' This is an application under Order XXXIX, rule 2, C. P. C. Read with section 151, C. P. C. Wherein the plaintiffs seek following reliefs
(a) give, grant and issue temporary injunction restraining the Defendants, their partners, agents and servants from making use of . Trade marks of plaintiffs "Pakistan Fish" and "Blue Sea" and or their resemblances and or imitations and or labels, cartons, packages, matter and material having or bearing the said marks or their limitations or resemblances ;
(b) give, grant and issue temporary injunction restraining the defendants, their partners, agents and servants from utilising or making use of fishery undertaking or factory of the plaintiffs or carrying on business in the fishery undertaking or factory of the plaintiffs located on Plot No, 33, Industrial Area, West Wharf, Karachi ; and
(c) give, grant and issue temporary injunction the defendants, their partners, agents and servants from employing or continuing in employment any employees or staff servants in or about fishery business or in or about fishery undertaking or factory of the plaintiffs situated or located on Plot No, 33, Industrial Area, West Wharf, Karachi.
1. The plaintiffs own a complete fishery undertaking consisting of plant, machinery, equipment etc. With factory located on Plot No, 33, Industrial Area, West Wharf, Karachi and were carrying on fishery business, inter alia, of cleaning, processing, refrigeration, packing and export of fish, prawns and sea food. The said plaintiffs also owned the trade marks (unregistered) "Pak Fish" and "Blue Sea".
2. By an agreement described as "Agreement of Lease" made on 25th February, 1979 made between the plaintiffs and the defendants, pursuant to the resolution passed by the plaintiff Company "to lease out whole of the fisheries business together with the land, building plant and machinery equipment etc." in the said agreement as 'the fisheries undertaking" the said undertaking was let out to the defendants for a period of three years commencing from 1st March, 1979 to 31st March, 1982, subject to the terms and conditions which inter alia provided as follows : Clause 6. ; (1) "That the-Company hereby agrees to grant leaseot the lightly undertaking to the firm and the firm hereby agrees to take the lease thereof subject to the terms and conditions hereinafter appearing.
(ii) The lease shall be for a period of three years and one month commencing from 1st March, 1979 ;
(iii) That the agreed rent for the lease payable by the firm to the company shall be the sum of Rs, 30,000 per month.; provided that no rent shall be payable by the firm to the company for the month of March, 1979 ;
(iv) The agreed rent as hereinafter mentioned shall be paid in the following manner :
(a) The firm shall make advance payment of 15 months of rent amounting to Rs, 4,50,000 to the company at the time of execution of this Agreement.
(b) The balance of the rent for the whole period of the lease shall be paid by the firm to the company in monthly instalments of Rs, 17,500.
(c) The said amount of Rs, 17,500 will be payable on the 5th of every month in advance commencing from April, 1979."
' Clause 7. "The Company shall deliver possession of fishery undertaking to the firm in running condition between 1st and 7th March, 1979. The company may however deliver possession at its option prior to 1st March n9.
' Clause 8. "That all charges of electricity, water, conservancy and all other charges for the purpose of running the fishery undertaking shall be payable and shall be the exclusive liability of the firm."
' Clause 9. "The ground rent or any other rates, taxes payable in respect of the land and building where the fishery industry is located shall be payable and shall be the liability of the Company : ' Provided that if for any reason the firm is made to pay any amount payable in respect of the land and buildings of the fishery undertaking the firm shall be entitled to deduct the same from the monthly instalments of rent payable by the firm to the Company."
' Clause 10. "All salaries, wages, bonus and gratuity payable to members of the staff, all the workers to be employed in the fishery undertaking shall be exclusive liability of the firm and any amount towards these liabilities remaining unpaid on expiry of the period of lease shall be made good by the firm to the company at the time of holding over the fishery undertaking by the firm to x company ;"
' Clause 11. "Notwithstanding anything contained hereinabove the parties agree that the firm shall have absolute option to purchase the fishery undertaking within the period of 18 months from March/April, 1979 and the company shall be bound to sell the same to the firm, if the firm exercises the option within the stipulated period of 18 months."
' Clause 12. "The price of the fishery undertaking which has been agreed to between the parties hereto shall be a sum of Rs, 41,00,000 out of which all liabilities incurred by the Company upto date of these presents and appearing in the account books maintained by the Company and also all liabilities which may arise or be discovered after the date of these presents for the period prior to the date of these presents shall be deducted therefrom."
' Clause 16. "In the event that the firm opts to purchase the assets of the company, the company shall be responsible for accruing the necessary permission for the sale from their Bankers, K.P.T.
Fishery Board and the Fisherman Co-operative Society and all other permissions which may be legally required to completely conveying the assets."
' Clause 17. At the date of these presents there is a stock of Packing material laying in the premises of the fishery undertaking and bearing printed/ embossed trademarks of the Company i,e, "Pak Fish" and "Blue Sea". The firm hereby agrees to purchase all such packing material and stores and spares found in stock for a sum of Rs, 1,38,476 and the company agrees to sell them at that price.
The firm shall be entitled to use such packing material with the Trade Marks of the Company in selling and export of its finished product and shall be entitled to print or emboss such packing material with the following i,e, "Produced and Packed by Standard Fisheries Corporation." The firm shall also be entitled to use the aforesaid two trademarks of the Company even on packages with firm itself may get manufactured without any liability to pay royalty or any other kind of charge for the use of the said two trademarks. This right of the firm, however, shall be exercised only so long as the lease subsists."
Clause 19. (i) "That on or before 7th March, 1979 the company shall terminate the services of all the present employees and shall pay them off all their dues i,e, salary, bonus, gratuity, etc. Which may be due to them in accordance with the terms of contracts of employment or law and shall keep the firm completely indemnified against all kinds of claims by any of the employees of the company for the period upto 7th March, 1979. If, however, the firm has at any time required to pay any kind of claim to any of the company's employee it shall be entitled to deduct the same from the rent payable.
(ii) On the expiry of the period of lease and in the event of the firm not exercising the option to purchase the Fishery undertaking as provided in clause 11 above, the firm shall terminate the services of all employees appointed by it during the period of lease and shall be responsible for paying of all the dues of such employees as mentioned in sub-para. (i) of this para and shall fully indemnify the Company against all such claims."
' Clause 20. "The parties agree that if at any time during the period of lease the fishery undertaking is attached under any order of a Court or other competent authority due to any act of omission or commission on part of the company which necessitates or cause suspension of the business of the said fishery undertaking for any period the company shall be liable to pay all such losses which the firm may suffer due to such suspension. After the company receives back the fishery undertaking on expiry of the period of lease and suffers any loss due to any act of omission or commission on the part of the firm, the firm shall make good such loss to the Company."
3. The plaintiffs in the suit filed by them have described the said agreement as an agreement of lice= and the amount thereunder payable as licence fee.
' According to the plaintiffs the licence fee was chargedcQ Rs, 30,000 per month and that the defendants paid Rs, 4,50,000 in advance for 15 months reckoned from 1st April, 1979 and balance for a period of hiring or licence reckoned at Rs, 17;500 per month, was payable in advance on 5th of each month commencing from April, 1979.
' The possession of the aforementioned undertaking was given to the defendants in March, 1979 to run the said fisheries business and the period as per agreement expired on 31st March, 1982.
' The hire/the licence fee of Rs, 17,500 per month for and upto the month of March, 1981 according to the plaintiffs was received, but thereafter the defendants failed and neglected to make the payment and an amount of Rs, 2,10,000 was outstanding as arrears upto 31st March, 1982. The suit was fileu on 18th September, 1982.
' It is also pleaded that the defendants did not opt to purchase the said undertaking as stipulated in the agreement.
4. According to the plaintiffs on the expiry of the period to the agreement they required the defendants to make over possession of the said undertaking/business with its machinery equipment including plant unit and its plot and factory premises, which the defendants agreed but subsequently failed and resiled and denied to do so.
' It is the case of the plaintiffs that the defendants without their permission even after the expiry of the term of agreement are making use of the trade marks "Pak Fish" and "Blue Sea", which is in breach of the agreement and that they are still using the same and are passing off their goods of the plaintiffs.
5. On the facts briefly stated above the plaintiffs have filed the suit for recovery of hire/licence fee, mesne profits, delivery of possession in good order and condition of the "business undertaking" of the plaintiffs along and together with the plant machinery equipment factory premises plot etc. Described in Schedule Annexure-2 to the Plaint. The plaintiffs also claim the loss or damage to the property and assets, account of sales made by the defendants as from 1st April, 1982 and for permanent injunction restraining the defendants from using the marks "Pak Fish" and "Blue Sea" and their resemblances or imitations. They have also prayed for delivery of labels, cartons, packages, loss of income and permanent injunction restraining the defendants from utilising or making use of the fishery undertaking or factory of the plaintiffs and mandatory injunction directing them to terminate the services of all their dues and liabilities, and all dues and liabilites of running fishery undertaking or factory and all rent, rates, dues etc.
6. As already noted above the plaintiffs have filed application under Order XXXIX, rule 2, C.P.C.
Which is supported by affidavit filed by one of the directors of the plaintiff Company. The defendants have filed counter-affidavit which was followed by affidavits in rejoinder and further affidavits filed by the parties.
7. Mr. Rahimtoola, the learned counsel for the plaintiffs, in order to establish prima facie case relied upon terms of the agreement reproduced above and the following factors, which emerge as undisputed facts on the material on record :
(i) That the agreement expired on 31st March, 1982.
(ii) That the plaintiffs have not given their consent or entered into any fresh agreement with the defendants to extend the period of the agreement.
(3) That the defendants have not opted to purchase the undertaking.
(iii) That after the expiry of the agreement the defendants are prohibited from using the two trademarks "Pak Fish" and "Blue Sea" of the Plaintiffs.
(iv) That after the expiry of the term, the defendants shall hand over the "fishery undertaking" to the plaintiffs.
8. On the other hand Mr. Khalid Ishaque contended that :
(i) the agreement amounts to a contract of tenancy under which the possession of defendants was protected by the provisions of Sind Rented Premises Ordinance, 1979.
(ii) that the payments of rent having been accepted after 31st March, 1982 i,e, after expiry of the period originally fixed under the agreement, the said period shall be deemed to have been extended.
9. I would now take up the contentions raised by Mr. Khalid Ishaque, learned counsel for the defendants :
(i) The learned counsel argued that the rights of the parties are governed by the Sind Rented Premises Ordinance, 1979 and as such the possession of the defendants is protected by the said.
Ordinance, 1979 and that they cannot be ejected except by resorting to the remedies under the said Ordinance.
' I, however, find that this contention cannot succeed for the reasons that the business undertaking which was entrusted to the defendants under the agreement does not fall within the meaning of 'building' and/or 'premises' as defined in section 2 of the said Ordinance. Under the said Ordinance these terms have been defined as follows : "Clause (a). 'Building' means any building or part thereof together with all fittings and fixures therein if any and enclose any garden, garrage, outhouse and open scares attached and appertinent thereto."
"Clause (h). Premises means a building or land let out on rent but does no! Include a hotel.": ' The procedure for making application for ejectment by the landlore from the premises is laid down in sections 14 and 15 of the said Ordinance, 1979 whereas section 13 provides that no tenant shall be evicted from the premises in his possession except in accordance with the provisions of the Ordinance.
10. Considered in the light of the provisions of Ordinance, 1979 referred to above a perusal of the agreement dated 25th April, 1979 would show that neither the undertaking let out to the defendants falls within the definition of the terms `building' or 'premises' as defined under the Ordinance, 1979 nor the plaintiffs could avail remedy as provided under the said Ordinance for the said reason and that the defendants are not 'tenants'.
11. Mr. Khalid Ishaqe the learned councel for the defendants submitted that the agreement has been described as "agreement of lease" and the amount payable as rent and therefore the plaintiffs cannot argue that the agreement does not create a tenancy between the parties. This argument of the learned counsel does not advance the case of the defedants, as the nature of the relationship which is created by a deed, is for the Court to determine on the language of the deed and not merely because the parties have chosen to give a particular description to it. Reference be made to the commentary on Transfer of Property Act by Mulla (1976 Edn.) under section 105 where the learned author on the authority of decided cases, says : "The mere use of words appropriate to a lease will not preclude its being held to be a licence : so even a document referring to "rent" may be a licence. Even a clause that the agreement does not create a tenancy is not decisive, if, read as a whole, it creates an interest in property. The question in each case is : does it in fact create an interest in property."
' A reference to the terms and conditions of the agreement already reproduced above would show that the defendants have been allowed to carry on the fisheries business in the plaintiffs factory for a period of 3 years commencing from 1st March, 1979 have also been allowed to use marks `Pak Fish' and 'Blue Sea' which are the trademarks of the plaintiffs so long as the agreement subsists.
' The agreement also provided that on or before 7th March, 1979 the plaintiffs shall terminate services of all their employees and shall pay them off all their dues. Recitals of the Agreement being relevant are reproduced as! Follows "(1) Whereas the Company is carrying on fisheries business at Plot No, 33 Industrial Area, West Wharf, Karachi and have a factory for processing fish and fishery products.
(2) and whereas the company having been authorised by a resolution by its Board for Directors passed in the meeting of Board held on 22nd February, 1979 which resolution duly signed and certified by the Managing Director of the Company is annexed hereto and is marked I has authorised its Managing Director to lease out the whole of the fisheries business together with the land, building plant and machinery equipments etc. Full details whereof are given in Annexure II to this Agreement (hereinafter referred as "the Fishery undertaking") on such terms and conditions as the Managing Director may in his discretion consider fair and proper ;
(3) And whereas the firm has offered to take the lease of the fishery undertaking :
(4) And whereas the company has agreed to lease out of the fishery undertaking and the firm has agreed to take the lease on certain terms and conditions."
In the light of the recitals, the conditions of the agreement and the definition of the terms `building' premises' and scope of the provisions of the Sind Rented Premises Ordinance, the running business undertaking/factory given on contract by the plaintiffs to the defendants, can neither be construed as letting out any 'premises' to the defendants nor the defendants cant validly claim themselves to be the 'tenant' and thus claim protection under the said Ordinance. No interest in the immovable property was created by the Agreement.
12. I may usefully refer here to the case reported as Bashir Ahmed v. Zubeda Khatoon, wherein after an exhaustive discussion and placing reliance upon the authoritative decision of the Hon'ble Supreme Court in the case of Rehman Cotton Factory v. Messrs Nichimen and other cases of Ghulam Hussain v. Abdur Rehman and Ahmed Aziz Zia v. Muhammad Siddique it was held that to the letting out of a saw mill, the provisions of Sind Rented Premises were not applicable.
' In the case of Ehsan Cotton Factory the Hon'ble Supreme Court observed : "Moreover, the Act applies to "residential building, non-residential building" and 'rental land' as defined in section 2 of the Act and situate within an urban orea. It is common ground that the lease in the instant case was of a running ginning factory equipped with machinery for processing and ginning cotton and not merely of a "non-residential building". Therefore, it does not fall under any of the above three categories of the properties to which the Act applied. The statement in the preamble of the Act that it applied "to certain premises" within the limits of urban area is also not without significance. Reading these qualifying words with definition of the above-stated three specified kinds of property defined in section 2, leaves no manner of doubt that the Act did not apply generally to all manner of properties in an urban area : else it was those to particularies the properties to which the Act applied. A fortiori the Act excluded from its operation what were property known as a factory equipped with machinery requisite for a particular manufacturing process. In essence in all such cases, the lease is for the use of the machinery which is permanently fixed in certain defined premises and not of the premises simpliciter.
Considered in the light of the principles, the status of the defendants is that of merely a contractor/licensee to run and conduct 'fisheries business', granted to them for the specified period commencing from 1st March, 197 upto 31st March, 1982 and that they are not entitled to any protection a claimed under the Sind Rented Premises Ordinance, 1979. The bush undertaking let out to the defendants does not fall within the meaning word 'premises'. They are not tenants as defined under the said Ordinance.
13. The learned counsel for the defendants then argued that the term of the agreement expired on 31st March, 1982 and that not only payments were made during the subsistance of the said agreement for the period from April, 1981 to March, 1982 vide Annexures D/1 to D/12 (to the Additional Affidavit in rejoinder) but payments were also made for the period after the expiry of the term vide letters dated 8th May, 1982, 23rd June, 1982, 15th August, 1982, 6th October, 1982 and 2nd November, 1982 Annexures D/13 to D/20 of Additional Affidavit in rejoinder) and that rent was sent specifically for the periods mentioned in the said letters i,e, for the months of April, 1982 to October, 1982 and the same were accepted by the plaintiffs. It was argued by Mr. Khalid Ishaque that having accepted and appropriated the amounts remitted for the specified months the plaintiffs are estopped from taking the stand that the same were adjusted towards arrears which were outstanding against the defendants. Learned counsel further argued that by acceptance of these payments the period of lease was extended.
' Mr. Rahimtoola the learned counsel for the plaintiffs on the other hand submitted that neither payments were received in cash by any authorised person nor the plaintiffs had authorised any person to receive or acknowledge alleged payments made as per vouchers Annexures DI 1 to D/12 and the said vouchers purporting to be payments for the period April, 1981 to March, 1982 (when the agreement was subsisting) are false and certed after filing of the counter-affidavit by the defendants. It was argued that plaintiffs had given specific directions to the defendants to remit the payments for deposit in their account in Habib Bank Limited, I. I. Chundrigar Road, Karachi and that there was no occasion for making alleged cash payments as alleged to the plaintiff's employees. The allegation of appropriation for specific period was denied.
12. I have considered the arguments of the learned counsel for the parties. I had given opportunity to the parties to prove the payments made by the vouchers (Annexures D/I to D/12) as the same1 2 3 4 were filed along with the additional affidavit in rejoinder (which normally is not permissible under the Original side Rules). The defendants examined Mr. Siddiq, the cashier, in support of the alleged payments made.
' It would be observed that as regards payments allegedly made against the vouchers Annexures D/1 to D/12 (which cover the period from the month of April, 1981 to March, 1982) there is serious controversy between the parties the plaintiffs contending that no such payments were made to the plaintiffs and the defendants asserting that these payments were in fact made. I gave opportunity to both the parties to lead evidence and as noted above the defendants examined Siddique son of Ismail, the cashier. He stated that the payments covered by these vouchers were made by him to the representatives of the plaintiffs. When challenged in the cross-examination that no payments were made and therefore he had not brought the books of accounts, the said witness brought the books of accounts and produced the same in his cross-examination. Mr. Rehmatullah cross-examined the defendant's said witness at length as to the credibility of the vouchers and the books of accounts. In his cross-examination the said witness admitted that the books of accounts were loose-leaves books, and that there are blanks at the end of entry for each day.
' The cross-examination has prima facie exposed the falsity of the books. The entries of payments covered by these vouchers are shown to have been made subsequently in the said books of accounts apparently for the purposes of this case.
' The witness was confronted with the books of accounts and he admitted that the total shown at the bottom of page 39 is Rs, 20,69,484.38 and that the amount brought forward on page 40 is Rs, 20,58,984.38. After he was thus confronted with the discrepancy on a question put by Mr. Rehmatullah the said witness admitted as follows "It is correct that the total shown at the bottom of the page 39 has been rubbed out and re-written.
It is correct that the difference in the balance shown at bottom of page 39 and on the next page at page 40 is Rs, 10,500. I cannot say if the last entry on page 39 Exh. D/15/2 was subsequently made in the Register."
(It may be mentioned that the voucher, the entry against which is reflected in the book of account is for Rs, 10,500).
' Another instance be cited where the witness stated as follows : "It is correct that there are marks of erasure of total above the line and of line of entry and on the side all along the line. The figure at bottom is shown 17,70,596.06 on the next page the total figure is shown 17,60,096.06, the difference between the two totals is Rs, 10,500. I cannot say if the total at the bottom of page 140 is erased and firesb entry is made. I cannot say whether this entry has been made afterwards in space left blank. I am shown entry Exh. D/15/7 at page 157. Figure at the top is 26,813/15 and at the bottom is 29,144/21 it does not include Rs, 10,500."
(The voucher again is for Rs, 10,500 for alleged payment against which entry is shown in the book of accounts).
' At another place the witness admitted as follows "It is correct that in the ledger books Exhs. D/16 and D/17 pages are blank in between the pages containing the entries. I am shown entry Exh. D/16/1 page 207 of the ledger Exh. D/16. It is correct that entry for April 8 is before the entry for April 7."
' The witness then further admitted as follows :- "I am shown entry for February 6 and it refers to page 174 of the cash book. I am referred to page 174 of cash book Exh. D. 15/8. In this book the entry is shown as February 2."
' In view of the above evidence and some of the instances referred and finding that the prima facie as the entries for the alleged payments made against the vouchers, which have been entered in the books are unreliable no importance can be given to the allegations made that any payments for the months of April, 1981 to March, 1982 were made by the defendants for purposes of deciding the application, that alleged payments therefore cannot be taken into consideration. Tentatively, therefore, for the purposes of this case it is observed that the payments alleged to have been made by the defendants for the months of April, 1981 to March, 1982 have not been proved.
' In any case. For the purposes of deciding this application even if these payments are shown to have been made the result of the application would not rest upon it, as these payments would be for the period during which the agreement still subsisted.
14. The discussion as above shows that the agreement whereby the plaintiffs let out the whole of their "fisheries business" together with the land. Building, plant and machinery equipments etc. For the period from 1st March, 1979 ending 31st March, 1982 has expired and that the defendants did not exercise the option to purchase the said undertaking and are not entitled to protection under the provisions of Sind Rented Premises Ordinance, 1979, yet they continue in possession of the said 'fisheries business/ undertaking' notwithstanding the fact that the plaintiffs have called upon them to vacate and deliver the possession of the said undertaking to them.
' Mr. Khalid Ishaque the learned counsel for the defendants was unable to show any provision of law under which the possession or continuance of the fisheries business/undertaking by the defendants could even prima facie in law be justified. On the contrary, the material on record would show that the plaintiffs have not consented to the continuance of the occupation of th 'undertaking' by the defendants. Mere encashment of cheques/pay or sent with letters Annexures D/13 to D/20 encashed by the plaintiffs after the filing of the suit would not amount to consent to continuance in possession of the defendants within the meaning of section 116 of the Transfer o Property Act.
' It has been held in the case of Abdullah v K. M. C. that .- in order that a person be a tenant holding over, it is necessary in accordance with section 116 of T, P. Act that there should be an express or implied consent of the landlord to his continuing as lessee on the same terms."
The acceptance of rent by enacashment of cheques and pay orders, after the filing of the suit, would also not amount in law to express or implied assent of the landlord to the defendants continuing in possession. In fact I do not find anything to even prima facie infer that the plaintiffs at any time after the expiry of the period ever gave his consent, either impliedly or expressly to the defendants continuing in possession. The defendants own case pleaded in para. 7 of the counter- affidavit would show that they claim right to continue in possession as statutory tenants. The relevant portion is reproduced hereinbelow :- "It is submitted that the relationship created by the said Agreement of lease is that of landlord and tenant and after the expiry of the said lease the defendant become statutory lessee under the provisions of Sind Rented Premises Ordinance, 1979 and the rights between the plaintiffs and defendant are regulated by the provisions of Sind Rented Premises Ordinance, 1979. "
The possession of the 'undertaking' by the defendants after 31st March, 1982 is wrongful on the principle laid down by Hon'ble Supreme Court in the case of Rehman Cotton Factory PLD 1976 SC 784.
15. In the circumstances question arises as to what relief the plaintiffs can be granted at this stage.
It is obvious that the plaintiffs have established a prima facie case in their favour that the continuation of the defendant in possession and running the business after 31st March, 1982 is wrongful and contumacious and that it would result in irreparable loss and injury to the plaintiffs and that the balance of convenience is also in favour of the plaintiffs. There is no equity in favour of the defendants, amongst others, for the reason that they have produced books of accounts containing false entries, and their refusal to return the business undertaking even after the expiry of the term as provided in the agreement is contumacious and is an attempt to prolong their5 wrongful possession, taking advantage of delay in disposal of suits in courts now-a-days on account of heavy arrears.
' For the reasons discussed above, the plaintiffs having made out a case for grant of temporary injunction on the principles laid down in the case o Muhammad Umar Beg v. Sultan Mahmood Khan, this application is granted as prayed.
' Before concluding I would like to clarify that the observations mad above while disposing of the interlocutory- application, are tentative nature and shall not in any manner be construed as affecting the disposal of the suit on merits at the final hearing. 1983 CLC 390 PLD 1976 SC 781 PLD'1982 Lab. 519 PLD 1982 Lah. 37 PLD 1959 Kar. 99 PLD 1970 SC 139