1. S. ALI ASLAM JAFRI, J.---In this suit for Declaration, Permanent Injunction and Specific Performance; which was filed on 13-7-2005, apart from an application C.M.A. No,5552 of 2005 for grant of temporary injunction during the pendency of the suit, the plaintiff has also filed another application C.M.A. No,6621 of 2005 under Order XXXIX, rules 1 and 2, C.P.C. On 24-8-2005 praying for a direction to the defendants to hand over the possession of the plot in suit to the plaintiff by granting status quo ante as after withdrawal of his urgent application to hear stay application C.M.A. No, 5552 of 2005 on 23-8-2005 for grant of injunction which was not pressed in view of certain assurances given by the defendants, the plaintiff has been dispossessed on 23-8-2005. This application is supported by an affidavit filed by Kh. Shamim Ahmed attorney of the plaintiff stating therein that after receiving notice for hearing of application on 18-82005, the defendants filed their written statement and counter-affidavit and the date of hearing of the matter was adjourned for 8-9- 2005. According to the attorney of the plaintiff, the defendants promised that they will give a portion of the plot to the plaintiff which is not required by the defendant, provided the plaintiff does not approach the Court. It was in view of such assurance that the plaintiff instructed his Advocate to withdraw the urgent application for fixation of the stay application on 23-8-2005, which was withdrawn accordingly. He has further contended that immediately after withdrawal of the urgent application, the demolition squad reached on the plot and started demolition work. It was claimed that stock of the plaintiff worth two crores of rupees was lying on the plot and the goodwill and reputation of the plaintiff has been damaged and the plaintiff is likely to suffer irreparable loss.
2. ' Counter-affidavit was filed on behalf of defendants by Bashir Ahmed, Manager Legal Affairs of defendant No,1 stating that another stay application is already pending hearing filed along with this suit in which also counter-affidavit has been filed while taking preliminary objection as to the maintainability of the suit/stay application. The deponent has further stated that plaintiff has not given statutory notice under section 87 of the KPT Act, 1886 as such suit is not maintainable. It has been further stated that the plaintiff surrendered the plot voluntarily and has admitted in para 4 of the affidavit that possession is with the defendants, hence the plaintiff is estopped from reclaiming/or asking for interim orders of any kind from this Court. It is further stated that suit along with listed application has become infructuous and at the most the plaintiff can file a suit for damages which too is not permissible as the plaintiff has himself surrendered the plot, which is required for being utilized under the two development schemes viz. Tameer-eKarachi and Port Development, and the construction work for over-head Traverse Bridge has already been started.
3. The deponent has further stated that lease has already been expired on 11-11-2001 and plaintiff did not take any steps for its renewal as per lease indenture and as such he was an unauthorized occupant. Under the indenture of lease the plaintiff was required to apply at least six months before the expiry date but the plaintiff failed to do so. The deponent further stated that the plaintiff has covenanted with the defendant if the plot is hit by an development scheme, he will hand over the plot, so he has done as per letter dated 14-6-2005 attached as Annexure 'IT with the written statement. It was denied that defendant ever promised anything to plaintiff. It is further stated that the plaintiff has withdrawn the application at his own and answering defendants have no knowledge. The demolition took place earlier and not as alleged by the plaintiff. It has been denied that any notice for hearing on 6-9-2005 was issued. The authority of the attorney to file the suit has also been questioned as no power of attorney has been attached to the suit. It has been denied that defendant started demolition after withdrawal of the application on 23-8-2005. It was reiterated that plaintiff has voluntarily surrendered the plot and rest is concocted story and afterthought. Defendant further stated that there are four plots which are hit by the development and construction work which is already in progress. It has been denied that the plaintiff has suffered any irreparable loss or the bundles of bamboos lying on the plot in question are worth Rs,2 crores. Damage to the goodwill of the plaintiff has also been denied. No rejoinder has been filed to this counter-affidavit.
4. ' I propose to dispose of these two applications together.
5. ' In order to appreciate the contentions of the parties it is necessary to refer to the facts of the case.
6. The case of the plaintiff in brief appears to be that he acquired Plot bearing No,24 situated at Timber Pond Area Keamari, Karachi admeasuring 792 square meters plus overhead projection of 1 square meter through lease deed dated 2-8-1979 executed by the defendant No, 1 . The plot in question was leased out to the plaintiff earlier as well and the indenture of lease provided for renewal of the demised premises for another 25 years in terms of lease deed dated 2-8-1979 which was renewed and lastly the term of the lease has expired on 11-11-2001. The defendants vide their letter dated 5-6-2003 demanded enhanced rent from Rs,19.25 per square meter to Rs,101.26 per square meter thereby enhancing the rent by 322% with 4% escalation every year excluding the Government and municipal taxes. The plaintiff requested the defendants to reconsider the enhancement of rent and I B further requested for renewal of the lease for another period of 25 years. However, the defendants vide letter dated 4-6-2005 (Annexure 'C') asked the plaintiff to hand over vacant possession of the plot in question to the KPT within seven (7) days of the receipt of the said notice failing which the plaintiff was informed for action by KPT. The said letter was replied by the plaintiff vide letter. Dated 14-6-2005 and in reply thereto defendants sent another notice dated 5-7-2005 stating therein that subject plot is required for Port Expansion Program hence the plaintiff was advised to vacate the subject plot immediately. Expiry of the lease period on 11-11-2001 was also reminded to the plaintiff.
7. ' It was under these circumstances that the plaintiff who claims to have spent huge amount on the development of the plot in question has filed this suit for declaration that demand of rent by defendants at the rate of Rs,101.26 per square meter per annum is exorbitant, unlawful and illegal.
8. Plaintiff has also prayed for further declaration that defendants are entitled to increase the rent at 10% every three years or any other rate fixed by this Court. Plaintiff also prayed for grant of permanent injunction seeking a direction to the defendants to renew the lease in favour of the plaintiff for a period of 25 years on the same terms and conditions as it was renewed in favour of some other lease holders. Plaintiff also prayed for permanent injunction restraining the defendants, their servants, agents, person or persons acting for and on their behalf from interfering with the peaceful possession of the plaintiff over the plot in suit.
9. ' In response to the notice issued, defendants filed written statement so also counter-affidavit to the injunction application on 19-8-2005 when the matter was adjourned to 8-9-2005. In the meantime, an urgent application was filed by the plaintiff, but it was not pressed on 23-8-2005 and thereafter C.M.A. No,6621 of 2005 was filed on 24-8-2005.
10. The case of the defendants is that no cause of action has accrued to the plaintiff to file this suit and the land in question along with some adjoining plots is C required for Tameer-e-Karachi and Port Development Program and it is to be utilized for the said purpose. The defendants further stated that the plot is urgently required for the said development work/projects and is to be utilized for the said purpose. To substantiate the said contention, site plan showing the construction of the Traverse Bridge and utilization of the plot in question with some other plots has been filed.
11. ' During the arguments before this Court on 29-8-2005 Mr. Raja Qureshi argued that only small portion of this plot will be utilized for the purpose of construction of Traverse Bridge as can be seen from the site plan and the remaining plot can be allowed to remain with the plaintiff. He further submitted that possession has never been handed over the defendants and prayed for appointment of a Commissioner to inspect the site and submit his report. Nazir of this Court was appointed as Commissioner who inspected the site on the same day and submitted his report. In his report Nazir has stated that at the time of his visit at about 3-30 p.m. On 29-8-2005 he found persons present inside the shed/plot in suit. 5 or 6 persons from plaintiff's side were also present who were his labourers, relatives and son of attorney. There was hue and cry and allegation of torture and being beaten at the hands of police. Counter-allegation was made by police against the persons of the plaintiff's side for interfering in the performance of the official duty. Half of the shed/plot was found full of bamboos along with other miscellaneous articles whereas remaining half was found empty and its bamboos were lying by the road-side. Nazir found lifters removing the bamboos from the shed. On his arrival lifters moved away and work was stopped and KPT Captain Akhtar informed that drilling work would continue in front of shed/plot in question.
12. Representatives of defendants Nos.1 and 2 and plaintiff who were present there undertook to maintain law and order situation inside the shed. Plaintiff was found in possession of the plot, though the law officer of KPT informed that possession of the plot was handed over by the plaintiff but no memo/fard showing handing and taking over possession was produced before the Nazir.
13. ' Learned counsel for the plaintiff has argued that the plaintiff is still in possession of the plot in question and the whole of the plot is not required for the purpose of being utilized for development work or construction of Traverse Bridge. Learned counsel further argued that an attempt was made by the defendants to dispossess the plaintiff forcibly and as such status quo ante will be in the interest of justice. In support of his contention, learned counsel has referred to the case of Muhammad Rafique Javaid v. Muhammad Khalil and 3 others 1999 M LD 1672, which deals with the object of interim injunction. Learned counsel also referred to the case of Mst. Hamida Mullick v.
14. Syed Mushfiq Ali Zaidi 1990 M LD 325, a suit under section 9 of the Specific Relief Act where plaintiff was found to have been dispossessed forcibly and Nazir was directed to seal the property from which the plaintiff was dispossessed, despite being in possession. Learned counsel further referred to the case of Tahir Mahmood Rana v. The Tourism Development Corporation of Punjab, Lahore and 2 others 1994 CLC 2004 to urge that status quo as operating at the time of institution of suit can be ordered to be maintained by the Court in exercise of its discretion. Learned counsel lastly urged that after receiving the notice for enhancement of rent the plaintiff had protested against such arbitrary enhancement and as such neither the lease was renewed nor he is being allowed to continue.
15. On the other hand, Mr. S.A. Sulehry learned counsel for the defendants has argued that after expiry of the earlier lease as back as on 11-11-2001 no fresh lease was executed in favour of the plaintiff and even as per clause 21 of the Indenture of Lease, if premises at any time be effected by any development or expansion scheme of the Board (Board of KPT) or of any competent authority entrusted with the development work, the lease shall be determined and the Board may resume the whole or part of the premises, whereupon on receipt of written notice from the Estate Manager, the tenant(s) shall remove the structures/erections and other public utilities like drainage lines, water mains, gas mains and electric cables, telephone cables, etc. At his own risk and his own expense within the period as may be prescribed in the notice. Learned counsel, therefore, argued that the plot in question has rightly been taken back by the defendants and the lease has been determined. The plaintiff as a lessee for specified period, after expiry of such period cannot seek the relief of declaration and permanent injunction as prayed in this suit. E In reply to a question from the court as to how the KPT proposes to deal with any remaining area which is not utilized for the project of the bridge, learned counsel after seeking instructions, made categorical statement that offices for use by Watch and Ward Department and by Customs authority shall be constructed and the remaining area shall not be let out to anybody else, but used exclusively for the said purpose or any other purpose for its own use by the defendants. A rough sketch showing the proposed construction work of 12 offices of 15 x 15 apart from six feet wide varanda on each side has also been on record.
16. Whether the plot in suit was handed over to the plaintiff by the defendants voluntarily or not is immaterial under the circumstances of this case. The facts which are not disputed appear to be that lease in favour of the plaintiff has already expired on 11-11-2001 and no fresh lease has been executed between the parties. It is not disputed that under the Port Development and Tameer-e- Karachi Program some portion of the plot in question as well as other adjoining plots are to be utilized and the defendants do not propose to let out the remaining area whatsoever to any person in future and further propose to utilize the same as stated by Mr. S.A. Sulehry under instruction.
17. ' Even other relief sought in this suit appears to be barred in view of the law laid down in the following cases:--
(1) M.A. Naser v. Chairman Pakistan Eastern Railways and others PLD 1965 SC 83;
(2) Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106;
(3) Chairman Regional Transport Authority v. Pakistan Mutual Insurance Company PLD 1991 SC 14; and
(4) Messrs Zaidi's Enterprises and another v. Civil Aviation Authority PLD 1999 Kar.181.
18. I am therefore of the considered view that no case for grant of injunction or status quo ante has been made out, hence the listed applications are dismissed. Furthermore, in view of the fact that the period of lease has expired on 11-11-2001, lease has been determined, and notice as required as per terms of lease has been served upon the plaintiff that the plot in suit is required by defendants for Port Development and Tameer-e-Karachi Program for construction of Traverse Bridge, it appears that the plaintiff has no cause of action to file the present suit. The plaint is, therefore, liable to be rejected under Order VII, rule 11, .