1987 PLP 1566 (CLC)

(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