1984 PLP 2532 (CLC)

(a) Civil Procedure Code (V of 1908)‑‑ ‑‑‑5.100‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Eviction of trespassers‑‑Appellants neither inducted by landlords nor by tenants but by an un-authorised person‑‑Appellants not proving that they were duly authorised sub‑tenants‑‑Appellants, held, to be treated as trespassers and their ejectment could be sought by way of a civil suit and not by ejectment proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959. AIR 1925 P C 97; P L 0 1962 Kar. 253; P L D 1962 Pesh. 66; P L D 1963 Pesh. 217; P L D 1968 Lah. 20; 1973 S C M R 434 8 Manek J Mobed and another v. Shah Behram and another P L D 1974 S C 351 Ref. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S.100‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Eviction of trespassers‑‑Civil suit maintainable‑‑Courts having jurisdiction to pass eviction order, interference, on ground of lack of jurisdiction of courts, declined in second appeal. This second appeal under section 100, C.P.C. is directed against Judgment and decree passed by the learned IVth Additional District Judge, Karachi, in First Appeal No.371 of 1978 arising from Suit No. 392/79 filed by the respondent No.l (Abdul Hameed) against the appellants M/s. Aman Electronics Sales Services and others for possession of certain y, premises, described herein below, and mesne profits for unlawful occupation thereof.

2. Facts in the background, briefly stated, are that the respondent No.l let out his building, known as 'New Castle' (Fredrick Cafeteria) on Plot No. 238, Sheet A.M., Frere Street Saddar, Karachi, to late Faredoon Jehangir Irani, represented in this litigation by his legal representa tives, the respondents Nos. 2 to 6, on settled terms and conditions incorporated in a lease deed dated 6th December,1966. It is alleged that a passage connecting the first floor and the roof with the ground floor of the building was surreptitiously encroached upon and occupied by M/s. Aman Electronics Sales a Services, the appellants herein, somewhere in December,1974. The appellants gave out that they were inducted in the premises by the respondent No.7 (Zafar Ali) as the attorney of the tenants/ respondents Nos. 2 to 6 on charging 'Pugree' and rent, and refused to vacate the place. The respondent No.1, was, therefore, obliged to file the Suit No. 392/76 against the appellants and the respondents Nos. 2 to 7 for possession and mesne profits. Only the appellants resisted the suit and raised various pleas reflected in the issues reproduced below, while the respondents Nos. 2 to 7 preferred to remain ex arte. Evidence was adduced. The suit was decreed by the learned XVIth ivi udge, Karachi, by Judgment and decree dated 31st August,1978. First Appeal No.371/78 preferred in the District Court, Karachi, by the appellants herein was dismissed by the learned IVth Additional District Judge, Karachi, by the impugned Judgment dated 4th September, 1979.

3. Following issues were framed in the trial Court. (1) Whether the plaintiff is landlord of the building in suit? (2) Whether the defendants Nos. 2 to 6 are the tenants of the plaintiff in respect of the building in suit on the terms and conditions mentioned in the deed of lease, dated 6th December,1966? (3) Whether the passage in dispute of the building in suit was in possession of the plaintiff? (4) Whether the defendant No.1 has trespassed into and occupied the passage in dispute of the building in suit and thereby deprived the plaintiff of his right of access to the said passage? (5) Whether the suit is not maintainable? (6) Whether this court has no jurisdiction to entertain the suit? (7) Whether the suit is under‑valued and proper court‑fee has not been paid? (8) Whether the suit is time‑barred? (9) Does a right vest in the plaintiff to claim vacating and possession of the area in the occupation of the defendant No.1? (10) To what relief, if any, is the plaintiff entitled?

4. The learned trial Judge recorded his findings in affirmative on issues Nos. 1, 2 and 4 and in negative on issues Nos. 5, 6 and

7. His findings on issues Nos. 3 & 9 also were in affirmative. Issue No.8 was rot pressed before him. Finally, the suit was decreed with costs.

5. In the first Appellate Court, the appellant agitated only two issues regarding the maintainability of the suit and the jurisdiction of the Civil Court which encompassed some of the other issues as well. The learned IVth Additional District Judge, Karachi, upheld the findings of the trial Judge and dismissed the appeal with no order as to costs.

6. In this Second Appeal also, the learned counsel for the appellant has agitated the same issues of non‑maintainability of the suit and lack of jurisdiction of the Civil Court. Elaborating his contention, he has urged that the matter relates to tenancy governed by the rent laws and the Civil Court has no jurisdiction and he has made pointed reference to the Sind Urban Rent Restriction Ordinance,1959 and has cited several authorities which will be referred to and discussed hereinbelow. On the other hand, the learned Advocate for the respondent No.1 has contended that the matter lay within the jurisdiction of Civil Court and civil suit could be maintained. He too has cited some authorities which will be referred to at the appropriate place.

7. The cause of action in this suit is based on the occupation of the appellants of a passage connecting the ground floor with the first floor and the roof of the building undisputedly let out to the predecessor in interest of the respondents Nos. 2 to

6. It has been contended on behalf of the appellants that this passage constituted a part of the rented premises and its possession could not be sought otherwise than under the Sind Urban Rent Restriction Ordinance, 1959 and the suit could not be maintained. The contention of other side is that the passage under dispute was not let out to the tenants and it remained in the possession of the landlord, the respondent No.1, and its occupation by the appellants amounted to trespass and its possession could be obtained only by way of suit. In this context, both the counsel have made reference to certain clauses of the lease deed which was put in evidence as Exh. 7.

8. In the lease deed Exh. 7, the first paragraph of its operative part reads: "In consideration of the rent and charges and the convenants and conditions hereinafter reserved and contained on the part of the tenant to be paid, observed and performed, the landlord doth hereby demise the demised premises unto the tenant for the term of six months, determinable as hereinafter provided, commencing on the first day of December,1966 and ending on 31 day of May, one thousand nine hundred sixty‑seven yielding and paying therefore monthly rent of Rs. 3,000 (Rupees three thousand) inclusive the taxes, rates charges and assessments leviable on the date of these presents for the demised premises free of all deductions whatsoever to be paid to the landlord on or before the fifth day of each month for which the said rent falls due." The "demised premises" is explained in the opening paragraph one of the lease deed as buidling known as "New Castle" consisting of ground floor and first floor and outhouses, bearing survey No. 238 sheet A.M. in the Artillery Maidan Quarters in the city of Karachi.

9. Covenants made by the tenants are enumerated in operative paragraph No.2 of the lease deed. The covenants relevant for the purpose of this appeal are at serial Nos.4 and 13 reproduced below: "

4. Not without the previous consent in writing of the landlord to assign and sublet or part with his interest in this lease or with the possession of the demised premises or any part thereof; provided always that the tenant shall not require the landlord's consent for subletting the said one room subject to any sublease of the said one room using the same for trade purposes and not for using it as dwelling place or for sleeping purposes." "The said one room is described in introductory paragraph No.6 of the lease deed and is a place other than the "passage" subject matter of the suit. "

13. To permit the landlord, his servants, agents, contractors and other authorised or nominated by him full right of access to the passage in the demised premises marked in green, in the blue print annexed hereto leading from ground floor to the first floor and the roof."

10. One of the terns and conditions outlined at S.N.3 of paragraph 4 of the operative part of the lease deed reads as under:‑ "

3. That the landlord, his servants, agents, contractors shall have at all times full right and authority of access to the passage in the demised premises, marked and coloured in green in the blue print annexed hereto leading from the ground floor to first floor and to the roof and that the landlord alone is entitled to the roof over the first floor of the demised premises and that the landlord. at all times and from time to time will be at liberty to erect any construction on over the roof."

11. It would appear from the aforesaid recitals in the lease deed that the entire building comprising the ground floor and the first floor had been let out with only one reservation that the passage connecting the two floors could also be used at any time by the landlord and his servants, agents and contractors or other persons authorised/nominated by him. It follows that the passage connecting the two floors, although forming a part of the rented premises, remained under the joint control of the landlord and the tenant. It is this passage which has been occupied by the appellant and is the subject‑matter of the suit. The appellants were not inducted thereby the landlord, the respondent No.1. They were also not inducted in the passage by the original tenant or his legal representa tives. But their case is that the passage was let out to them by the respondent No.7 on the authority of a power of attorney said to have been given to him by the respondents No. 2 to

6. The respondent No.7 did not come forward to confirm that had let out the passage to them and that he had such an authority of subletting the portion of the "Demised premises". Of course, the appellants placed reliance on rent receipts, purporting to have been issued by Zafar Ali, the respondent No.7, the photostat copies of which were put in evidence as Exhs. 12 to 54, and General Power of Attorney purporting to have been given by the respondents Nos. 2 to 6 to the respondent No.7, a photostat copy of which was produced in evidence as Exh.

11. But neither the power of attorney nor the receipts were proved as neither Zafar Ali went forwarded to confirm that he had issued the receipts nor were the respondents Nos. 2 to 6 examined to confirm that they had given the General Power of Attorney to Zafar Ali. Even if the respondents Nos. 2 to 6 had appeared in the court and confirmed that they had given General Power of Attorney to the respondent No.7, and the respondent No.7 also had confirmed that he had let out the premises to the appellants on the basis of that power of attorney and issued such rent receipts, the appellants could not be treated as sub‑tenants under law as the landlord had not given consent thereto as envisaged in the lease agreement. However the learned counsel for the appellants has urged that eviction of the appellants could not be sought by way of a civil suit. According to him, jurisdiction of the Civil Courts stood ousted under the Urban Rent Restriction Ordinance, 1959. He has cited A I R 1925 P C 97, P L D 1962 Kar. 253, P L D 1962 Pesh. 66, P L D 1963 Pesh. 217, P L D 1968 Lah. 20 and 1973 S C M R 434 as the supporting authorities.

12. The cases cited by the learned counsel for the appellants had distinguishable facts and do not apply to the peculiar facts of this case. The case reported in A I R 1925 P C 97 (Sm. Katyayani Dabi v. Udoy Kumar Das) related to an agreement between landlord and tenant to the payment of rent by the tenants to the landlord in the cases of illegal encroachment on the leased out property. The facts of this case are quite different. The facts of other cases are mentioned below:

13. In the case reported in P L D 1962 Kar. 253 Kasim Kambar and another v. Chanderbhan Vadhu Mal, it was held that a sub‑lease or assignee of a lease could not a elected so long the original lease was not terminated. But this decision was based on the provisions of 5.108 of the Transfer of Property Act, which permits sub‑leasing of the property by the lessee unless provided otherwise. But that is not the case herein as the tenancy under the lease deed was governed by the Rent Laws. At the relevant time, the relationship between landlord and tenant was governed by the West Pakistan Urban Rent Restriction Ordinance,1959 (since repealed) where under sub‑letting without the written consent of the landlord was not permitted. Reference in this respect be made to subsection (2) of S.13 of the Ordinance. It has been indicated above that the landlord has not permitted sub‑letting of the premises. It has also been discussed above that even it has not been proved that the tenants had sublet the portion of the premises to the appellants. Obviously, the appellants were to be treated as trespassers and their ejectment could be sought by way of a suit and not by ejectment proceedings under Rent Laws.

14. In the case Mahra'uddin and another v. Muhammad Yasin and another P L D 1968 Lah.

20. It was held that in a case for ejectment of lessee/tenant, a sub‑lessee/sub‑tenant, whether authorised or unauthorised, is a proper party. This question was examined in the light of provisions of the West Pakistan Rent Restriction Ordinance, 1959. But in this case ejectment of only the trespasser in the rented premises was not involved as is the case herein. As discussed above, the appellants have not proved that they were duly authorised sub‑tenants. There does not seem any bar under the West Pakistan Rent Restriction Ordinance, 1959 (since repealed) to the seeking of ejectment of a trespasser in the rented premises by way of a civil suit. In a case of trespass upon or intrusion in the rented premises, the landlord can seek remedy of ejectment of the trespasser under the civil land and not under Rent laws unless the tenant is instrumental thereto and his ejectment also is simultaneously sought. Of course, the tenants in the instant case also have been sued but the relief of possession sought against them has been abandoned and eviction of only the appellants who are not sub‑tenants under law, has been sought from the premises in joint control of the landlord and the tenants and that could be done by only the civil suit as the trespasser cannot be deemed to be a tenant or a sub‑tenant.

15. In the case reported in Muhammad Dawood v. Sher Bahadur and another P L D 1963 Pesh. 217, it was held that jurisdiction of Civil Courts in the cases of ejectment of tenant stood excluded under the West Pakistan Urban Rent Restriction Ordinance, 1959. But in this case, ejectment of trespassers is sought and not of the tenants and this does not apply to the facts of this case.

16. In the case reported in Sawan Das v. Dharmoo Mal and another 1973 S.C. 434, it was held that ejectment of tenant could be obtained only under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. As already indicated, the case herein does not involve ejectment of tenants but it relates to the eviction of trespassers.

17. A question of eviction of a person inducted in the rented premises by the tenant without permission of the landlord was considered in the case Manek J Mobed and another v. Shah Behram and another P L D 1974 S.C. 351, relied upon y the earned counsel or t e respondent. It was held that eviction of such a person could be sought by way of a suit. In the instant case the appellants' contention is that passage was let out to them by the attorney of the tenants. Even that fact has not been proved. As such, their eviction could be sought by way of the Civil Suit.

18. It follows from the above discussion of facts and laws that the Civil Court did have jurisdiction to pass the eviction order and the suit was maintainable.

19. The determination of other issues follows from the facts discussed above and findings of the learned trial Judge upheld by the first appellate court do not call for interference. In the result, the appeal is dismissed with costs. M.Y.H. Appeal dismissed.