M/s. STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another vs

The Plaintiff Messrs State Life Insurance Corporation of Pakistan and another have filed the present suit on 21.05.1989, for Declaration. Permanent Injunction, Mesne Profits and possession with the prayers as below:--

(i) Declare that the license expired on 30th September, 1988, and the Defendant No, 1 had no right, power or authority either to enter upon the portion of the plot or allow third parties to park their cars or to collect parking fee from them.

(ii) Declare that after 30th September, 1988, the privilege of license conferred by the Plaintiff No, 1 upon the Defendant No, 1 has expired and the Defendant No,. 1 has no right to act in pursuance of any such privilege any further.

Declare that the Plaintiffs always were and continue to be in legal possession of the plot or in the alternative direct the Defendants to deliver the vacant possession of the portion of the plot to the Plaintiff.

Grant a permanent injunction restraining the Defendant No, 1 his employees or agents from entering upon the plot of land hearing Survey No, 7 Sheet RY 5, Lackie Road, Karachi, or from allowing third parties to park their cars or from collecting car parking charges from such third parties or from interfering with the property rights and legal possession of the plot by the Plaintiffs in any manner whatsoever or from trespassing either directly or indirectly upon the plot in any manner whatsoever.

(v) Grant permanent injunction directing the Defendant No, 1 to remove any of his things or encroachment or possessions .which he may have placed upon the plot.

(vi) Direct the Defendants jointly and severally to pay Mesne profit at the rate of Rs, 50,160/- per month from 1st October, 1988 till 20th May, 1989 i,e, Rs, 384,560/-(Rupees Three Hundred Eighty Four Thousand and Five Hundred Sixty Only).

(vii) Direct the Defendants jointly and severally to pay Mesne profit at the rate of Rs, 50,160/- from the date of filing of suit till such lime that payment is made.

(viii) Grant interest on the above amount at the rate of 15% with quarterly rests.

(ix) Grant costs of the suit.

(x) Grant any other relief which this Hon'ble Court may deem just and proper in the circumstances of the case.

2. The brief relevant facts leading to the filing of the above suit run as follows:--

3. The Plaintiff No, 1, as averred, is a Corporation established by the Life Insurance Nationalization Order, 1972 while, Plaintiff No, 2, is a Private Limited Company, incorporated under the Companies Ordinance, 1984 [XLVII of 1984]. Plaintiff No, 2, as asserted is wholly owned sub-sidiary of Plaintiff No,

1. Plaintiff No, 1 thus has full authority and power not only to issue license[s] viz-a-viz the immovable property owned by Plaintiff No, 2 but also is authorized to terminate or renew the licenses. Plaintiff No, 1 while, exercising it's powers and authority agreed to execute a 'LICENSE AGREEMENT' for a portion of a plot of land admeasuring 6000 Sq. Yards bearing Survey No,

7. Sheet No, RY-5, Lackie Road, Karachi from a plot of land admeasuring 9180 square, yards owned by the Plaintiff No, 2 in favour of Defendant No, 1 [hereinafter referred as 'subject plot'] for the purpose of a car parking.

4. Plaintiff No, 1, per it's version, from the very beginning informed Defendant No, 1/Licensee viz. Mr. Mohiuddin Khan that Plaintiff No, 1 herein, had no intention to lease out the 'subject plot' to Defendant No, 1 and Plaintiff No, 1 would only execute, a License Agreement in favour of Defendant No,

1. Defendant No, 1, as proposed, was agreed to be a 'licensee' of the portion of the 'subject plot' of land referred to and described herein-above. Before executing License Agreement on 25th August, 1985. [Exh.'P-9']. Plaintiff No, 1, had also asked Defendant No, 1 for arranging a 'guarantor' inter-alia for to ensure that Defendant No, 1, will vacate, the 'subject plot' as and when, it is required by Plaintiff No,

1. The purpose of seeking such a 'Surety'r Guarantee' was to make it ensured that Defendant No, 1, at some subsequent stage did not abuse, the privilege of `License'r Leave' to be conferred upon Defendant No, 1 as a 'licensee'. Defendant No, 1, in response did agree and without any reservation informed Plaintiff No, 1 through his letter dated 23rd June, 1985 Annexure 'B' to the Plaint] that a guarantee as per Plaintiff No, l's wish has been obtained from Defendant No, 2 for ensuring the peaceful vacation of the 'subject plot'.

5. Upon accepting the above conditions by Defendant No, 1 and in order to use the 'subject plot' as a 'car parking', Defendant No, 1, then requested Plaintiff No, 1 for an 'entrance' and an "exit" which was allowed by Plaintiff No, 1 by means of using 'barbed wire fencing' and of fixing a gate. The 'barbed wire fencing' and 'fixing of a gate', was to. be done at the expenses of the Plaintiff No, 1.

Towards barbed wire fencing and fixing of gate the expenses were to borne by the Plaintiff No, 1.

According, one month's license fee for the aforesaid purpose was adjusted towards such expenses incurred. Ex-facie, this is a proof of the fact that Defendant No, 1, never acquired any proprietary or any permanent vested right in the 'subject plot' Rather. Defendant No, 1 was allowed to use the 'subject plot' as a 'licensee'. The 'subject plot' it is significant to note, always remained in overall control of Plaintiff No,

1. This factum is also evident for the letter dated 12.08.1985 [See Exh. 'D/13' produced in the evidence of Defendant No, 1 in Suit No, 606 of 1997, who is Plaintiff herein]. Evidently, per Exh. 'D/13'. Defendant No, 1 herein, had requested Plaintiff No, 1 for permission to change the design of the gate. Such Permission, it appears, was granted by Plaintiff No, 1 through its letter dated 25.8.1985 [See Exh. 'D/14' produced in the evidence of Defendants No, 1 in Suit No, 606 of 1997 who is Plaintiff herein].

6. Plaintiff No, 1 herein, it is admitted position had entered into a License Agreement dated 25.08.1985 [Exh-09 equivalent to Ex.'P-4/3', produced in Suit No, 606 of 1999]. Per said License Agreement [Exh-09]. the licensor [Plaintiff herein], had agreed to allow the licensee [Defendant No, 1 herein I, to use 'subject plot' of land measuring. 6000 Sq. yards, only for the purpose of a car parking, at a 'license fee' of Rs, 20,160/- per month for period of three^[3] years. The said License Agreement [Exh.9], signed between Plaintiff No, 1 and Defendant No, 1, is an admitted document.

The 'intention' of the parties therefrom, is very much clear particularly from the two unnumbered paragraphs of License Agreement dated 25th August 1985 Exh.9] on typed paged 2 thereof. The said un-numbered paragraphs read as follows: "Whereas licensor had made it clear to the licensee that the said licensor had no intention, whatsoever to create any relationship of landlord and tenants between the licenser and the licensee.

And Whereas the LICENSEE has also expressly stated and does hereby expressly, state that the licensee in his turn has no intention, whatsoever, to become a tenant of the said plot of land and in the "Licenser's Property".

7. Per said License agreement [Exh.9], Plaintiff No, 1, allowed the Defendant No, 1 herein, only to use the 'subject plot' for a limited purpose i,e, for car parking purposes. Under the 'terms' and `conditions' of License Agreement dated 25.08.1985, Defendant No, 1, was never authorized or otherwise, in any manner permitted to use the `subject plot' for any other purpose except for the purpose of Car Parking. Defendant No, 1, under Exh.9, having very limited privilege i,e, to use the 'subject plot' as a 'licensee' i,e, by allowing people to park their cars on the 'subject plot' and to collect car parking charges therefrom. Plaintiff No, 1, in any event, remained in legal possession/occupation of the 'subject plot' since, the execution of the License Agreement of 25th August. 1985 [Exh.9].

8. Per assertions made in the Plaint, Plaintiff No, 1, continued to supervise the use of the 'subject plot' having been given on 'License basis' to Defendant No,

1. The Plaintiff No, 1, at some later stage, upon coming to know that Defendant No, 1, had not only constructed a `cover shade' but also has affixed a 'sign board' on a portion of the `subject plot', immediately issued a notice to Defendant No, 1, calling upon thereby him to remove the 'coyer shade' and 'sign board' so raised/affixed otherwise, Defendants have to suffer legal consequences. On Defendant's failure Plaintiff No, 1, issued another letter dated 15.12.1987 [Exh.10]. In response, the Defendant No, 1, through his letter dated 17.12.1987 [Exh.11], informed Plaintiffs that the structure, so raised was removed as per Plaintiffs direction. The action of removing the aforesaid covered shade and 'sign board', per Plaintiffs' version, is a clear cut proof of plaintiffs' control, supervision and possession of the 'subject plot'. Plaintiff No, 1, though wished that a 'fresh license agreement' be executed between the parties. This position is evident from Plaintiff's letter dated January 19, 1989 [Exh. 251. Alongwith Exh.25, a copy of 'Draft Agreement' to collect parking charges [Exh. 261, was also enclosed. Defendant No, 1, however, did refuse to sign it and thereaft r obviously, with a malafide intention started to claim himself as a 'tenant' instead of 'Licensee'. In this regard reference can be made to the Defendants No, l's letter Exh. 4/29' [Produced in Plaintiffs evidence recorded in Suit No, 606 of 19991, Later on, at the insistence of Defendant No, 1, negotiations were also held regarding the execution of a 'Fresh Agreement' viz-a-viz collection of car parking charges on the "subject plot' but such negotiation remained un-conclusive and as such, no Fresh License Agreement was executed. The License Agreement of 25th August, 1985 [Exh.91, thus stand expired on 30.09.1988.

9. The Defendant No, l's objections can be seen and appreciated only if, Defendant No, l's letter dated 28.10.1989 [Exh.131 is reproduced which reads as follows: MESSRS MOHIUDDIN KHAN PARKING CONTRACTORS Site Office Lackie Road Parking Plot, Adjacent to State Life Building No,

1. Chundriger Road, Karachi-2 Dated 28.01.1989.

The Deputy General Manager, Real Estate Division, State Life Insurance Corporation of Pakistan, Karachi.

Sub: RENEWAL OF LICENSE AGREEMENT IN RESPECT OF LACKIE ROAD CAR PARKING PLOT.

Dear Sir, I am in receipt of your letter dated 15.01.1989 and 19.01.1989. The letter dated 15.01.1989 refers to license agreement whereas the other letter mentions an agreement to collect parking charges, the crux of the unilaterally introduced terminological gimmick is continuation of license agreement dated 01.10.1985, which already stands extended by implication through acceptance of license fee for period up-to January, 1989.

This being the position I request you to confine reference to license agreement in subsequent, exchange of correspondence. State Life Insurance Corporation is fully aware that vast discrepancies existed between position as advertised on 19.04.1985 and that really found on ground and that I had to spend considerable amount for the development of the parking area.

Some further expenditure has also become necessary as a result of weather conditions.

Despite all this I am prepared to sign the extension of license Agreement for a period of three years with an increase of 10% in monthly fee, should development expenditure will be borne by me and I would suggest that in order to remove in terminological confusion, the term collection of right be introduced in extension of the license agreement of 1985. [Underlining is mine] .

Thanking you Yours faithfully, For M/s. MOHIUDDIN KHAN.

Sd/-

10. Plaintiff No, 1 under such circumstances, sent a 'legal notice' of 18.5.1989 [Exh. 141 to Defendants No,

1. For- read reference and convenience purpose Exh. 14 is also reproduced herein below: FAZLE GHANI KHAN & COMPANY ADVOCATES Karachi House,Telephone:239207-239173 Chundrigar Road,Cable: LAWING Karachi Karachi PakistanTelex: 24605 SSL PK U.P.C.

18 May, 1989 Mr. Mohiuddin Khan, Resident of 21/107, Peoples Town, S. F. Colony, Karachi-25 Sub: LEGAL NOTICE Dear Sir, Under instructions from our clients Messrs State Life Insurance Corporation of Pakistan, having its principal office at State Life Building No, 9, Dr. Ziauddin Ahmed Road, Karachi, and Messrs State Life Lackie road properties (Pvt) Limited with its registered office at State Life Building No,

9. Dr. Ziauddin Ahmed Road, Karachi, we hereby serve you with the following legal notice:

1. That out client State Life Lackie Road Properties (Pvt) Limited (hereinafter referred to as SLLRPL) is the owner of a plot of land bearing Survey No, 7, Sheet RY 5, Lackie Road, Karachi, measuring 9/80 square yards.

2. That SLLRPL is a wholly owned subsidiary of State Life Insurance Corporation of Pakistan (hereinafter referred to as SLIC). That SLIC has the power and the authority to deal with the assets and property of SLLRPL, to issue license for the same and to take necessary action for the termination of the. license and ejection of trespassers including the power to initiate and pursue legal proceedings.

3. In exercise of its power 'and authority our client SLIC had executed on 25 August, 1985 a License in your favour. Under the terms of this license you were, allowed the privilege to use a portion (6000 sq. yards) of the plot of land hearing Survey No, 7, Sheet RY 5, Lackie Road, Karachi, measuring 9180 square yards, owned by SLLRPL (hereinafter referred as the "Plot"). The plot was to be used for car parking. You were to allow owners of cars to park their cars in this plot and charge from them a parking fee.

4. The License issued by our clients clearly stated that its duration was for a period of three years and a license fee of Rs, 20,160.00 per month was to be paid by you. It was .specifically stated in the License that you shall not use the said plot of land for any purposes other than that for which the license was granted. You were also restrained from making any permanent construction including masonry work of any kind on this plot.

5. The license specifically provides that you shall be under the control and supervision of our clients and that you shall observe all directions and orders issued by them.

6. It was a specific condition of the License accepted by you that the possession of the said plot of land shall remain with our clients. However, you had the license and leave to use it for car parking only.

7. You had on 23 June, 1985 also submitted a guarantee dated 17 June, 1985 from Messrs Ali Brothers guaranteeing it to and assuring our clients that you will peacefully vacate the plot as and when our clients desire.

8. At the time of the execution of the aforementioned license you one again agreed and undertook to vacate the plot as and when directed by our clients.

9. That after the expiry of the License on 30 September, 1988 you sought to persuade our clients and negotiate with them an extension of the period of the License or to issue afresh License. Our clients decided not to renew the license and also decided not to issue afresh license in this regard.

10. On 15 January, 1989 our clients communicated to you that the License had expired and that you should not use the property any further.

11. After the expiry of this License there were some further negotiations between yourselves and our clients regarding an agreement "to collect parking charges" for this plot. These negotiations were not successful.

12. That our clients have no intention of either executing a fresh License in your favour or of renewing the already old and expired License. You, therefore, have no power or authority to either permit any person to park his car in the plot or to collect car parking charges from any such person. Any further, interference by you with the property of our clients and any attempt by you either directly or indirectly to enter into the properly of our clients will be considered an act of trespass.

Through the medium of this notice we, therefore, one again confirm that the License agreement executed in your favour by our clients has expired and you are directed not to trespass upon, enter into or in any other manner interfere with the property of our clients. You are, further, directed to remove anything which yon may have placed on this plot. In the event of your failure to carry out the above directions within 72 hours our clients will enforce its legal rights to restrain you from trespassing on the property, shall remove any encroachment placed upon the plot by you and have also instructed us to initiate legal proceedings in a Court of competent jurisdiction.

[Underlining is mine] Yours faithfully, Fade Ghani Khan .& Co.

Makhdoon Ali Khan Barrister.

C.c. Ali Brother, You are directed to carry out your obligations as a guarantor and ensure that the aforesaid notice and directions contained therein are complied within 48 hours.

MAKHDOOM ALI KHAN Barrister.

11. Defendants, despite of such notice however, remained mum/failed and/or avoided to respond the aforesaid legal notice [Exh.14]. Hence, the above suit was filed on 21.05.1989.

12. On 15.10.1989, when the above suit filed by Plaintiffs for seeking Declaration, Permanent.

Injunction, Mesne Profits and Possession, came-up before Court for hearing of an Application under Order XXXIX Rules 1 & 2, CPC [CMA No, 3583 of 1989], filed by Plaintiffs in the above Suit, then the following order was passed: For hearing of CMA No, 3589/1989. 15.10.1989 Makhdoom Ali Khan, Advocate.

This is an application under Order XXXIX Rules 1 & 2, CPC praying that the Defendant No, 1 his employees or agents be restrained from entering upon the portion of the plot of land bearing Surrey No, 7, Sheet RY-5. Lackie, Road, Karachi, and from allowing third parties to park their cars or from collecting car parking charges from such third parties or from interfering with the property rights and legal possession of the plot by the plaintiff in any manner whatsoever or from trespassing either directly or indirectly upon the portion of plot in any manner whatsoever and grant permanent injunction directing the Defendant No, 1 to remove any of his things or encroachments or possessions which he may have placed upon the portion of the plot.

It is contended by the learned counsel for the plaintiff that the defendants are their Licensees as per annexure 'G' to the plaint. The said License was for a period of 3 years commencing from 01.10.1985 and ending as on 30.09.088. The said License has not been renewed by the plaintiff and the plaintiff vide Legal Notice. dated 18.05.1989 have terminated this License and required the defendants to handover vacant possession of the property to them.

Defendants have filed their counter-affidavit stating that they are in exclusive possession of the property and that they have been depositing monthly rent with the Court of Rent Controller. It is contended by them that they are in legal possession of the property as tenants. Further, it is alleged that after the expiry of the license period, the defendants have become statutory tenants of the plaintiff and since the provisions of Sindh Rented Premises Ordinance, 1979, are applicable, the suit is not maintainable. Defendants, however have not denied execution of License Agreement, dated 25.8.1985, marked 'G'.

From the averments made in the plaint and from the contents of enclosed annexures, it appears that license in respect of the property in question was exclusively for the purpose of parking of cars.

However, the exact nature of relationship between the parties cannot be ascertained in a summary manner but after careful examination of documents on record and upon proper appreciation of evidence of the parties.

None is present on behalf of the defendants. Under the circumstances ad-interim injunction till further order is granted to the plaintiffs restraining the defendants, their agents and employees from allowing third parties to park their cars at the plot in question and or/from collecting car parking charges from them. [Underlining is mine] Sd/- JUDGE

13. Upon Service Defendant No, 1, besides, filing 'counter-affidavit' to injunction application under Order XXXIX Rules 1 & 2, CPC [CMA No, 3583 of 1989], also filed its 'written statement' on 27.08.1989, wherein, the 'averments' and 'assertions' made by the plaintiff in plaint were . denied. Defendant No, 2, also filed 'written statement' on 27.08.1989, wherein, the contents of 'written statement' filed by Defendant No, 1, were adopted. In the written statement filed by Defendant No, 2, it was further averred that the so-called `guarantee' dated June 17, 1985 [Exh.7], is void as it is contrary to the provision of Sindh Rented Premises Ordinance, [XVII of 1979]. The said `Exl.7' reads as follows: AALI BROTHERS Building Maint, Contractors, Engineer Imports & Export 1st Floor, State Life Building No, 1, Chundrigar Road, Karachi.

Jane 17, 1985 TO WHOM IT MAY CONCERN This is to certify that Mr. Mohi-ud-Din Khan resident of 21/107 Peoples Town, S.F. Colony, Karachi, who has been awarded the Car Parking Contract at Lackie Road Plot or State Life Insurance Corporation is known to us.

He has approached us to give a warranty from a person known to State Life Insurance Corporation to the effect that according to terms of his agreement as and when required he will peacefully vacate this plot. [Underlining is mine].

We hereby vouch for this statement.

Sd/- For Ali Brothers

14. Per Defendant No, l's, stand taken in the written statement the relationship between Plaintiff No, 1 and Defendant No, 1, is that of 'landlord' and 'tenant' and it is regulated by the Provisions of Sindh Rented Premises Ordinance, 1979 [In Short SRPO, 1979]. The' suit, filed by Plaintiffs is essentially, a suit 'for ejectment' which per Defendants' stand, can only be ordered by 'Rent Controller' that is to say in terms of Section 15 of SRPO, 1979. The instant suit, as `framed' and 'filed' by Plaintiffs, per Defendants version, is not maintainable under law. Per stand of Defendant No, 1, he is paying rent for the subject plot which is in his 'exclusive possession'. According to Defendant No, 1, on 19th January, 1989, Plaintiff No, 1, had -attempted/sought to convert the 'Tenancy Rights' of Defendant No, 1 to that of 'Licensee' by attempting to get sign from Defendant No, 1 a Fresh Agreement materially different in 'form' & 'substance' from Original License Agreement dated 25th August 1985 , [Exh.9]. Further, upon expiry License Agreement on 30.09.1988, Plaintiff No, 1, accepted 'rent' from Defendant No, 1 i,e, until 08th April,. 1989 when receipt of such rent was refused by Plaintiff No, 1.

15. Per stand taken by Defendant No, 1, in his written statement, the use of the words 'Licensor' or 'Licensee' cannot control or negate the substance and/or the relationship of 'landlord' and `tenant' between Plaintiff and Defendant No,

1. As far s, the so-called `guarantee' given by Defendant No 2 is concerned, per Defendant No, l's version, the same by no means can override the express Provision of SRPO, 1979, which in fact is to regulate the `ejectment "eviction' of Defendant No, 1 from the 'subject plot'. The 'barbed wire fence' and gate, per version of Defendant No, 1, were erected to divide the main plot measuring 9.180 Sq. Yrds. into two plots of 6000 Sq. Yds. and 3180 Sq. Yds. and to put Defendant No, 1, in possession of the 'subject plot' measuring 6000 Sq. Yds. exclusively.

Moreover, the Plaintiffs No, 1 has never exercised any 'control' or 'supervision' over the use of car parking plot/`subject plot'. The removal of covered shade and 'sign board' was admitted however, it was only to avoid un-pleasantness. The removal of covered shades and sign board at the demand of Plaintiffs No, 1, as asserted by Defendant No, 1, was in its capacity as a 'Landlord' and not as a 'Licensor'.

16. In the Written Statement, Defendant did agree that the `License Agreement' dated 25th August 1985, had came in to end, on 30th September, 1988 but notwithstanding, expiry of the License Agreement [Exh. 9]. Defendant No, 1, is a 'statutory tenant'. Per written statement. Defendant No, 1 was ready and agreed to enhance `license fee' 10% per month. Lastly, it was prayed, that the Plaintiffs suit as being not maintainable under law is liable to be dismissed with cost.

17. On 19.10.1989 viz-a-viz restraining/injunction with consent of the parties the following order was passed:

1. For hearing of CMA No, 6995/1989.

2. For hearing of CMA No, 6996/1989.

3. For hearing of CM A No, 6997/1989.

19.10.1989 Mr. Makhdoom Ali Khan, Advocate for Plaintiff.

Mr. Munir A. Malik, Advocate, for defendant.

By consent it is ordered that the defendants shall furnish bank guarantee in the sum of Rs, 100,000 with 6% mark-up within three days hereof with the Nazir of this Court, whereupon order dated 15.10.1989 whereby the defendants, their agents and employees were restrained from allowing third parties to park their cars at the plot question and/or from collecting car parking charges from them shall stand vacated. Again by consent, the defendants are restrained from using the plot for purposes other than car parking or parting with the physical possession of the plot in question to any one till disposal of the suit or till further orders.

The learned counsel for the defendants also undertakes on behalf of the defendants to deposit all the arrears of license fee deposited by them in the Lower Court within four weeks .hereof and to further deposit further license fee payable by them in this Court eve month till disposal of this suit.

In view of this consent order CMA Nos, 6995/89, CMA-6996/89 and CMAs-6997/89 & 3683/29 stand disposed off. [Underlining is mine}.

Sd/- JUDGE

18. From the record, it appears that Defendants in the above suit, had also filed an Application under Order XXXIX Rules 1 & 2, CPC R/W Section 151, CPC [CMA No, 5484 of 1998], for seeking a restraining order against the plaintiffs. The prayer sought by. Defendants in the said injunction application [CMA No, 6484 of 1998], reads as follows: "It is respectfully prayed on behalf of the defendant that this Hon'ble Court 'would be pleased to restrain the plaintiff closing gate or creating other obstructions from LI. Chundrigarh Road. Building No, 1 Entrance Gate into parking plot which will result in interfering the possession use of the defendant of parking plot and from violating the order of Hon'ble Court dated 19.10.1989.

Ad-interim order to above effect is also. solicited."

19. The aforesaid Injunction Application bearing [CMA No, 6484 of 1998], filed by Defendant No, 1, when came-up before the Court on 18.07.1998 then, the following order was passed.

1. or order on CMA No, 6483/21989.

2. For order on CMA No, 6484/1989.

18.07.1998 Mr. Arif Hussain Khilji, Advocate Defendant No, 1

1. Granted.

2. It is contended by Mr. Arif H. Khilji that plaintiffs are closing the entrance gate of Building No, 1 situated at Chundrigar Road which in fact will amount to illegal & unauthorized dispossession of the Defendant No,

1. It was argued that if the plaintiffs are permitted to raise hindrance or destruction then it will also amount to violation of this Courts order dated 19.10.1989. Issue notice to Plaintiffs for 24.07.1989. Till then Plaintiffs are directed to maintain status-quo. [Underlining is mine] Sd- JUDGE

20. Subsequently, on 19.08.1990, keeping in view the 'Pro' and `Contra' Versions of the parties, the 'draft issues' filed by plaintiff with some minor alteration were adopted/settled. The 'consent issues' so adopted/settled read as follows:

1. Whether the Defendant No, 1 is a Licensee of the premises and the Civil Court has jurisdiction in the matter?

2. Whether the license expired on September 30, 1988?

3. Whether the Defendants are obliged to pay mense profits at the rate of Rs, 50,160.00 per month from October 1, 1988 till such time that payment is made?

4. Whether the Defendant No, 1 violated the terms of license?

5. Relief?

21. Upon framing of the above 'consent issues', on 23.05.2001, another consent order was passed, which reads follows:-- 1.For hearing of CM A No, 6484/1984.

2. Evidence.

23.05.2001 Mr. Siddique Mirza, Advocate Plaintiff Mr. Zia Mukhdoom Advocat for the Defendant.

Learned counsel make a joint statement after the examination in chief is over that the matter pertains to certain documents executed and exchanged amongst the parties and the narrow down the controversy, first the documents may be admitted and denied before further evidence is recorded.

Accordingly with the consent of learned counsel time is allowed for admission and denial of the documents as requested during which the learned counsel shall exchange details/lists of their respective documents within two weeks from today and file their respective statement admitting and/or denying the documents as the case may be within the next two weeks i,e, within four weeks from today. Case will proceed further after learned counsel have admitted and denied the documents and is adjourned to a date in office, to be fixed after summer vacations. However, the witness is directed to be present on the next date of hearing for cross-examination, if necessary.

[Underlining is mine] Sd/- 'JUDGE

22. Notwithstanding, admissions and denials, in compliance with aforesaid order dated 23.05.2001, when again the above suit came-up before the Court on 07.02.2003; then a Commissioner was appointed for recording evidence of the parties, Order dated 07th February, 2003 reads as follows: 7.2.2003 Mr. Siddique Mirza, Advocate Plaintiff.

Mr. Adnan Iqbal, Advocate holds brief for Mr. Munir A. Malik, Advocate for the Defendant.

After the admission and denial of the documents, Mr. Adnan Iqbal, learned Counsel states that he intends to lead oral evidence in support of the documents, contents of which are disputed by the otherside.

Mr. Siddiq Mirza, Advocate also states he also intends to lead oral evidence.

Both the learned Counsel suggest that the evidence can be recorded by a Commissioner Mr. Abdul Ghafoor Qureshi, Advocate is appointed as Commissioner to record the evidence of the parties. Commissioner fee is fixed at Rs: 5,000/- per witness, the costs shall born by the respective parties, Commissioner shall record the evidence within three months from the date of service of notice and shall have power to summon the parties. [Underlining is mine].

To come up for further proceedings after the recording of the evidence by the Commissioner.

Sd/- JUDGE

23. The, learned Commissioner viz. Abdul Ghafoor Qureshi, on recording of evidence return the 'Commission along with his report dated 16.09.2004. The said report of learned Commissioner for ready reference and convenience purpose is also reproduced herein below: COMMISSIONERS' REPORT The honourable Court by its order dated 7.2.2003 has been pleased to appoint the undersigned as commissioner to record the evidence of the witnesses. on behalf of the parties and submit report within three months. Accordingly, notices were issued to the counsel for the parties to file affidavit- in-evidence of 'their respective witness and produce their witnesses for recording evidence.

The plaintiff filed the affidavit-in-evidence of P.W. 1 Riazuddin on 22.3.2003, and copy supplied to the learned counsel for the defendant. The matter was fixed for recording evidence of P.W.1 on 12.4.2003. The matter was adjourned at the request of the counsel for the parties from time to time.

The examination-in-chief of P.W.1 was recorded on 14.5.2003 and was .cross-examined by the learned counsel for the defendants on 10.01.2004. After recording evidence of P.W.1, the plaintiff closed their side and the defendants were directed to file affidavit-in-evidence of their witnesses.

The defendants filed the affidavit-in-evidence of D.W. 1 Moiuddin Khan on 27.3.2004 and supplied copy to the learned counsel for the plaintiff and the matter was fixed for recording evidence on 17.4.2004. The matter was adjourned from time to time at the request of the counsel for the parties and finally the D.W.1 was examined and cross-examined by the learned counsel for the plaintiff on 4.9.2004. After recording evidence of D.W.1 requested for time to file affidavit-in-evidence of his second witness but the learned counsel for the plaintiff objected to the filing of affidavit-in- evidence of D.W.2 at this stage as they have already been given sufficient time for filing affidavit but they have failed to file the same. Accordingly, the evidence recorded on commission is submitted herewith along with the document, for further orders by the honourable Court.

[Underlining is mine] Sd/- Abdul Ghafoor Qureshi Advocate/Commissioner

24. On 24.01.2005, when the above report of the learned Commissioner came-up before the Court then, learned counsel for Defendants sought time for filing 'affidavit-in-Evidence' of Defendant No,

2. Keeping in view the request of Defendants, as 'last chance' by way of 'sheer indulgence' four weeks' time was granted for filing `affidavit-in-evidence' of Defendant No,

2. In case of failure, the suit was ordered to be fixed in Court. The said Order dated 24.01.2005 reads as follows:

1. For orders on Commissioners report dated 16.09.2004.

24.1.2005 Mr. Zia Mukhdoom, Advocate.

Pursuant to the order dated, 07.02.2003, Commissioner was appointed to record the evidence of the parties. Plaintiffs and Defendant No, 1 have been recorded. Mr, Zia-ul-Haq Mukhdoom, learned counsel submits that he could, not file the affidavit-in-evidence of Defendant No, 2 on account of unusual pressure of work. As a last chance by way of sheer indulgence, four weeks' time is extended to file the affidavit-in-evidence of Defendant No, 2 with advance copy to the Plaintiff. In case, such affidavit-in-evidence is not filed within the stipulated time, the matter be fixed in Court.

[Underlining is mine] Sd/- JUDGE

25. Despite of giving of an opportunity to Defendant No, 2 to lead his evidence, Defendant No, 2, however, failed and/or avoided to lead any evidence. This factum of non-leading evidence by Defendant No, 2. is quite evident from order dated 07.03.2009. The said order runs as follows: For further orders as no commissioner report has been received 07.03.2005 Mr. Siddiq Mirza, Advocate. Mr. Zia Mukhdoom, Advocate.

Mr. Zia-ul-Haq Makhdoom, learned counsel for Defendants No, 1 & 2 states that Defendant No, 2 does not wish to lead any further evidence. Let the matter be fixed in Court for final arguments in due course. [Underlining is mine] Sd/- JUDGE

26. Finally, 08.12.2016, and 21.12.2016, when the above suit came-up before me alongwith Defendants No, l's Suit No, 606 of 1999 IMohiuddin Khtn Slo Niaz Muhammad Khan Vs. Mls. State Life Insurance Corporation of Pakistan & another] 'then, I heard Mr. Zeeshan Abdullah, learned counsel for the plaintiff and Mr. Moin Qamar a/w Mr. Zia-ul-Haq Makhdoom, learned counsel for the Defendants and also gone through the available record before me with their valuable assistance.

ISSUE No, 1

27. Issues No, 1, which is to the effect as to (i) whether the Defendant No, 1 is licensee of the subject premises and the Civil Court has jurisdiction in the matter. Mr. Zeeshan Abdullah, learned counsel for the Plaintiff while, arguing the case of the Plaintiffs forcefully contended that Defendant No, 1, is a 'licensee' in respect of the `subject plot'/'premises' i,e, Plot of land bearing Survey No, 7, Sheet No, RY-5, Luckie Road, Karachi, as per License Agreement dated 25th August, 1985 [Exh.9] and not a `tenant' as being now-claimed by Defendant No, 1 herein. In this regard Mr. Zeeshan Abdullah inter- alia referred to paragraph 1(a). of the license Agreement [Exh.91. which runs as follows: "la. This License agreement shall commence with effect from the 1st day of October, 1985 from which date the Licensee has leave and License to use the said plot of land, which is in the ownership and possession of the "LICENSOR ", for a period of 3 years on payment of Licensee fee Rs, 20,160.00 (rupees twenty thousand one hundred sixty only) per month, for the privilege of use of the said plot of land for car parking. [Underlining is mine]

28. Per Mr. 'eshan Abdullah, the said License Agreement of 25th August, 1985 [Exh.9], was for a period of 3 years commencing from 01.10.1985 and ending on 30.09.1988. The said License Agreement [Exh.9], upon it's expiry has never been renewed as alleged by Defendant No,

1. In support of his contentions, Mr. Zeeshan Abdullah also focused the attention of this Court towards Clauses i,e, lb, 3, 5, 6, 7, and 8 and vehemently argued that as per License Agreement dated 25th August. 1985 [Exh.91, Defendant No, 1 is a `Licensee' and by no means, as claimed he be termed as a 'tenant' in respect of the 'subject plot'/'premises'. This claim of by Defendant No, 1, is also belied by 'terms' and 'conditions' of License Agreement dated 25th August, 1985 [Exh.9]. For ready-reference the aforesaid clauses of License Agreement [Exh.9], are reproduced herein below: lb. The LICENSEE hereby undertake to pay the LICENSOR the said license fee monthly in advance before the 10th day of each month. Default on the part of the LICENSEE to pay License fee in time, shall automatically render the License cancelled and the LICENSOR shall take possession of the said plot of land without giving notice to the LICENSEE in this behalf.

3. The LICENSEE shall not make any kind of permanent construction including Masonry work of any kind on the said portion of the land, however, the LICENSEE shall be allowed to make an enclosure of barbed wires on the said plot of land two gates for incoming and outgoing cars a small gate for use of concerned persons and a wooden cabin near the gate for the Watchmen of the parking area.

5. Each lock of the abovesaid gates shall have two keys one of which shall remain in the possession of LICENSOR.

6. The LICENSEE shall not use the said plot of land for any purpose other than that for which the Licensee is granted, nor shall the LICENSEE use the said plot of land in such a manner so as to cause damages to the said plot of land and/or inconvenience, disturbance, annoyance or nuisance to the quests, tenants. Licensees, Visitors and employees of the LICENSOR or the occupants/Licensees/tenants of the LICENSORS properties. Should the question arise as to whether the LICENSEE is causing such inconvenience, annoyance, disturbance or nuisance etc. the decision of the LICENSOR shall be final and binding on the LICENSEE.

7. The LICENSEE shall always and at all times be under the control and supervision of the LICENSOR, its agents, servants and employees and shall observe all directions and orders as may from time to time, be issued by the LICENSOR, its agents, servants and employees regarding part thereof the anybody else in any event. [Underlining is mine]

8. The LICENSEE shall not exhibit any advertisement playcard or any part thereof the anybody else in any event.

29. Per Mr. Zeeshan Abdullah, learned counsel for the Plaintiffs, from bare perusal of the above clauses, it is quite clear that Defendant No, 1, is a 'Licensee' in respect of the 'subject plot'/'premises' and this Court, as such, besides, having jurisdiction to entertain the above suit is quite competent to grant the prayers sought by the plaintiff in the plaint of the above suit.

30. Against the above, Mr. Moin Qamar, a/w Mr. Zia-ul-Haq Makhdoom learned counsel for the Defendants forcefully argued that Defendant No, 1 since 1st October, 1985 is in 'exclusive possession' of the 'subject plot'/`premises' and also depositing monthly 'rent', as such, he is 'Tenant' and not a 'Licensee'. This being, the position, Civil Court/this Court, has no jurisdiction to entertain the above suit. Rather, it is the Court of concerned Rent Controller, who under law can properly and appropriately adjudicate upon the `lis' involved herein i,e, under the Provisions of Sindh Rented Premises Ordinance, 1979, [XVII of 1979]. Per Mr. Moin Qamar since, the suit in hand ex-facie is for `ejectment'/'eviction' of Defendant No, 1, as such, it falls within the scope of Section 15 of the SRPO, 1979 [In short SRPO 19791. For and in view of this position, this Court as being a Civil Court has no jurisdiction to look into the matter, and to decide the issue involved in the case in hand.

31. For and to see, as to whether Defendant No, 1 is a `Licensee' or 'tenant', the nature of 'relationship' between Plaintiff No, 1 and Defendant No, 1 needs to. be detetmined. From the recoid, it is an established position, that initially a 'License Agreement' of 25th August, 1985 [Exh.9j, was signed between the parties [i,e, The Plaintiff No, 1 and Defendant No, 1 herein]. Defendant Not 1, in 'Para 10' of his written statement' has specifically admitted the Agreement of 25th August, 1985 [Exh.9] by saying, it has come into an end on 30' September, 1988. Defendant No, 1 herein, however, has taken the stand that Defendant No, 1, upon expiry of the License Agreement of 25th August, 1985 [Exh.9], has become a 'statutory tenant'. In view -of this contention as raised, the 'intention' of parties needs be seen and inter alia examined in the light of License Agreement of 25th August, 1985 [Exh.9[.

Apart from the 'various clauses' referred to and reproduced hereinabove 'clause-14' of 'Exh.9' is also very relevant as it speaks viz-a-viz. the expiry of the License Agreement of 25th August, 1985 [Exh.91.

The said 'clause-14' reads as follows:

14. On the expiry of the License as herein provided, the Licensee, shall forthwith remove himself and all property belonging to him from the said plot of land and vacate it by leaving it in the same good and proper condition in which it was at the commencement of the License Agreement, unless the License Agreement is revoked earlier in accordance with the terms and conditions contained herein by the "Licensor".

32. From bare perusal 'inter-alia' of 'Clause-14' of License Agreement of 25th August, 1985 [Exh. 9], it is crystal clear that the 'licensee/Defendant No, 1 upon expiry of License Agreement of 25th August, 1985, is to remove forthwith from the 'subject plot' of land by leaving the 'subject plot' in same good and proper condition as it was at the 'commencement' of the 'License Agreement' of 25th August, 1985 [Exh.9], unless the License Agreement [Exh.9], is revoked on any earlier date, as per 'terms' and 'conditions' contained therein, by the Licensor [the Plaintiff herein]. Apart from the above, the un- numbered paragraphs/clauses at the start of License Agreement [Exh.9] also being very much relevant, are reproduced herein-below: "THIS LEAVE AND LICENSE AGREEMENT is made at Karachi this 25th day of August 1985 between STATE LIFE INSURANCE CORPORATION OF PAKISTAN (established under the Life Insurance Nationalisation] Order, 1972 having its Principal Office at State Life Building No, 9, Dr. Ziauddin Ahmed Road, Karachi thereinafter called the "LICENSOR" which term wherever the context so required or permits shall include their Successor-in-Interest and Assigns] of the ONE PART and Mr. Mohiuddin Khan resident of House No, 21/107, Peoples Town. S.F. Colony, Karachi-25. [hereinafter called "LICENSEE"] of the OTHER PART.

WHEREAS the "LICENSOR" owns and possesses the entire open plot of land bearing Survey No, 7 Sheet RY-5 Lackie Road, Karachi.

WHEREAS the said plot of land measuring 6000 square yards or more properly described in the attached plan, is lying vacant and the "LICENSEE" is desirous of taking on License, the said pot of land for using it as car parking area.

WHEREAS the Licensor has agreed to allow the Licensee the use of said plot for car parking, an the terms and conditions.

WHEREAS the "LICENSOR" has made it clear to the "LICENSEE" that the said "LICENSOR" has not intention, whatsoever, to create any relationship of landlord and tenants between the "LICENSOR" and the "LICENSEE".

AND WHEREAS the "LICENSEE" has also expressly stated and does hereby expressly state that the "LICENSEE" in his turn has no intention, whatsoever, to become a tenant of the said plot of land in the "LICENSORS" property. [Underlining is mine] 33.The aforesaid un-numbered paragraphs/clauses also belie Defendant No, 1, in his stand that he is 'statutory tenant' and not a `Licensee'. The alleged claim of Defendant No, 1, to the effect and extent that he is also in 'exclusive possession' of the 'subject plot' in my view besides, incorrect is without any foundation. In this regard reference can be made to the 2nd last un-numbered clause of Exh.9 of Exh.9 which reads as follows: "The possession of the said plot of land shall rest with the LICENSOR however the LICENSEE will has license and leave to use it for car parking. [Underlining is mine] 34.Moreover, the stand of Defendant No, 1 viz-a-viz the so-called exclusive possession cannot be believed true in view Exh.P-4/26 I Produced in the Plaintiff's evidence in Suit No, 606 of 1999], which reads as follows: "STATE LIFE INSURANCE CORP. OF PAKS1TAN REAL ESTATE DIVISION 09.09.1985.

Sub: HANDED/TAKEN OVER With reference Letter No, Car Park/Cont/L.R./85. Certified that I have jointly handed/Taken over the possession 6000 Sq. Yards of State Life Lackie Road Plot (Ground) from Mr. Mohammad Ayub Khan, Security Incharge Real Estate Division on September 09, 1985. (Underlining is mine)

HANDED OVER BY:TAKEN OVER BY: Sd!-Sd/- Mohammad Ayub KhanMr. Moiuddin Security InchargeHouse No, 21/107, RED.Peoples Town S.F. Colony, Karachi.

COUNTER SIGN: Sd (AZAD.A. KHAN)

Manager, R.E.D."

35. Evidently, the possession of the 'subject plot' is in the joint possession of the Licensor [Plaintiff] and Licensee [Defendant No, 1]. Besides, the claim of the Defendant No, I that he is paying rent ex- facie is also incorrect. This position can also be seen and ascertained from `Exh.12'. For ready reference Exit. 12 is also reproduced here-in-below: {{IMAGE}} STATE LIFE INSURANCE CORPORATION OF PAKISTAN STATE LIFE BUILDING NO. 9, ZIAUDDIN AHMED ROAD P.O.BOX 5725 KARACHI-4 Date January 15, 1989 DIVISION REAL ESTATE Reference Mr. Mohiuddin Khan, Licensee Lackie Road Parking Plot.

Adjacent to State Life Bjuilding No, 1, I. I. Chundrigar Road, Karachi Sub:RENEWAL OF LICENSE AGREEMENT IN RESPECT OF LACKIE ROAD PLOT FOR CAR PARKING Dear Sir, Please refer to your letter dated 25-8-1988 on the subject matter and have carefully noted the contents.

We hereby inform you that the above plot was given to you under the License Agreement dated 25-8-1985 and you had paid licence fee during the license period and not rent as mentioned in your letter under reply.

Since the said License Agreement dated 25-8-1985 stands' expired on 30-9-1988 and you are liable to remove yourself and all the property belonging to you from the said plot of land and vacate it by leaving it in the same and in the proper condition in which it was at the commencement of Licence Agreement without loss of any time. I Underlining is mine].

Thanking you Yours faithfully.

Sd/- (ASIM S.M. KHAN)

Deputy General Manager"

36. Per Mr. Zia-ul-Haq Makhdoom, Plaintiff No, 1 herein, had invited 'Tenders' by publishing a 'Public Notice' dated 19.04.1985 I Exh.'P-4/1' Equivalent to `Exh.15'], in Daily News Paper 'Dawn' for renting out of the 'subject plot' for car parking place. Defendant No, 1 herein, in response had submitted his 'bids'/' offer' for acquiring the `subject plot' on rent. According to Mr. Zia-ul-Makhdoom since, the bid/offer of Defendant No, 1, was suitable, as such, the same was accepted by the Plaintiff No, 1 vide its' letter of 21.05.1985 [Exh.P-4/2 produced in evidence of Defendant No, 1 herein who is plaintiff in Suit No, 606 of 1999]. Per Mr. Zia-ul-Haq Makhdoom, learned counsel for Defendants, the purpose of the public Notice was 'renting out' of the `subject plot' for car parking on 'rent' basis that is to say on 'lease basis' and not on licenses basis as the Plaintiff No, 1 herein is claiming. For to understand, the contentions of Mr. Zia-ul-Haq Makhdoom, learned counsel for Defendant No, 1 herein. I would like to reproduce herein, the said Public Notice of 19.04.1985 [Exh. P-4/1], here-in-below.

TENDER FOR RENTING OUR CAR PARKING SPACE State Life Insurance Corporation of Pakistan (State Life) intend to rent out on leave and license basis an open space of plot Survey No, 7, Street RY-5 Lakie Road, Near Platforms Nos, 5 & 6 of City Railway Station and adjacent to State Life Building No, 2-A, Karachi sufficient for parking of 360 cars.

Quotations are, therefore, invited which must be sealed and marked QUOTATION FOR CAR. PARKING'.

A pay order for Rs, 10,000/- in favour of State Life Insurance Corporation of Pakistan as caution money shall accompany the quotation which must reach Real Estate Division, State Life, 5th Floor, State Life Building No, 9, Dr. Ziauddin Ahmed Road, Karachi 'within 15 days of publication hereof.

Successful bidder shall have to deposit security Deposit equal to three months license fee and advance licence fee of one month within a week of final acceptance of his offer failing which caution money shall be forfeited and tender treated as cancelled. [Underlining is mine] State Life reserves the right to reject any or all of the offers without assigning any reason. Further detail if required may be obtained from Mr. Azad Ali Khan, Manager, Real Estate Division on Phone No, 529196, (M. HAMEED MALIK) Deputy General Manager, Real State, Division

37. In view of the above, Mr. Zia-ul-Haq Makhdoom, argued that Defendant No, 1 herein, is a tenant of the 'subject plot' land i,e, plot of land bearing Survey No, 7 Sheet RY 5 Lackie Road, Karachi and not as 'licensee' as being alleged by Plaintiff No,

1. Learned counsel for Defendants, however, admits the execution of License Agreement dated 25th August, 1985 [Exh.9], between the Plaintiff and Defendant No,

1. Per Mr. Zia-ul-Haq Makhdoom. Plaintiff No, 1 and Defendant No, 1 herein upon execution of 'Exh.9', have always acted as 'landlord' and 'tenant' respectively. The words 'Licensor' and 'Licensee' used in the License Agreement of 25th August, 1985 [Exh.9] per Mr. Zia-ulHaq Makhdoom cannot 'control' or 'negate' the substantives relationship of landlord and tenant between the parties. Moreover, it is next contend by Mr. Zia that in '2 rent receipts' No, 18501 dated 15.11.1987 for Rs, 20160/- and No, 19022 dated 11.01.1988 for Rs, 20160/- [i,e, Exh.18 and Exh.17 respectively], word 'rent' has been used, which per learned counsel, also establishes, the stand of Defendant No, 1 herein. According to Mr. Zia-ul-Haq Makhdoom Defendant No, 1 herein, is a 'tenant' and not 'Licensee' of the Plaintiff No, 1/Licensor. The aforesaid '2 rent receipts' r Exh.17' & (Exh.18'1', for ready reference are also reproduced here-in-below: STATE LIFE INSURANCE CORPORATION OF PAKISTAN PRINCIPAL OFFICE KARACHI RECEIPT No, 19022 Received from.Mohiuddin Khan & Co.

Rs, 20160/- The sum of Rupees Twenty Thousand One hundred & Sixt y only Liaashagiie Cash/Cheque/Draft Draft No,11741 Dated 9.1.88 Drawn onU.B.L. I.I. Chundrigar Road, On account ofRent S.L.B. No, 1 (SUBJECT TO REALIZATION OF CHEQUE)

Sd/- Authorised Officer B.

STATE LIFE INSURANCE CORPORATION OP PAKISTAN PRINCIPAL OFFICE KARACHIDATE 15/11 RECEIPT No, 18501 Received from Mohiuddin Khan & Co.

Rs, 20160/- The sum of Rupees Twenty Thousand One hundred & Sixty only By Cash/Cheque/Draft No,11740 Dated 9.11.87 Drawn onU.B.L. I.I. Chundrigar Road, On account ofRent S.L.B. No, 1 (SUBJECT TO REALIZATION OF CHEQUE)

Sd/- Authorised Officer

38. Apart from the use of above 'word rent', Mr. Zia-ul-Haq Makhdoom also made reference to the Plaintiff No, l's letter of 21.5.1985 [Exh. P-4/2] and forcefully contended that `Exh. P-4/2' also confirms and establishes the stand taken by Defendant No,

1. Plaintiff No, '1' letter dated 21.5.1985 [Exh. P-4/2] produced by the Defendant No, 1 herein in his evidence recorded in Suit No, 606 of 1999 [Messrs State Life Insurance Corporation of Pakistan and another WS Mr. Mohiuddin Khan and another], being relevant is reproduced herein: Real Estate, Renting/Car-Parking/Lackie Rd./85.21st May. 1985.

Mr. Mohiuddin Khan, 31/107. Peoples Town, S.F. Colony, Karachi-35, Dear Sir, Sub:Quotation for Car Parking - Lackie Road, Near Platform 5 & 6. Opp. City Railway Station, Karachi.

This has reference to your quotation dated 28.4.1985, for renting out Car-parking space at Lackie Road, Karachi, which we are pleased to inform you has been accepted. The lease and licence Agreement to be executed is under preparation and will be sent to you in next few day's time.

Please, remit a total sum of Rs, 80,640/- as detailed below:--

1. Rs, 60,480/- toward deposit equal to three month's fee.

2. Rs, 20,160/- being advance fee for one month.

We may inform you that the rent of the plot will start from the date of possession to be given to you.

Kindly remit the above amount within a week of receipt of this letter enabling us to proceed further.

[Underlining is mine].

Thanking you.

Yours faithfully.

Sd/- (Azad A. Khan) Manager (RED) "

39. Mr. Zia-ul-Haq Makhdoom next contended that upon execution of Agreement, of 25th August, 1985 [Exh.9], Defendant No, 1 herein, had submitted a detailed 'PLAN' of 'GATES' and 'SITE PLAN' of the ground Site before Plaintiff No, 1, which after approved of Plaintiff No, 1, per Mr. Zia, complete, effective and physical possession of the subject plot was handed over to Defendant No, 1 on 9th September, 1985. For to see as to whether the stand taken by Defendant No, 1, is true or the position is otherwise, Exh.'P-4/25', is reproduced here-in-below: MESSRS MOHIUDDIN KHAN & Co.

PARKING CONTRACTORS Site Office Lucky Road Parking Plot Adjacent to State Life Building No, 1 I. I. Chundrigar Road, KARACHI - 0237 Ref: SLIC/GEN/CPDate January 10, 1987.

The Manager, Real Estate Division, State Life Insurance Corp. of Pakistan, Dr. Ziauddin Ahmed Road, Karachi.

Sub: ADVANCE RENT FOR LACKIE ROAD PLOT FOR JANUARY, 1987 Dear Sir, Enclosed please find herewith our Cheque No, 50301792 dated 10.01.1987 for a sum of Rs, 20,160.00 (Rupees Twenty Thousand one Hundred & Sixty only) being advance rent for the month of January, 1987, as per our agreement with you. (Underlining is mine)

Kindly acknowledge receipt of this amount.

Thanking you and assuring you of our best services at all times, we remain.

Yours faithfully For M/s. MOHIUDDIN KHAN & CO.

Sd/- (Ghulam Hussain Rajan), Manager End: One Cheque for Rs, 20,160/-

40. Indeed, per Mr. Zia, learned counsel for Defendants. Plaintiff No, 1 had forwarded a 'draft Agreement' vide its' letter dated 19.09.1989 [Exh.P-4/27'], but Defendant No, 1 herein, upon perusal of the said Draft Agreement did not sign it, as Plaintiff No, 1, in actual fact, had attempted thereby, to convert the so-called 'relationship' between the Plaintiff No, 1 and Defendant No, 1 from the 'landlord' and tenant to 'Licensor' and 'Licensee'. The Defendant No, l's letter dated 29.10.1989 [Exh.

13], in this regard being relevant is reproduced here-under: MESSRS MOHIUDDIN KHAN & Co.

PARKING CONTRACTORS Site Office Lucky Road Parking Plot Adjacent to State Life Building No, 1 I. I. Chundrigar Road, KARACHI-0237 Dated 28.01.1989.

The Deputy General Manager, Real Estate Division, State Life Insurance Corporation of Pakistan, Karachi.

Sub:RENEWAL OF LICENSE AGREEMENT IN RESPECT OF LACKIE ROAD CAR PARKING PLOT.

Dear Sir, I am in receipt of your letter dated 15.01.1989 and 19.01.1989. The letter dated 15.01.1989 refers to license agreement whereas the other letter mentions an agreement to collect parking charges, the crux of the unilaterally introduced, terminological gimmick is continuation of license S agreement dated 01.10.1985, which already stands extended by implication through acceptance of license fee for period up-to January, 1989.

This being the position I request you to confine reference to license agreement in subsequent exchange of correspondence. State Life Insurance Corporation is fully aware that vast discrepancies 'existed between position as advertised on 19.04.1985 and that really found on ground and that I had to spend considerable amount for the development of the parking area.

Some further expenditure has also become necessary as a result of weather conditions.

Despite all this I am prepared to sign the extension of license Agreement for a period of three years with an increase of 10% 'in monthly fee, should development expenditure will be borne by me and I would suggest that in . order to remove in terminological confusion, the term collection of right be introduced in extension of the license agreement of 1985. [Underlining is mine] Thanking you Yours faithfully, For M/s. MOHIUDDIN KHAN Sd/-

41. According, Mr. Zia-ul-Haq Makhdoom, upon refusal of the said 'Draft Agreement' [Exh.26], by Defendant No, 1 herein, Plaintiff No, 1 thereafter, became annoyed and refused to accept further 'rent' from Defendant No, 1 herein. For such reason Defendant No, 1 was thus constrained to deposit the 'rent' before the Court of Vlth Senior Civil Judge & Rent Controller, Karachi [South], in Misc. Rent Application No, 697 of 1989. Per, Mr. Zia, upon execution of the License Agreement of 25th August.

1985 [Exh.9], and the 'handing over possession' of the 'subject plot' vide Eih. P-4/26 to the Defendant No, 1 herein, Plaintiff No, 1, thereafter, did not exercise any sort of `control over' and in respect of the 'subject plot', meant for car parking purpose. Per Mr. Zia, car parking, was always open for the use of general public and in no manner it was restricted to the 'tenant's `employees' of plaintiffs and visitors. Besides, Mr. Zia-ul-Haq Makhdoom next contended that Electricity charges in respect of the `subject plot' were exclusively payable by Defendant No, 1 herein, no default was ever committed by Defendant No, 1 herein in that regard. According to learned counsel for Defendants, all such payments having been made are liable to be- deemed and treated as rent under Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979].

42. Lastly, Mr. Zia-ul-Haq Makhdoom, learned counsel for the Defendants contended that Defendant No, .1 herein, is in exclusive possession of the 'subject plot' and this factum of possession, has been admitted by Plaintiffs' witness namely Riazuddin S/o Ziauddin ['Mr ], in his 'cross-examination' recorded in the instant suit i,e, 583 of 1989. The so-called admission made by '13W-1' in his cross-examination reads as follow: "... it is correct to suggest that plot in suit is in exclusive possession and control of Defendant No, 1 ..."

Keeping in view of the above, it was argued that Defendant No, 1 herein, is a 'statutory tenant' of Plaintiff No, 1 and as such, he cannot be declared as a 'Licensee' at the Plaintiff No, l's 'will' and `wish'.

Per Mr. Zia, Plaintiff No, 1, is a 'landlord' of Defendant No, 1 and not a 'Licensor' as claimed by Plaintiffs herein.

43. Mr. Zeeshan Abdullah, learned counsel for the Plaintiffs, in rebuttal argued that bare perusal of the License Agreement dated 25th August, 1985 [Exh.91, would show that Defendant No, 1 herein, is a 'licensee' and not 'tenant' as claimed. Moreover, 'Exh.9', was admittedly signed and was for a period of 3 years as per 'Clause-3' thereof. Per terms of License Agreement dated 25th August, 1985 [Exh.9]. Defendant No, 1 herein, was allowed only to use the `subject plot' for car parking purposes.

Moreover, in License Agreement dated 25th August, 1985 [Exh.9], it had clearly been mentioned that Plaintiffs herein have `no intention' what-so-ever to create any `relationship' between Plaintiff No, 1 and Defendant that is to say of `landlord' and 'tenant'. In this regard, the relevant stipulation from Exh.9, runs, as follows: "WHEREAS the "LICENSOR" has made, it clear to the "LICENSEE" that the said "LICENSOR" has no intention, whatsoever, to create any relationship of landlord and tenants between the "LICENSOR" and the "LICESNEE". [Underlining is mine]

44. According to Mr. Zeeshan Abdullah, for to determine the `relationship' between the Plaintiff No,. 1 and Defendant No, 1, the intention of the parties in this regard is of paramount consideration. No doubt, such intention of parties to Exh.9 is very much clear from the Provisions of the License Agreement dated 25th August, 1985 [Exh.9], From the said License Agreement [Exh.9], it is abundantly clear that it creates a relationship of 'Licensor' and 'Licensee' between the Plaintiff No, 1 and Defendant No, 1 herein, respectively and not that of 'landlord' and 'tenant' as claimed by Defendant No, 1 herein. To properly understand the stand so taken by the parties it would be appropriate to refer to and reproduce herein, the definition of license as given in Sections 52 and 54 of the Easement Act, 1882 [V of 1882] which reads as follows: "52. 'License' defined: where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such a right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."

54. Grant may be express or implied. The grant of a license may be express or implied from the conduct of the grantor, and on agreement which purports to create an easement but is ineffectual for that purpose, may operate to create a license.

45. Apart from the above, a license has also been defined in Halsbury Laws of England 4th Edition re-issued volume 27/1 which reads as follows: "Creation of License: A license is normally created where a person is granted the right to use premises without becoming entitled to exclusive possession of them or where exceptional circumstances exist which negative the presumption of the grant of a tenancy. If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the owner's possession and control, the agreement operates as a license, even though the agreement may words appropriate to a lease." [Underlining is mine]

46. Manifestly, under a License [a] a permissive right expressed or implied is created and such permissive right is also revocable on the 'wish' and 'will' of Licensor/Grantor [b] A 'License' can only legalize a right act of doing something upon the property of a grantor. Such right, upon expire of the stipulated period, however, becomes un-lawful if 'fresh Permission' is not obtained [c] The `Licensee' stands deprived of any such interest conferred upon expiry of license [d] The grant of License may be expressed or implied from the conduct of the grantor. [e] In the case of 'License' the only use of `Premises' is permitted but the possession is not exclusive with Licensee.

47. Per available record. Defendant No, 1 herein, has badly failed to discharge his burden of proof viz-a-viz; the claimed `relationship' between the Plaintiff No, 1 and Defendant No, 1 i,e, to say of landlord and 'tenant'. As far as the contention Mr.Zia-ul-Haq Makhdoom regarding use of word rent in 'receipts' i,e, `Exh.7' & `Exh.8' is concerned, no doubt, 'word rent' was used in such receipts but merely, the 'use of word rent. in receipts', cannot override the Provisions of License Agreement dated 25th August, 1985 [Exh.9], where under. the 'relationship between the Plaintiff No, 1 and Defendant No, 1, is that of 'Licensor' and 'Licensee' and not that of a `Landlord' and 'tenant' as being claimed by Defendant No,

1. The word `Tenant', it is significant to note, has been defined in Section 2[j] of SRPO, 1979 [Sindh Ordinance No, XVII of 1979], which reads as follow:

48. "Tenant means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:--

(ii) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;

(iii) heirs of the tenant in possession or occupation of the premises after the death of the tenant:

48. Besides, under the said Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979], Tenancy Agreement has also be defined in Section 5^[1] in the following words:

5. Agreement between landlord and tenant.--(1) The Agreement by which landlord lets out any premises to tenant shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force, it shall be attested by, signed with the seal of the Controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate.

(2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registerable, the original deed duly attested under sub-section (1), shall be produced and accepted in proof of the relationship of the landlord and tenant: Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Agreement.

49. From the above, it crystal clear that if, an agreement is registerable compulsorily, then a certified copy of registered deed and where, the agreement is not so registerable then, original deed duly attested under sub-section ^[1], shall be produced and accepted in proof of 'relationship' of 'landlord' and `tenant'. In the case in hand, it is however, worth to mention, the License Agreement dated 25.08.1985 Exh. 9] in terms of 'clause la' is for 3 years but the same has not been registered as required under Section 17 of the Registration Act, 1908 [XVI of 1908]. In view of this position as well, Defendant No, 1, cannot claim himself as 'tenant' of Plaintiff No,

1. Rather, Defendant No, 1 herein, is a Licensee in terms of the Licensse Agreement of 25th August, 1985 [Exh.9]. Section 17^[1][d] of the Registration Act, 1908 [Act No, XVI of 1908], being relevant are reproduced here-in-below:

17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after a date on which Act No, XVI of 1964 or the Registration Act, 1866, or the Registration Act, 1871, on the Registration Act, 1877, or this Act came of comes into force, namely:-- (a)

(b)

(c)

(d) Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly 6 rent:

50. Likewise, the subject License Agreement of 25th August, 1985, [Exh.9] by no strength of imaginations, can be treated and/or considered as a 'Lease Agreement' if, the definition as given in Section 105 of Transfer of Property Act, 1882 [IV of 1882] is also kept in mind. Per Section 105 of Transfer of Property Act, 1882 [IV of 1882], a lease of immovable property is a transfer of right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Per `definition' transferor' is called the `lessor', the 'transferee' is called the 'lessee', the price is called the `premium', and the money, service or other thing to be so rendered is called the 'rent'.

10.

51. Evidently, the 'relationship between the Plaintiff No, 1 and Defendant No, 1 is that of 'Licensor' and 'Licensee' and not that of `landlord' and 'tenant' as has been claimed by Defendant No, 1 herein. Per Mr. Zia the Plaintiff's witness viz. Hafiz Arshad Shaikh son of Shaikh Abdul Razzaq in his 'cross- examination' recorded in Suit No, 606 of 1999 [Mohiuddin Khan vs. State Life Insurance Corporation of Pakistan & another] has admitted that the possession of the 'subject plot' was handed over the Plaintiff [Defendant No, 1 herein] and the `subject plot' since then is in the possession and control of Plaintiff ,[Defendant No, 1 herein]. For better understanding, the 'said so-called admission' is reproduced herein-below: It is correct that the suit property is under exclusive control in possession of the plaintiff ..."

Notwithstanding the above, the said witness [DW-1/2], has also deposed in the said cross- examination;"it is incorrect that relationship between the Plaintiff and Defendants is that of landlord and tenant. Vol says that it is a license Agreement between the parties " [Underlining is mine]

52. Nevertheless, the contents of License Agreement of 25th August, 1985 l'Exh.9'1 as well as `Exh.24' of 09.09.1985, belie Defendant No, 1, in his stand that either he was 'tenant' or otherwise. Defendant No, 1 was in 'exclusive possession' of the 'subject plot'. From `Exh.24', it is quite evident that 'subject plot' is in the 'joint possession' of the Plaintiff/'Licensor' and 'Defendant No, 1/`Licensee'. For in view of the above, no any weight otherwise, can be given to the `oral statement' made by a witness [DW-1] much-less, in presence of written License of 25th August, 1985 [Exh.9] and Handing/Taking over letter of 09.09.1985 [Exh.24]. In `Exh.9' it has been specifically provided as under: , WHEREAS the "LICENSOR" has made it clear to the "LICENSEE" that the said "LICENSOR" has not intention, whatsoever, to create any relationship of landlord and tenants between the "LICENSOR" and the "LICENSEE".

AND WHEREAS the "LICENSEE" has also expressly stated and does hereby expressly state that the "LICENSEE" in his turn has no intention, whatsoever, to become a tenant of the said plot of land in the "LICENSORS" property.

Besides, on the last page of the License Agreement Exh.9 it has further been provided.

The possession of the said plot of land shall rest with the LICNESOR however the LICENSEE will has license and leave to use it for car parking.

53. It is also significant to note, under Articles 102 and 103 of Qanun-e-Shahadat Order, 1984, if there is a conflict between oral evidence' and 'documentary evidence' then, in such like position `documentary evidence' is to prevail over the oral evidence. On this aspect of the matter reliance is placed on (i) 2014 SCM R 1217, (ii) 2010 CLC 246, (iii) 2013 M LD 1305 and (iv) PLD 1986 SC 519.

54. The relevant portions therefrom read as follows:-- i. 2014 SCM R 1217 [Elahi Bakhsh through Legal Heirs and others v. Muhammad lqbal and another!

"7. ... It was accordingly reduced into writing and registered at the instance of the parties mentioned above. The respondent however, averred that it was a sale and not exchange. The burden, therefore, lay on him to prove, that it was sale. In his effort to prove his stance, he produced Saeed Ahmed and Mst. Sughran Bibi who were examined as P.W.1 and P.W.2. Both the P.Ws. stated in their evidence recorded in the Court that the transaction entered into between them and the appellants was one of sale and not that of an exchange. This statement so to say varies the terms of the deed and substantially so. The question that arises for the adjudication of this Court is whether an oral statement of a party to an instrument which varies or tends to vary its terms could be admitted into evidence? The answer to this question is a plumb no because Article 103 of Qanun-e-Shahadat Order 10 of 1984 excludes oral statement as between the parties to any such instrument of their representatives. The rationale behind this Article is that inferior evidence is excluded in the presence of superior evidence; that an agreement finding expression in writing is an out come of deliberate and well thought out settlement; that a party acknowledging a fact in writing is precluded to dispute it and that an agreement reduced into writing is immune from mischief, failure and lapse of memory...." [Underlining is mine]. ii. 2010 CLC 246 [Karam Din through LRs, and others v. Muhammad Idrees] "12. During cross-examination he was confronted with the written statement. He denied having signed the written statement. However, he admitted his signatures on the front and back side of the agreement Exh.P.1. He also admitted that the ID. Card number shown thereon related to him.

Then he tried to take a shift saying that the stamp paper was got written through fraud.

He however, failed to state any particular of the so-called fraud. It is evident that he had admitted the execution of the agreement Exh. P.1 dated 26-3-1996. The agreement Exh.P.1 was fully covered under Article 102 of Qanun-e-Shahadat, Order, 1984 and any oral evidence against its terms, would stand excluded from consideration vide Article 103 of the Order (ibid). [Underlining is mine]. iii. 2013 M LD 1305 [Shakeel v. H. Syed Masroor Ahmed]

8. Both the Courts below have considered, discussed and relied upon the oral evidence of appellant without examining the documents i,e, Registered Power of Attorney executed by H. Syed Masroor Ahmed, Respondent No, 1 in favour of Saleemuddin and the registered sale deed executed by Saleemuddin as Attorney of respondent No, 1 in favour of appellant Shakeel, the said documents were produced by the appellant before the trial Court in his evidence as Exhibit D/1 and D/2. The General Power of Attorney as per the endorsement of Sub-Registrar was registered at Serial No, 865 dated 20-10-2004, the photograph of executant R Syed Masroor Ahmed is affixed on the General Power of Attorney, whereas the Sale Deed in respect of suit property, as per the endorsement of Sub-Registrar was executed under Register No, 417 dated 25.1.2005 about 3 months after the execution of General Power of Attorney, as such both the Courts below have given preference to the oral evident over the documentary evidence which amounts to mis-carriage of justice and violation of Articles 102 and 103 of Qanun-eShahadat, 1984 which relates to exclusion of oral evidence when, the terms have been reduced into writing to form a document, oral evidence led to contradict the contents of a document would be inadmissible. Reliance can be placed on a matter reported as (Ali Muhammad vs. Ghulam Haider) 2001 CLC 1440.... [Underlining is mine!. iv. PLD 1986 SC 519 [Muhammad Shafi and others v. Allah Dad Khan] "...The evidence of the respondent and of another person was admitted by the Trial Court for the purpose of proving the real intention of the parties and such evidence was relied on to some extent by the Courts below. In regard to the admissibility of this evidence their Lordships held that by reason of Section 92 of the Evidence Act, no oral evidence of intention was admissible for the purpose of constrain the deeds or ascertaining the intention of the parties, and the case had to be decided on a consideration of the contents of the documents themselves with such extrinsic evidence-of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts ..." [Underlining is mine I.

55.For all he above, I reached the conclusion that Defendant No, 1 herein, is a Licensee of Premises/subject plot' and the Civil Court, as such, has jurisdiction in the matter. ISSUE No, 1 which is to the extent and effect that 'whether the Defendant No, 1 is 'licensee' of the premises and the Civil Court has jurisdiction is accordingly answered in 'positive'.

ISSUE No, 2.

56.As far as, Issue No, 2 which is to the effect as to whether the license expired on September 30, 1988 is concerned, the same needs no debate as both parties admit that 'License Agreement' of 25th August, 1965 [Exh.91, has expired on September 30, 1988. In this regard reference can be made to prayer clause kJ sought by the Plaintiffs in the above suit and `para 10' of the 'written statement' of Defendant No,

1. The relevant prayer clause [i] sought in the plaint and relevant part of 'para-10' of 'written statement' of Defendant No, 1 are respectively reproduced here-in-below:

(i) Declare that the license expired on 30th September, 1988, and the Defendant No, 1 had no right, power or authority either to enter upon the portion of the plot or allow third parties to park their cars or to Collect, parking fee from them. [Underlining is mine) b. "10 ... The agreement dated 25th August, 1985, came to an end, on 30th September, 1988, whereafter the answering defendant became a statutory tenant. The Plaintiff No, 1 continued to accept rent and to term it as such, as would be evident from the receipt filed herewith (Annexure C1-C3). It is, however, admitted that the answering defendant continues to be in possession as a tenant and is conducting his business, that of running a parking lot, at the subject premises. The Plaintiff No, 1 accepted the rent without demur for six months. Thereafter the Plaintiff No, 1 sought enhancement of the monthly rent by 30%. However, the answering defendant was only prepared to agree to a 10% enhancement, to which the Plaintiff No, 1 countered with a proposal to change the status of the answering defendant from a tenant to that of a contractor. The answering defendant craves leave to rely on the draft agreement and the letter dated 19.01.1989 referred to above." I Underlining is mine 1 57.Keeping in view the above admitted position. Issue No, 2 does not need any debate as License.

Agreement [Exh.9] has admittedly expired on September 30, 1988.

ISSUE No, 3.

58.ISSUE No, 3 is to the effect as to "whether Defendants are obliged to pay mesne profits at the rate of Rs, 50,160.00 per month from October 1, 1988 till such time that payment is made". Since, under Issue No, 1, it has been held that Defendant No, 1, is a 'Licensee' and not 'tenant'. Likewise, under Issue No, 2, it is admitted position that License Agreement of 25th August, 1985 [Exh.91, has admittedly expired on September 30, 1988. In view of the above position. Defendant No, 1, as being 'licensee', is liable and obliged to pay `mesne profit' w,e,f, October 1, 1988, till such time the payment of `mesne profit' is made. The only question, now needs to be answered under `Issue No, 3', is the quantum of `mesne profit'. To see whether, Defendant No, 1, is liable to pay Rs, 50,160.00 per month i,e, from October 1, 1988, or any other amount under the facts and circumstances of the case in hand. The case of the Plaintiff, as made out, is that Defendant No, 1, upon expiry of the license Agreement on September 30, 1988 has become trespasser/illegal occupier of the `subject plot', as such, he is liable to pay Rs, 50,160.00 per month w.e.f 1st October, 1988 till such time the entire payment is made. The Plaintiff No, 1 herein, in their evidence have produced a letter dated January 15, 1989 [Exh.12], in which a reference has also been made to Defendant No, l's letter of 25.08.1988.

Evidently in 'Exh-12' inter-alia, it has been mentioned that license Agreement dated 25.08.1985 1`Exh.

91 stands expired on 30.09.1988 and you [Defendants No, 1 I is liable to remove from the 'subject plot' alongwith all belonging and 'vacate' the same by leaving the 'subject plot' in same and 'proper condition' in which it was at the commencement of License Agreement 1 Exh.9], without any loss of time.

59.In response, Defendant No, 1 herein, sent a letter dated 28.01.1989 I Exh. 131, to the Deputy General Manager Real Estate Division State Life Insurance Corporation of Pakistan, Karachi, wherein, the factum of License Agreement [Exh.9] signed between the Plaintiff and Defendant No, 1, was not disputed. In the said letter `Exh.13', it was also not disputed that License Agreement of 25`h August, 1985 I Exh.9], has already stood expired on 30th September, 1988. In the said letter [Exh. 13], it was however, alleged that License Agreement of 25th August, 1985 [Exh.9], has stands extended by implication through acceptance of 'License Fee' for the period upto January, 1989. Herein, it is worth to mentions, Plaintiff No, 1, in its' letter has made a reference to Defendant No, l's letter of 25th August, 1988. The License Agreement of 25th August, 1985 stands admittedly expired on 30'1'

September, 1988. Per 'Exh-12' [already been reproduced herein above]. Defendant No, 1 was directed in express words to move from the 'subject plot' alongwith belongings if any without any loss of time. In view of this position, the stand of Defendant No, 1 that despite expiry of Exh.9 on 30th September, 1988 the License Agreement [Exh.9] be deemed as extended impliedly, in my view besides, incorrect cannot be believed. Even otherwise, such stand taken by Defendant No, 1 has not been established through cogent and plausible evidence.

60.Defendant No, 1, despite of such demand/direction of the Plaintiff, however, did not move out from the 'subject plot', and Plaintiff No, 1 herein, was constrained to send a legal notice of 18 May, 1989 I Exh. 14 reproduced herein-above] to Defendant No, 1 wherein, Defendant No, 1, was directed to refrain from interfering over and in respect of the 'subject plot', as the license Agreement of 25th August, 1985 I Exh.9], has already expired on 30th September, 1988.

61.From the above, it is quite clear that Defendant No, 1, interference/occupation over the 'subject plot', beyond 30th September, 1988, is nothing but an act of trespassing and/or illegal occupation.

It is also worth to mention, that Defendant No, 1, in his letter dated 28th January, 1989 rExh.13'], had also agreed for 10% enhancement in 'monthly fee' which 'enhancement by 10% in monthly fee' however, was not agreed by the Plaintiff/Licensor; According to Defendant No, l's own stand, the Plaintiff wanted enhancement by 30% and this factum is also evident from 'Para-10' of the 'written statement' of Defendant No, 1 filed in Suit No, 583 of 1989 [State Life Insurance Corporation Limited & another vs. Mohiuddin Khan and another] which has already been reproduced hereinabove.

62.For all the above, I have come to the conclusion that Defendant No, 1, as being found in wrongful possession and/or illegal occupation of the 'subject plot' w.e.f October 1, 1988, is liable to pay of Rs, 22.176/- as `mesne profit' w,e,f, October 1, 1988 till the realization of the entire outstanding amount plus 6% markup thereon. ISSUE No, 3 is answered accordingly.

ISSUE No, 4 63.As far as, ISSUE No 4 which is to the effect as to whether the Defendant No, 1 violated the terms of the license, is concerned, in view of the foregoing discussion. I am of the considered opinion that Defendant No, 1 herein, has clearly violated the 'terms' and `conditions' of 'License Agreement of 25th August, 1985 [Exh. 9], by calling and treating himself as a 'statutory tenant' under a 'License Agreement' already expired on 30th September, 1988.

64.In view of my findings on ISSUE NOS. 1 TO 4, the Plaintiffs suit besides being decreed, for `mesne profit' as above, Defendant No, 1, is further directed to move out from the 'subject plot' and handover vacant peaceful possession of the 'subject plot' to the plaintiffs within a period of 45 days hereof, positively.

65.RELIEF: The plaintiffs suit stands decreed in the above terms.