P L D 1962 (W (PLP)

WAHIDUDDIN ARMED, J.‑This first appeal is an off‑shoot of litigation going on between the parties in this appeal In respect of a house consisting of two rooms constructed on Plot No. 45, J. A. I. Quarters, Jinnahabad No. 1, Harehandrai Road, Karachi. The plot on which this house is raised belongs to the Karachi Municipal Corporation, now Karachi Municipal Committee, and was leased out to respondent Muhammad Shakoor on temporary basis. Abdul Sattar the appellant occupied this house as tenant at Rs. 22 per month on monthly tenancy basis since the 1st of August 1949 of the respondent. The appellant fell in arrears of rent in the year 1956. Thereupon the respondent filed a Distress Warrant application known as D. W. No. 592 of 1956 for the recovery of Rs. 238 as arrears of rent from the 1st of June 1955 to the 30th of April 1956, which was decreed by the Chief Judge, Karachi Small Causes Court, on August 4, 1956. This decree remained unsatisfied. On the 23rd of October 1956 the respondent terminated the tenancy of the appellant and called upon him to vacate the premises by the 30th of November 1956. The appellant refused to deliver possession by a notice dated the 29th of November 1956. Eventually the respondent filed Ejectment Application No. 551 of 1956 on the 6th of December 1956 in the Karachi Small Causes Court at Karachi for ejectment of the appellant on the ground of non‑payment of rent from the 1st of June 1955 to the 30th of November 1956. Both in the Distress Warrant Application and in the Ejectment Application the appellant resisted the proceedings on the ground that the respondent who was holding the property under the Karachi Municipal Corporation was no longer entitled to recover the rent as the plot in question had been resumed by the Karachi Municipal Corporation and the appellant was directed by the superior owners not to pay the rent to the respondent. This defence was not accepted by the Chief Judge, Small Causes Court in the above‑mentioned matters. The ejectment appli cation was ultimately granted on the 20th of March 1958. Thereupon the appellant filed Civil Suit No. 1840 of 1958 in the District Court at Karachi under section 24, Karachi Small Causes Court Act, against the respondent for damages on the ground that the above‑mentioned ejectment order granted by the Karachi Small Causes Court was without jurisdiction inasmuch as the Karachi Municipal Corporation, the superior owners of the plot in dispute, had directed the appellant by notice dated the 23rd of February 1956 not to pay rent in respect of it to anybody. It was further alleged that on the 31st of January 1957 the Karachi Municipal Corporation had resumed the plot in dispute along with all the structures standing thereon vide Standing Committee Resolution No. 36, which had finally ended the inferior title of the respondent and he was not entitled to recover any rent or eject the appellant from the premises in dispute. In effect the plea of the appellant before the learned Subordinate Court was that the respondent, after the resumption of the plot of land by the Karachi Municipal Corporation, had no locus standi as landlord either to claim rent or to evict the appellant from the premises in dispute. The respondent resisted the suit and contended that the order of ejectment was perfectly valid and within jurisdiction. He contended that the appellant being a tenant was estopped in law from denying his title or setting up title of another person adverse to him. The respondent further pleaded that his right and interest were in no way affected for the purposes of the ejectment application by the alleged resumption resolution of the Karachi Municipal Corporation. He also contended that the Karachi Municipal Corporation had no power to resume the land in dispute and he had locus standi to file an application for ejectment. On these pleadings the trial Court struck the following issues: (1) Is the defendant entitled to collect rent from the plaintiff? If so, is plaintiff estopped from denying the title of the defendant in regard to the construction ? (2) Are the orders of the Chief Judge, Small Causes Court, without jurisdiction ? (3) Has the defendant committed an act of trespass in obtaining the order of ejectment from the Small Causes Court, Karachi ? (4) Is plaintiff entitled to damages ? (5) What should the decree be ? The original suit came up for final hearing before Mr. Feroze Nana Ghulamally, the then District Judge, Karachi who, by judgment dated the 11th of July 1959, dismissed the appellant's suit with costs. The learned District Judge on the issues raised before him held that the resolution of the Karachi Municipal Corporation was not binding on the original relationship between the parties namely the appellant and respondent landlord and the respondent was entitled to collect rent from the appellant. He further held that the resolution in question appeared to have been manoeuvred and the appellant was estopped from denying the title of the respondent in respect of the premises in dispute. On this view of the matter he held that the order for the eviction of the appellant from the premises in dispute was valid and effective. The appellant has challenged these findings in this first appeal before us. Mr. Anwar Ali, the learned counsel for the appellant, has urged before us that the view taken by the learned District Judge about the locus standi of the respondent to file the ejectment application was erroneous and should be set aside. The learned counsel strongly urged before us that the right of the respondent landlord in respect of the premises in dispute had come to an end on resuming the land under Resolution No. 36 dated the 31st or January 1957. He further contended that this action pas in accordance with the provisions of Rule 17 (5) (a) of the Karachi Municipal Corporation Land Rules which permits the said public body to resume the plots leased out to the tenants. In the alternative the learned counsel argued that the respondent was not entitled to an eviction order on the ground of non‑payment of rent as the holder of the paramount title had directed the appellant under a letter dated the 23rd of February 1956 not to pay rent to him. Two questions fall for determination in this appeal. Firstly, whether the respondent's right to occupy the premises in dispute and evict his tenant came to an end in March 1958 when the order of the appellant's eviction from the premises in dispute was passed by the Karachi Small Causes Court; and secondly, whether the appellant was justified in not paying the rent to the respondent in view of the direction issued by the Karachi Municipal Corporation in February 1956. We will discuss these questions separately. So far as the first question is concerned, it will be noticed that the plot in question is a temporary Municipal Plot and the respondent is holding it as a tenant of the Karachi Municipal Corporation. It is also rot disputed before us that the appellant occupied a house consisting of two rooms on the plot in dispute as tenant of the respondent at Rs. 22 per month as monthly tenant since the 1st of August 1949. It is therefore quire clear that if other intervening circumstances bad not occurred the appellant was bound to pay monthly rent to the respondent and was liable to be evicted from the premises in dispute for non -payment of rent. The appellant's contention, however, is that the Karachi Municipal Corporation having resumed the plot in dispute along with all the structures standing thereon vide Standing Committee's Resolution No. 36, the right of the respondent to claim rent in respect of the premises in dispute was ended and he had no locus standi to claim ejectment of the appellant. The resolution on the basis of which the plot in dispute is alleged to have been resumed by the Karachi Municipal Corporation is reproduced below: "Resolution No. 36 dated 31‑1‑1957, of the Municipal Commissioner, exercising the powers of the Standing Committee under section 280(2) (as amended) of the City of Karachi Municipal Act, 1933: "That the Standing Committee is pleased to resume all the plots in Jinnah Abad No. 1 & 23 Harchandrai Road, Karachi, where the terms and conditions of temporary occupation lease have been violated and allot to those who are in possession of the plots subject to the conditions that they pay the cost of the building whatever be fixed by the Chief Engineer with all arrears of land rent and property taxes upto date. The regularisation of position will be on temporary occupation lease under Rule 17 of the Land Sale Rules subject to their entering into no compensation agreement and executing the required agreement as per form `C' attached in Chief Officer's Note No. LYTP (248) 55/56, dated 21‑11‑56." The above‑mentioned resolution clearly shows that the Karachi Municipal Corporation under it bad decided to resume all the plots its Jinnahabad No. I and 2, Harchandrai Road, Karachi, on the ground that the lessees of these plots had violated the terms and conditions on which they were bolding them and that the Corporation bad decided to lease them out to those persons who were in actual possession. The grievance of the appellant's counsel that the observation of the learned District Judge that' "the resolution therefore appears to have been manoeuvred in obvious circumstances" is not founded on any evidence on the record appears to be genuine. In our opinion such sweeping remarks against public statutory bodies, unless essential for the; decision of the case, should always be avoided. But this question has no material bearing on the merits of the appeal. The real question is whether under the above‑mentioned resolution the title of the inferior bolder namely the respondent had come to an end so as to deprive him of the right to claim rent and evict the tenants from the premises in dispute. In support of the appellant's case, Mr. Anwar Ali, the learned counsel for tire appellant, has referred us to Rule 17(5)(a) and (b) of the Karachi Municipal Corporation Land Rules, which is in the following terms: "

17. It shall be lawful for the Standing Committee to lease as per Form C for temporary occupation only any plot marked out under rule 8 for specific purposes on the following conditions: '5. (a) That the lessee shall not transfer his rights in the lease or any part thereof nor let or sub‑let the said plot or the buildings constructed thereon or any part of the plot or buildings nor shall be use the plot or the buildings thereon or any portion thereof for any purposes other than those for which it is granted. (b) In the event of any breach of any of the conditions above specified the Standing Committee may at once terminate the lease and the Municipality may thereafter enter upon and take possession of the plot with all buildings, structures and enclosures standing thereon.' " This sub‑rule provides one of the two methods of the terminating the tenancy of the occupant of a temporary plot. Ordinarily under Rule 17 of the Land Rules, the Standing Committee is empowered to terminate the tenancy of such occupants by giving one month's notice. In cases where an occupant has transferred or sub‑Jetted the plot in his occupation or any part thereof, the Standing Committee is further empowered to at once terminate the tenancy. It would, however, appear that in both the cases in the event of the occupant's failure to vacate the plot, the Municipality may enter upon and take possession of the plot with all buildings and structures standing thereon. The lessee, of course, has a right to remove his building and structure built on the plot within one month of the termination of the lease provided he has paid all rents, charges and dues to the Municipality. It is quite correct that the learned subordinate Court has not considered all the aspects of the case involved in the matter. But the learned counsel has failed to satisfy us that the resolution of the standing Committee resuming the plots In Jinnahabad can be supported on any provision of law contained in the Karachi Municipal Act, 1933. On the other band, a reference to the relevant Act will show that no such power is vested in the Karachi Municipal Corporation. It is only the Provincial Government which under section 57 can resume any immovable property for a public purpose. It is for this reason the learned counsel sought protection under sub‑rule (5) of rule 17 of the Land Rules in Chapter V (E) of the Karachi Corporation Rule Book. The appellant counsel's argument that after the passing of the Standing Committee's resolution referred to above, the inferior title of the respondent had come to an end has not impressed us for more than one reason. In the first place the mere passing of the resolution did not result in the ouster of the respondent from the plot in dispute. The resolution remained unimplemented. In fact the resolution in question was never` communicated to the respondent and he was never called upon to vacate the plot in his possession. This fact was admitted by P. W. 2 Ghulam Hussain; a clerk in the Land Department of the Karachi Municipal Corporation. According to this witness the Standing Committee passed a resolution of resumption but did not actually resume the plot. In the next place it appears to us that in order to oust the respondent from the plot in dispute it was necessary for the Karachi Municipal Corporation to evict him through the process of law. The relevant Municipal Act does not empower the K. M. C. to evict the tenants through its own machinery in a summary manner. The power to grant lease of immovable property is derived by the Corporation under section 55 of the Act and there is nothing in this provision which empowers it to evict the tenants summarily. It is therefore quite plain to us that the power to enter upon and take possession of the plots contemplated in the Land Rules cannot stand on a different footing than similar terms usually incorporated in leases between private parties. The private parties under such terms are not competent to evict their tenants forcibly and in our opinion the K. M. C. also has no power to evict its tenants forcibly. In Azim Khan v. State of Pakistan and another (P L D 1957 Kar. 892) a Bench of this Court, to which one of us was a party, considered the power of the Government of forcible eviction vis‑a‑vis its tenants and held that a person who has got settled possession cannot be evicted except through a Court of Law. The relevant observations of the Bench in this respect are reproduced below: "Under section 9 of the Specific Relief Act a lessor, who had dispossessed otherwise than by due course of law a lessee whose term had expired, would be compelled to restore possession to the lessee. Therefore, in view of the effect of that section, the Common law right conceded to a lessor in England to eject his lessee by use of minimum force necessary for purpose cannot be granted to a lessor in Pakistan. A person who has got settled possession cannot be evicted except through a Court of law." In view of this decision we are not inclined to take a different view about the authority of the Karachi Municipal Corporation to evict its tenants. At best the position of the respondent on the termination of his tenancy would be that of a tenant holding over or a trespasser. In our opinion in the absence of any law empowering the Karachi Municipal Corporation to evict such persons by force, the Corporation could not evict him without recourse to a Court of law. If that is so, there was clearly no ouster of the respondent from the premises in dispute. Quite apart from this, the resolution clearly states that the plots are allotted to those who are in possession subject to the condition that they pay the cost of the building whatever be fixed by the Chief Engineer. It will be noticed that this stage was never reached. Neither the appellant paid any such compensation nor he attorned to the K. M. C. However, one fact is clear from the resolution that the K. M. C. wanted to retain the building and structures raised by its tenants, for which in law they were bound to compensate them. It appears to us that in such circumstances so long as the respondent, was not paid compensation by the K. M. C., he was entitled to continue in possession of the premises in dispute. This view is fortified by the view of the Privy Council in Ethirajulu Naidu v. Ranganathan Chetti and others (72 I A 72). In that case the terms of the lease stipulated for payment of market price of the structure raised by the tenant before surrendering possession. Their Lordships held in those circumstances that the lessee was entitled to hold over as tenant by virtue of the above clause at the rent reserved by the lease until he was paid the then market price. It appears to us that the relationship between a landlord of inferior title and the tenant holding under him will not come to an end unless there is an ouster as understood in law of the inferior title by the title paramount. The position taken up by the appellant in this appeal is most interesting. The resolution of the K. M. C. has not so far been implemented. The area in which the plot in dispute is situated now vests in the Karachi Development Authority. Obviously there is no chance of any implementation of the resolution in question. Thus the appellant wants to enjoy the house in dispute without being responsible to anyone. On the facts of this case it is not possible for us to support this situation. The appellant entered the house in dispute under the respondent as tenant. As during the period of his tenancy nothing occurred which could be treated as ouster of the respondent by paramount title so as to determine his rights as they stood at the date when the appellant was put in possession as lessee, he must be held to be the tenant of the respondent. In these circumstances the appellant was not only bound to pay rent to the respondent but was also liable to suffer ejectment on the non‑payment of rent. It was next contended by Mr. Anwar Ali that the appellant's failure to pay the rent was the letter dated the 23rd of February 1956 issued by the Karachi Municipal Corporation. A copy of this letter which was addressed to the respondent was also forwarded to the appellant. The Land Manager endorsed on the copy forwarded to the appellant not to pay rent to anyone in future. It may be that the appellant was misled by this letter and it might be the cause of non‑payment of rent to the respondent, but there is nothing on the record to prove that the Land Manager was competent to issue any direction to a tenant of the lessee of a temporary plot. The rules are silent on this point. It is also not proved that the Land Manager was entitled to do it on the terms of any lease executed by the respondent in favour of the Karachi Municipal Corporation. In the absence of any such evidence it is quite obvious that the direction of the Land Manager to the appellant not to pay rent in future to anyone was unwarranted and cannot be supported. In the end, Mr. Anwar Ali pleaded on behalf of the appellant that he should be allowed some time to pay the arrears of rent to the respondent and saved from eviction. This question is not involved in this appeal. The only question for determination in this appeal is whether the order of eviction passed by the learned Chief Judge, Small Causes Court, dated the 6th of December 1956 was valid or not. On the view which we have taken of the matter it is quite plain that no exception can be taken to it. In passing, however, we will observe that the appellant in this case was misled by the direction issued by the Karachi Municipal Corporation and as a result of that he refused to pay the arrears of rent to the respondent. It will be open to the appellant to raise this question in execution before the learned Chief Judge, Small Causes Court. If the learned Chief Judge, Small Causes Court, is satisfied that the appellant is ready and willing to pay the rent, he may grant him such relief as he considers fit in the circumstances of the case. In the result we find no force in the appeal and dismiss it with costs. M. N./A. H. Appeal dismissed.