1. ' The plaintiff has filed this suit for declaration and injunction seeking the following prayer:-
(a) A declaration that plaintiff alone is entitled to continue in possession of Second Floor Farid Chambers Annexe, Abdullah Haroon Road, Karachi and any document executed between Defendants 1 to 11 and Defendant No,12 is illegal, void and nullity in the eyes of law and liable for cancellation;
(b) Mandatory injunction directing the defendants 1 to 11 to execute a formal tenancy agreement in terms of Annexures 'A' and 'B' after completing finishing work of the disputed premises, and defendant No, 12 to close the wall in between their office and office of the plaintiff on Second Floor, Farid Chambers Annexe, Karachi;
(c) Permanent injunction restraining the defendants, their servant and agents from in any way interfering with the possession of the plaintiff of the disputed property.
2. ' Briefly the facts as alleged in the plaint are that the defendants Nos. 1 to 11 through their attorney A.R. Mayet and A.C. Seedat leased out a room measuring 778 sq. ft. on the second floor of the under-construction Fareed Chamber Annexe which is more specifically indicated in the plan which is annexed with their letter, dated 30-6-1983. This letter further states that the physical possession of the office has been handed over to the plaintiff and the rate of rent has been fixed at Rs,1.50 per sq. ft. The defendants Nos. 1 to 11 had also furnished a photo copy of the power of attorney, to establish that the two foretasted persons were their duly authorized attorneys. The letter further recited that formal tenancy agreement was to be executed by the parties after the premises has been completed. The plaintiff's allegations are that the defendants Nos. 1 to 11 in collusion with the defendant No, 12 fraudulently and illegally and with a view to deprive the plaintiff from his lawful right and possession have given possession of the said premises to the defendant No, 12 who has started fixing fixture and fittings and interfering with the possession of the plaintiff. Along with the plaint the plaintiff has also filed an application under Order XXXIX, rules 1 and 2, C.P.C. Ad interim injunction was granted on 30-4-1984. Again the plaintiff filed another application C.M.A. 2233 of 1984 under Order XXXIX, rule 7, C.P.C. On this application a Commissioner was appointed who has submitted his report which has also been fixed for consideration. The third application C.M.A. 2234 of 1984 has been filed under Order XXXIX, rule 2(3).
3. ' Mr. Semi Ahmed Trimzi does not press C.M.A. 2234 of 1984 which is dismissed as withdrawn.
4. ' Although the office has not fixed application under Order XXXIX, rules 1 and 2, C.P.C. for hearing today, with the consent of the parties, I have heard it. In the counter-affidavit filed by the defendants, the defendants Nos. 1 to 11 have stated that they have some dispute regarding payment of money with the plaintiff who had lodged F.I.R. attracting section 406/405, C.P.C., in consequence thereof A.R. Mayet was arrested and was released on bail. The plaintiff had also moiled application earlier to the Martial Law Authorities in respect of the same dispute. According to these defendants they were coerced by these proceedings to write a letter, dated 30th June, 1983 regarding tenancy in respect of the disputed premises. According to the defendants, they have never agreed to rent out the disputed premises to the plaintiff. So far the defendant No, 12 is concerned he has filed counter-affidavit stating that he was the tenant in respect of Room No, 34 of the main building and later on by a letter, dated 15th September, 1983 MessRs,' Farid Chambers Properties agreed to let out Rooms Nos. 201, 202 and 204 of Farid Chamber and in lieu of room No, 204 he has agreed to vacate premises No, 234 occupied by him. A photo copy of the letter, dated 15-9-1983 has been filed which has been signed by Saley Mayet, who according to the learned counsel for the defendants Nos. 1 to 11 is the manager of this firm. It is a partnership firm of the defendants Nos. 1 to 11. The defendant No, 12 further stated that he has carried out work for fixing false ceiling and air-conditioning of the entire premises leased out to him. In that respect he has filed photo copy of the receipts of payment made to Kamal Electrical Engineers and it seems that negotiation for awarding the work had started in January, 1984 and thereafter payments have been made. The defendant No, 12 has also filed affidavit of the partner of Kamal Electrical engineer and also of the Contractor to whom the contract for fixing false coaling was awarded. From their affidavits and the documents filed by defendant No, 12 it is clear that the work was started in the year 1984.
5. ' Mr. Qureshi the learned counsel for the defendant No,12 has contended that the defendant No, 12 is a bona fide lessee who has made agreement in good faith without knowledge of the earlier trans - action. He has also produced photo copy of the bill and receipt issued by Fareed Chamber Properties, dated 8-3-1984 showing payment of rent from January, 1984 to June, 1984 amounting to Rs,27,000. The receipt is, dated 10-3-1984. The question for consideration is whether the plaintiff has made out a prima facie case for grant of injunction and whether irreparable loss will be caused to him. The defendants have not denied the execution of letter, dated 30th June, 1984 on the basis of which the plaintiff has made his claim. The only defence at this stage is that this document was obtained by coercion while Mr. Mayet was under detention.
6. ' Mr. Hassan Inamullah, the learned Advocate for the defendants Nos. 1 to 11 has further contended that the date on this document is not correct. As the execution of this letter has been admitted the burden is heavily on the defendants Nos. 1 to 11 to show that it was obtained by coercion and the date is wrong.
7. ' Mr. Sami Trimzi, the learned counsel for the defendant has pointed out that this document is signed by attorney A.C. Seedat and if there was any coercion, it would have been only in respect of Mayet and not Seedat. Therefore, according to the learned counsel for the plaintiff, the contention does not seem to be correct. The truth of this contention can be determined only at the time of final hearing, but it seems that the document has been signed by two persons viz. A.R. Mayet and A.C. Seedat who are admittedly the joint attorneys of the defendants. The copy of the defendant's power of attorney filed by the plaintiff has not been denied, by the defendants. In fact clause 4 of the power of attorney authorizes any two of the attorneys to lease out the premises, and these two persons who have signed these documents are admittedly the attorneys of the defendants Nos. 1 to 11. If the contention of the defendants Nos. 1 to 11 is correct, then at least there should have been some material on record to show that after the criminal case was disposed of and A.R. Mayet was discharged, the defendants Nos. 1 to 11 immediately or soon thereafter served a notice on the plaintiff stating that the letter, dated 30-6-1983 has been obtained by coercion and has no legal validity. This should have been the natural reaction of the defendants. By today no such document has been placed on record and this plea seems to have been raised after the suit was filed by the plaintiff. Therefore, the plaintiff has prima facie established that the defendants Nos. 1 to 11 had agreed to lease out 778 sq. ft. as specified in Annexure 'B' to the plaint.
8. ' The defendant No,12 claims to be a tenant in respect of the same disputed premises alongwith the adjacent area. The dispute presently relates to Room No, 202 and not in respect of other area which has been leased out to the defendant No, 12 under a letter, dated 15-9-1983 which is much after the letter executed by the attorney of the defendants Nos. 1 to 11 in favour of the plaintiff. The defendants Nos. 1 to 11 were aware of letter, dated 30-6-1983 but while leasing out the property to the defendant No, 12 no reference has been made to this earlier document. The letter, dated 15-9- 1983 has been issued by Messrs Fareed Chambers Properties but none of the defendants have explained in what capacity this firm was competent to lease out the premises to the defendant No,12.
9. Mr. Hassan Inamullah has stated that this is a partnership firm of the defendants Nos. 1 to 11. The conduct of the defendants Nos. 1 to 11 in leasing out the disputed premises first to the plaintiff and then without indicating any thing about it, leasing it out to defendant No, 12 does not seem to be proper. The fact that the defendant No, 12 has acted bona fide and in good faith is not sufficient, at this stage, to deprive the plaintiff of the interim relief. The plaintiff has established a prima facie case and is entitled to the protection of his right. If that right Ls disturbed by the defendants Nos. 1 to 12 the plaintiff is likely to suffer irreparable injury. The defendant No,12 claims to be a bona fide tenant in respect of the disputed premises. The letter to rent out the premises was issued on 13-9- 1983 while the work for air-conditioning was started in the year 1984 i.e, three months thereafter.
10. Furthermore the rent receipt produced by the defendant No, 12 does not relate back to the rent from 15-9-1983. It is in respect of rent from January, 1984 to June 1984 which was paid in March, 1984. These circumstances prima facie do not lend support to the claim of the defendant No,
12. The defendant No,12 has not produced even the lease-deed similar to one he has produced in respect of Room No, 34 in Farid Chambers, ' Under an order passed by this Court the Deputy Registrar was appointed as Commissioner to inspect the premises. He has submitted his report. In respect of that report the objection of Mr. Saeed Qureshi is that no notice was issued to the defendants. This is a serious lacuna in the report.
11. However, the facts which he has stated do not seem to be denied by the defendants except that he has stated in his report that air-conditioning ducts were being fixed but according to Mr. Saeed Qureshi the material lying was in respect of false ceiling, and not air-conditioning. It makes little difference because the fact that according to the averment made by the defendants 1 to 11 they have handed over the premises to the defendant No, 12 who has started making construction. It clearly establishes that without the knowledge and consent of the plaintiff the defendants have started interfering with the area rented. Mr. Qureshi contended that as defendant No, 12 has completed air-conditioning work and is in the process of making false cealing it will cause irreparable loss to him, and, therefore, no injunction should be granted.
12. In the circumstances of the case if the injunction is not granted a third party interest will be created and if alteration is made by the defendant No,12 it is likely to create further complication in the disposal of the suit and the plaintiff will suffer irreparable loss. The balance of convenience is in favour of the plaintiff. The defendants are restrained from making any construction and are directed to maintain status quo as today. The suit shall be disposed of within a period of six months. It is clarified that this order relates to the premises No, 202 only. The report of the Deputy Registrar shall remain on record but will not be binding on the defendants.
13. Injunction granted.