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First Appeal No. 183 of 1960, decided on 16th January 1963.

Order under S. 18 can be sought or directed only against licencee or tenant whose permission or tenancy has been validly determined or withdrawn‑Person neither treated as licencee nor tenant--Absence of withdrawal of permission or determination of tenancy--rder for possession obtained under S. 18, in such circumstance, not valid and amounts to act of trespass under S. 24.

Nur Muhammad for Appellants.

Muhammad Siddiq Nizamani for Respondent.

Dates of hearing : 15th and 16th January 1963.

This first appeal is directed against the judgment and decree passed by the District Judge, Karachi on 24‑5‑60 in Suit No. 1412/59 under section 24 of the Karachi Small Causes Court Act.

2. The material facts are these : The landlords in this case are the Karachi Port Trust. They owned the premises in question which had been let out on rent to one Gulab Khan. The occupant of these premises at the material time was the defendant Saeed Ahmad. A notice was sent by the Karachi Port Trust to Saeed Ahmad on 28‑1‑54 requiring him to quit on pain of a suit of ejectment. It will be convenient to reproduce this notice because, in our opinion, the decision in this matter turns largely upon it

"Subject.‑Ejectment from quarter No. 573, Keamari village.

This is to state that quarter No. 573, Keamari village, stands in the name of Gulab Khan, while you have occupied the said quarter unauthorisedly which is against the tenancy rules. This quarter has neither been allotted to you by the Port Trust nor sub‑letting is allowed under Port Trust Rules.

This is, therefore, to give you formal notice to quit and vacate the said premises by the end of next currency month i.e. 28‑2‑54 failing compliance a suit of ejectment will be filed against you in a Court of law and you will be liable for costs and consequences which please note."

Saeed Ahmad did not comply with the notice and so an application was made under section 18 of the Karachi Small Causes Court Act by the K. P. T. against Saeed Ahmad on 15th March 1957. The Karachi Post Trust had already obtained a certificate under section 10 of the Karachi Rent Restriction Act from the Rent Controller. An order for possession was passed by the Chief Judge, Small Causes Court, Karachi on 20th March 1958 and when the writ of possession was issued the occupant Saeed Ahmad who is the respondent before us obtained a stay under section 24 of the Act and followed it up by the suit from the judgment of which the present appeal arises.

3. In this suit the plaintiff Saeed Ahmad raised the following three contentions upon which the validity of the order for possession passed under section 18 was challenged. These are

(i) That the notice to quit dated 28‑1‑54 was not valid;

(ii) that the ejectment application was not maintainable ; and

(iii) that the order of ejectment passed by the Chief Judge, Karachi Small Causes Court was not a valid and legal order.

On these premises the plaintiff prayed for a decree for compensa tion of Rs. 200 for trespass and a declaration to the effect that the Karachi Port Trust were not entitled to possession of the premises in question viz. quarter No. 573 at the time of the filing of the ejectment application No. 132/57. Issues were framed by the learned District Judge upon these points which had been contested by the defendants. The issues are

"(1) Whether the notice to quit dated 28‑1‑54 a valid and legal notice

(2) Whether Ejectment Application No. 132 of 1957 is maintainable

(3) Whether the order of ejectment dated 20‑3‑58 passed by the Small Causes Court is a valid and legal order

(4) What should be the decree "

On the first issue the learned District Judge held that the decision of it was not necessary for the decision of the case. He then pro ceeded to consider the issues 2 and 3 together and the conclusion that he reached upon these two issues was that in so far as the K. P. T. were contesting the fact that the plaintiff was their tenant‑a fact which was asserted by the latter in the plaint and that the same position was maintained by the K. P. T. in the evi dence, the proceedings under section 18 of the Karachi Small Causes Court Act were not valid and the defendant (K. P. T.) did not have a legal remedy against the plaintiff before the Small Causes Court. Upon these findings he decreed the plaintiff's suit.

4. With regard to the findings of the learned District Judge on issues Nos. 2 and 3 we find that they were much too easily reached and we are of the opinion that they cannot be upheld in the context in which they were given. Mr. Nizamani, the learned counsel for the plaintiff respondent produced before us a true copy of the ejectment application which was filed by the defend ants K. P. T. under section 18 in the Small Causes Court. Nowhere in this application has Saeed Ahmad been described as an unauthorised occupant. Even in the written statement filed in the present suit the position taken by the defendants in answer to para. 1 of the plaint, in which the plaintiff had asserted his tenancy, was that the plaintiff was not a tenant of the defendants as his tenancy was validly determined by the defendants' notice dated 28th January 1954. Inasmuch as the K. P. T. had not described Saeed Ahmad as an unauthorised occupant or a trespasser in their application under section 18, the learned District Judge was not right in holding upon that ground that the proceedings before the Small Causes Court were not valid, nor was he justified in rejecting the order of the Rent Controller upon that ground.

This, however, does not conclude the matter. We are of the opinion that the decision of the first issue with regard to the notice was necessary for the determination of this suit. We have repro duced the notice to show that the occupant Saeed Ahmad, to whom it was addressed, was described in it as an unauthorised occupant, and that the premises stood in the name of Gulab Khan and that sub‑letting was not allowed under the Port Trust Rules. In this notice no tenancy was determined nor was any permission withdrawn such as is contemplated in section 18 of the Karachi Small Causes Court Act. It may now be convenient to repro duce section 18 :‑

"18. When any person has had possession of any immovable property situate within the local limits of the Court's jurisdic tion and of which the annual rental value does not exceed two thousand rupees, as the tenant, or by permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn, and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property."

This section provides a quick remedy by a summary procedure for the possession of a premises occupied by a tenant or a licensee.

Under this section an order for possession can be sought either by the landlord or by a licensor or by any person claiming through them and the order is to be directed against the licensee or the tenant whose permission or tenancy as the case may be, has been validly determined or withdrawn. In the present case on the showing of the notice (Exh. 5‑A) sent by the K. P. T. itself it is clear that Saeed Ahmad was not treated as a licensee or al tenant, nor was there any withdrawal of any permission or determination of any tenancy relating to him. In fact, when there was no such tenancy or such permission, the question of its determination or withdrawal did not arise. Upon the position taken by the K. P. T. the remedy which was open to them was to file a regular suit for possession against Saeed Ahmad and not by resort to summary proceedings under section 18 of the Karachi Small Causes Court Act. In order that section 18 may be pressed into action, there should have been a tenancy or a permission which has to be validly determined or withdrawn. This was not done in this case as would appear from Exh. 5‑A. From this it must follow that the order for possession passed by the Chief Judge, Small Causes Court was not validly passed and that by a fiction of law the obtaining of such order amounts to an act of trespass.

5. The next question for consideration is as to whether the relief, which was sought by the plaintiff in this suit and which was granted in toto by the learned District Judge, should be granted to him. It must be noted that it was the case of the plain tiff himself that he was the tenant of the defendants. He was not claiming himself to be a trespasser or an unauthorised occupant. Therefore, the result that has followed is really due to mismanage ment of its case by the K. P. T. itself. We are, therefore, of the opinion that a nominal compensation of Rs. 10 would meet the ends of justice. We are further of the opinion that the declara tion granted by the learned District Judge cannot be maintained. Such a declaration is not contemplated within the scope of section 24 of the Karachi Small Causes Court Act which is a peculiar kind of remedy. We would, therefore, refuse that relief to the plaintiff. In the result the order under section 24 would be limited to one for compensation of Rs. 10 on the ground of trespass and this order will take the place of the order passed by the Chief Judge, Small Causes Court under section 18 of the Act. We, therefore, dismiss the appeal with the qualification which we have noted earlier. In the circumstances of the case we order that the parties shall bear their costs throughout.

R. B. A.

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