I have heard Mr. Abbad-ulHassnain, Advocate appearing on behalf of the plaintiffs and Mr. Tasawur Ali Hashmi, learned counsel for the defendants.
8. Issue-wise findings are as under:-- ' ISSUE No,1: ' The bare perusal of the relevant portion of section 9, Specific Relief Act, would clearly reveal that this provision of law consists of four ingredients; Firstly, the person suing must have been dispossessed. Secondly, such dispossession must be of immovable property. Thirdly, the dispossession should be without his consent. Fourthly, the dispossession should be otherwise than in due course of law.
' The above proposition is founded on established principles of law. In this context the case reported as Riaz and others v. Razi Muhammad 1982 SCM R 741 can be conveniently referred.
' In Late Mst. Majeedan through Legal Heirs and another v. Late Muhammad Naseem through Legal Heirs and another reported in 2001 SCM R 345 after surveying the entire case-law on the point, it was observed by the Apex Court as under:-- "A suit under section 9 of the Specific Relief Act is however, an entirely different kind- of action. That section gives a specific privilege to person in possession who takes action promptly. In case they are dispossessed, it entitles them to succeed simply by proving (1) that they were in possession, (2) that they have been dispossessed by the defendant, (3) that the dispossession is not in accordance with law, and (4) that the dispossession took place within six months of the suit. No question of title either of the plaintiff or of the defendant can be raised or gone into that case."
' So far as the facts of instant case are concerned, the plaintiffs were in possession of the demised premises as a tenant. Admittedly they were dispossessed but not in consequence of legal proceedings. The case of the plaintiffs was that they were dispossessed without their consent, while the defendants pleaded that plaintiffs had consented and had voluntarily handed over the possession to the defendants. In the given circumstances, the burden was upon the defendants to positively prove that the possession was handed over to them by the plaintiffs voluntarily. To support this settled principle of law, reference can be made to the case of Ghulam Rasool v.
Muhammad Waris Bismil 1995 SCM R 500 wherein it was held as under:-- "It may be observed that a tenant cannot be ejected by a landlord without having recourse to law.
The appellant having admitted the status of the respondent as a tenant in respect of the shop, the burden was on him to show that the respondent had voluntarily handed over the possession of the shop to him, once the respondent having deposed on oath that he was forcibly dispossessed."
' Now it is to be examined as to whether the defendants have succeeded in proving this issue. It will be advantageous to reproduce the relevant portion from the evidence of the defendants' sole witness namely Ali Mandviwala. In his examination-in-chief he stated:-- "We had some negotiation with Mr. Shahpur Channa, Manager Marketing of plaintiff for vacating the premises in question. The plaintiff was asking some consideration for vacating the premises.
The plaintiff's demand was of two millions. The plaintiff vacated the premises and demanded excess amount after vacating the premises."
' He also deposed in the same examinationin-chief:-- "The plaintiff has not handed over key of the premises in question. On account of differences between quantum of consideration that matter could not be settled between the parties...."
' In the cross-examination he stated:-- "It is correct to suggest that Mr. Shahpur Channa, Marketing Manager of the plaintiff refused to vacate the premises in question and asked for alternate premises in the project to be constructed...."
"It is correct to suggest that through the said legal notice plaintiff had refused to hand over possession to defendant "
"It is also correct that police recovered a lock from the site "
ISSUE No,2: ' In view of the findings arrived on Issue No,1, Issue No,2 has been rendered inconsequential. Even otherwise it was hardly material for the purpose of adjudication of the controversy. ISSUE No,3: 'The upshot of the above discussion is that the plaintiffs are declared to have been dispossessed illegally. Consequently it is directed that the plaintiffs shall be re-inducted into possession forthwith. However, in view of the peculiar circumstances, there will be no order as to costs.
"I cannot produce any evidence of the consent given by the plaintiff as the consent was given by the, plaintiff on telephone."
' From the perusal of above evidence available on the record, it is explicitly and abundantly evident that the defendants have not been able to prove that the plaintiffs had given "consent" to vacate the premises in question. They have neither produced any documentary evidence to prove this issue, nor any witness was examined by them before whom any such consent was made by the plaintiffs.
' In the circumstances, there is no option except to hold that the plaintiffs have not vacated the suit premises voluntarily, and that they had not given any consent to that effect.
' The effect of the above findings would be that the plaintiffs were dispossessed without their consent. accordingly.