' SYED HASAN AZHAR RIZVI, J.---Through this petition, the petitioner has sought the following reliefs:- - "(a) That the impugned judgment dated 3-8-2009 passed by the learned Vth. Additional District Judge Karachi (East) in Civil Revision Application No,5 of 2007 is contrary to law and being without any jurisdiction and is of no legal effect and remand the suit to learned Trial Court to adjudicate the same on merits in accordance with law till decision of the above petition suspend the operation of impugned judgment dated 3rd August, 2009 passed in Civil Revision No,5 of 2007 by the learned Additional District Judge Karachi East.
(b) Grant such other and further reliefs as this honourable Court under the circumstances deems fit and proper.
(c) Cost."
2. Briefly stated facts of the case are that respondent No,1 is a registered trust and running a school under the name and style of Gulistan-e-Shah Abdul Latif School in Sindhi Muslim Cooperative Housing Society at three different locations. There are four shops, two situated in Primary Section and one each in Secondary Section, which were given to the petitioner in the year 1963-1964 for running one tailoring shop and the rest for the purposes of running Canteen and Book Stall. On 8-1- 2006 a meeting of the Board of Trustees of respondent No,1 was held wherein it has been unanimously decided that tailoring shop and book shop be closed forthwith and students/parents be permitted to purchase the books and uniforms from the open market at their convenience. The petitioner being aggrieved filed Suit No,103 of 2006 for declaration and permanent injunction in the Court of IX Senior Civil Judge Karachi (East), who vide its order dated 20-2-2007 allowed the application under Order XXXIX Rules 1 and 2 C.P.C., however, the order for granting stay application shall be effected for a period of 6 months from the date of order. The respondent No,1 against such order filed Civil Revision No,38 of 2007 before the Court of IV ADJ Karachi (East), which was dismissed by order dated 16-4-2007. The respondent No,1 also challenged the order dated 6-12- 2006 passed by IX Senior Civil Judge Karachi (East) on an application under Order VII, Rule 11 C.P.C.
Through Civil Revision No,5 of 2007, which was allowed by Vth Additional District Judge Karachi
(East) vide order dated 3-8-2009 whereby and setting aside the order dated 6-12-2006 and the plaint was rejected holding that the plaintiff suit is hit under section 92, C.P.C., hence this petition.
3. We have heard Mr. K. A. Wahab, learned counsel for the petitioner, Mr. Kumail Ahmed Shirazi, learned counsel for the respondent No,1 and perused the material available on record.
4. Learned counsel for the petitioner contended that the provisions of section 92, C.P.C. Are not applicable to the case in-hand as the permission of the Advocate-General would be required to be taken only if the suit fell within the domain of section 92, C.P.C. He contended that the petitioned had filed suit only for protection of his tenancy rights and had not challenged the existence of trust or sought any relief for the administration of the trust as can be seen from the prayer made in the plaint. He further contended that the respondent No,2 committed serious jurisdictional error in deciding the status of petitioner as a licensee without any evidence on record, although the petitioner had filed various documents along with the plaint, which clearly show that the petitioner is tenant of respondent No, 1 . He, however, urged that whether the petitioner is a tenant or 'a licensee is a mixed question of facts and law which can only be decided after recording of evidence of the parties. Learned counsel in support of his submissions has placed reliance on the case of Ganga Puri v. Mohan Lal and others AIR 1924 Lah. 131, Khadam Hussain and 3 others v. Ma Muhammad and 7 others (1970 SCMR 127), Miskin v. Additional District Judge, Mansehra and 32 others (2003 SCMR 121) and Kathiawar Cooperative Housing Society Ltd. v. Macca Masjid Trust and others (2009 SCMR 574).
5. In the first case of Ganga Puri (supra), it was held that where a plaintiff sues, not for the purpose of protecting the interest of the public but in order to enforce his own right as a Mahant or trustee; the suit does not fall within the purview of section 92, C.P.C. In the second case of Khadam Hussain (supra), the Hon'ble Supreme Court has held that person claiming property as his own private property and not one managed by him as mutawalli, suit for declaration that property was waqf, was maintainable and .Provision of section 92(1) not attracted. In the third case of Miskin (supra), it was held that pre-conditions for filing the suit under section 92, C.P.C. Are that it must be in a representative capacity on behalf of the public and not for the interest of any individual and where none of the pre-conditions had been established, the suit was not barred by law.
6. On the other hand, Mr. Kumail Ahmed Shirazi advocate for the respondent No,1 has supported the impugned judgment and vigorously denied the contention of the learned counsel for the petitioner that the petitioner was a tenant in respect of four Shops, which are located in I trust, as no tenancy agreement has been placed on record. He urged that the petitioner was merely a licensee and his licence has been revoked by the respondent No,
1. He submitted that respondent No,1 is, a charitable trust and for filing suit against public trust permission of the Advocate General is mandatory. Learned counsel has placed reliance on the case of SAJID ALI KHAN AND ANOTHER V.
MUHAMMAD AHMED FAROOQUI 1959 (W.P.) Karachi 24) wherein it has been held that the r'elationship was only that of licensor and licencee and not that of lessor and lessee, though the charge levied, for the use of premises was described in the contract as 'rent'. The terms of contract were not consistent with exclusive possession of the premises given on lease. He also relied upon the case of BEGUM HAFIZUNNISA QURESHI AND OTHERS v. SHAIKH MUHAMMAD HUSSAIN AND OTHERS (2003 CLC 1156), wherein it was held the proceedings involving trust or its property, permission of Advocate-General in terms of section 92, C.P.C. Is mandatory and absence of such permission would render suit ab initio incompetent.
7. We have given due consideration to the arguments advanced by the learned counsel for the respective parties, minutely examined the material available on record and the case last cited by the learned counsel for the parties at bar.
8. It is a matter of record that petitioner has filed Suit No,103 of 2006 against the respondent No,1 for declaration and permanent injunction with the following prayer:- "(a) Declare that the plaintiff is the lawful tenant of the defendant in respect of the shops situated within the premises of Gulistan-eShah Abdul Latif School in Primary Section as well as in Secondary Sections and the defendant has no lawful authority or right to dispossess the plaintiff from the said shops except in accordance with law.
(b) To permanently restrain the defendant and/or any other person claiming through or under the defendant from in any manner interfering with the plaintiff's possession in the . Aforesaid demised premises and/or in any manner interfering the business of tailoring, book stall and canteen being run by the plaintiff in the said shops.
(c) To grant such or any Other relief/reliefs as this Hon'ble Court may deem proper and in the circumstances of the case.
(d) Cost of the suit may also be granted."
9. A bare reading of above prayer clearly shows that petitioner approached the Court for protection of his right as alleged in the memo of plaint. He has neither sought any relief against the trust and/or his trustee/Mutawalli nor for administration of trust or its property, there was no need of taking consent of Advocate-General before filing the suit. The respondent No,2 rejected the plaint on the plea that the matter related to public charities and no written consent of Advocate- General was obtained by the petitioner, hence the suit being barred under section 92, C.P.C. And was liable to be rejected under Order VII, Rule 11 C.P.C. Certainly, there is a clear difference between the prayers in the suit filed by the petitioner and the provisions of section 92, C.P.C. Which have been designated for the protection and administration of trusts created for a public purpose and require the consent of the Advocate-General before filing the suit to obtain decrees, relating to the eight kinds of relief mentioned therein, in which the public-at-large would be interested. In the case in hand the petitioner has filed suit for protection of his right that he may not be dispossessed from the shops in question without due course of law and for such purpose he approached the Court and the Court has granted such relief directing the respondent No,1 not to interfere in the business of plaintiff/petitioner and not to dispossess him from the demised premises without due course of law and Civil Revision No,38 of 2007 against such order was also dismissed by the appellate Court.
We may find further support from the cases of SYED ARIF ALI v. SYED FIRDOUS ALI AND OTHERS (2002 MLD 908), JAMIA MASJID MUHAMMADIA AND MADRASSA FAIZIA V. SHAMSHER KHAN AND OTHERS (2003 CLC 682) and GHULAM YAHYA V. ALI MUHAMMAD JAMAL MATERNITY HOMES (PLD 2005 Karachi 240).
In all the above cited cases it was held that if the suit does not fall within the ambit of section 92, C.P.C., the same may be filed without consent of Advocate-General.
10. As regards the status of petitioner whether he is tenant or licensee, it is mixed question of facts and law, which can only be resolved after recording of evidence of the parties. Moreover, even if it is assumed that petitioner is a licensee and running his business in the demised premises since 1963-1964 he can be ejected without due course of law merely by revoking his license. The simple answer is 'NOT'. Therefore, the respondent No,1 may seek appropriate remedy for vacation of the demised premises available under the law, if they so advised.
11. In view of the discussion made above, we may observe that the learned court below has misconstrued that the petitioner's suit fall within the ambit of section 92, C.P.C. Consequently, we allow the instant petition and set aside the impugned order dated 3-8-2009 passed by learned Vth Additional District Judge Karachi (East). The case is remanded to the learned trial Court to decide the same on merits. However, the parties shall bear their own costs.