1. ' This revision application is directed against the two concurrent orders of the two Courts below, whereby the application of the applicant plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. Was dismissed.
2. ' The admitted facts are that the applicant was a Government servant and in that capacity was allotted Flat No,16-D, Garden Road, Karachi. He has retired on 7-7-1988 and continues to be in possession of the said flat. The permanent transfer of the Government accommodation to the retired employees was under consideration of the Federal Government and vide Notification No,F.1319/86-Estate-II dated 20th July, 1986, the Federal Government decided that retired Government servants may not be ejected from the accommodation provided to them until a uniform policy is adopted by the Government. The grievance of the applicant/plaintiff is that in spite of this Notification, the Additional Estate Officer, Karachi, issued a notice on 11-3-1989, directing the applicant/plaintiff to vacate the premises on the ground that he had retired from service and was, therefore, not entitled to retain the possession. The applicant/plaintiff then filed a suit for declaration that in view of the Government policy he had a right to retain the possession until the uniform policy is adopted by the Government, notwithstanding the fact that his original title to the occupation of the flat was merely that of a licensee. This plea, however, did not find favour with the learned trial Court which dismissed the application under Order XXXIX, Rules 1 and 2, C.P.C. After holding that the applicant, being a mere licensee, had not made out a prima facie case for the retention of the possession. Appeal filed before the learned IIIrd Additional District Judge, Karachi
(East) was also dismissed on 21-11-1992 on the same ground. In the absence of the learned counsel for the respondents, I have gone through the record with the help of the learned counsel for the applicant. No doubt, the applicant/plaintiff was a mere licensee and the respondents could ask him to vacate the premises at any time even during the period the applicant/plaintiff was in service, not to speak of asking him to vacate the premises after his retirement, but in view of the Notification No,F. 1319/86-Estate-II dated 20th July, 1986, the Additional Estate Officer was not justified to issue notice to the applicant asking him to vacate the premises. The Federal Government had stayed all such eviction proceedings until a uniform policy is adopted by it in consultation with the Minister for Works and Housing and the Minister for Petroleum and Natural Resources. It had never been pleaded by the respondents, either in the trial Court or in the appellate Court or even before this Court, that the Federal Government had formulated such a policy or, in the alternative, had rescinded the Notification dated 20th July, 1986. This means that this Notification holds the field.
3. ' In view of the above discussion, it follows that both the Courts below have overlooked the existence of Notification No, F.1319/86-Estate-1I dated 20th July, 1986, and its implication on the entitlement of the applicant/plaintiff for retaining the possession. This has resulted in clear miscarriage of justice. I would, therefore, accept this Revision Application, set aside the orders of the two Courts below and grant the application under Order XXXIX, Rules 1 and 2, C.P.C. Restraining the respondents from evicting the applicant/plaintiff from the premises in question during the pendency of the suit.