By this revision application filed under section 115, C.P.C. The applicant has challenged the Judgment and decree passed in Civil Appeal No.140 of 1981 on 6th May, 1984 whreby the learned lower appellate Court (the IIIrd Additional District Judge, Karachi) dismissed the said appeal and confirmed the judgment and decree passed in Civil Suit No.581 of 1977 by the Court of XIV Civil Judge, Karachi refusing to grant declaration and injunction prayed for by the applicant claiming himself to be the tenant and for restraining the respondent from ejecting him without due course of law.
1. (i) The abovementioned suit was brought by the applicant on the pleas that in 1971 Karam Dad Kiyani, the father of the plaintiff/ applicant was grartted lease of the premises (canteen) wherein he started his business and that later on the applicant/plaintiff obtained its tenancy and that since then he is doing his own business under the written agreement renewed from time to time. After pleading that the rate of rent of the said premises initially was Rs.120 per month, which later on was increased and now it is Rs.300 per month, it was further pleaded that on 29-4-1977 the respondent served a notice calling upon him to vacate the premises by 1-5-1977 and hand over its possession to the respondent. Apprehending that the respondent/defendant may use force to take possession of the property and this cause irreparable loss to him the plaintiff filed the suit claiming the following reliefs:- "(1) A declaration that the plaintiff is a tenant of the defendant and cannot be evicted without the due process of law.
(2) A permanent injunction restraining the defendant from ejecting the plaintiff without the due process of law.
(3) Costs of the suit.
(4) Any other relief this Honourable Court may detri fit and proper." The plaint was signed and varified by the, applicant himself.
(ii) The defendant/respondent contested the suit by filing written statement wherein inter alia it was pleaded that two rooms wherein the canteen is housed is situated within the precincts of the hospital is in possession of the defendant/respondent and that the plaintiff is merely managing and running the said canteen as their licenced. The allegation made in the plaint that the said canteen was ever leased out to the plaintiff's father or to the plaintiff himself was denied. The amount received monthly from the plaintiff/the applicant according to the respondent is licence fee and not rent.
(iii) It is not necessary for the disposal of this revision petition to refer to other pleas taken in the written statement as the controversy on which the parties went to trial are reflected in the issues framed in the suit which are reproduced below:- "(1) Whether the plaintiff is running Holy Family Hospital Canteen as a tenant or as a license of the defendant ?
(2),- Whether the plaintiff is stopped from claiming tenancy rights in respect of the Holy Family Hospital Canteen ?
(3) Whether the suit is bad for lack of cause of action ?
(4) Whether the plaintiff is in exclusive possession of the suit premises. If so, what is the effect ?
(5) Whether the premises was leased out to the father of the plaintiff in 1971 and was obtained by the plaintiff. If so what is its effect ?
(6) Whether the plaintiff has been paying Rs.300 as rent of the premises to the defendant ?
(7) Whether the defendant had issued that letter, dated 29-4-1977 with male fide intention to compel the plaintiff to increase the rent ?"
(iv) At the trial on behalf of the- plaintiff were examined Karamdad (P.W.1 Exh. 1) tile father of the (P.W.2 Exh.2). These witnesses also produced certain documents which have been exhibited. On behalf of the defendant has examined one Samuel Xavier (D.W.1 Exh.3) an employee in the establishment of the respondent hospital. The learned trial Court under issue No.1 held that the plaintiff/- applicant is running the canteen in dispute as a licensee of the respondent. The issue No.2 being redundant in view of the finding given under issue No.1 was not adverted to in the judgment while issue No.3 was answered against the applicant. Under issue No.4 the finding of the learned trial Court was to the effect that the canteen which is situated in the premises of the hospital is in possession of the plaintiff/applicant but it has not been proved by him that the same is in his full control regarding its management. Under issue No.5 the finding of the learned trial Court was to the effect that the plaintiff's father was not a tenant and as to the status of the plaintiff/applicant it has also been found by the said Court that he is a licensee. Under issue No.6 the trial Court held that the amount paid by plaintiff to the defendant was licence fee. Issue No.7 was answered in the negative. On the findings thus recorded the suit was dismissed by judgment and decree passed on 27-1-1981 with the observation that the applicant/ plaintiff failed to prove his case.
2. Against the judgment and decree passed as above mentioned the applicant/plaintiff preferred Civil Appeal No.140 of 1981 which was heard by the learned IIIrd Additional District Judge, Karachi who dismissed the same by judgment and decree passed on 6th May, 1984. Concurring with the findings of the trial Court it was held that the plaintiff/applicant is a licensee and the amount paid by him monthly is licence fee.
3. The applicant/plaintiff being aggrieved by the judgments and decree given as above, has filed this revision petition challenging the same.
4. At the hearing of this petition, the learned Advocate for the parties addressed the Court on the question as to whether the status of the applicant in respect of the premises in dispute, a canteen, is that of a lessee as contended by Mr. Bangash, Advocate, on behalf of the applicant or of a licensee as argued by Mr. Sarwana in support of the findings given by the two Courts below. Mr. Bangash, Advocate submitted that the plaintiff produced and examined Karam Dad Khan (Exh.No.1) (plaintiff's father) who stated that he himself had obtained lease of the premises from the defendant and in 1974 when he went abroad he handed over the canteen to his son the plaintiff who used to run his business in it on his own. I have gone through the deposition of the witness Karamdad and find that this witness does not say that his son (the plaintiff) ever acquired any tenancy rights. On the contrary he admitted that the canteen is situated within the precincts of the Hospital, i.e. Inside the compouned of the hospital and that some furniture was also given to him when the canteen wat given to him by the hospital management. This witness further to a question put to him in the cross-examination stated:- "It is correct to suggest that from Saudi Arabia I had written letter to the defendant hospital requesting it to transfer the canteen in the name of the plaintiff."
He also deposed:- "It is a fact that the main gate is locked and closed in the night time and in the day time except during the visiting hours."
The other witness of the plaintiff was Muhammad Amin, brother and attorney of the plaintiff (Exh.2- A). He deposed that earlier in May, 1971, the canteen was given to his father Karamdad.
This witness was not confronted with Exh.3-B the agreement, dated 10-5-1975 made with Karamdad and Exh.3-F the agreement with the plaintiff (Waheed Akhtar Kayani) though the witness was confronted with letters Exh. 2-G, Exh.3-C and Exh.3-D.
Relevant it would be to reproduce below the contents of the letter, dated 30-4-1975 (Exh.3-C) written by Wahid Akhtar Kayani the plaintiff, to the Administrator of the defendant hospital. It reads as follows:- "To The Administrator, Holy Family Hospital, Karachi.
Sir, With due respect I beg to say that my father has been running a canteen which is expiring on 30th April, 1975.
My father is out of the country and the canteen was run by me. Since my father is no more interested in the canteen as he is out of the country I wish to run the same qn licence from 1st May, 1975. For which I shall pay Rs.240 per month as licence fee and also deposit a sum of Rs.1,000 as a security. I, therefore, request you to grant me the licence of the Holy Family Hospital Canteen in my name.
Thanking you. Yours Obediently, (Sd.)
Dated: 30-4-1975 (WAHID AKHTAR KIYANI)
Canteen Contractor."
Significant also is the letter, dated 27-4-1977 Exh.3-D written by the plaintiff to the defendant, the same being relevant is reproduced below:- To, The Administrator Holy Family, Hospital, Soldier Bazar, Karachi.
Sub:- RENEWAL OF THE CANTEEN CONTRACT Respected $ir, Most respected I beg to state that I am old contractor in Holy Family, Hospital under your kind control, which date of contracting are finished on 30-4-1977.
I, therefore, requested that the contract of canteen may please be given in favour of me as my service may know the last period of contract which is finished the above showing date, and oblige me. Thanking you in anticipation. Your's Obediently, (Sd/ .) .(Wahid Akhtar Kiyani)."
The letters when produced and exhibited were not objected to. Moreover, the plaintiff neither examined himself to deny these letters nor submitted to cro'ss-examination. On the other hand the defendants examined Samual Xavier, its personnel officer who produced the above referred two letters (Exh.3-C and Exh.3-D) of the plantiff, and stated that the said letters bear the signatures of the plaintiff. Neither the plaintiff nor any of his witnesses denied the fact that these letters were written by the plaintiff. Both the Courts below have also given concurrent findings that these letters bear the signature of the plaintiff. Thus, according to the plaintiff own case, from which he in vain tried subsequently at the time of filing of the suit to resile, he is a mere licensee. The nature of plaintiffs limited rights to run the canteen have been rightly described by Samual Xavier (D.W.1 Exh.3) who in his evidence stated:- "The canteen is meant to cater the Hospital employees, visitors and the patients. We have fixed timings for opening and closing of the canteen, because visitors are allowed for a limited time. For employees also and the patients also there are fixed tea, lunch, breakfast and dinner times. This canteen does not cater food. The hospital looks after the entire property of the hospital which includes this canteen. The Chowkidar have been deputed to control the gates and they do not allow canteen catering beyond the fixed timing of the Hogpital. The total supervision of the canteen is in the hands of the hospital. The plaintiff is mere a licensee. The above statement of the defendant's witness has remained unshaken in cross-examination. Thus, it is prayed on record as also found by the two Courts below that the plaintiff was a mere licensee to run the canteen situated in the compound of the hospital, having no exclusive possession and the hours of its functioning are regularised by the defendant so as to cater the needs of the patients.
5. Mention here may be made that both the learned Advocates relied upon the same set of case law reported as Muhammad Yasin Riazzuddin Ahmed PLD 1957 Kar. 241, M.A. Faruqi v. Sajid Ali Khan and another PLD 1975 Kar. 631; Ashfaq Hussain and others v. Karachi Municipal Corporartion and others PLD 1957 Kar. 918, Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106 and M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83, laying down the test to determine if the right given amounts to lease or licence.
The authoritative principles have been laid down by the Honourable Supreme Court of Pakistan in the two cases referred above, and, therefore, it is not necesary to refer to other cases. In the case of Abdullah Bhai and others v. Ahmad Din (ibid), the Honourable Judges held:- "The line of demarcation between a lease and a licence will sometimes be a very thin though there is no doubt as to the principle applicable. A lease as will appear from section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e., the right of enjoyment of the property, for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed are rights in rem and not in personem and by the lease a right in rem is transferred to the lessee. On the other hand a 'licence' as will appear from its definition in section 52 of Easements Act is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee. Examples of a licence are a permission to cut grass from the land of another or to hold fares or run stalls on land in the possession of another. The right to cut grass from land belongs to the owner of land, being a part of the right of ownership. When the owner grants to another person a licence to cut grass, it does not even mean that the right to cut grass in so far as it is a right in the land (a right in rem) passes to the licensee. If a right in the land itself passed an interest in the land would pass and it would not be a licence. When the owner of land grants licence to another to cut grass there is a simple personal contract that the owner will not interfere with the cutting of grass by the licensee. This contract may specifically be enforced, but it grants only a right in personem.
As will appear from what is stated above the criterion for distinguishing between a lease and a licence is simple, i.e. Whether any right in immovable property itself, a right in rem, has passed to the person concerned, but the determination of this question may be difficult in the circumstances of a particular case. It will be a matter of an inference from all the attendant circumstances. Where there is a document, of course the evidence will have to be considered with due regard to the provisions of sections 91 and 92 of the Evidence Act."
And in the case of M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83 on the facts of the case it was observed:- ............................ It 'is clear that this agreement merely conferred a right to carry on business of catering in the Refereshment Rooms and on the Buffet Cars. They were not given any general right of occupation but only a right to use the Refreshment Rooms allotted to them for the exclusive purpose of catering refreshments. Such a right does not amount to easement as defined in section 4 of the Easements Act or an interest in the property. Nor can it be regarded as a licence 'coupled with a transfer of property' within the meaning of section 60 of the Easements Act. Nor can it be suggested that the Contractor was required 'to execute any work of permanent character' in connection with the business. No doubt his business may involve complex arrangements for continued supply, of refreshments both solid and liquid but this cannot be regarded as "execution of a work of permanent character."
As to the maintainability of the suit seeking a declaratory relief in the above cited case, it was held: "In the suit there was also a prayer for a declaration under section 42 of the Specific Relief Act that the contract in question was still subsisting. The learned counsel has not pressed this point before us. Under the provisions of section 42 of the Specific Relief Act a person entitled 'to any legal character' or to 'any right to property' can instituted for a declaratory relief in respect of his title to such legal character or right to property. It will, therefore, suffice to say that section 42 does not contemplate a suit like the present one."
Applying the above principles, I am of the opinion agreein with the findings given by the two Courts below that the status of the plaintiff was merely that of a licensee.
6. The upshot of the above discussion is that the concurrent findings given by the two Courts below holding that the plaintiff is a licence d not suffer from any of the infirmities within the meaning of the provisions of section 115, C.P.C. The suit seeking declaratory relief filed by th plaintiff was also not maintainable under section 42 of the Specific Relief Act. This Revision Application in the circumstances is dismissed but with no order as to costs.
Revision .