P L D 1969 Karachi 227 (PLP)

This revision petition is directed against the order dated the 17th of April 1967, of the Additional District Judge, Karachi, in Civil Miscellaneous Appeal No. 48 of 1967, allowing the appeal filed by the respondents and issuing an injunction, prohibiting the petitioner from putting up any more construction on the plot in dispute and directing a status qui, to remain till the final disposal of the suit.

2. This revision has arisen out of a civil suit filed by the respondents for possession, injunction and mesne profits against the petitioner in respect of Plot No. B/66, measuring 4.66 acres of land which was originally leased out to Messrs Khaliq & Company by a registered sale deed dated the 6th of May 1961. The petitioner, Haroon E. H. War, with the consent of the respondents, became the assignee of the lease under a tripartite agreement dated the 11th of October 1961, in consideration of Rs. 1,50,000.00. It appears that the petitioner wanted to raise further construction on the plot in dispute and in terms of covenant 2 (13) of the, lease deed he asked for the prior permission of the respondents for the same. The respondents having failed to take action in this regard, the petitioner started the new construction on the plot in dispute. The respondents considered it as a breach of covenant 2 (13) whereby the lessee was prohibited from any new construction over the plot without the prior permission of the plaintiffs. They, therefore, claim‑.d re‑entry on the plot in dispute by virtue of clause 4 of the lease deed and filed Suit No. 285 of 1957 in the Court of Civil Judge 1st Class, Karachi, for possession, injunction and mesne profits.

3. After filing the suit as mentioned above, the plaintiff respondents prayed for an interim injunction, prohibiting the defendant‑petitioner from raising any new construction which prayer was granted. The learned Civil Judge, however, by order dated the 13th of March 1967, vacated the injunction on the undertaking given by the petitioner that he would forego the construction raised by him in the event the Court comes to the conclusion that the lease has rightly been determined and the respondents had a right of re‑entry, or in the event the lease comes to an end with the expiry of the lease terms. This order was challenged in the above miscellaneous appeal and the learned Additional District Judge, as already mentioned, accepted the appeal and issued an injunction to the petitioner, prohibiting him from raising any new construction on the plot in dispute. By this revision the petitioner seeks to challenge this order of the learned District Judge before me.

4. Before dealing with the contentions raised by the parties it will be convenient to mention at this stage that on the plot in dispute there is a Pentad Hanger which was used as a godown storage by the original lessee. The lease is for a term of ten years, renewable from time to time at the option of the lessee for further periods of ten years each. It is not disputed that by letter dated the 29th of March 1932, the respondents had permitted to manufacture and assemble all sorts of automobiles, including buses, trucks, tractors, trollies, running a workshop and all allied and connected engineering works, as also a service station with petrol and diesel pumps for use of machinery etc. It appears that the petitioner was also entrusted with urgent Defence Works of the Pakistan Army for assembling the trollies and other Military Vehicles. For this ,purpose the petitioner desired to raise godowns, assembling plant, workshop, office blocks, canteen and a mosque, and in terms of clause 2 (13) of the lease deed he submitted his plans for scrutiny by the respondents under a covering letter dated the 11th of April 1966. The respondents, instead of sanctioning the above plans or rejecting them, by letter dated the 8th of June 1966, objected that the petitioner had started unauthorised construction and called upon him to deposit Rs. 2,000.00 as security and to give an undertaking that while vacating or surrendering the plot he would remove all the additional structures erected on it and further demanded an undertaking that he shall also make good any damage caused to their Pentad Hanger by the proposed building. It is not disputed that the respondents did not take any firm decision on the request for permission sought by the petitioner. On the other hand, they treated the construction raised by him as a breach of covenant 2 (13) and filed the above suit for possession, injunction and mesne profits.

5. The main question for consideration in this revision petition is whether, in the circumstauces of the present case, the learned Additional District Judge was justified in granting an injunction to the respondents, prohibiting the petitioner from raising further construction on the plot in dispute. it is correct that under clause 2 (13) of the lease deed, operative between the parties, the lessee or his assignee, is not authorised to raise any new construction without the permission of the landlord and if a breach is committed of this prohibition, it can result in the forfeiture of the lease. It is, however, for consideration whether the landlord can unreasonably withhold sanction for the new construction or whether, on the facts of the present case, it can be held that the petitioner has been guilty of breach of the above‑mentioned covenant. These are intricate questions of law and fact and must be gone into and determined at the trial stage of the suit. In the revisional jurisdiction I can only say that such a covenant is not a novation and there is ample authority for the proposition that a landlord cannot withhold sanction on unreasonable grounds. In case the landlord does so, it is open to the tenant either to proceed with the construction or to file a suit for declaration. These are well established principles recognized under the English Law. The law on this point, as stated in Paragraph 1284 in Halsbury's Laws of England, Volume 23, is to the following effect:‑ "A breach of an express covenant against making alterations or erecting new buildings will be enforced by injunction. In general, the covenant will be construed so as to forbid alterations which would affect the form or structure of the building. A covenant against making alterations without licence or consent is, however, deemed to be subject to a proviso that, if the proposed alteration constitutes an improvement, such licence or consent is not to be unreasonably withheld." The learned author, in Paragraph 1286, under the heading "Tenant's remedy where consent is unreasonably refused", has observed as follows:‑ "An unreasonable refusal of consent entitles the tenant either to make the improvements without any further request for consent, or to bring an action for declaration that the landlord has unreasonably withheld his consent."

6. Mr. Ibadat Yar Khan, learned counsel for the petitioner, has drawn my attention to the fact that when this Court stayed the operation of the order of the learned Additional District Judge by an ad interim order, the respondents moved Civil Petition for Special Leave to Appeal No. K‑59 of 1967 which was dismissed by the Supreme Court by their order dated the 24th of May 1967. Their Lordships, while refusing to grant Special Leave to Appeal, observed as under:‑‑ "The plans of the construction were submitted by the respondent (Petitioner in this Revision) on the 11th April 1966, to the petitioners (respondents in this Revision) for sanction. On 8th June 1966, the petitioners wrote to the respondent, asking for a deposit of Rs. 2,000.00 as security and the furnishing of an undertaking that he would remove all structures put up on the site on the expiry of the lease. Both these demands were complied with and the plans are still awaiting sanction with the petitioners. It does not appear that the petitioners have taken any steps so far to consider whether approval to the plans should be accorded or not. The ban not being absolute and the covenant, it seems to us that it is the duty of the petitioners to give early attention to the question of the approval of the plans and to give a decision on the merits. Mr. S. A. Samad Khan, who appeared for the petitioners, attempted to argue that the respondent was not; allowing the petitioners' officers to inspect the site a measure considered necessary before accord of sanction to the plans. We are not convinced that this is so. The petitioners can give a notice to the respondent of the intended visit of their Engineers for the purpose." It will be noticed that their Lordships, prima facie, were of the view that the ban not being absolute under the covenant it was the duty of the respondents to give early attention to the question of the approval of the plans and to give a decision on the merits. In spite of this, the respondents have not taken any action in this connection so far.

7. During the course of the arguments in this revision petition, I inquired from Mr. Samad Khan, learned counsel for the respondents, as to the nature of objections which the respondents have on the raising of the new construction, but the learned counsel was not in a position to disclose them. His only argument is that this being a case of restrictive covenant, the Courts have no alternative but to grant an injunction only to the respondents. In support of his contention he has relied on a decision of the House of Lords in Richard Wheeler Doberty v. James Clagston Allman & W. C. Dowden ((1878) 3 A C 709). He has further placed reliance on another English decision reported as Achilli v. Tovell ((1927) 2 Ch. D 243). Both these cases are distinguishable. In the first case, it appears to me that the learned Lord Chancellor at page 720 of the report has only made some observations which are in the nature of obiter dicta. In the second case, the question was in respect of a restrictive covenant, affecting another building, and it was in that context that it was held that such a covenant should be strictly enforced. The position in the present case is quite different. This is a case in which the landlord has reserved to himself the right to give consent for future construction on the plot in dispute and, in my view, the question whether such a consent can be withheld is to be determined in the light of the objections, if any, to be raised by the respondents, thus providing an opportunity to Court to test the reasonableness or otherwise of the objections. Unfortunately, in the present case, there is nothing on the record to show the nature of the objections which the respondents have got as to the construction which the petitioner is raising on the plot in dispute which, being situated in an Industrial area, is meant for industrial purposes. Prima facie, it seems to me that there must be very convincing and cogent grounds for the respondents to withhold the sanction pertaining to the construction which is being erected on the plot in dispute. I should, however, not be taken to be expressing any view on the merits of the case. This is yet to be determined at the trial.

8. The respondents have already treated the raising of the construction as a breach of clause 2 (13) of the lease deed and they have asked for possession of the property on the ground of forfeiture. The trial Court vacated the injunction on the undertaking given by the petitioner that he would forego the construction raised in the event the Court holds that the lease has been rightly determined and that the respondents have a right of re‑entry. Moreover, in their letter dated the 8th of June 1966, the respondents demanded security for Rs. 2,000.00 which was deposited by the petitioner. The respondents also demanded an undertaking that while vacating or surrendering the plot the petitioner shall remove all additional structures erected by him and would compensate the respondents for any damage caused to their Pentad Hanger. It is not disputed that these undertakings were given by the petitioner. After hearing the learned counsel for the parties, I am satisfied that this not being a case of absolute ban of construction, the contention of the learned counsel for the respondents that the Court has got no discretion, except in granting an injunction to the respondents, has prima facie not impressed me. The principles on which temporary injunctions are granted are well‑settled. A plaintiff, in order to succeed, has to make out a prima facie good case and must further establish irreparable loss or injury that is likely to be caused in the event an injunction is not granted. The balance of convenience and inconvenience is the third important principle which must invariably be taken into consideration. In the present case, even if it is assumed for the sake of argument that the respondents have made out a good prima facie case, I am not satisfied that the balance of convenience lies in their favour. The learned Additional District Judge has not approached this question in a proper and legal manner. Instead of considering the irreparable loss which was likely to be caused to the respondents, he has proceeded to consider the irreparable loss which would ultimately be caused to the petitioner in the event he raised or completed the construction. Such an approach is wholly untenable and not permissible in law. The correct position is that if the injunction granted by the learned Additional District Judge is maintained, the petitioner will not be able to carry on his business, thereby retarding the ability of the petitioner to comply with the orders of the Defence Department which the petitioner has received in respect of manufacture of trollies etc., and assembling of Military vehicles. The material collected by the petitioner for raising the construction is most likely to be wasted. On the contrary, if the injunction granted by the learned Additional District Judge is vacated, the respondents will not suffer any irreparable loss because the petitioner has already given an undertaking that whatever construction is raised by him will belong to the respondents and he will forego all rights in the construction if it is ultimately found that the respondents are entitled to the possession of the plot in dispute on the ground of forfeiture. I am, therefore, satisfied that the learned Additional District Judge has not exercised the discretion vested in him as an appellate Court, in accordance with law. He failed to notice that the discretion exercised by the learned trial Court was based on fair and judicial considerations. The learned Additional District Judge did not even touch the question of the undertaking given by the petitioner while granting injunction in favour of the respondents. I am, therefore, clearly of the view that this is not a fit case in which the learned Additional District Judge should have issued an interim injunction. He has rather expressed his views on the controversy between the parties in such a manner that it has prejudiced the case of the parties which, again, is not permissible in law.

9. Without expressing any final opinion on the dispute between the parties, I have no hesitation in holding that, in the circumstance of the present case, the balance of convenience does not lie in favour of the respondents and this was not a fit case in which interim injunction should have been granted to them. In case the respondents succeed in the suit, they are not likely to suffer for the construction which the petitioner has raised on the site. On the other hand, they would be gainer and would be entitled to retain the structure raised by the petitioner. In these circumstances, I set aside the order dated the 17th of April 1967, of the learned Additional District Judge in the appeal under revision and restore that of the learned Civil Judge dated the 13th of March 1967.

10. In the result, subject to the remarks made above, the Revision is allowed with costs. A. E. Revision accepted.