Brief facts as they appear from the pleadings of the parties are that the plaintiff was leased out a Plot No,B-73, S.I.T.E., Karachi, measuring 44 acres by the defendant No,1 through a registered lease deed on 14-5-1962 for a term of 99 years for 'Petrol Pump and Service Station'. The plaintiff in turn by tenancy agreement dated 10-5-1962 rented out the said plot to the defendant No,2 initially for term of 15 years which term was further extended to 10 years on yearly rent of Rs,2,500 payable in advance under a written agreement (lease deed) Prior to renting out the said plot the plaintiff had obtained written permission from the defendant No,1 for renting out the said plot to the defendant No,2.
2. The plaintiff on 12-7-1993 mortgaged the plot with defendant No,3. Prior to creating equitable mortgage the plaintiff has also obtained NOC from the defendant No,1. The plaintiff had deposited all the original title documents of the plot with defendant No,3 at the time of creating equitable mortgage. It may be significant to mention that the plaintiff by a letter dated 28-7-1971 had intimated the defendant No,1 about the change of her address with the request to mail all future correspondences on her residential address instead of the office address of the plot. This letter was acknowledged by the defendant No,1 confirming that they had noticed the change of address of the plaintiff.
3. According to the plaintiff the defendant No,2 had committed default in payment of rent as a result of which the plaintiff on 21-10-1997 tiled a Rent Case No,135 of 1997 before the Rent Controller at Karachi. The defendant No,2 tiled its written reply disputing the default. During the pendency of the rent proceedings the defendant No,2 filed a statement before the Rent Controller in the said Rent, Case stating therein that registered lease executed in favour of the plaintiff had been revoked/ cancelled by the defendant No,1 and the defendant No,1 has executed a fresh registered lease in favour of the defendant No,2 in respect of the said plot. In view of this statement of the defendant No,2, the plaintiff withdrew the Rent Case and approached the defendant No,1 inquiring about the cancellation of her registered lease for 99 years. On inquiries the plaintiff learnt that her lease was cancelled, inter alia, on the ground that she had failed to pay the yearly lease money of the plot and had committed default and therefore, the defendant No,1 had unlawfully cancelled/revoked the lease in her favour and has unauthorizedly executed a fresh lease in favour of the defendant No,2. As a result of this plaintiff has filed the present suit in which defendants Nos.1 and 2 have filed their Written Statements, disputing the averments made in the plaint whereas the defendant No,3 was a formal party against which no relief was sought. The following issues were framed:-- "(1) Whether defendant No,1 illegally cancelled the lease deed of the plaintiff in respect of the plot in suit?
(la) Whether the defendant No,1 served upon the plaintiff a notice prior to the cancellation of the lease deed at their proper address'?
(1b) Whether the plaintiff had any permission from the defendant No,1 before subleasing the premises to the Caltex and whether it was a ground for cancellation of lease in favour of the plaintiff?
(2) Whether the subsequent lease in favour of defendant No,2 by the defendant No,1 is legal and valid?
(3) Whether the plaintiff is entitled to mesne profit as claimed by her in the plaint from defendant No,2'?
(4) Whether the plaintiff is also entitled to liquidated damages as claimed from the defendants Nos.I and 2 jointly and severally?
(5) What should the decree be?"
4. By an order of this Court Mr. Zakir Hussain Mirza, Advocate, was appointed Commissioner to record the evidence. The learned Commissioner recorded the evidence of the parties and returned the Commission. The plaintiff has examined her attorney Zahid Ali Exh.4 who produced a number of documents including registered lease executed in favour of the plaintiff by the defendant No,1 as Exh.P/1, letter of June 28th, 1971 of the plaintiff addressed to the Secretary of the defendant No,1 intimating her residential address for future correspondence as Exh.P/2, letter dated 17-7-1971 from the defendant No,1 to the plaintiff acknowledging the receipt of the letter pertaining to change of address of the plaintiff as Exh.P/3, Deed of registered lease (Rent Agreement) between the plaintiff and the defendant No,2 as Exh.P/4, letter dated 12-7-1993 by the defendant No,1 to the plaintiff according to her permission to create charge on the plot with defendant No,3 (Messrs Muslim Commercial Bank Limited) as Exh.P/5, General Power of Attorney in favour of the defendant No,3 for creating a charge. Ejectment application filed by the plaintiff against the defendant No,2 before the III Rent Controller as Exh.P/8, Written Statement filed in the rent proceedings by the defendant No,2 as Exh.P/10, statement dated 28-5-1998 filed by the defendant No,2 before the Rent Controller in the rent case stating therein that the defendant No,2 had been issued the lease on 26-5-1998 by the defendant No,1 in respect of the said plot as Exh.P/11, application for withdrawal of the rent case by the plaintiff and the order passed thereon as Exh.P/13, letter of the plaintiff to the defendant No,1 as.
Exh.P/14, Notice dated 5-3-1997 by the defendant No,1 to the plaintiff calling upon her to clear the outstanding dues mailed on the old address of the plaintiff as Exh.P/19, letter dated 13-3-1998 of the Secretary of the defendant No,1 addressed to the plaintiff cancelling the lease of the plot, inter alia, on the ground of default and subletting as Exh.P/20, letter dated 8-3-2000 (Exh.P.24/B) by the.
Managing Director of defendant No,1 to the Secretary, Industries, Commerce and. Mineral Development Department, Government of Sindh, stating therein that . the action of cancellation of lease deed by the defendant No,1 in favour of the plaintiff was illegal as was done without recourse to due process of law as even according to him the Managing. Director of the defendant No,1 without the Board Resolution has unauthorizedly executed the lease of the plot in favour of the defendant No,2 and has suggested that a supplementary written statement pointing out the illegalities be brought to the notice of this Court instead of defending the wrongful action of the officers of the defendant No, I .
5. The plaintiff's attorney was cross-examined by the counsel for the defendants Nos.1 and 2. In his evidence, the plaintiff's attorney has deposed that the cancellation of the registered.lease as unlawful and plaintiff was condemned unheard. In the cross-examination he has deposed that all the outstanding dues were to be paid by the defendant No,2 in terms of clause 2(b) of the Rent Agreement. The defendant No,1 examined Rahim Bux its Administration Officer, as Exh.5. He has produced letter of the plaintiff addressed to the Managing Director of defendant No,1, Exh.D.11A, a notice from Major Shehzada Muhammad Faghfoor of Monitoring Cell addressed to the Managing Director of defendant No,1 directing the Managing Director to investigate complaint of the plaintiff and comment the irregularities which the officers of the defendant No,1 have committed while cancelling the lease of the plaintiff, Exh.D.1/B, a letter from the plaintiff to the Headquarter, Divisional Artillery, Malir, Karachi, requesting for action as Exh.D.l/C, a complaint from the plaintiff to the Corps Commander at Karachi pertaining_ to the illegalities committed by Mr. Nisar Siddiqui, former Managing Director, SITE, in respect of the cancellation of lease of the plot, Exh.D.1 /D, letter from Assistant Director of the Ministry of Industries, Commerce and .Mineral Department, Government of Sindh, 'to the Managing Director of the defendant No,1, requesting him to furnish comments in respect of the complaint filed by the plaintiff as Exh.D.1/E, comments of the Managing Director dated 8-3-2002 in response to the different letters addressed to him on the complaint of the plaintiff as Exh.D.1/G. Neither the plaintiff's counsel nor the counsel for the defendant No:2, cross- examined said Rahim Bux whereas the counsel for defendant No,3 was not present. Defendant No,3 examined Muhammad Imran Rao, their AVP, as Exh.6. In his evidence, he has deposed that the defendant No,3 has mortgaged the plot and has produced the Title Documents of the plot alongwith the Memorandum of Deposit of Title Deed and the permission from the SITE to create Equitable Mortgage on the plot. The counsel for the plaintiff, the defendant No,1 and defendant No,2 did not cross-examine the witness of defendant No,3. The defendant No,2 did not lead evidence.
6. It has been argued by the plaintiff's counsel that the plaintiff was lawful lessee of the defendant No,1 by virtue of registered lease and prior to inducting defendant No,2 as her attorney the plaintiff has sought permission of the defendant No,
1. He submitted that somewhere in 1972 the plaintiff had notified her residential address to the defendant No,1 for future correspondence. It was argued by Mr. Arshad Tayebally that in 1993 the plot was mortgaged with defendant No,3 and prior to creating such equitable mortgage the plaintiff had obtained the requisite NOC from defendant No,1. Mr. Arshad Tayebally argued that the lease of the plaintiff was unlawfully cancelled without notice inasmuch as the Notices purported to have been issued prior to cancellation of the lease by the defendant were never mailed to the plaintiffs residential address given by her and instead were mailed on the old ,address (of the plot) in dispute which admittedly was in possession of defendant No,2 which fact was in knowledge of the defendant No,
1. It was further argued that even otherwise in law the defendant No,1 cannot unilaterally cancel the lease of the plaintiff without approaching the Court of competent jurisdiction as it was a registered instrument. He further submitted that the lease of the plot was illegally cancelled by defendant No,1 to benefit defendant No,2 which was in default and against whom the plaintiff had initiated ejectment proceedings. He submitted that the action of defendant No,1 'ex facie' was illegal and the 'very cancellation of the lease in this manner and the subsequent execution of the fresh lease of the plot in favour of defendant No,2 was without the approval of the Board was even opposed to by the Managing Director of the defendant No,1 who succeeded the office of defendant No,1 on transfer of Mr. Nisar Siddiqui during whose tenure the lease was unlawfully cancelled and executed in favour of the defendant No,2. The counsel for the S.I:T.E., Mr. S.A. Samad Khan, has also supported the arguments of the plaintiff and has stated that the contents of the written statement filed by S.I.T.E. be ignored as subsequently from the record it transpired that the action of the officers of the defendant No,1 was not justifiable. Mr. H.A. Rehmani, did not advance any argument on the issue of legality or otherwise of the actions of defendant No,1 in regard to either cancellation of the lease of the plaintiff or subsequent lease in favour of defendant No,2 but has confined his arguments only to the extent that the plaintiff is not entitled to get vacant possession of the plot in these proceedings.
According to him the prayer in these proceedings in regard to handing over of the vacant possession of the plot was impermissible as this Court would not order ejectment of the defendant No,2 who was admittedly tenant prior to execution of the lease by the defendant No,1 and that status revived if the lease in his favour was to be declared illegal. He has relied upon the case of Hayat Gul v. Rehm Bibi reported in PLD 1997 SC 879. Mr. Zubair Qureshi, Advocate for the defendant No,3 has submitted that he was a pro forma party and plaintiff has not sought any relief against him.
7. I have heard the arguments of the learned counsel and have- gone through the record. I will take Issues Nos.1(a) and 1(b) before giving any finding on Issue No,1 . In support of these two Issues the plaintiff has examined her attorney, namely, Zahid Ali as Exh.4. Plaintiff's witness has produced a letter of the plaintiff dated 28-2-1971 as Exh.P/2 addressed to the Secretary of defendant No,1 in which the plaintiff notified the defendant No,1 that all the future correspondence in respect of the subject plot be made on her residential address instead of the office address. In this letter the plaintiff had also given her telephone number alongwith the complete residential address. This letter was received by the office of the defendant No,1 on 30-6-1971 and the seal of office of defendant No,1 was endorsed on this letter. The plaintiff's witness further produced Exh.P/3, a letter- dated 17-7-1971 of the Secretary of defendant No,1 which was addressed, to the plaintiff and copies were endorsed to the Estate Engineer, Chief Accountant, Inspector and Incharge, Typing Section of defendant No,l's Department, stating therein that they have duly noticed the change of address of the plaintiff. The plaintiff's witness has produced purported Notice Exh.P/19 dated 7--3-1997 issued by the defendant No,1 to the plaintiff, copy of which was endorsed to the Secretary of the defendant No,1 wherein the defendant has referred to their earlier notice of 25-3-1997 calling, upon the plaintiff to pay a sum of Rs,13,347 towards the dues of the plot. This Notice was addressed by the defendant No,1 on the office address of the plaintiff and was received by one Shamsul Haq on 12-3-1997.
Another notice Exh.P/20 of 13-3-1998 issued by the defendant No,1 on the previous office address of the plaintiff calling upon the plaintiff to clear the dues of the defendant . No,1. The plaintiff's witness has also produced another notice of the defendant No,1 Exh.P/21 dated 28-7-1997 calling upon the plaintiff ,to clear the dues of Rs, 10,466. This notice was received by some one on the site of the petrol pump. The plaintiff's witness produced Exh.P/22 a Final Notice dated 24-1-1998 of the defendant No,1 addressed to the plaintiff on the old address calling upon her to clear the dues of Rs,122,670.50. The plaintiff produced Exh.P/23, a letter dated 4-2-1998 signed by the Director (Finance) of the defendant No,1 and addressed to the Secretary of defendant No,1 endorsed to the Estate Engineer directing that the plaintiff has been issued the Notices on the different dates referred to herein and requested the Secretary to take necessary action in light of the said Notices.
Thereafter on 13-3-1998 the defendant No,1 has cancelled the registered lease of the plaintiff.
8. The plaintiff's witness has produced Exh.D.1/G, which is a letter of the Managing Director Mr. Mir Hussain Ali, who succeeded Mr. Nisar Ahmed Siddiqui, in which letter he has admitted that the officers of the defendant No,1 have committed illegalities and have also admitted that the Notices of defendant No,1 were mailed on the old address of the petrol pump though the plaintiff was never available on the address. The plaintiff's fresh address was available on record but she was never issued notices on such address and therefore, the decision of the defendant No,1 was ex parte in nature. In his comments he (Mr. Mir Hussain Ali) conceded that the lease deed of 99 years registered in favour of the plaintiff was cancelled without due process of law. In the said comments it was also admitted that the Managing Director Mr. Nisar Siddiqui was not authorized to allot the plot in dispute to the defendant No,2 without obtaining sanction by way of resolution from the Board of Directors of the defendant No,1 and or without complying with the instructions of the Government by adopting procedure provided therein. It was, therefore, suggested in the comments that a supplementary written statement be filed in this Court and the action of the Officers of the defendant No,1 in regard to cancellation of the lease in favour of the plaintiff or subsequent issuance of fresh lease in favour of defendant No,2 both were wrongful actions and need not be defended. In the face of this material which was brought on record and the witness has not been confronted in the cross-examination nor the documents was challenged by either counsel and were exhibited without any objection, I am of the considered view that the plaintiff was never served with proper notice prior to cancellation of her lease and, therefore, Issue No,1(a) is decided in negative.
9. In regard to Issue No,1(b) the plaintiff's witness has produced the comments Exh.P/24/b which is a letter of the Managing. Director of defendant No,1. In this letter it was admitted that prior to subletting the plot to the defendant No,2 the plaintiff had sought permission from the defendant No,11 and, therefore, in view of this admission by the defendant No,1 there is hardly any ground available with the defendant No,1 to cancel the lease of the plaintiff on account of subletting. I, therefore, hold Issue No,1(b) in affirmative.
10.In view of the aforesaid evidence Issue No,1 is also decided in affirmative, as the plaintiff was never served with the different notices issued by the defendant No,1. All these notices which the plaintiff had produced and were procured by her by addressing different letters and complaints to the defendant No,1 and the other officials, which has been brought on record as different exhibits.
Moreover, admittedly, lease of the plaintiff was a registered instrument, which the defendant No,1 has cancelled unilaterally. The law does not provide a registered instrument to be cancelled by a party without intervention of the Court of competent jurisdiction. A registered instrument could only be cancelled by recourse to filing of proceedings under section 39 of the Specific Relief Act and unless there is decree by the competent Court the registered instrument remains intact, besides the fact that such property was, otherwise, mortgaged with the defendant No,3 with the permission of the defendant No,1.
11. Issue No,2 is dependent upon the Issue No,1. Since the plaintiff was never served with the notice of the defendant No,1, the registered lease deed in favour of the plaintiff was admittedly not cancelled through intervention, of a Court of competent jurisdiction; therefore, subsequent lease in favour of the defendant No,2 was illegal and invalid. Even otherwise, in terms of the comments of the Succeeding Managing Director of the defendant No,1 produced as Exh.P/24/b by the subsequent lease in favour of the defendant No,2 was issued unauthorizedly by Mr. Nisar Siddiqui, the then Managing Director, SITE, who was never authorized to issue such lease unless the, Board of Directors pass resolution authorizing grant of such lease. Admittedly, in the said comments no Board resolution was passed which could authorize Mr. Nisar Siddiqui to lease out the plot in favour of defendant No,2 was illegal. For the foregoing reasons Issue No,2 is answered in negative.
12. In regard to Issues Nos.3 and 4 the plaintiff has not led any evidence except that she has established that the action of defendant No,1 was illegal and on account of such action the plaintiff was compelled to withdraw rent proceedings from the Court of Rent Controller which she had tiled on the ground of default of the defendant No,2. It is, however, could not be denied that the plaintiff did suffer mental agony for which I direct the defendant No,1 to compensate the plaintiff by making payment in the sum of Rs,30,000 per year from the date of cancellation of the lease of the plaintiff till the date of judgment on account of their illegal acts with mark-up at the prevalent bank rate till the entire amount is paid to the plaintiff. The plaintiff, however, is not entitled to the relief of possession as mere execution of lease in favour of the defendant No, 2 which has no legal status would not change the relationship between the parties once it is held that the cancellation of lease in favour of plaintiff was illegal. The issue of default by the defendant No,2 would remain open to be 'determined by the appropriate forum. The plaintiff has produced the tenancy agreement (lease deed)' executed between her and the defendant No,2 and in terms of clause 2(b) of the said instrument the payment in regard to rent of the plot was the obligation of the defendant No,2 which the defendant No,1 has appeared to have already recovered from defendant No,2. It is, however, clarified that any outstanding dues of the subject plot which are not covered by the tenancy agreement between the plaintiff and the defendant No,2 and are , unpaid by the plaintiff, the defendant No,1 may deduct such amount from the compensation which have ordered and if the dues exceed to the amount of compensation than the plaintiff shall make the payment to the defendant No,1 on service of notice after hearing the plaintiff.
13. After examining the entire case, I found this is case of extreme highhandedness by the officers of defendant No,1 in particular the then Managing Director Mr. Nisar Ahmed Siddiqui and the then Secretary Mr. Aftab Ahmed Khatri who had signed the written statement and sworn affidavit in support of Written statement filed on behalf of defendant No,
1. These officers have abused their authorities being public functionaries by concealing the record from this Court which was subsequently brought to the notice of this Court by way of comments which Mr. Mir Hussain Ali the succeeding Managing Director had signed. The Public functionaries are obliged in law to discharge their duties fairly and in the present proceedings these two officers appear to have overstepped all the norms of law in order to deprive the plaintiff from her valuable rights to enjoy her property which she has lawfully acquired by virtue of a registered document and in this respect the officers had given undue favour to defendant No,2. The action of these two officers namely Mr. Nisar Ahmed Siddiqui and Mr. Aftab Ahmed Khatri clearly falls within the mischief of maladministration' as defined under section 2(2) of the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991 (hereinafter referred to as the 'Act').
14. For the aforesaid exceptional circumstances, office is directed to immediately refer the matter to the Hon'ble Ombudsman under section 9 of the Act to investigate the actions of both these officers in regard to cancellation of lease of the plaintiff and subsequent execution of lease in favour of the defendant No,2 and may join any other officer of the defendant No,1 whom he feels is also instrumental in the said act of maladministration and may pass appropriate orders in terms of the Act as this matter exfacie falls within the mischief of 'maladministration'.
15. For the aforesaid reasons I had decreed the suit with costs by my short order dated 31-1-2003.