Both these Revision Applications Nos.85 of 1994 and 86 of 1994 are disposed of by this common judgment as these pertain to orders of 1st Additional Sessions Judge, Karachi East dated 22-3-1994 in Civil Miscellaneous Applications Nos.4 of 1994 and 6 of 1994 against the same order of the Xth Civil Judge. Karachi East dated 23-12-1993 passed on application under Order 39, Rules 1 and 2, C.P.C., filed by the applicant.
2. On 10-7-1993 applicant filed suit for permanent injunction in the Court of Civil Judge, Karachi East being Civil Suit No.934 of 1983 against Raza Hussain and Muhammad Rafique alleging therein that he is tenant in respect of shop on Plot No.829-C, Deh: Thano, Tapo Malir, Malir City Karachi on monthly rent of Rs.1015 and has paid Rs.35,000 as security deposit. He was running a sugarcane juice shop since last 16 years. He was inducted as tenant by defendant/respondent No.1 in the suit.
Respondent No.2 used to collect rent every month. As the shop needed some repairs, defendant No.2 agreed and allowed the applicant to repair the shop from his own, and adjust the same towards the rent. Applicant spent a sum of Rs.32,000 towards repair.
On 5th January he paid the rent to defendant No.2 but he did not issue him rent receipt. He (appellant) further requested him (respondent) to adjust future rent towards the expenses incurred by him for the purpose of repair, but he (Respondent) refused to do so and threatened him to vacate the premises. Apprehending this forcible dispossession he filed the suit. He also filed an application under Order 39, Rules 1 and 2, C.P.C. Praying for restraining the defendants from dispossessing him personally or through their agents; status quo was ordered. On 15-7-1983 applicant made an application for correcting the name of defendant No.7 Raza Hussain as A.I Raza and Muhammad Rafiq son of Muhammad as Shakil Ahmad son of Rafique Ahmed as defendant No.2 and such request was allowed.
3. The respondent filed counter-affidavit to this application under Order 39; Rules 1 and 2 and after hearing the parties the learned trial Judge allowed application filed under Order 39, Rules 1 and 2, C.P.C. And issued ad interim injunction restraining respondents/defendants from dispossessing the applicant.
4. Against this order both the respondents/defendants filed separate appeals under Order 43, Rule 1, C.P.C. Before the Court of District Judge, Karachi East as Civil Miscellaneous Applications Nos.4 of 1994 and 6/1994. Both these appeals were disposed of by judgment dated 22-3-1994 setting aside the injunction order issued by the trial Court and remanding the case back for hearing the application afresh.
5. Against this judgment of the lower appellate Court the applicant has preferred the present two revision applications.
6. These Revision Applications were filed and admitted on 30-3-1994. Application for suspending the impugned order/judgment was filed and notice was issued to- respondents for 14-4-1994, in the meantime status quo was ordered. Matter was adjourned from 14-4-1994 to 21-4-1994 and on that date the Advocate for applicant informed the Court that application for suspending the impugned judgment has become infructuous as applicant has already been dispossessed.
Applicant then filed Civil Miscellaneous Application No.411 of 1994 for the contempt of Court against the respondent alleging therein that the respondent have dispossessed him from the shop on 5-4- 1 94 in violation of the Court's order and Civil Miscellaneous Application No.412 of 1994 for restoration of physical possession to the applicant and Civil Miscellaneous Application No.413 of 1994 for initiating the proceedings under section 193, C.P.C. Against respondent No.2.
7. Learned Advocate for the applicant has argued that the applicant was in possession of the shop since last 16 years. He being tenant of the respondents cannot be dispossessed without due course of law as prayed in the suit. In application under Order, 39, Rules 1. And 2, C.P.C., he sought the injunction restraining the respondents not to dispossessing him from the shop without due process of law. His apprehension in this regard has come true, when he has been forcibly dispossessed on 5-4-1994 even though status quo order was operating against respondents. He further contends that prima facie the balance of convenience was in his favour. And he had suffered irreparable loss due to the impugned order of the Ist Appellate Court. He further contended that he is not a tresspasser, the order of the trial Court holding him as trespasser is erroneous and should be set aside. He further contends that as he has been dispossessed by force during the period when status quo was operating against the respondents he is entitled to recovery of possession of the shop. He is also entitled for the articles lying in the shop at the time of his dispossession
8. Mr. J.H. Rahimatoola learned counsel for respondent No.1 contends that respondent No.1 is the owner of the shop but had rented the same to respondent No.2 Shakil Ahmad. He has never entered into agreement with the respondent in any capacity. The possession of the premises is in capacity of a servant of respondent No.2 and not in his own capacity, as such, his services having been terminated by respondent No.2 being a trespasser he is not entitled to any relief by the Court.
Mr. Abdur Rashid, Advocate for respondent No.2 has argued that he is tenant of respondent No. l on monthly rent of Rs.260. Possession of the shop was with the applicant as servant, servant of respondent No. 1. He further contends that the possession was handed over to respondent No.2 by the applicant on 26-3-1994 when no injunction order was operative against him. After getting possession he had filed a suit for permanent injunction and status quo order was passed in that case.
10. Heard the arguments of the counsel for the applicant and respondents and perused the record.
Before considering whether the applicant is entitled to injunction order, the Court has to determine prima facie nature of the possession of the applicant whether he is tenant, trespasser or a servant.
According to the applicant he is tenant of respondent on monthly payment of rent of Rs.1,050 and has also paid Rs.35,000 as security deposit; and incurred expenditure of Rs.32,000 towards the repairs of the shop. This fact is denied by the respondents. According to the respondents he was servant of respondent No.2 and had turned dishonest and was claiming the possession, as such he is tress--passer. The onus is on applicant to prove that he is tenant of respondent No. 1, but he has not produced any document in shape of rent receipt, security deposit receipt or expenditure incurred on repairs. Failure to prove his tenancy, his possession will be as a tresspasser or as a servant of respondent No.2.
11. Possession of the applicant is admitted by the respondents also. Question arises, whether the applicant's possession can be protected and injunction be issued restraining his dispossession without due process of law. The applicant's learned counsel has relied on Abdul Hameed v. Abdur Rasheed (1981 SCMR 527), Ghulam Muhammad v. Ch. Khursheed Ahmed and another 1985 CLC
457. He has also relied on Khursheed Begum and 7 others v. Inam Rabbani and another 1979 CLC
570. It has been held in that case that "The property in dispute has been in possession of the respondent for a long time and previous to them it was in possession of their father. They have also paid a considerable amount. They would, therefore, suffer an irreparable loss and injury if the injunction is not granted to them. The balance of convenience, was therefore, in the grant of the temporary injunction". This case law is not applicable to the present case as the possession for a long period was admitted in that case whereas it is in dispute in the instant case.
12. Learned counsel for the respondents has relied on Siddique Ahmad v. Estate Officer, Government of Pakistan PLD 1957 (W.P.) Kar. 887 where it has been held that under common law, a master can eject his servant from the premises allotted to him in his capacity as a servant without recourse to a Court of Law, and with use of minimum force subject always to the condition that in doing so the master did not commit an offence. This principle of common law is applicable to conditions in Pakistan and should be acted upon by Courts "In Azim Khan v. The State of Pakistan and another PLD 1957 '(W.P.) Kar. 892 it has been held that lessor in Pakistan not entitled to eject lessee without having recourse to Court of law, if he has a settled possession. In Supercon Ltd. v.
Eastern Construction Ltd. (1987 CLC 1566) the words "settled possession" has been defined. "Settled possession" means the person should have been inducted into possession by the owner or by the person entitled to transfer the possession under some title. In this case according to the applicant he was put into possession by respondent No. 1, the respondent No.2 used to collect rent, but he has failed to produce any documentary proof of such nature, which clearly indicates that the applicant is not in settled possession of the premises but is a tresspasser. In Muhammad Yaqoob and 63 others v. Province of Punjab (1993 MLD 2419) it has been held that tresspasser cannot file a suit to protect his illegal and unauthorised occupation. In Shahid Coal Agency. v. The Chairman, Pakistan Railways and another PLD 1982 Quetta 134, Naseruddin v. Muhammad Iqbal (1992 CLC 1310), Haji Abdul Ghafoor v. Haji Rauf (1991 CLC 734), it has been held that trespassers are not entitled for relief.
13. In view of the above discussion 1 am of the view that prima facie the applicant is a trespasser, or servant and is not entitled to any relief by way of temporary injunction. As such, I do not find any ground to interfere with the order of the Lower Appellate Court. Accordingly, both the Revision Applications are dismissed with no order as to costs.
14. As regard the miscellaneous applications, according to the applicant he has been dispossessed on 5-4-1994 and status quo order was passed on 30-3-1994. Admittedly status quo order was not served on the respondents up to 5-4-1994. According to the respondents they were given possession by the applicant on 26-3-1994 when no injunction order was operative against them.
They had filed a Civil Suit No.416 of 1994 on 29-3-1994 in the Court of Civil Judge, Karachi East stating therein that he is in possession of the shop since 26-3-1994;' when status quo was ordered.
This status quo was granted to the respondent on 5-4-1994 after notice was served on the applicant earlier. Applicant did not file any objection to the status quo order which indicates that he was already dispossessed. For restoration of possession, the applicant can file separate suit; and lead evidence to prove that he was illegally dispossessed or await the decision in the suit already filed by the applicant. According I do not find any merit in the miscellaneous applications listed today for hearing and the same are dismissed.