P L D 1959 (W (PLP)

QADEERUDDIN AHMAD, J.‑This is an appeal from the judgment and decree passed by Muhammad Bux, J. by which he decreed the suit of the plaintiff and granted a mandatory injunction against the appellants for, removing their locks and seals from the premises in dispute and a permanent injunction restraining them, their servants and agents from interfering with the possession of the plaintiff. The respondent had filed the suit on the allegation that he was the tenant of three rooms and a kitchen situated at the first floor of the Customs House, Karachi, that a notice was given to him cancelling the lease and directing him to vacate the premises, that on his refusal to obey the direction the appellants locked and sealed the premises and thus committed trespass on the‑ premises that the notice and dispossession were illegal and, therefore the locks and seals should be ordered to be removed by a mandatory injunction and a permanent injunction should be granted to restrain them from interfering with the posses sion of the respondent. The appellants submitted their written statement and raise, several defences on the basis of which the following issues were framed :‑ (1) Is the suit bad for want of notice under section 80 of the Code of Civil Procedure ? (2) Does the agreement entered into by the parties amount to a valid contract binding on the parties ? What is the effect of the minority of the plaintiff on the contract in suit ? (3) What is the nature of relationship between the plaintiff and defendants: is it that of landlord and tenant or the licensor and licensee ? (4) Was the defendant entitled to cancel the contract? (5) Was the plaintiff bound to vacate the premises occupied by him, after notice served on him by the defendants ? Is the plaintiff's occupation of the premises at present lawful ? (6) Are the notices by the defendants to the plaintiff to vacate the said premises illegal, invalid and inoperative in law ? (7) Have the defendants committed trespass in respect of the premises in dispute ? (8) Did the defendants act lawfully and within their rights in locking up the premises in suit ? (9) Has any cause of action occurred in favour of the plaintiff against the defendants ? (10) To what relief, if any, is the plaintiff entitled ? (11) General including question of costs. Issue No. 1 was decided by the learned trial Judge by his order dated the 25th of September 1951 and the remaining issues were decided by his final judgment. The learned counsel for the appellants has questioned the decisions of the trial Court on two grounds only. They are that there was only a licence and not a tenancy and, therefore, the appellants were entitled to withdraw the permission which they had given and that the licence was granted by the appellants in their official capacity and, therefore, the suit was not maintainable without a notice under section 80, C. P. C. The respondent was given a contract by the Assistant Collector (Preventive) of Customs by his letter, which is Ex. 5/1. This was a catering contract of the Customs House Restaurant. Clause No. 3 of the contract runs as follows :‑ "The general control of the restaurant will rest with the Assistant Collector of Customs, Preventive Service, who in consultation with the members selected by him from the Recreation Club may give the necessary suggestions regarding the rates for the refreshments, catering arrangements, etc." The rates were fixed by a separate schedule and the respondent was selling refreshments according to them. For the purpose of enabling the respondent to perform the contract he was allotted three rooms and a kitchen in the Customs House. The premises, therefore, admittedly belonged to the Government, and the officer who gave the contract was not free to allow their use in his private capacity. He had in fact to inform the Executive Engineer, Central Division, of the allotment and to obtain his approval for the amount of money which was to be charged from the respondent for the premises. It appears that the Executive Engineer objected to the charges as inadequate, but later on, gave up the objection. The respondent, as admitted by him in his letter Ex. 5/9, was allowed to carry on the catering business during the office hours only, and the restaurant was to remain closed on holidays. The catering arrangements admittedly existed for the convenience of the staff of the Customs House and for those who visited the Department. The learned trial Court has held that the appellants had not allotted the premises in their official capacity and that it was not an allotment but a lease. On these two questions his obser vations are as follows :‑ "In view of the fact that there cannot be, by any stretch of imagination, any resemblance between the official duties of the Collector and the Assistant Collector of Customs, and the trespass alleged to have been committed by them on the restaurant in question, I am unshaken in my belief that this act was not done by the defendants (present appellants) as public officers in their official capacity. They have done this in their private capacity as ex‑officio President and Vice President of the Customs Recreation Club, which has got nothing to do with the official duties of the defendants. Notice under section 80, C. P. C. was therefore not necessary, and the suit in its present form is perfectly competent." Further: "We have got an important ruling. bearing on this question and it is reported in A I R 1930 Bom.

165. It has been held there that the main test in deciding whether a person is a licensee of the property or a lessee is that of exclusive posses sion to the holder, though subject to certain reservations, then it is a lease . . . . . It is clear on the facts of this case, therefore, that the transaction here was a lease and not a licence." We would first consider whether the relationship between the appellants and the respondent was that of a lessor and lessee or of a licensor and licensee. It is true that the test of exclusive possession is very important in determining .the relation ship and in certain cases the relationship can be that of a lessor and lessee in spite of some reservations which may be existing in favour of the lessor, but we do not think that this test when applied to the facts of the present case leads to the conclusion that there was a lease, because firstly, the contract was a catering contract only and the use of the premises was allowed to the respondent so that he could cater for the staff of the Customs Department. He had to pay a certain charge for the use of the premises, and it was described as rent, but the use of the word `rent' could not convert the relationship into that of landlord and tenant because the business for which the contract was given was controlled by the authorities of the Customs Department. The respondent could not use the premises for any purpose he liked, nor could he carry on his business for general public. This restriction was so strict that he had to close his business after office hours and not to open his restaurant on holidays. These reservations are not consistent with the exclusive possession of those premises which are giver on lease. There are English cases on the relationship between the holder of a property and the contractor who is allowed to use accommodation for doing the business of selling refreshments, and we think that they are more apt precedents for being followed in a case like this. These cases are: Daly v. Edwards (1900) 83 L T 548 (C A)), Warr & Co. Ltd. v. London County Council ((1904) 1 K B 713 (C A)) Clore v. Theatrical Properties Ltd. ((1936) 3 All E R 483), Bird v. Great Eastern Ry. ((1865) 19 C B (N S) 268). The learned counsel for the appellants has relied on them and has read out observations from some of them during his address. We may, however, reproduce here their gist as stated in Woodfall on Landlord and Tenant at page 10 of its 25th edition. It is as follows: "The distinction between lease and licence is of great importance in the case of agreements for the `front of the house rights' of a theatre. A theatre refreshment contract whereby `free and exclusive licence and right to the use of refreshment rooms was granted to the licensees was held to be a licence only, although the document resembled a lease of land and the grantor was termed `landlord' and the grantees `tenants', and the grantor covenanted for quiet enjoyment. Where the contract was expressly in the form of a demise for a term of years of the exclusive right to supply refreshments in the theatre, with the necessary use of the refreshment rooms, it was held that there was no demise of an interest in land, but only a licence. And 'in agreement which was expressed to demise to the `lessee' tile `free and exclusive use' of refreshment rooms for the purpose only of supplying visitors to the theatre was held to amount not to a lease but to a licence merely." We think that the present catering contract falls within the above category, and the use of the premises allowed to the respondent was not a lease but a licence. The second question, namely, the capacity in which the appellants granted the licence is of equal importance and we respectfully differ from the conclusion at which the learned trial Judge arrived. It is true that there was a Recreation Club of the staff of the Customs Department, that the Collector and the Assistant Collector of Customs were officers of club, and that the catering contract was given under the auspices of the club. This, however, does not appear to us to lead to the conclusion that it was an organisation was set up and continued by the members and officers in their private capacity. The convenience of the staff for getting their refresh ments cannot be altogether separate from the discharge of their duties during the office hours. It is conceivable that the members of the staff and officers should form clubs which may have nothing to do with their official duties, but arrangements made for providing refreshments during office hours is not such an activity of the club as can be regarded to be entirely separate from the official functions of the members and the office bearers. It is possible to have a controversy as to whether such an activity should be regarded to be in discharge of official functions or not, but the final answer to such a controversy must be given by the Government itself. In the present case, the Collector and Assistant Collector would not have been able to use the Government building for purely private purposes. They had,, in fact, to refer this question to the Executive Engineer, who was in charge of the building. He had the right to object to the terms on which the use of the premises was allowed. If the establishment of the restaurant was not permissible in official capacity, then reference to the Executive Engineer would not have been made, and any objection raised by him would have been of no importance. A similar restaurant had, in fact, existed in the premises formerly also and according to the state ment of the respondent contained in his letter, Exh. 5/9; the contractor used to pay only a nominal charge for it. The continuity in the existence of the restaurant is the consequence of its official nature. Officers changed and those who occupied the controlling post, used to look after this side of the require ments of the staff and discharge their duties for their benefit. In this connection the terms of section 80, C. P. C. are themselves important. According to the section, a notice under it is not only necessary, in those cases in which the act which is questioned should be official in a strict legal sense. On the contrary, section 80 lays down that "no suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by such public office in his official capacity . . . . .". The words "purporting to be done in his official capacity" are important. The test whether an act falls within the scope of this Section or not, may be found in the following observation of the Privy Council made in H. B. Gill and another v. The King (A.I R 1948 P C 128). That is an authority on section 197 of the Code of Criminal Procedure in which the words "purporting to act in the discharge of his official capacity" have been examined, and the test laid down by their Lordships is as follows :‑ "The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office." From the old standing of the restaurant and the permission of the Executive Engineer it is obvious that the appellants, in the present case, allowed use of the premises t the respondent while acting in their official capacity. We are not concerned with the propriety of their action from the point of view of their Depart ment and the Government. It appears to us that the Depart ment and the Government considered their action to be officially permissible. Our view, therefore, is that the allotment of the premises purported to be in their official capacity in terms of section 80, C. P. C. and that therefore, the suit was not main tainable without a notice under the section. Admittedly, no such notice was given, and therefore, the suit cannot be entertained. The conclusion is that the relationship between the parties was that of licensor and licensee, and that the suit was barred for want of notice under section 80, C. P. C. We have been informed that subsequent to the decree passed by tile learned trial Judge, the appellants have complied with the mandatory injunction and have removed their seals and locks from the premises aid, therefore, the respondent is now using the premises and running the restaurant. To this extent the respondent has been able to take the advantage of the judgment and decree of this Court, but we may point out that the suit was filled against the appellants by name and the respondent had insisted that they were sued in their personal capacity. The admitted position of the parties now is that the appellants have left the Department and therefore the existence of permanent injunction is of no value so far as the present officer and the Department are concerned The learned counsel for the appellants has in spite of this pressed this appeal because the judgment of the trial Court had created a strange situation for the Department inasmuch as the appellants who were held to have leased the premises to the respondent in their private capacity have ceased to have any connection with the Depart ment. If the appellants were accepted to be the lessors, then nobody would now be able to take any action against the respondent. This situation by itself demonstrates that the view taken by the learned trial Court that the appellants had acted in their private capacity cannot be correct. We accept the appeal and dismiss the suit of the respondent with costs throughout. A.H. Appeal accepted.