1. On 2-12-1993, upon hearing the learned counsel, an order to the following effect was passed: "I have heard the learned counsel. It would appear that there has been a rather chequered history to this case. The position taken by the applicants is that they had initiated eviction proceedings against their tenant---M/s Moona Motors (through Rent Case No.184 of 1986) as well as Muhammad Pervaiz who had been inducted into the premises by the said Moona Motors. Orders of eviction were passed in such rent case and a First Rent Appeal brought in this Court failed.
2. Thereafter, the said Muhammad Pervaiz also filed an application under Order 21, rules 99, 100 etc., C.P.C. Which was dismissed. Subsequently, the present respondent filed an application under section 12(2), C.P.C. As, evidently, the referred Muhammad Pervaiz had passed on possession to respondent Muhammad Ahmed on a plea that such respondent was the true owner, of the property. This application was dismissed by the executing Court leaving the question of title to be determined in the appropriate forum of a Civil Court. An F.RA. Against such order was preferred but failed. It is also an acknowledged fact that respondent Muhammad Ahmad around this time filed a suit for Accounts against applicant Muhammad Yahya purportedly on the ground that there was a partnership between the two and that respondent Muhammad Ahmad as owner of the disputed property had inducted applicant Muhammad Yahya into the same to manage the business of such partnership. This suit was dismissed for non-prosecution and appeal and revision their against failed. Correspondingly or perhaps subsequently Suit No.591 of 1991 was filed for Declaration and Permanent Injunction by the respondent before the learned IInd Senior Civil Judge, Karachi (Central), essentially for adjudication of title to the property. In this suit an application for interim injunction was filed by the respondent-plaintiff and dismissed by the learned trial Judge.
3. On appeal the order was set aside and interim relief was granted and against that this civil revision has been preferred.
4. It is a position admitted at all ends that the respondent at the present time is in occupation of the property. However, the case of the appellant is that the respondents has obtained such possession from a person who claimed under a tenant of the applicants, such tenant himself being subject to an effective order of eviction. Contention therefore is that irrespective the respondent's title to the property, which the applicants denied before me, the status of his current possession is not better than that of the tenant ordered to be evicted because it is from him that the possession is derived.
5. In other words, it is possession not as owner but in quite a different capacity. Such possession it has been claimed cannot be protected in a suit for title.
6. Mr. M. Qaiser Qureshi at this stage has sought for time to place relevant case-law on the subject.
7. Adjourned to 7-12-1993."
8. Taking up the case today, learned counsel for the applicants has placed on record an order, dated 17-2-1994, passed in Suit No.591/91, as referred above, whereby the respondent's said suit, during the pendency of which, at an appellate stage, the impugned interlocutory order of injunction was passed, has itself come to an end by way of rejection of the plaint. It is not known to either counsel whether or not an appeal against the order, dated 17-2-1994 has been taken but if and when taken the question may yet arise whether in such an appeal, which would be a continuation of the suit, an order of the kind which is impugned here may or may not be passed. For this reason, the controversy in the Revision Application remains a live one and it is to be seen whether the impugned order was or was not correctly passed.
9. Mr. M. Qaiser Qureshi for the respondent has referred me to Qasim v. Buddha Soomar, 1990 M LD 2217, and has urged that a protective order even in relation to a tenant who has been ordered to be evicted can be passed in an appropriate suit. It would be of advantage to shortly recite the facts of the precedent case decided by Saleem Akhtar, J., when he was in this Court. An order of eviction was passed there against a sitting tenant who had defended the proceedings on the ground that he had contracted to purchase the property from the predecessor-in-title of the applicant in the rent proceedings. The eviction was upheld at the level of this Court as well as in the Supreme Court.
10. In course of time, the tenant filed two suits, one for specific performance against the original owner and the other for cancellation of sale in favour of the subsequent purchaser, who had also in the meantime, succeeded to obtain the order of eviction against him. It was during the pendency of such suits, upon establishment of a prima facie case, that an interlocutory order of injunction was passed.
11. The facts of the present case and those in the precedent are clearly distinguishable. There a consistent plea had been taken by the person who was granted the interlocutory order of injunction but that plea could not bear fruit during the eviction proceedings for reasons which are manifest and protection could only be provided in an independent proceeding which was brought here. It is very doubtful that the respondent-plaintiff had a prima facie case in view of successive proceedings in which he has already failed. Secondly, the nature of his possession is that of a person who has been found finally not to be entitled to retain that possession. Of course, if the respondent-plaintiff succeeds in appropriate proceedings he may be entitled to possession but that is the most which he can achieve and to that extent alone he can be protected, if at all.
12. Contextually, it may be pointed out that there is a clear distinction between title to property and a bare entitlement to possess it, the latter coupled with actual possession .In itself, often enough, endowed with due protections of law, as was pointed out in Ghulam Rasool v. Md. Waris Bismil 1004 MLD 527.
13. Accordingly, in the event of further continuation of the proceedings in Suit No.591 of 1991 of the respondent-plaintiff the maximum order that can be passed in his favour before the final termination of the suit, such as ultimately that may be, would be an order requiring the applicants to maintain status quo as to possession, in the event they fail, to be dealt with according to the final disposal of the respondent's suit or proceedings emanating from it. Any relief beyond that to the respondent at an interlocutory stage of the proceedings would be unjust and even unlawful. In such manner and to the foregoing effect this Revision Application is allowed but with no order as to costs.