1968 PLP 557 (SCMR)

CORNELIUS, C. J.-The petitioner Salim Khan Yusufzai seeks special leave to appeal against the confirmation by the High Court in Letters Patent Appeal of an order by a learned Single Judge made under Order XXXIX, rule 2(iii), C. P. C., directing that he be detained in the civil jail at Karachi for a period of six weeks, for having deliberately contravened an undertaking given by him in respect of a certain premises, and having deliberately disobeyed an order of the High Court made in pursuance of that undertaking. The facts in brief are as follows. In pursuance of an agreement in respect of the said premises, which belong to the petitioner, the respondent K. Mohiuddin had advanced a sum of Rs. 24,000 (in some places, the sum is stated to be Rs. 26,000) to the petitioner towards the cost of construction thereof, on the consideration that when they were completed, he was to have the lease of the ground-floor, for running a hotel or restaurant, for a period of five years at Rs. 300 per month. The date of delivery of possession was extended from time to time, and lastly until the 31st March 1967. On the 13th March 1967, Salim Khan Yusufzai issued a notice to K. Mohiuddin, saying that he had failed to make a further payment of Rs. 2,000 by way of advance, and on this ground, the supplementary agreement of the 21st January 1967 (the original agreement was of the 15th July 1966) "stands dissolved and is no more in operation". A claim of damages was included and it was said that accounts must be settled within 7 days. By a further letter of 21st March 1967 in answer to K. Mohiuddin's reply to this notice, it was said that the averments in the reply were not accepted, and "the said agreement" viz., of the 21st January 1967 "stands cancelled and revoked" and "the amount paid (by your client) has also been forfeited." There upon on the llth April 1967, K. Mohiuddin filed suit for specific performance of the original agreement, and sought at the same time (a) attachment of the premises before judgment and (b) an injunction against the giving out of the premises on rent, etc. Notice being issued, on the 25th April 1967, the parties appeared before the learned Single Judge, who made the following order, viz:- "Put off to 2-5-67 at the request of the defendants. They have agreed to maintain the status quo in respect of the property in suit until the disposal of these applications." On the 2nd May 1967, Salim Khan Yusufzai made a reply, containing a new statement of fact, viz., that on the 7th April 1967, he had executed an agreement renting out the premises to one Qasim, and at the same time, had put the latter in possession. The agreement with Qasim was led in evidence and showed that Qasim had paid eleven months rent at Rs. 300 p. m., in advance, that he had undertaken to fix doors in the groundfioor in which he was to run a restaurant, and that he had been put in possession. A report by a Nazir made on the 6th May 1967 showed that the construction of the premises was incomplete on that day, and they were unfit for occupation as a restaurant. The electrical wiring was being installed and there were no switches. A counter was being installed but was incomplete. Doors and windows were being fabricated. Outside painting was in progress, and only one interior wall had been painted. In evidence, on the 9th October 1967, Salim Khan Yusufzai said the construction work had been completed by the 28th or 29th March 1967, and the restaurant was working 20-25 days later, i. e., by the 18th or 23rd April. These statements were palpably false, but it appears that by the date of the last order made by the learned Single Judge, viz., the 23rd November 1967, Qasim was in possession, and perhaps the restaurant was running. But Qasim in his evidence said the "restaurant started running from the 7th April 1967," a palpable falsehood. These facts constituted the basis of the finding of deliberate violation of the undertaking given on the 25th April 1967, which was made the basis of an order of the 1st June 1967, by the learned Single Judge that "the defendant should not deliver possession of the groundfioor of the building in suit to any person until further orders of the Court." The Letters Patent Bench reviewed the evidence in appeal, and held Salim Khan Yusufzai to the undertaking of the 25th April 1967, saying "when the undertaking was given to maintain aatus quo, it must follow that this status quo involved anundertaking that the defendant will not let out the premises on rent." The judgment goes on to ask why, if the premises had already been rented out (on the 7th April 1967) this was not mentioned on the 25th April 1967, when the undertaking to maintain the status quo was given. The findings of the learned Single Judge were accordingly maintained. Leave is sought to appeal against this order on the ground that there was no violation of the undertaking, or of the sub sequent order of the 1st June 1967, because before either of these dates possession had already been given to the new tenant Qasim, under a renting agreement. The facts, as they appear from the evidence, and as they have been found, clearly show that Salim Khan Yusufzai intentionally acted to defeat the rights vested in K. Mohiuddin, who had advanced a large sum of money in consideration of these rights. The agreement of the 7th April 1967, when it recites that delivery of possession had already been given to Qasim has been disbelieved, on very good grounds. It is important to note too that Qasim, whose interests were directly involved, if the agreement was genuine in this respect, only swore an affidavit of facts in support, on the 24th August 1967. The restaurant could not have been started on the 7th April 1967, as he later swore in evidence, because on the 6th May 1967, the premises were still incomplete, and there was no sign of any restaurant business being carried on there. Therefore, the Courts below were right in holding that on the 25th April 1967, possession had not been delivered to Qasim, and that was the A status quo, which was clearly altered later by Qasim going into occupation apparently after completion of the premises. We find no force in this petition which we hereby dismiss. Petition dismissed.