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High Court Appeal No.144 of 1986, decided on 16th April, 1987.

‑‑‑O.XXXIX, Rr. 1 & 2‑‑Specific Relief Act (I of 1877), S. 9‑‑"Settled possession"‑‑Connotation‑‑Trespasser prima facie is not entitled to an equitable relief for an interlocutory injunction for restraining the owner of the property to put it to use or to use it with some restraint‑‑Mere fact that non‑grant of ad interim injunction would render suit infructuous was not sufficient to warrant the grant of ad interim injunction.‑‑[Words and phrases]

The words "settled possession" have a definite connotation, namely, that the person should have been inducted into possession by the owner or by the person entitled to transfer the possession under some title, for example as a tenant or lessee. The position of a trespasser is not better than a licensee.

A trespasser prima facie is not entitled to an equitable relief for an interlocutory injunction for restraining the owner of the property to put it to use or to use it with some restraint.

The mere fact that non‑grant of ad interim injunction would render the suit infructuous is not sufficient to warrant the grant of an ad interim injunction.

Azim Khan v. State of Pakistan and another P L D 1957 (W.P.) Kar. 892 ; Siddiq Ahmed v. Estate Officer Government of Pakistan and another P L D (1957) W.P. Kar. 887 and Arts Council of Pakistan v. Riazuddin Pirzada P L D 1969 Kar. 349 ref.

M. Qadir H. Syeed for Appellants.

Sabir Hussain Kizalbash and Muhammad Sharif for Respondents.

Date of hearing: 8th April, 1987.

.‑‑This appeal is directed against an order dated 24‑8‑1986 passed in Suit No.304 of 1986 whereby a learned Single Judge of this Court was pleased to grant Ad interim injunction against the present appellants in the following terms:-----

"On perusal of order dated 7th of May 1986 there does not seem to be any restraint on the defendant No.2 from raising any construction or making commitment to the third party. The injunction order prohibits the defendants from "selling or transferring the land on which the plaintiffs factory was situated." The learned counsel contends that the prohibition for raising the construction is contained in another order in proceedings before D.B. If that is so then that order could not be modified or cancelled in these. proceedings. The learned counsel should agitate grievance there. So far as this Court is concerned, the order prevent the defendant No.2 from selling or transferring the land which in the circumstances seems to be very fair. The order is confirmed."

2. The brief facts leading to the filing of the above appeal are that respondent No.3, that in Karachi Development Authority allotted plot of land bearing No.L/A‑I, situated in Scheme No.16 block No.21 Federal B. Area, Karachi measuring 23096 sq. yards, hereinafter referred to as the suit plot to Messrs National Rubber and Plastic Industries Ltd. hereinafter referred to as the allottee. Whereas respondent No.2, Javed Akbar was also an allottee of certain plot in the vicinity. It appears that a stip, measuring 5025. 87 sq. yards, hereinafter referred to as the strip, adjacent to the suit plot became available. It is the case of the respondent No.2 that the K.D.A. approved the allotment of the said strip in favour of respondent No .2 but in 1974 the allottee also applied for the allotment of the strip and that the allottee also occupied some portion of the said strip unauthorisedly. Eventually the strip was allotted to the allottee on the ground that it was adjacent to their plot. Respondent No.2 filed Suit No.760 of 1981 for declaration that he was entitled to the allotment of the strip and for injunction in this Court in respect of the said strip. He also filed an application for ad interim injunction which was dismissed by a learned Single Judge by order dated 31‑8‑1982. High Court Appeal No.60 of 1982 filed against the above order was dismissed by a Division Bench in limine by its order dated 2‑12‑1982. Respondent No.2's aforesaid suit was dismissed on 27‑11‑1984. The H.C.A. No.25 of 1985 filed against the above judgment decree of the dismissal was also dismissed by a Division Bench of this Court by judgment dated 24‑2‑1987. It seems that a portion of the strip measuring 1600 sq. yards, hereinafter referred to as the said portion, was encroached upon by respondent No.2 which according to respondent No.l was passed on to it upon which he installed a factory for manufacturing cement thrazo tiles. It appears that on 30‑1‑1985 the K . D . A's authorised Officer concerned served a notice on respondent No.2 under M.L.O. 202 for the removal of the encroachment on the above portion of the strip measuring 1600 sq. yards. It may b pointed out that the receipt of the above notice has been denied by respondents 1 and 2. Be that as it may, the respondent 1 and 2 were ejected from the aforesaid said portion of the strip in 16‑2‑1986 and the possession thereof was given to the allottee who passed on the same to the appellant who had purchased the suit land and the strip from the allottee under an agreement dated 30‑1‑1984 and started raising construction in the form of town houses. Respondent No.l filed suit No.128 of 1986 in this Court for recovery of rupees 22 lacs against the allottee and the appellant for allegedly causing damage to their property while removing them from the portion of the strip on 16‑2‑1986. The above suit is still pending. In addition to this respondents No.l and 2 filed the above suit No.304 of 1986 under section 9 of the Specific Relief Act, hereinafter referred to as the Act for restoration of the possession. In the above suit they also moved an application for an ad interim injunction which was allowed in the above terms by the order under appeal dated 24‑8‑1986. The appellant being aggrieved by the above order has filed the present appeal.

3. In support of the above appeal Mr. Qadir Hussain Sayeed, learned counsel for the appellant has urged as follows:‑

(1) that since respondents 1 and 2 were ejected from the encroached portion of the strip under M.L.O. 202, their aforesaid suit was barred by virtue of Article 270‑A of the Constitution.

(2) That the suit was barred by Article 131 of the K . D . A . Order.

(3) That since a trespasser cannot obtain a permanent injunction, the learned Single Judge could not have granted an ad interim injunction as admittedly respondents 1 and 2 were trespassers on the portion of the strip.

4. Mr. Sabir Hussain Kizalbash, learned counsel for the K . D. A . supported the above appeal and vehemently submitted that respondents 1 and 2 were ejected by due process of law after due service of the notice and, therefore, they were not entitled to an ad interim injunction being trespassers.

5. Mr. Muhammad Sharif learned counsel appearing for respondents 1 and 2 has submitted as follows:‑----------

(1) That since respondents 1 and 2 were ejected on 16‑2‑1986, the provision of Article 270‑A of the Constitution cannot be pressed into service as it covers the actions taken upto 30‑12‑1985.

(2) That since respondents 1 and 2 were ejected in violation of the M.L.O. 202 in as much as they were not served with a mandatory notice, the action of the K . D . A . was coram non judice and without jurisdiction and, therefore, the protection is not available in view of the judgment of a Full Bench given in the case of Muhammad Bachal Memon v. Government of Sind and others, Constitution Petition No. D‑128 of 1986 and other connected petition on 26‑3‑1987.

(3) That Article 131 of the K.D.A. order has no application as the action was not taken or purported to have been taken under the K . D . A . Order.

(4) That since the suit filed by respondents 1 and 2 is under section 9 of the Act, it is not necessary for them to show any title to the portion of the strip and their suit is competent as they were ejected without due process of law.

(5) That since the strip had already been allotted by the K . D. A . to the allottee in 1984 and as it had already been sold alongwith allotted land in favour of appellant under the aforesaid Sale Agreement dated 30‑1‑1984, the strip was neither vested nor it was under the control or management of the K.D.A. in February 1986 as to attract M.L.O. 202.

6. In our view, it is not necessary to examine the above legal grounds urged by the learned counsel for the parties. It will suffice to examine whether prima facie respondents 1 and 2 had a case for an ad interim injunction in the terms quoted hereinabove. Admittedly the respondent No.2 and for that matter respondent No.l had no title to the portion of the strip. Prima facie they were merely trespassers. Respondent No.2's contention that he was entitled to the allotment of the strip in preference to the allottee stood culminated in the form of judgment dated 24‑2‑1987 passed in H.C.A. No.25 of 1985 maintaining the judgment and decree whereby respondent No.2's aforesaid suit No.73 of 1981 for declaration to his entitlement to the allotment and for permanent injunction was dismissed. We, therefore, called upon Mr. Muhammad Sharif to satisfy us as to whether a trespasser was entitled to obtain an ad interim injunction against owner or the allottee of the strip. He has relied upon the case of Azim Khan v. State of Pakistan and another P L D 1957 (W.P.) Karachi 892, in which a Division Bench of the erstwhile High Court of West Pakistan at Karachi allowed a Constitutional Petition against the State of Pakistan restraining it from ejecting the petitioner by force and inter alia observed as follows:‑----------

"The observation clearly implies that a person who has got settled possession cannot be evicted except through a Court of law.

After a careful consideration we have come to the conclusion that a lessor in Pakistan is not entitled to common law right of ejecting a lessee without having recourse to a Court of law and the case of State of West Bengal v. Birendra Nath Basunia and other A I R 1955 Cal. 601, was not correctly decided. These observations, however, would not apply to the case of a lessor who is also a master; nor they should be taken to apply to the case of a licensor against a mere licensee."

7. It may be noticed that the ratio decidendi of the above case is that in Pakistan a lessor is not entitled to common right of ejecting a lessee without having recourse to a Court of law. It may further be noticed that the learned Judges of the Division Bench made it clear that the above rule was not applicable to a lessor who is also a master or that in the case of a licensor and a licensee. In our view, the words "settled possession" have a definite connotation, namely, that the person should have been inducted into possession by the owner or by the person entitled to transfer the possession under some title for example as a tenant or lessee. The position of trespasser is not better than a licensee. It has been held in the above cited case as pointed hereinabove, that the legal proposition propounded in the above case namely, that a lessor cannot eject his lessee without recourse to law is not applicable to a licensor and a licensee. In this regard reference may be made to the case of Siddiq Ahmed v. Estate Officer, Government of Pakistan and another P L D 1957 (W.P.) Karachi 887. In the above case a Division Bench of the erstwhile High Court of West Pakistan at Karachi dismissed a Constitutional Petition filed by a Government servant against the threatened action of ejectment. While dismissing the above petition the learned Judges made the following observations:‑-

"The next submission on behalf of the petitioner is that the rules do not provide that the Estate Officer or anybody authorised by the Central Government could eject the petitioner without having recourse to a Court of law and that the Estate Officer in any case was not entitled to use force in ejecting the petitioner. It is true that the Rules are silent on the point and there is no specific provision authorising the Estate Officer to eject an employee. Under the common law prevalent in England it is well established that 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 the use of minimum force subject always to the condition that in doing so the master did not commit an offence. The celebrated case on the point is that of Hemmings and Wife v. The Stoke Poges Golf Club, Limited and another (1920) 1 KBD 720. We are not bound to apply the principle of common law unless we are satisfied that it is in accord with equity and good conscience. The Government reserves certain accommodations for the convenience of his employees. It is necessary that such an accommodation would easily and quickly be vacated if and when an employee loses right to retain it otherwise the very purpose of Allocation Rules would be defeated. The same convenience is needed by every master who allots an accommodation to a servant in the belief that the servant will occupy the premises so long as he is a servant and will vacate it the moment he loses the position. After careful consideration we have come to the conclusion that this principle of common law is applicable to conditions in Pakistan and should be acted upon by Courts."

It may be pointed out that in the above case the common law principle was approved in relation to a Government servant and it was held that after the termination of the allotment, he can be ejected by using minimum force.

8. We are, therefore, inclined to hold that a trespasser prima facie is not entitled to an equitable relief for an interlocutory injunction for restraining the owner of the property to put it to use or to use it with some restraint. Even the case relied upon by Mr. Muhammad Sharif does not support him as pointed out hereinabove. We are, therefore, of the view that respondents 1 and 2 had no prima facie case as to entitle them to have an interlocutory injunction. The mere fact that non grant of ad interim injunction would render the suit infructuous is not sufficient to warrant the grant of an ad interim injunction. In this behalf reference may be made to the case of Arts Council of Pakistan v. Riazuddin Pirzada P L D 1969 Kar. 349 in which Dorab Patel J, as he then was, had dilated upon this aspect inter alia in paras 5 and 6.

9. We, therefore, allow the above appeal and set aside the order under appeal with no order as to costs.

Before parting with the above discussion, we may observe that the observations made hereinabove are tentative in nature, and, therefore, they are to be ignored while disposing of the suit at the stage of regular hearing.

M. B. A./S‑34/K Appeal allowed

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