' In order to dispose of the above-mentioned application filed under Order XXXIX, rules 1 and 2 of C.P.C. by the plaintiffs for restraining the defendants from disposing of or utilising the premises in suit in any manner to the adverse interests and rights of the plaintiffs, it would be relevant first to narrate the facts briefly leading to the filing of the present suit.
1. (i) The plaintiffs Nos.1 and 2 claim that they respectively were the sub-tenants of tenements Nos.5 and 6 on Plot No.RC-4/408, Ambajee Villa Road, Ranchore Lines, Karachi for over twenty years of one Abdul Ghaffar Dada (since deceased now represented by his legal representatives defendants Nos.9 and 10).
(ii) According to the plaintiffs they were under the impression that the said A.Ghaffar Dada was the owner of the property but for the first time in June, 1979 they came to know that the property in question was owned by one Mst. Amtul Bai, who subsequently in 1981 sold the same to one Karamali Raojee who conveyed it to H.R.H. Karim Aga Khan from whom it was purchased by Haji Bagh Ali and others (now joined as defendants Nos.1 to 8 in the present suit) hereinafter referred to as the landlords.
2. (i) In 1979 Aijaz Hussain Bhatti, plaintiff No.1, filed Suit No.2188/1979 and Hassan Ali, the plaintiff No.2, filed a separate suit (suit No.2190/1979) in the Court of XIII Civil Judge, Karachi, in which after pleading that they were the sub-tenants of A.Ghaffar Dada to whom they had been paying rent during his life-time and after his death to his legal heirs and further pleading that they had come to know that the new owners in collusion with the other defendants through misuse of process of law would get the premises vacated behind their back claimed identical reliefs for grant of (i) declaration that they were lawful tenants and that the defendants had no right to interfere in any manner in their peaceful possession of the above-mentioned tenements and (ii) permanent injunction restraining the defendants from ejecting them from the premises in question in any manner or disturbing their possession except in due course of law after impleading them as parties in legal proceedings and after due notice to them. The landlords on the other hand applied for rejection of the plaint in both the suits by moving applications under Order VII, rule 11, C.P.C. on the ground that the plaintiff had no cause of action. The Civil Judge rejected the plaint inter alia on the ground that the plaintiff were mere licensees of the running business assigned to them by Abdul Ghaffar Dada, that with the real owners they had no relationship and that they did not enjoy any status except that of unauthorised sub-tenants and thus no cause of action was disclosed by them on their own statements in the plaints.
(ii) Against the order passed in his suit as above, Aijaz Hussain Bhatti the plaintiff No.1, filed Civil Appeal No.305/1980 which is pending in the lower Appellate Court. The plaintiff No.2, namely, Hassan Ali, however, reconciled himself with the decision given against him in his suit and chose not to file any appeal.
3. It appears that on or about 5-2-1984 the defendants/landlords filed an application (Rent Case No.465 of 1984) in the Court of Rent Controller under section 15 of the Sind Rented Premises Ordinance, 1979 seeking ejectment of their tenants, i.e., the present defendants Nos.9 and 10 (the legal representatives of Abdul Ghaffar Dada) on the grounds (i) that the said defendants Nos. 9 and 10 were statutory tenants who without the permission and consent of the landlords/appli cants let out various tenements in the said property to different persons including the abovenamed plaintiffs in violation of the provisions of the law, (ii) that the tenants were chronic defaulters in payment of rent and (iii) that the plot in question was required by the landlords for their personal bona fide use and reconstruction. In the said application the following relief was claimed:- "It is, therefore, prayed that this Honourable Court may be pleased to direct the Opponents, their tenants, namely, Niazuddin son of Sharifuddin, Aijaz Hussain Bhatti son of Rehmatullah, Hassan An son of Muhammad Hussain and Muhammad Nazir son of Lal Muhammad to hand over peaceful vacant possession of the plot bearing No.RC-4/408, admeasuring 2,020 square yards, situated at Ambaji Villagi Street, Ranchore Lines, Karachi, to the applicants."
(Note: The persons whose names have been underlined by me are the present plaintiffs.)
' It appears that the defendants Nos. 9 and 10 who were the statutory tenants, after the evidence was recorded by the learned Rent Controller, conceded to the claim of the landlords and submitted an application under Order XXIII, rule 3, C.P.C. in terms whereof by order passed on 15-4- 1984 by the Rent Controller the Opponents/present defendants Nos.9 and 10 were directed to vacate the premises in suit on or before 30-4-1984 and hand over the vacant possession of the same to the landlords, failing which writ of possession was to be executed without giving any notice.
' In execution of the writ issued pursuant to the above order, on 22-5-1984 these plaintiffs were also ejected from the tenements in their possession.
4. In the circumstances stated above, the plaintiffs have filed the present suit under section 9 of the Specific Relief Act wherein on the plea that they being in possession as sub-tenants of Abdul Ghaffar Dada (deceased) since 1959, could not have been forcible ejected in execution of an order obtained from the Rent Controller against the legal representatives of the said A .Ghaffar Dada through some collusive action and that in any event their dispossession was illegal, mala fide and without due process of law.They have prayed for a decree directing the above-named landlords to give them back the possession of the premises in suit.
' In the suit thus filed the plaintiffs have also moved the above referred application under Order XXXIX, rules 1 and 2, C.P.C.
5.(i) In order to appreciate the arguments advanced by the learned counsel for the parties it would be relevant to refer to the case of Muhammad Umer Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 wherein the Honourable Supreme Court laid down the rule that the well-settled principles for grant or refusal of temporary injunction are firstly, whether the plaintiffs have a prima facie good case, secondly whether the balance of convenience lies in favour of the grant of injunction and, thirdly, whether the plaintiffs would suffer an irreparable loss if the injunction is refused.
' I would, therefore, proceed to examine the case in the light of the principles authoritatively, laid down in the above cited case.
(i) As regards the prima facie good case to be made out by the plaintiffs, in the light of material on record, I am of the opinion that A they have miserably failed to do so.
At the very outset it would be noticed that the only relief claimed in the suit, is for the grant of a decree directing the defendants jointly and severally :- "a. to give the possession of the premises in suit to the plaintiffs. b. Costs."
' Thus, the plaintiffs having not claimed any relief in the suit for grant of permanent injunction, their application for the grant of ad interim injunction is liable to be dismissed on this sole ground. If any authority is needed, reference be made to the case of Marghub Siddiqui v. Hamid Ahmed Khan 1974 SC MR 517 wherein it was held:- "............ that in a suit where no perpetual injunction is claimed no question of granting ad interim injunction can possibly arise. In the present case the application for ad interim injunction should have failed on this ground alone."
5.(ii) Secondly, it would be seen from the facts briefly stated herein-above that according to the plaintiffs' own case they were the sub-tenants of one A . Ghaffar Dada against whose legal representatives the application for ejectment was filed under the provisions of Sind Rented Premises Ordinance, 1979. The names of all the sub-tenants of Ghaffar Dada were given in the prayer clause (reproduced in para. 3 above). It is not denied that an order for eviction was passed in the abovementioned ejectment case by the Rent Controller pursuant to which in execution of writ issued by the said Court the plaintiffs were ejected. The principle', of law that in execution of a writ for ejectment issued against then tenant, a sub-tenant claiming through him can also be ejected is well settled as has also been held in the cases reported as Marajuddin and others v.
Muhammad Yasin and 2 others PLD 1968 Lah. 20, Agha Muhammad v. Haji Maula Dad PLD 1971 Quetta 10 and Suleman Yousuf v. Eduljee and others PLD 1976 Kar.
512.
' In the case of Marajuddin and another v. Muhammad Yasin and other (supra), a Divison Bench of the learned High Court of Lahore cited with approval the following observation made in the case of Sheikh Yousuf vs. Jyotish Chandra Benerjee and others AIR 1932 Cal. 241:- "A decree in ejectment passed against a lessee at the instance of the lessor; is not only binding upon the lessee, but also upon his sub-tenants provided they have no right independent of the right of their lessor in the demised premises.The sub-tenant is, therefore, liable to be evicted in execution of a decree under Order XXI, rule 35 and it is not necessary for the decree-holder to proceed under Order XXI, rule 97."
' In the case of Agha Muhammad v. Haji Maula Dad Mr.Justice Dorab Patel, J. (as he then was) while repelling the contention raised that the sub-tenant was a necessary party and ought to have been impleaded by the landlord in his ejectment application against the tenant, held that the landlord was entitled to eject the sub-tenant through the order of eviction obtained by him against the tenant.
' In the case of Suleman Yousuf and another v. Eduljee and another (ibid) relying upon the case of Marajuddin and another v. Muhammad Yasin and others it was held that the law is well-settled that there is no privity of contract between the landlord and the tenant so much as that in an action by the landlord against the main tenant the sub-tenant is not a necessary party though it may be proper and convenient to join him as respondent.
5.(iii) It would also be relevant to refer here to two other cases from Indian jurisdiction reported as
(1) Jaffarji Ibrahimji v. Miyadin Mangal AIR 1922 Bom. 273 and (2) Jairam Jadouji and others v.
Nowroji Jamshedji Plumber AIR 1922 Bom.
449. In the first case of the learned High Court of Bombay while observing that a sub-tenant may be tenant with regard to his immediate lessor and so entitled to protection against him, held that there is nothing in the Act (Bombay Rent War Restrictions Act) to protect a sub-tenant against the landlord of the premises with whom there was no privity of contract. It was further held:- "It seems to me that this conclusion must be obvious. Otherwise when his tenant has sub-let the premises, a landlord would either have to make every sub-tenant a party to his suit against his tenant or, if he omitted to do that he might have to file suits against all the sub-tenants after he had obtained a decree against his tenant. That certainly was not intended by the Act.
' No doubt a plaintiff suing for possession may find it advantageous to join all the persons in possession of the suit premises, to avoid difficulties which may otherwise, arise when he attempts to execute his decree but there is nothing in the Bombay Rent (War Restrictions) Act which gives persons in possession through the tenants a better right to obstruct the execution of the decree than they had, apart from the Act."
' In the other case of Jairam Jadouji and others v. Nowraji Jamshed ji Plumber while interpreting the provisions of Order XXI, rules 97 and 99, C.P.C. it was held that a sub-tenant cannot claim to be in possession of a property on his own account within the meaning of Order XXI, rule 99, C.P.C.
6. Mr. Naimur Rehman, the learned counsel for the plaintiffs placed reliance on the judgment given by a learned Single Judge of Karachi Bench reported as Ahmed All v. Sakhawat Hussain PLD 1957 (W.P.) Kar. 790 wherein it was held that sub-tenant is a necessary party and not merely a proper party and that if he is dispossessed in execution of an order of ejectment passed against the original tenant only, he is justified in seeking restoration of possession under section 9 of the Specific Relief Act.
' I may however, point out here that similar argument advanced in the case of Agha Muhammad v.
Haji Mauls Dad (supra) was repelled by Mr.Justice Dorab Patel (as he then was) and while doing so it observed at page 17:- "I find that in Ramzan Ali v. Kassim Brothers PLD 1957 Kar. 224 Lari, J., as he then was, had held that a sub-tenant in possession of the demised property was a necessary party and not merely a proper party; and this view had been followed by Wahiduddin J., in Ahmed Ali v. Sakhawat Hussain PLD 1957 Kar.
790. But this view is completely inconsistent with that of Division Bench of the West Pakistan High Court in Gulzar Muhammad v. Moazam Ali PLD 1959 Kar. 340 to which Mr. Hanafi referred me, and further, this view was expressely over ruled by a Divison Bench of the West Pakistan High Court in Kassim Brothers v. Ramzan Ali PLD 1959 Kar.
370."
' It appears to me that the learned counsel for the plaintiffs was not aware of the state of law referred above otherwise he would not have cited an overruled case before this Court.
7. I may also deal with yet another aspect of the case here. It has already been noted above that the plaintiffs, the sub-tenants were dispossessed in execution of a writ of ejectment issued by the Rent Controller in a case filed under the Sind Rented Premises Ordinance, 1979 directing the tenants to deliver possession of the premises. In the circumstances the plaintiffs prima facie cannot said to have been dis possessed otherwise than in due course of law within the meaning of section 9 of Specific Relief Act. Reference if needed may be made to the case of Kamini Sundari Dassya and others v. Sabed Shaikh and others 5 I C 797 (Cal.). The facts of the said case were that there was a decree against the landlord for Khas possession in the execution of which not only the landlord but his tenants were also ousted. The tenants thereupon brought suits under section 9 of the Specific Relief Act for restoration of possession on the plea that they were not dis possessed in due course of law. These suits were dismissed by the Munsif and thus the matters came before the High Court.
The learned Judges discharged the rules issued with the observation inter alia, that the dispossession of the tenants in execution of decree for Khas possession against the landlord cannot be said to be a dispossession otherwise than in due course of law and that section 9 of the Specific Relief Act was not intended to be used in cases of this kind.
8. The upshot of the above discussion is that the plaintiffs have failed to make out a case for the grant of temporary injunction. In' view of the conclusion thus reached it is not necessary to deal with the questions if any irreparable loss or injury would be caused to the plaintiffs or the balance of convenience lies in their favour.
' Accordingly the application is dismissed but with the clarification that the observations made as above are tentative in nature and the same in no way shall prejudice the disposal of the suit at the trial on merits. It may also be added that the construction, if any, made by the defendants Nos.1 to 8 on the plot shall be at their own risk and cost and subject to the result of this suit.