1. ' This is an application under Order XXXIX, rules 1 and 2, C. P. C. Read with section 151, C. P. C. Praying that the defendant KMC may be restrained from ejecting the plaintiffs from Plot No.
1. s. B. 9, Empress Market, Karachi and arises under the following circumstances.
2. ' The plaintiffs claim alongwith 85 other persons to be tenants in respect of the plot in dispute. They contend that they had been in occupation of the said plot and had been carrying on their business of selling fowls for the last about 60 years. The cause of action is alleged by the plaintiffs to be a notice by the defendant dated December 4, 1956, calling upon-the plaintiffs to vacate the plot within 24 hours.
3. ' The plaintiffs claimed to be the tenants of the plot in question. A counter-affidavit has been filed by Dr. Habibur Rahman, Health Officer of the KMC. It is a short affidavit and raises the following points:- "(a) The plaintiffs are un-authorised temporary sitters in part of the Empress Market, Karachi and that their number is only 77 and not 87;
(b) The daily sitters are not tenants of the plot in question and can be removed by the KMC under Rule 28 (b) of K.M.C. Market Rules;
(c) The plaintiffs had already been evicted by Mr. Merchant, Additional City Magistrate on December 6, 1956 and as such the application is infructuous;
(d) The plaintiffs have re-occupied the plot in question after the injunction order;
(e) The notice for ejectment is a valid notice as the plaintiffs are trespassers, and
(f) The suit Is bad for non-compliance of section 255 of the KMC Act."
4. ' Rejoinder has been filed on behalf of the plaintiffs by a number of persons and the plaintiffs contend that Mr. Merchant had not ejected these persons from the plot in question and that they have been paying rent at the rate of 0-4-0 per head per day. It is further contended that the plaintiffs were in actual possession when this suit was filed and that they have never re-occupied the plot. It is alleged that in the presence of Corporation chowkidars it was not possible for the plaintiffs to occupy the plot in question, forcibly being night time.
5. ' I have given my consideration to be contentions raised by the parties and I am of the view that a prima facie case has been made out and the balance of convenience is also in favour of the plaintiffs and therefore I would make the interim order absolute.
6. ' On the face of it is admitted by Dr. Habibur Rehman that the plaintiffs were in possession of the site in question ever since after partition though according to him unauthorisedly. It is curious indeed that the plaintiffs have been allowed to remain in possession unauthorisedly for 9 years. For the purposes of the present application it is enough to state that Dr. Habibur Rehman had not dared to deny that the plaintiffs had not been paying rent at the rate of Rs. 0-4-0 per head per day.
7. A number of receipts have been filed alongwith the plaint to show recent possession of the plot in question by the plaintiffs. On the face of the rent receipts it is not possible to hold that the plaintiffs are rank trespassers as alleged by Dr. Habibur Rehman. At worst the position of the plaintiffs may be that of only licensees. Even if the plaintiffs would be licensees, the KMC could not treat them as trespassers and on that ground eject them. Rules have been framed under sub-clause (35) (d) of section 286 of the City of Karachi Municipal Act, 1933, which relate to the management and sanitary conditions of the Municipal Markets. Chapter 12 of the KMC Rule Book, 1st revised Edition 1955, deals with these Rules. There are 39 rules under this Chapter relating to the Municipal Markets.
8. ' These Rules relate to the conditions on which the various stalls and the sittings in the various markets can be held by the occupants. Rule 28 is the relevant rule on which reliance has been placed by Mr. Fazie Hag the learned Advocate appearing for the defendant. I would reproduce the rule for convenience.
28. Every licence or permit for the use of any shop, stall or sitting shall be deemed to be subject to the following conditions:- "(a) All fees, stallages and rents shall be payable monthly in advance, provided that the fees for sitting in the quadrangle may be paid in advance, daily or monthly at the option of the holder.
(b) Sitting paid for monthly in advance, will be permitter to be retained by the parties paying for them. Sitters paying daily fees have no claim upon any particular sitting.
9. (c)In the case of stalls let for the sale of meat, the licensee shall not sell the meat of any animal for which slaughter house fees have not been paid.
(d) Any licence or permit may be terminated at any time by a month's notice in writing by the Chief Officer in which event the proportionate fees, stallages or rents, for the unexpired period of the licence or permit shall be refunded.
10. (e)Every licence or permit shall be terminable at any time without any notice if the holder of any shop, stall or sitting commits a breach of any of the above condition or of any of the rules and regulations contained in this Chapter. Or is guilty of misconduct, or misbehaviours, or fails or refuses to obey or comply with any lawful direction or order given under these rules and regulations in case of termination of a licence or permit under this clause, any fees, stallages, or rents paid in advance shall stand forfeited to the Corporation.
11. ' It is clear from this rule that if the plaintiffs were at worst only licensees, they could not doubt be ejected only under the conditions laid down under tub-clauses (d) and (e) of rule 28. Under sub- clause (d) of rule 28 notice of a month has to be given by the Chief Officer and under sub-clauses
(d) and (e) the sitters could be ejected at any time without any notice if the holder of any sitting committed any breach of the conditions of the rules provided in Chapter 12 of the Rules. A perusal of the notice, the relevant portion of which reads as under, would show that the plaintiffs have been treated as trespassers and not licensees who may be ejected under the terms and conditions laid down in Chapter 12 of the Rules.
12. "It is seen that you have trespassed in the precincts of the Empress Market for selling fowls etc. And have been causing serious insanitation there.
13. ' You are required to remove yourself from the precinct of Market within 24 hours or your cages and shelters etc. Will be removed by the Municipal Staff at your risk and cost."
14. ' It is clear from the above that the plaintiffs have been treated as trespassers, on the other hand, as I have already mentioned, the plaintiffs have been able to make out that they had been paying rent for the premises in their occuption. They are either tenants or at worst licensees. In either case they could not be ejected as trespassers. What is more curious is that the notice is dated 4th December 1956 and the Municipal Corporation has received, as would appear from the receipts filed by the plaintiffs, rent up to the 5th of December 1956.
15. ' So far as the eviction of the plaintiffs from the site in question is concerned, Mr. Merchant no doubt has certified that the egg-sellers willingly shifted from plot No. S. B. 8 on December 6, 1956, at 5 p.m.
16. It is a question of fact whether the plaintiffs were in possession of the plot in question on the day when they got the injunction order. I am inclined to hold that the plaintiffs were in possession on the day when they got the injunction order. In the first place if the plaintiffs had willingly shifted from the market on the 6th December 1956 there was no reason for them to have filed the present suit. 5 p.m. Was also closing time for the fowl sellers and even if they left the premises in the presence of Mr. Merchant, it does not mean that they had given up their right to occupy it again next day for doing their usual business. The fowl sellers come in the morning, do their business in the day and then they go away towards the evening. They have admittedly no sheds, but only come alongwith their fowl cages, sit on the plot in question, do the business in the day and then go away. In the second place it is alleged by Dr. Habibur Rahman that the fowl sellers occupied the place in question during night of 8-9 December 1956. It is very strange that the fowl tellers could have occupied forcibly when there were watchmen of the KMC. On a question by Mr. Fazie Haq, the learned Advocate for the KMC informed me that no incident ever took place. If about 80 persons had forcibly come to occupy the premises in question, immediate steps would have been taken by the KMC as a public body who could have at once approached the police for assistance, but nothing like this was done. Under these circumstances there being word against word I am inclined to accept the version of the plaintiffs for the purposes of this application that they had not given up their possession of the premises in question at the time when they filed the suit.
17. ' No authority has been shown to me how in the absence of a notice the suit was bad. In view of the decision in KLt4C, Gujarkhan v. Niza'n Din and another (1) I am of the view that no notice was necessary under section 255 of the City of Karachi Municipal Act. The balance of convenience is no A doubt in favour of the plaintiffs. They have been in occupation admittedly after the Partition and as would appear from the rent receipts filed by the plaintiffs they had been paying rent also to the Municipal Corporation.
18. ' I am constrained to remark before disposing of this application that the Municipal Corporation as a public body should not proceed to eject public men on false grounds. The plaintiffs, I have no doubt on perusal of the rent receipts which have not been contested by the defendants were never trespassers, whether tenants or licensees, public body like K. M. C. Should not attempt to attract any provision of law on false grounds.
19. ' I would for the reasons given above make the interim order of injunction absolute till the pendency of this suit.
(1) PLD 1954 Lab. 599