' This is an application under Order 39, Rules 1 and 2, C.P.C. Filed by the plaintiff to restrain defendants Nos. 1 and 2 their agents and servants etc., from wrongfully restraining the plaintiff from using the shop bearing No, 35, Kehkashan Shopping Arcade, Main Clifton, Karachi, as the lawful occupant and tenant peacefully till the disposal of the suit. The brief facts as stated in the plaint giving rise to this application are as follows.
2. It is alleged that the plaintiff is a tenant of defendant No,1 of Shop No,35, Kehkashan Arcade, Main Clifton, Karachi, running a boutique therein in the name and style of 'Moomal Creations' for the last few years. Defendant No,1 has produced with her counter-affidavit a copy of an undated Agreement of Tenancy probably executed some time in February, 1997 fixing the rent of the premises at Rs,3,000 per month payable in advance for 12 consecutive months. She has also produced a Hire Agreement for Fitting and Fixtures dated 28-2-1997 fixing a monthly rent of the fittings and fixtures at Rs,3,000 per month payable in advance for a period of Twelve (12) months commencing from 1st February 1997. She has further produced two (2) undated receipts showing that she has received a total of Rs,72,000 as advance rent and hire charges from the plaintiff/tenant. In January, 1998 defendant No, 1 approached the plaintiff for enhancement of rent by Rs,4,000 per month which the plaintiff declined and informed the defendant that she had been regularly increasing the rent by 10% per every year and that it was not possible for her to agree to such a high increase. The defendant refused to accept the rent and asked the plaintiff by letter dated 14-2-1988 to vacate the shop within 30 days from the date of notice under clause (4) of the Agreement of Tenancy. The plaintiff responded by letter dated 24-2-1998 requesting the defendant No,1 to supply a copy of the Agreement executed between the parties and sent a sum of Rs,6,000 as rent for January, 1998 by money order. When defendant No,1 refused to accept the money order the plaintiff filed a miscellaneous rent application before the Senior Civil Judge and Rent Controller, Karachi South seeking permission to deposit the rent from January, 1998 onwards which apparently was granted and on 17-3-1998 the plaintiff deposited a sum of Rs,12,000 towards the rent of January and February, 1998. Copies of correspondence exchanged miscellaneous rent application and original documents of despatch of money order and deposit of rent with the Rent Controller have been filed with plaint.
3. It transpires that on 29th March, 1998 when the Shopping Arcade was closed on account of Sunday being a holiday, Defendant No,1 alongwith security guards of defendant No,2 came to the Arcade and attempted to break open the locks of the plaintiff's Boutique by force but on the intervention of Chowkidars and shopkeepers present in the area they could not do so; however, defendant No,1 posted Armed Security Guards of defendant No,2 to restrain the plaintiff from opening the shop and running her business peacefully. The plaintiff tried to pursuade the defendants to desist from such unlawful acts but her efforts did not bear any fruit. The plaintiff thereafter approached, among others, the Clifton Police Station for redress of her grievance which also did not produce any satisfactory result. Consequently, on 3-4-1998 plaintiff filed the present suit for declaration and injunction and damages against the defendants (the landlady i.e,, defendant No,1 and Fax Security Services (Pvt) Ltd., i.e,, defendant No,2) which she had suffered on account of unlawful acts of the Defendants. On the same day Court issued Notice of plaintiff's injunction application to the defendants and also directed the Nazir of the Court to inspect the premises and submit his Report about posting of security guards. The Nazir submitted his Report dated 4-4-1988 stating, inter alia, that the premises had two shutters which were closed and four locks were found on the shutters with on Armed Security Guard near it. He also reported that on inquiry from the shopkeepers in the neighbourhood he was informed that Shop No,35 being run by the plaintiff for the last four years, it was in her possession and that defendant No,1 had posted an armed guard and put her two locks on the shop on the previous Sunday. The Chowkidar also confirmed the foiled attempt of defendant No,1 to break open the two locks of the plaintiff on the shop shutters, putting her own two locks on the shutters alongwith the locks of the plaintiff and posting of an armed guard there.
4. Defendant No,1 filed counter-affidvit to the plaintiff's Injunction Application and the plaintiff filed her affidavit-in-rejoinder to the same. Fox Security Services (Pvt.) Ltd., defendant No,2 did not file any counter-affidavit but filed a Written Statement in response to the plaint.
5. The defence taken and arguments advanced by defendant No,1 against the Injunction Application are as follows:
(i) The Tenancy Agreement between the parties having expired defendant No,1 is entitled to take back possession of the premises from the tenant/plaintff herein.
(ii) Plaintiff abandoned the property and to protect the same from unlawful encroachment she posted a security guard at the shop.
(iii) The suit is barred under section 56 (t) and (i) of the Specific Relief Act.
(iv) Plaintiff's suit for declaration, injunction and damages is not maintainable as the plaintiff has been deprived of possession of the shop premises and her only remedy is to file a suit for possession under section 9 of the Specific Relief Act.
(v) Plaintiff has not fulfilled the requirements for grant of Temporary Injunction and as such the application should_be dismissed.
6. I have beard the arguments of the learned counsel of the plaintiff and the defendants at length.
My conclusions on the various points raised by counsel are as follows:
(i) The arguments of defendant No,1 that on the expiry of the lease the lesson can take back the property from the lessee without the assistance of the Court is misconceived. It has been held by the Supreme Court of Pakistan in PLD 1988 SC 190 that on expiry of a lease a new relationship between the parties comes into existence and the tenant becomes a statutory tenant under the Sindh Rented Premises Ordinance, 1979 and cannot be evicted from the premises except on the grounds provided in the said ordinance. The lessor/landlord does not have the right to take back possession of the premises from the tenant by use of force or by any other means. If he wants to take back possession of the premises he must file an application for ejectment of the tenant on the grounds provided in the Sindh Rented Premises Ordinance.
(ii) The contention of defendant No,1 that the plaintiff had abandoned the property and to protect the same from unlawful encroachment she put her own padlocks and posted a security guard at the shop is not supported by the statements made and documents produced by both the parties.
It would be advantageous to reproduce paragraphs 7 and 8 of the plaint which read as follows: "7 That on Sunday the 29th March, 1998 when the shopping arcade was closed due to holiday the defendant No,1 alongwith her accomplices and the private security guards namely Fox Security Services (Pvt.) Ltd. (defendant No,2) attempted to .Break open the locks of the plaintiff's boutique by force, but on the intervention of the Chowkidars of the shopping arcade as well as the shopkeepers did not do so but, however, defendant No,1 posted armed security guards (defendant No,2) in order to wrongfully restrain the plaintiff from opening the boutique and run her business peacefully.
' That the plaintiff made efforts to persuade the security guard and tried to contact the landlady (defendant No,1) to desist from such unlawful act but somehow neither the security agency (defendant No,2) personnel allowed the plaintiff to open the shop nor the defendant No,1 was agreeable to talk on the telephone or meet the plaintiff or the president of the shopkeepers union Mr. Akbar Ali Rana, despite her best efforts...."
' In reply to these assertions, defendant No,1 in her counter-affidavit submitted as follows: "8 That the contents of paras. 7 and 8 of the plaint are vehemently denied. It is submitted that as per clause (4) of the tenancy agreement the defendant shall be entitled to have possession of the premises back when required by her after the expiry of the lease. The defendant was entitled to the possession and there were no legal obstacle for having possession of the same, being the rightful owner of the property. As regards the allegations of the security guards, it is submitted that every person has a right to protect his property from unlawful encroachment. Further, it becomes very necessary to put security guards at the shop to protect from 'Qabsa' which is a common phenomenon and as a precaution against specific threats to life and limb which were received from the plaintiff. Copy of Rent Agreement, dated 28th February, 1997 is annexed herewith as Annexure "B' ."
' Further, the plaintiff has disclosed in the plaint as well as in the application for temporary injunction the various steps she took to protect her rights as a tenant including the deposit of rent in the Court of Rent Controller, Karachi South, filing an application with the Police informing them as to how the landlady had violated the law by putting her padlocks over the padlocks of the plaintiff on the shutters of her shop before coming to this Court for relief. These facts have not been denied by the defendant in her counter-affidavit.
In view of the efforts highlighted by the plaintiff in her pleadings and the affidavits filed by the parties, it is clear that the plaintiff did not at any time abandon the property. This is further enforced by the fact that two padlocks of the plaintiff were already on the latch of the shutters when defendant No,2 tried to break open the locks and on failure to do so she put her own padlocks in their place. The arguments of defendant No,1 are accordingly rejected.
(iii) The defendant has argued that the suit is not maintainable under section 56 (f) and (i) of the Specific Relief Act, 1877. The said section reads reds as follows:-- "56. Injunction when refused.--An injunction cannot be granted:--
(0) to prevent the breach of a contract the performance of which would not be specifically enforced:
(i) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust."
After expiry of the alleged Tenancy Agreement, the plaintiff became a tenant under the provisions of the Sindh Rented Premises Ordinance, 1979. He cannot be evicted except in accordance with the provisions of the said Ordinance as already stated above. The plaintiff has come to this Court for protection and enforcement of her rights under the said law which can be enforced by this Court.
Section 56(0 is, therefore, not applicable to the present case.
The learned counsel has also argued that because the plaintiff has claimed damages from the defendants, no injunction can be granted to her. The plaintiff has sought permanent injunction restraining defendants Nos. 1 and 2, their agents, servants, representatives and persons claiming through or under them not to obstruct the peaceful possession of the shop in dispute. In addition, she has also claimed Rs,50,00,000 compensation, inter alia, for loss of reputation, goodwill, mental torture and agony suffered by her on account of the mala fide conduct of the defendants jointly and severally. This does not mean that if the plaintiff has claimed damages for mental torture and agony suffered by her, the defendants have the right to continue to cause mental torture and agony by their unlawful conduct and they should not be restrained from taking the law into their own hands and obstruct the peaceful possession of the plaintiff. If this argument is accepted, it would mean that every landlord would be free to obstruct the possession of the tenant by putting his padlocks on the premises of his tenant and when sued take the plea that because the tenant has the right to claim damages, the landlord should not be restrained from taking the law into his own hands. This would result in anarchy in society which the Courts would never allow. The argument of the learned counsel is preposterous, opposed to rule of law and maintenance of equilibrium in society. Learned counsel for defendant No,1 has not shown how equally efficacious relief can be obtained by any other usual mode of proceeding by the plaintiff. The suit is, prima facie, not barred under section 56 (i) of the Specific Relief Act.
(iv) Plaintiff has filed the present suit, inter alia, for declaration that she is the lawful occupant and tenant of shop bearing No,35, Kehkashan Shopping Arcade and for permanent injunction to restrain the defendants from obstructing the peaceful possession of the shop in dispute. The contention of defendant No,1 is that as she has put her padlocks on the latch of the shutters of the shop which was in the plaintiff's possession as a tenant and posted a security guard of defendant No,2, the plaintiff has been dispossessed without her consent of immovable property otherwise than in due course of law, and therefore, her remedy is by way of a suit for possession under section 9 of the Specific Relief Act, This argument is vehemently opposed by the learned counsel for the plaintiff. The whole issue revolves around the meaning of the terms "possession" and "dispossessed". It is not easy to give an accurate and exhaustive definition of the word "possession."
It has different meanings depending upon the context and circumstances in which it is used. It includes actual physical possession in fact as well as constructive possession or possession in law.
The concept of possession originally emanated from the idea of ownership. However, in section 9 of the Specific Relief Act the term "possession" is not used in relation to ownership alone. It includes possession of a lessee or a trespasser also. Another term used in this section is "dispossessed" which is very important. According to the Black's Law Dictionary, Sixth Edition, 1990, page 471, the term "dispossess' means, "to oust a person fromland, to eject, to exclude from possession of reality".
In the same E dictionary the term "dispossession" is defined as "An act whereby the wrongdoer gets the actual occupation of the land". The term "dispossessed" used in section 9 of the Specific Relief Act, in my opinion, refers to a situation where Mr. X is deprived of the actual F physical occupation of immovable property by Mr. Y who gets the actual occupation of the property. In the present case, the plaintiff was in actual occupation of the shop on 29th March, 1998, her goods were lying there, the shutters of the shop were down and her padlocks were on the latch of the shutters.
Defendant No,1 put her own padlocks over the padlockes of the plaintiff and attempted to deprive the plaintiff from enjoying peaceful occupation of the shop. By putting her padlocks defendant No,1 did not obtain actual occupation of the shop. She cannot enter the shop without the permission and consent of the Plaintiff. Plaintiff's padlocks are on the shutters and her goods are still lying in the shop. No one can enter the shop until the plaintiff removes her padlocks. The only thing defendant No,1 has done is to obstruct or interfere with the enjoyment of the property by the plaintiff. In my opinion the act of defendant No,1 in putting her padlocks over the padlocks of the plaintiff does not mean that the latter has been dispossessed by the former.
' Mr. Aamer Raza Naqvi, Advocate for defendant No,2 has also supported the contention of Mr. Shahenshah Hussain, Advocate that the plaintiff has not been dispossessed from the shop.
' The judgment reported in AIR 1952 Vindhya Pradesh 78 cited by the learned counsel for defendant No,1 relates to Requisition of Buildings and Premises and Fixation of Rent Ordinance where the property had been requisitioned under the said law and is therefore not applicable to the present case. Similarly AIR 1953 Madras 534 relates to the question of possession where the premises were occupied by a family living jointly.
' Mr. Shahenshah Hussain, learned counsel for the plaintiff has cited PLD 1963 Karachi 213 in support of his right to seek relief from this Court. In the said case, Deputy Commissioner addressed a letter to Mukhtiarkar, Larkana which reads as follows:-- ' "Since Dr. Khalilur Rahman has his own shop in Larkana town and Moulvi Shamsuddin wants to run shop himself as he has no other source of income please get the shop vacated from Dr. Khalilur Rahman and hand over possession to Maulvi Shamsuddin and report compliance. "
' Pursuant to the said instructions the Mukhtiarkar took over possession of the premises and handed it over to Shamsuddin. Dr. Khalilur Rahman challenged the action s of the Deputy Commissioner and Mukhtiarkar and sought the assistance of the Court by filing a writ petition in the High Court of Sindh. The learned Judges while allowing the petition observed as follows:-- ' "Article 2 of the Constitution lays down that it is the inalienable right of every citizen to be treated in accordance with law in particular no action detrimental to property of any person shall be taken except in accordance with law. The tenancy right is undoubtedly an interest in property and any action detrimental to it can only be taken in accordance with law. The law applicable in this case was the West Pakistan Urban Rent Restriction Ordinance and the jurisdiction to administer it is given to a Civil Judge as a Rent Controller. We cannot but deprecate the action of the Deputy Commissioner in usurping that jurisdiction and attempting to deal with that civil dispute on the administration side. We must also record our disapproval of the technique adopted by the Deputy Commissioner in ordering the police to enquire into the antecedents of the tenant. This was obviously intended to fighten him in respect of his claim to hold on to his tenancy right. Short-cuts may sometimes be found to be convenient but if encouraged they may lead to lawlessness and impede orderly progress. An officer acting in deliberate disregard of law in such matters exposes himself personally to the risk of an action for damages."
' In light of the above the learned counsel has argued that if a vested right of a person is infringed, the Court has the power to grant an injunction against an official of the Government or any other person guilty of the breach. Admittedly, the right to occupy and peacefully enjoy possession of the shop as a tenant is a right in property and the plaintiff is entitled to file a suit under sections 42 and 54 of the Specific Relief Act for necessary relief. In the present case, it is not necessary for her to file a suit under section 9 of the Specific Relief Act as she has not been dispossessed. The present suit for Declaration and Permanent Injunction is in order.
(v) The learned counsel for defendant No,1 has further argued that the plaintiff has not fulfilled the requirements for grant of Temporary Injunction and consequently such relief ought not to be granted and has relied upon 1974 SCMR 519, 1985 CLC 2309 and 1986 CLC 2923 for this purpose. In 1974 SCMR 519, the Fton'ble Supreme Court of Pakistan has said that while granting Temporary Injunction the Court should take into consideration the existence of prima facie case, balance of convenience and the fact whether permanent injunction has been claimed in the main suit and if so, whether such injunction can be granted in light of the provisions of section 56 of the Specific Relief Act. In 1986 CLC 2923, Mr. Justice Ajmal Mian (as his lordship then was and now the Chief Justice of Pakistan) held that for the purpose of grant of ad interim injunction under Order 39, Rule 1 read with section 151, C.P.C. The Court has to examine the case on the basis of the following three ingredients:- "(i) Whether the plaintiff has a prima facie case?
(ii) Whether withholding of ad Interim Injunction would result in irreparable loss to him? And
(iii) The balance of convenience between the parties?
Additionally, the Court may also look into the conduct of the plaintiff and the question of delay i.e,, whether the plaintiff has approached the Court with clean hands and whether he has so approached promptly or after delay."
Keeping in view the principles laid down in the aforesaid two judgments, it is clear that the plaintiff has a prima facie case as admittedly she is a tenant of the defendant, is in possession and was in possession of the shop on the day defendant No,1 unlawfully put her padlocks over the padlocks of the plaintiff on the shutters of the shop. Plaintiff's goods continue to lie in the shop. This is not denied by anyone. Defendant No,1 cannot be said to be in occupation or physical possession of the shop. By putting her padlocks defendant No,1 has only tried to obstruct the plaintiff from using the shop of which she is the lawful occupant and tenant. It is also clear that withholding of ad interim injunction would result in irreparable loss to the plaintiff. The balance of convenience is also in favour of the plaintiff as she was and still is in possession of the shop. Additionally, it is clear from the documents placed on record that the plaintiff has come to the Court promptly after she was unable to remove the obstruction placed by defendant No,!. She has also come to the Court with clean hands and has not done anything which would reflect adversely on her conduct. On the other hand, it is the defendants who has acted in mala fide manner by taking the law into her own hands. Defendant No,1 tried to break open the locks of the plaintiff's shop and when she did not succeed in her efforts she tried to obstruct the possession of the plaintiff by putting her padlocks over the padlocks of the plaintiff. In view of the above all the ingredients for the grant of interim injunction are satisfied.
' The judgment reported in 1985 CLC cited by defendant No,1 is not applicable to the facts of the present case as the plaintiff has not been dispossessed from the shop as already held above.
7. In view of the above discussion the application for Temporary Injunction is allowed in the following terms:--
(i) Defendants, their agents, servants and persons claiming through or under them are hereby restrained until disposal of this suit from obstructing or interfering in any manner with plaintiff's occupation and possession of Shop No,35, Kehkashan Shopping Arcade.
(ii) Defendants shall immediately remove their padlocks, security guard or any other hindrance in the enjoyment of the property by the plaintiff.
(iii) Nazir of this Court is appointed Commissioner to ensure implementation of this Court's order within 12 hours. He shall, if necessary, be free to seek Police aid and also break open the padlocks of the shutters and/or remove all obstructions. Nazir's fee is fixed at Rs,4,000 which shall be paid by defendant No,1.
(iv) Defendant No,1 shall also pay compensatory costs of Rs,5,000 to the plaintiff
(v) No costs are being awarded against defendant No,2 as their counsel Mr. Naqvi frankly conceded the factual position and ably assisted the Court in the dispensation of the justice.
However, defendant No,2 are warned to be careful in future and carry out due diligence exercise before posting and/or private security guards to anyone.
(vi) If defendant No,1 does not pay the Nazir's fee or the costs of the plaintiff within 7 days, plaintiff would be free to deduct both amounts from the future rent and deposit the Nazir's fee in High Court.
(vii) It is clarified that the observations made hereinabove are tenatative and for the purpose of disposal of the injunction application only. These applications stands disposed of accordingly.