1. ' MUSHIR ALAM, I.-In. This suit for declaration, specific performance of agreement and permanent injunction. CMA No,417 of 2005 under Orders XXXIX, rules 1 and 2, C.P.C. Has been filed by the plaintiff, soliciting restraining orders against the defendant from interfering in the plaintiff right to free access to the rooftop of the Palace Cinema building.
2. ' Brief facts, leading to present controversy appears to that, the plaintiff an advertising agency acquired advertising space over the rooftop of the Palace Cimena building, under a tenancy agreement dated 1-1-2002 for a term of 5 years. Plaintiff had also entered into an agreement with Coca-Cola Export Corporation, for a period of three years from 15-12-2001, for the maintenance of its billboard. It is the case of the plaintiff that, on expiry of the agreement between the plaintiff and Coca Cola Export Corporation, the Corporation requested the plaintiff to remove skin from its billboard,. Through letter dated 16-12-2004, as they did not wish to continue the contract for the year 2005.
3. ' It is the case of the plaintiff that, when they went to remove the skin from the Billboard, defendant denied access to the rooftop of the building consequently instant suit along with the listed application has been filed on 8-1-2005. After due notice to the defendant, on 19-1-2005 as an interim measure, the defendant was restrained from interfering in the plaintiff access to the rooftop of the building. It appears that despite Court order, plaintiff was again denied access, consequently, on urgent motion, on 25-1-2005 Nazir, was appointed to facilitate access to the plaintiff to the rooftop of the building to remove the skin from the billboard. In later part of the day after such order was passed, defendant appeared through M/s Anwer Mansoor and Asim Mansoor Advocates, filed C.M.A, No,434 of 2005 under Order XXXIX, rule 4, C.P.C. Seeking recall of the interim order. At the same time, learned counsel undertook to provide access to the plaintiff to the rooftop of the building to remove the skin from the billboard.
4. ' Defendant has denied the allegations contained both in the suit and the injunction application.
5. Defendant has also challenged the maintainability of the suit. It is the case of the defendant that, Coca-Cola Corporation, who desired to use the billboard, on the rooftop of the defendant's building, introduced the' plaintiff. It was at the request of Coca- Cola, the plaintiffs were allowed to maintain the billboard on the rooftop of the Palace Cinema Building. It was pleaded that the agreement is nothing but fraud, as the defendant had not signed the agreement nor, it shows that it was signed under the authority of the defendant.
6. ' It is further the case of defendant that Coca-Cola, is interested in renewal of the contract for the display of the billboard, at the subject site with defendant directly. Therefore, the plaintiff has no right to claim any benefit under the agreement with the defendant as the agreement, if any was for the benefit of Coca-Cola Corporation and not for any other purpose. It is the case of the defendant that, the plaintiff fraudulently caused the execution of the agreement for a period of 5 years, therefore, the agreement is void and cannot be enforced. Defendant denied that, plaintiff have any' right to fix any other advertisement on the billboard, excepting that of the Coca-Cola. It is denied that right of the plaintiff to access rooftop has been hindered.
7. ' By consent both the above referred applications were heard at the same time.
8. ' Mrs. Naveen Merchant, learned counsel for the plaintiff, contended that, the agreement between the plaintiff and defendant is a tenancy agreement for a fixed term of five (5) years i.e, up to 31-12- 2006. It is stated that rooftop of the Palace Cinema building was let out on advance annual rental of Rs,3 Million with stipulation of successive increase each year. The plaintiff was given free access to the rooftop and still the possession of subject site is that of the plaintiff. It was further pleaded that under the tenancy agreement defendant acknowledged the rights of the plaintiff to use the rooftop for placing and changing advertisement of its clients and defendant committed not to place any advertisement by himself.
9. ' It was urged by the learned counsel for the plaintiff that, tenancy rights are protected under section 13 Sindh Rented Premises Ordinance, 1979. No tenant could be dispossessed without recourse thereto. It is stated that the plaintiff is in physical possession of the rooftop and has unfettered right to remove and change the advertisement material as and when required. Mrs. Naveed Merchant, urged that, the premises, in terms of section 2 of the S.R.P.O. 1979 include part of the building. According to her rooftop over which instant billboard is fixed is part of the building therefore, it is subject matter of tenancy right and plaintiff seek declaration and enforcement of such rights in the instant suit ad interim relief or protection through listed application.
10. ' Without prejudice, it was contended that, if at all this Court comes to a conclusion, that instant agreement is license then plaintiff's contention is that the license is irrecoverable. It was urged that the possession of the subject site is with the plaintiff and secondly the plaintiff had erected structure of permanent nature. According to Mrs. Naveen, if the agreement is license then it is coupled with transfer of possession with authority to erect the structure of permanent nature under leasing arrangement with Orix Leasing therefore irrevocable.
11. ' It is stated that the agreement with the defendant is for the term of 5 years. It was urged that plaintiffs agreement with Coca Cola Corporation was for a shorter term of three years. It contained option of renewal (i.e, Clause 8.2 of the agreement), the Coca-Cola could have exercised option of renewal, by giving written notice one month prior to termination of the contract, and option of renewal was expressly declined. Mrs. Naveen, learned counsel for the plaintiff has drawn my attention to annexure P-8 to the plaint a letter dated 12-2004 whereby the Coca-Cola Corporation regretted to renew the contract for the year 2005 and further directed the plaintiff to remove the skin of Coca-Cola from the billboard, and retain it in custody. It was therefore, urged that plaintiff had removed the advertisement skin from the billboard and kept it in safe custody as requested by its client. It was with vehemence urged that the plaintiff is entitled for the exploitation of subject site under the tenancy agreement to the fullest, at least for two more years, if not more.
12. ' In support of her contention Mrs. Naveen has placed reliance upon Government of West Pakistan v. Meezan Corporation and another (PLD 1971 Karachi 35) in said case distinction between lease and license was drawn after full- fledged trial and evidence. In said case, where the weigh-bridge was allowed to be - installed under a pro forma agreement used for license, on examination of evidence could held it to be a lease and not license and Ismail and 20 others v. Municipal Committee (PLD 1973 Note 40). In said case it was held that the intention of parties are to be seen before concluding nature of transaction as lease or license.
13. ' As against above Mr. Anwer Mansoor learned counsel has raised legal objection as to maintainability of suit, and the application and even the validity of the agreement. According to him agreement, if at all exist, is nothing but a license, he therefore, urged that, remedy if any, is claim for damages and not specific performance as license is inherently revocable.
14. ' Without prejudice, it was next urged that, if it is a tenancy then the remedy lies with the Rent Controller and not by way of suit. He urged that the Rent Controller is deemed to be Civil Court therefore, Rent Controller has jurisdiction if at all to entertain claim in suit.
15. ' Mr. Anwer Mansoor, learned counsel for the defendant also challenged the validity of the agreement on the premises that, it was not signed by the defendant, as no person had. Any authority to sign on behalf of the defendant. It was urged that the agreement is merely a permission to maintain site of Coca Cola and nothing more. Mr. Anwer, further urged that no possession was passed on to the plaintiff, therefore, it is not a tenancy but a license.
16. ' As regard validity of the agreement, it was stated that, the agreement does not speak that, the signatory or executants were authorized to sign on behalf of the defendant as he was not in Pakistan at the relevant time; Mr. Anwar Mansoor, stated that, the plaintiff, was merely the handling agent of Coca-Cola to maintain its billboard and in view of this relationship the plaintiff was allowed to display the advertisement of Coca-Cola at the subject site. To a specific query of the Court that, when the defendant has not signed the agreement how' come he had received the rental amount paid through cross cheques. Mr. Anwer could not deny the receipt to the rent, but maintained that the manager of the defendant issued receipt and the defendant was unaware of the nature of the agreement. He further stated that the amount was received not under the agreement but in consideration of the concession the plaintiff was "deriving. In support of his contention he has relied upon Muhammad Shafi v. Sardar Begum and others (1994 CLC 22G4), in said case suit for possession was resisted on the ground that there exist relationship of landlord and tenant. Therefore jurisdiction of Civil Court is barred under the West Pakistan Urban Rent Restriction Ordinance*.
17. 1959. It was held that Civil Court has jurisdiction to decide the issue as to existence or otherwise of tenancy. Akher Ali and others v. Vazir Ashique Ali and others (1992 CLC 1551). In said case issue of offering Namaz in Jamatkhana was involved has no bearing in the instant suit. The Election Officer Gujarat v. Abdul Ghani (AIR 1923 Lahore 47) in said case it seems that the plaintiff challenged the 'eligibility of a person to contest election when such person was declared eligible by the competent authority, facts of the case have absolutely no relevance. Rochiram A. Amesure v. Municipal Corporation Karachi and another (AIR 1934 Sind. 136) in said case also plaintiff claimed stay of election without any personal right. Federation of Pakistan and others v. Messrs Saman Diplomatic Bonded Warehouse (2004 PTD 1189, 1207), resounds the principle that Civil Courts have jurisdiction unless barred and that ousting provisions are to be strictly construed and A.T.A. Ghumro v. II Additional District and Sessions Judge Karachi (PLD 2003 Karachi 188). In said case it was held that the Rent Controller had jurisdiction to order eviction of tenant of a building owned by a corporation.
18. '' It is not disputed that the plaintiff was let out the rooftop for installation of billboard under "Agreement of Tenancy" dated 1-1-2002. It is also not disputed that, the defendant has received advance rental for the said billboard up to December, 2004. Further advance rental for the year 2005 when tendered, against the invoice sent by the defendant was returned on the pretext that the defendant is out station, it was then deposited in MRC before the learned Rent Controller well in time. '
19. ' Before examining the terms of the "Tenancy Agreement", it is deemed appropriate to attend to the contention of Mr. Anwer Mansoor, who has challenged the validity of the agreement.
20. '' Challenge to the validity of the subject tenancy agreement is pitched on the premise that, the defendant had not executed the agreement annexure P.4 to the plaint. According to Mr. Anwer one Mr. M. Farooq, who merely is a manager in one of defendant's company and does not possess any authority to enter into contract on his behalf. It was therefore, urged that since there is no valid contract between the parties, same cannot be enforced. Contention on the face of it is preposterous and does not hold much water. The plaintiff executed the agreement, on 1st January, 2002 for a term of five years. On behalf of the defendant it was signed by three persons, one G.M Farooq who admittedly is an employee of the defendant, secondly by his son Asif Baig and third is not identified. It cannot be believed that an employee or for that matter son of a person could enter into an agreement entailing substantial financial implication without his concurrence, more particularly when the defendant himself is the beneficiary of the contract. It is not always necessary that, the authority to enter into or to sign the agreement must be expressed, it may be implied as well. It all depends on circumstances of each case, admittedly cheques of rental for three years, have been drawn in the name of defendant, same were encashed without any objections. Defendant alone is the beneficiary of the agreement, therefore, after three years, at least, at this juncture, it cannot be said that executants were not authorized by the defendant.
21. Prima facie, the circumstance as discussed above supports the contentions of the learned counsel for the plaintiff that, the contract was entered into by and between the plaintiff and defendant, it does not lie in the mouth of the defendant at least to deny the existence of the contract. It is altogether a different question whether it is a lease or license. Mr. Anwar Mansoor, on query of the Court stated that, no action has been taken against said Muhammad Farooq or his son for signing the contract. '
22. '' It is not necessary that, the agreement of necessity must be signed by all the parties personally, if it is shown that, the party acted upon certain terms and condition reduced in writing even .If signed by only one of the party, a valid contract come into being. ' In a very recent case reported in Mrs. Rehana Asghar v. Military Estate Officers Lahore (2005 MLD 28 (January issue) it was held "execution of written document was not essential to complete the contract- to which the Government was party and for this purpose sanction having already accorded by the respondent in their letter above reproduced was enough to equip the petitioner with right of lease". ' In instant case also, the partner of the plaintiff had signed agreement. On behalf of the defendant it was signed by the General Manager of the defendant's company and so also by his son, the authority of such persons is implied; It matters little that defendant himself has not physically signed the agreement. There are compelling circumstances to believe that, the contract was signed and executed on his behalf, at least such can be assumed at this interlocutory stage. Under circumstances, defendant cannot be allowed to wriggle out of the contractual obligation on such score. '
23. ' As regard the contention of the learned counsel for the plaintiff that, agreement is a tenancy in support, she has relied upon the definition of building and premises as given in the Sindh Rented Premises Ordinance, 1979, which runs as follows:-- 2(a) "building" means any building or part thereof, together with all fitting and fixture therein, if any, and includes any garden, garage, outhouse and open space attached or appurtenant thereto.
24. 2(h) "premises" means a building or land, let out on rent, but does not include a hotel; ' Learned counsel has emphasized phrase "any part of the building" used in the definition clause reproduced above, to derive strength for her arguments that roof top of the building is part of a building could be let out independently and therefore could be subject matter of tenancy.
25. Contention is hot without force, in view of definition of the building given in the Sindh Rented Premises Ordinance, 1979 indeed rooftop, being part of the building could be subject matter of the tenancy. It is not necessary that the rented premises may only comprise of any habitable portion of a building. The definition of building as given under the Sindh Rented Premises Ordinance, 1979 at least for the purpose of the Ordinance, 1979 has enlarged the conventional definition of the building, by including any part of the building, any garden, garage, out house and open space.
26. Provided it is attached or appurtenant to the building, rooftop certainly is an integral part of the building. In view of the foregoing I do not see any difficulty to hold that the rooftop being part of the building could independently be subject matter of tenancy. '
27. ' As regard contention of Mr. Anwar Mansoor that, the plaintiff had only affixed the skin of the advertisement therefore, only it is only a license. According to him, since the advertisement was being displayed for the past many years infrastructure already existed and the plaintiff has merely affixed the skin. No material on record supports such contention, on the contrary clause-9 of the agreement negates such contention. From perusal of Clause 9, of the agreement it is apparent that" the infrastructure installed for affixing the skin on the billboard was leased out by Orix Leasing Company, which the plaintiff -is entitled to buy out and not the defendant.
28. ' In order to determine whether an agreement is lease or license, it is true that caption or title of the document or the manner document is described is not always the deciding factor. It is tenor of the agreement intention of parties that determines real nature of the transaction.
29. ' Oil examination of the terms of the agreement, it appears that defendant permitted the plaintiff to erect the billboard on payment of rent reserved (opening clause). Under clause (6), the plaintiff has the right to change or alter the publicity matters according to the publicity programs of any of its clients as and when so desired and the defendant has no say in the matter. As regard possession. (Clause (7) plaintiffs possession was acknowledged with restriction not to assign, or sublet or part with the possession of the tenancy right to any other person without the previous consent in writing of the defendant. This implied that, the subletting was permitted subject to permission. Clause (11) of the agreement, stipulates that, during the currency of the agreement, defendant will neither permit any other person nor he himself shall erect any billboard on the agreed roof top of the said building. It was also committed by the defendant that, has full unencumbered right to rent out the side on which the billboard and the advertisement are located and that its right is free of any third party rights and claims. Parties agreed to call off the agreement, only in case where the defendant requires the building for reconstruction or if it was sold, (see clauses 15 and 16) and such is not the case of the defendant. In which eventuality , plaintiff was entitled for a three months notice and refund of the rent for the unexpired tenancy under clause 9, the defendant acknowledged that the plaintiff has a right to erect structure for the bill board install allied equipment against finance from Orix Leasing.
30. ' Tentative assessm ent of the surrounding circumstances and cursory examination of above terms and condition, do imply that something more than mere license exist. In ultimate assessment and evaluation if it is found to be a lease then Plaintiffs right is prima facie protected under section. 13 of the Sindh Rented Premises Ordinance, 1979. Contention of Mr. Anwer Mansoor, that in case of tenancy, such declaration could be given by I the Rent Controller, does not seems to be well founded. Under the scheme of the Sindh Rented Premises' Ordinance 1979, jurisdiction of Rent Controller is confined to relief under section 8 fixation of fair rent. Under section 10 could grant permission to deposit rent to the tenant and withdrawal by the landlord. Controller could direct restorations of amenities (see section 12). In terms of sections 14 and 15 direct eviction of tenant and under section execute writ of possession. None of the provisions of the Sindh Rented Premises Ordinance, clothes the Rent Controller to grant declaration, injunction of the nature claimed in the suit. Section 13 of the Ordinance, 1979 only provided protection to the tenant from dispossession otherwise j than as provided under the Ordinance, 1979. Declaration of the nature and injunctive relief could only be granted by Civil Court under its plenary jurisdiction. None of the cases cited at bar by Mr. Anwer, supports his contention that the section 13 of the Ordinance, 1979 gives jurisdiction to the Rent Controller to assume jurisdiction to grant declaration as to tenancy or licensee.
31. ' Rent Controller indeed in ejectment proceedings initiated at the motion of landlord, may incidentally examine the existence of relationship of the parties, before assuming jurisdiction to pass ejectment order. It does not mean that Rent Controller may act as a Civil Court and pass declaratory judgments and decree and issue injunctive order till determination of such controversy, as urged by Mr. Anwer Mansoor.
32. ' According to other contention of Mr. Anwer that, the subject agreement is in .Fact a license. It appears that the plaintiff was allowed to raise structure of permanent nature on the rooftop of the Palace Cinema, possession was that of the plaintiff. Coupled with restrictive covenants circumscribing the rights of the defendant not to interfere in the rights of the plaintiff. And covenant not to cause hindrance or block the advertisement of the plaintiff, tend to show that license, if any, was hot revocable in terms of section 60 of the Easements Act. Looking at the circumstances of the case and tentative, Sign Source v. Humayun H. Baig Muhammad assessment terms of the transaction/ agreement, it cannot be conclusively determined to be a lease or license at this interlocutory stage of the proceedings,-in my opinion, it requires evidence to decipher the true intentions of the parties.
33. ' Addressing to another contention of the learned counsel for the defendant that, the agreement between the plaintiff and defendant was for the benefit of Coca-Cola and no other billboard could be fixed on the subject site. He has drawn my attention to various documents, to impress that, it was at the request of Coca-Cola the contract was awarded to the plaintiff. Such documents are disputed, on the contrary, defendant not only conceded to the rights of the plaintiff to install and change advertisement of any of its client during currency of the agreement but, also committed to protect and respect the rights of the plaintiff by committing not to install any advertisement by himself that may hinder the plaintiff's billboard. (See clauses (6) and (11) of the agreement)
34. ' Admittedly Coca-Cola entered into an agreement with the plaintiff only for three years (Annexure-A to the plaint)- It has also come on record that on expiry of term of its agreement, Coca-Cola asked the plaintiff to remove the advertisement skin from their billboard. On the other hand agreement of the plaintiff with the defendant is for. 5 years term, out of which two years still remain to be utilized by the plaintiff.
35. ' From the record it appears that, the defendant in order to by-pass the plaintiff entered into some direct arrangement with Coca-Cola, to display its advertisement on the same site by himself. Such conduct adversely reflects on the mindset of the defendant and displays mala fide and lust on his part and nothing more. Prima facie, promissory estopple comes in the way of the defendant. Even otherwise, defendant is bound by the terms of restrictive covenant as contained in clause 11 of the contract, which reads as follows:----
11. That during the tenure of this agreement the first party will .Not permit any other person(s) nor' shall themselves erect any billboard on the agreed roof top of the said building i.e, by hindering/blocking the view of the said Billboard mentioned in this agreement.
36. ' Under circumstances, conduct of the defendant is unbecoming of a businessman and also against ethical business norms and tradition, indeed cannot be approved of by the Court.
37. ' Plaintiff who had acquired the infrastructure on lease finance, invested substantial amount on raising structure seemingly of permanent nature, has paid the agreed rental is prima facie entitled to derive full benefit arising out of the contract at least for the term committed. Defendant cannot be allowed to exploit his dominion position to cow-down a small commercial enterprise.
38. ' Admittedly the plaintiff entered into a contract for commercial gains. It- seems that, plaintiff was earning approximately Rupees one million per annum. Tentatively the plaintiff would have generated a sum of Rupees two million in next two years of the subject contract.
39. ' In case of licensee is evicted without any fault on his part before full enjoyment of the contracted term of license, then he is entitled to recover compensation in terms of section 63 of the Easements Act. And where a tenant is threatened of eviction, he may claim protection of section 13 of Sindh Rented Premises Ordinance, 1979 from Civil Court as a tenant could only be ejected in accordance with Ordinance, 1979 and not otherwise.
40. ' In view of the foregoing, till determination of the status of the plaintiff, equity is in favour of the plaintiff. The plaintiff for the grant of injunction has made out prima facie case. Application C.M.A.
41. 152 of 2005, under Order XXXIX, rules 1 and 2, C.P.C. Is therefore granted. Conversely, C.M.A. 435 of 2005 under Order XXXIX, rule 4, C.P.C. Is dismissed.
42. ' Since, it is not the case of the plaintiff that, plaintiff has entered into any forward contract with any other client for the display of the advertisement on the subject site. Therefore, in case the defendant deposits a sum of rupees two million, being tentatively assessed compensation for the unutilized term under the subject agreement within 15 days from to day, the injunction shall stand vacated. The amount to be deposited within 15 days hereof. In case amount is not deposited injunction shall stand confirmed till disposal of suit. This is however, without prejudice to the rights of the plaintiff. In event, this Court ultimately comes to a conclusion that, subject contract is a lease and not a license in which case the possession of the subject premises my be restored to the plaintiff if not more, at least for a period equivalent to the unexpired term of the agreement. Both the applications stand disposed of in terms above.
43. ' Parties are also directed to file issues before next date on which date appointment of Commissioner to record evidence at an early date may be considered to facilitate early disposal of case on merits.