1. ' Facts leading to this Revision Application are that the respondents were leased out the suit plot by the applicants on 29-5-1965 for a period of 25 years commencing from 12-11-1951. This lease was renewed for further 25 years on 18-3-1980 commencing from 12-11-1976. Lease expires on 11-11-2001.
2. Originally the suit plot was leased out for storage of timber, but subsequently respondents were allowed to set up Ice factory. Respondents spent about seven lacs for the construction of Ice factory. Lease amount and allied taxes are being regularly paid. Respondents constructed their service station for the maintenance of fleet of transport vehicles at the suit plot. Respondents were allowed to sublet a portion of the suit plot to M/s. Rehman and Haroon Trading Company with effect from 6-11-1978 by Estate Manager. This subletting was discontinued on 30-6-1986.
3. Respondents again requested the applicant for permission for subletting a portion of the plot for a service station and a shop for repairing tyre tubes. In the meantime service station and tyre tube repair shop were established on the suit premises. On refusal to grant permission for this subletting M/s. Tip Top Service (tyre and tube repair shop) vacated the premises, but M/s. Mumtaz Service Station refused to vacate the plot, and had filed the suit against the respondents for declaration and injunction, and the Court ordered the status quo. Applicants issued various letters to the respondents cancelling their lease-deed for violation of terms of lease deed. Respondents filed a suit for declaration and injunction praying that notices issued to them by applicant are illegal, without jurisdiction and of no legal effect.
4. ' Applicants filed another application under Order 7, Rule 11, C.P.C. For rejection of the plaint mainly on legal points:
(a) The suit is barred under section 9 of Port Authorities Lands and Buildings Recovery of Possession Ordinance, 1962.
(b) The suit is barred under section 87 of K.P.T. Act. After hearing the parties the learned trial Court held that suit is not barred under section 87 of the K.P.T. Act, but under section 9 of the Port Authorities Lands and Buildings Recovery and Possession Ordinance, 1962 (hereinafter called as 'the Ordinance') and rejected the plaint.
5. ' Against this order respondents filed an appeal before the District Court. Learned lower Appellate Court allowed the appeal. Against this order applicant has come to this Court in revision application.
6. ' The learned counsel for the applicant argued that by Notification issued by the trustees of Karachi Port Trust, dated 29th April, 1963 published in Gazette of Pakistan dated 10-5-1963 rules were framed. Rule 1 of Chapter II reads as under:-- "A notice under section 3 of the Ordinance and demand for the cost of demolition of structures triable under section 7 any other notice under this Ordinance may be signed by the head of the department concerned or by any other officer authorised by the Board on this behalf."
7. ' By meeting of the Board of Tcustees of Karachi Port Trust held on 9th April, 1975 a separate independent estate department was created, with Estate Manager as Head of the Department.
8. Schedule of the staff of Karachi Port Trust as on 30-6-1987, shows Estate Manager as Head of the Department. According to the learned counsel, Estate Manager was competent to issue notice under section 3 of Port Authorities Lands and Buildings (Recovery of Possession) Ordinance being the Head of the Department as authorised under para. 1 of Chapter II of the Rules of the Karachi Port Trust. He contended that as the notice under section 3 of the Ordinance has been issued by the competent authority, the jurisdiction of Court is barred under section 9 of the said Act.
9. ' Learned counsel for the respondent has argued that provisions of section 9 of the Ordinance are not applicable in this case, as notices are not issued in relation to any act done under the Act, but for the violation of agreement entered between the parties, as such, the Ordinary Courts have jurisdiction.
10. ' An application under Order VII, Rule 2, C.P.C. Was filed on two grounds:--
(1) That the suit is barred under section 9 of Port Authorities Lands and Buildings (Recovery of Possession) Ordinance, 1962.
(2) That the suit is barred under section 87 of the X.P.T, Act.
11. ' The trial Court has held that the suit was not barred under section 87 of K.P.T. Act, but under section 9 of the Ordinance. No appeal was filed by the applicant against the order of the trial Court that suit is not barred under section 87 of the K.P.T. Act.
12. ' Only respondent filed an appeal against the order regarding the suit being barred under section 9 of the Ordinance of Port Authorities Lands and Building (Recovery of Possession) Ordinance. The trial Court has held that statutory notice under section 87 of the K.P.T. Act has been served on the applicant by the respondent, as such, suit is not barred.
13. ' The finding of the learned lower Court or this point is summarised as under:-- "On careful perusal of record of the case as well as plaint it appears that impugned notices are in contravention of sections 3 and 4 of the Ordinance, 1962 because a Magistrate of the First Class appointed by the Central Government can exercise all powers of an authorised officer under the Ordinance. The impugned notice admittedly has been sent by Estate Officer, therefore, the only forum left over for the appellant to resort to the Civil Court of law because inquiry against any one of the building or land owned by the respondent can be held upon a complaint filed by an authorised officer. Under the scheme of Ordinance, 1962 no remedy is provided to an aggrieved party other than the port authority. The Civil Court having ultimate jurisdiction has power to interfere in tile question admixed with mala fide. The question pertaining to jurisdiction of the Civil Court cannot be dealt with in summary procedure at this stage in every case notice under section 87 of the Act is not necessitated since the matter relates to the determination of the covenant of the lease as such in my humble opinion there was no justification in the trial Court to reject the plaint. In the result, impugned order is set aside, the case is restored to its original position. The appeal is allowed with no orders as to costs."
14. ' By virtue of this section 3, Port Authority is authorised to issue notice for determination of lease on the-ground of breach of any covenant to lease. According by rule 1 of Chapter II of Rules, Head of the Department is competent authority to issue notice under section 3 of the Act. By para. 16 of lease agreement the lessee was not allowed to sublet, or in any part with possession of premises, or in any way part with possession of premises, or part thereof, without written permission of the Board. Para. D of the agreement states that Board was at liberty to determine the rights of the lessees and terminate the lease for committing breach of any of the covenant. The respondents in their suit before the lower Court in paras. 11-12 of the suit, have clearly stated that they requested the applicant to allow them to sublet a portion of plot in question to M/s. Mumtaz Service Station and M/s. Tip Top Service Centre, but their request was turned down. They have clearly stated that M/s. Mumtaz Service Station and M/s. Tip Top Service Centre were established on the leased plot before even the decision on this request was made. M/s. Tip Top Service Centre was removed from the leased plot and but M/s. Mumtaz Service Station filed a suit in the Civil Court and got a stay.
15. This clearly shows that by averments made in the plaint, the respondent had admitted that they have committed breach of covenant by subletting and parting with portion of leased plot in contravention of lease agreement. Estate Manager was competent to issue notice under section 3 of the Act. Notice under section 4 of the Act would be issued by the Authorised Officer who is the Magistrate after receiving a complaint under section 3 of the Act by the competent Authority.
16. Notice under section 3 of the Act is to be issued before notice under section 4 is issued by the Authorised Officer. That stage in this case had not come, (sic) is before this the civil suit was filed.
17. The learned trial Court was wrong in assuming that no remedy is provided under the Act against the notice under section 3 issued by the Estate Manager. The Act provides that Estate Officer will lodge a complaint with the Authorised Officer under section 3 of the said Act, who will issue notice to the respondent under section 4, and after hearing the parties make an order in writing either permit such person to continue in occupation of the land or direct such person to vacate the land.
18. In my view this notice to respondent under section 3 of the said Act is under provisions of this Ordinance, and the jurisdiction of Civil Courts are barred.
19. ' With these observations this Revision Application is allowed.