Find a Lawyer

Suit No. 694 of 1983, heard on 10th January, 1984.

‑‑ Ss. 112 & 113‑Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2‑Temporary injunction restraining from ejectment‑Conditions for grant of‑Defendant accepting rent from plaintiff for period sub sequent to notice of eviction as such--Plaintiff' prima facie showing lease in his favour still subsisting‑Balance of convenience also in favour of plaintiff as he was likely to suffer irreparable loss if he was not granted temporary injunction as he might be dispossessed while his lease prima facie subsisted‑Defendants on other hand not likely to suffer any inconvenience as they would be entitled to receive lease money‑‑Temporary injuction granted in circumstances.

---S. 87‑Port Authority Land and Building (Recovery of Possession) Ordinance (XXIX of 1962), Ss. 3 (1) & 29‑Civil Procedure Code (V of 1908), O. VII, r. I1‑Notice issued to plaintiff for handing over possession to defendant under S. 3(1) of Ordinance‑‑Plaintiff filing suit for declaration and injunction‑Defendant objecting to maintain ability of suit under S. 87 of Act‑Held: Eviction of plaintiff is sought under provisions of Ordinance XXIX of 1962 and not under Karachi Port Trust Act‑Bar of S. 87 of Act, therefore, not attracted.

Syed Sami Ahmed for Plaintiff.

Hamid Hussain for Defendant.

Date of hearing : 10th January, 1984,

This order will govern the disposal of C. M. As. No. 4076/1983 and 4272/ 1983, C.M.A. No. 4076/ :983 is filed by the plaintiff under Order XXIX, rules 1 and 2 read with section 151, C.P.C. praying for a temporary injunction against the defendant restraining it from evicting the plaintiff from Plot No. 61, admeasuring 814 square meters or thereabout situated in Keamari, Karachi, during pendency of the suit. The other application (C. M. A. No. 4272/1983) is moved by the detendant, for rejection of the plaint under Order VII, rule 11, C.P.C. on the ground that the present suit is barred in view of the provisions of section 87 of the Karachi Port Trust Act.

The admitted position in the case is that the plaintiff is the lessee of plot in suit which was leased out in his favour by the defendant for a period of 25 years commencing from 15‑3‑1979. The plaintiff sub‑leased a portion of the plot to Messrs Javaid Industries under an agreement, dated 7th February, 1981 which inter alia provided that if the agreement is terminated before the expiry of the due date on account of any interference by the Government or cancellation of the lease agreement by the K.P.T. the lessee shall vacate the premises. It appears that after entering into the aforesaid agreement with Messrs Javaid Industries, the plaintiff approached the defendant for obtaining their approval to the sub‑lease in accordance with the terms contained in the lease agreement executed between the plaintiff and defendant. The defendant by their letter, dated 29th July, 1981. informed the plaintiff that his request for permission to sublet a portion of the plot to Messrs Javaid Industries, is under consideration. However, on 21st December, 1981 the defendant informed the plaintiff that his request for subletting a portion of plot to Messrs Javaid Industries, has been turned down by the Board of defendant, and accordingly the plaintiff was asked to remove the Garment Industry from the premises within a week of the receipt of the letter. The plaintiff after receipt of the above letter again approached the defendant for giving the necessary sanction for keeping the sub‑tenant in the premises but the defendant again refused his request. The plaintiff accordingly on 5th December, 1982 asked the sub‑lessee (Javaid Industries) to vacate the premises in view of the refusal of permission to plaintiff by the defendant to sublet the premises to them. The plaintiff simultaneously also informed the Chairman of defendant that in view of the refusal of permission by the defendant, the sub‑tenant Messrs Javaid Industries, has been asked by the plaintiff to remove their Garments Industry. On 26th June, 1983 the defendant issued a notice to the plaintiff under section 3(l) of the Port Authorities Land and Building (Recovery of Possession) Ordinance (XXIX of 1962), alleging that as a result of subletting of a portion of the premises by the plaintiff to Messrs Javaid Industry, the lease in favour of plaintiff has been forfeited by the defendant and, therefore, the plaintiff was asked to band over its possession to the defendant in accordance with the provision of Ordinance XXIX of 1962. It appears that after service of above notice on the plaintiff, the defendant demanded and recovered rent of the premises leased out to plaintiff for the period July, 1983 to December, 198.5. The plaintiff alongwith the plaint has produced a photostat of the original paid copy of challan under which the defendant accepted rent from the plaintiff for the period from 1.7‑1983 to 31st December, 1983. The genuineness of this document is not disputed by the defendant. The defendant, in the meantime moved the authorised officer under section 3(3) of the Ordinance XXIX of 1962, for eviction of plaintiff from the premises.

Learned counsel for the plaintiff contends that the lease granted to the plaintiff by the defendant is still valid and subsisting as after service of notice to suit, the defendant accepted the rent from plaintiff for the period subsequent to the notice. It is not disputed by the learned counsel for the defendant that the lease between the parties is governed under the provisions of Transfer of Property Act. It is however contended on behalf of defendant that more acceptance of rent by the defendant, in the circumstances of the case, did not amount to waiver of notice within the meaning of sections 112 and 113 of the Transfer of Property Act. It is urged that the rent was accepted by the defendant after institution of ejectment proceedings against the plaintiff and therefore, the case is covered under the proviso to section 112 of the Transfer of Property Act. The present material on the record however, does not disclose the date on which the defendant applied for eviction of plaintiff from the premises to the authorised officer under Ordinance XXIX of 1902. Therefore, on the basis of present material it cannot be said that the defendant accepted rent from the plaintiff for the period subsequent to the notice of eviction which was after institution of ejectment proceedings against him. Therefore, the plaintiff prima facie has succeeded in showing that the lease granted in his favour is still subsisting. The lease in favour of the plaintiff is valid upto 14th March, 2004 and whether it was validly cancelled by the defendant on account of the alleged breach of covenant on the part of the plaintiff, is yet to be established at the trial of suit. The effect of acceptance of rent by the defendant subsequent to the date of notice of forfeiture, will also be determined finally at the trial of the suit in the light of evidence which may be produced by the parties. For the present I find that the plaintiff has made out a prima facie case for grant of injunction. The balance of convenience is also in favour of the plaintiff and he is likely to suffer irrepar able injury if the grant of temporary injunction is withheld as he may be dispossessed from the premises in the meantime while the lease in his favour prima facie, is still subsisting. On the other hand the defendant are not likely to suffer any inconvenience at all, as they will be entitled to realise the lease money during the trial of the suit. The next question which now remains to be determined is, whether the present suit is hit by the provisions of KPT Act. The learned counsel for the defendant contends that the action of cancellation of lease of the defendant for the alleged violation of the covenant contained in the lease agreement, has been taken by the Board of defendant under the provisions of KPT Act, and as such the present suit cannot be instituted without serving a prior notice as contemplated under section 87 of the KPT Act. On the other hand the learned counsel for the plaintiff contends that the termination of lease is against the terms of lease and for reasons other than those which are contemplated under the Act. Alternatively it is contended that after the termination of lease the defendant accepted the rent for the period subsequent to the notice, which rendered the forfeiture of lease and notice to quit ineffective under the law. It is accordingly urged on behalf of plaintiff that provisions of section 87 of KPT Act, are not attracted in the present case. The issues raised by the plaintiff are serious questions of law which can only be decided at the trial of suit. At present it is sufficient to say that the present suit is not only for declaration but a permanent injunction against the threatened eviction of plaintiff from the premises is also claimed. The eviction of plaintiff from the premises is sought under the provisions of Ordinance XXXIX of 1969 and not under KPT Act. Therefore, to that extent it is prima facie, clear that in so far the relief against eviction claimed in the suit, is concerned, the same is not hit by the provisions contained in section 87 of the K. P. T. Act. However, the observations regarding maintainability of suit are only tentative in nature and will not debar the defendant from raising these pleas at the trial of the suit. As a result of above discussion the application under Order VII, rule 11, C. P. C. filed by the defendant is rejected but the application filed by the plaintiff under Order XXIX, rules 1 and 2, C.P.C. is granted as prayed subject to the condition that the plaintiff shall continue to pay the future lease money to the defendant as and when becoming due in accordance with the terms of lease during pendency of suit but acceptance of the same by the defendant as aforesaid will not prejudice it in any manner in its defence in the suit. The two applications are disposed of accordingly.

M. B. A. Applications disposed of.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.