1987 PLP 393 (CLC)

We, therefore, reverse the decree and remand case for a re‑hearing and disposal on the merits by the Court of first instance. If the Court thinks that the plaintiff has made out a case for a mandatory injunction, it should grant it. In saying that, we do not intend to indicate any opinion as to the merits of the plaintiffs claim. If the first Court finds that no case is made out for a mandatory injunction, it is competent for it to award damages, if the plaintiff proves his rights."

7. In the Calcutta case it was observed that:‑

"It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. The one case in which a mandatory injunction is issued on an interlocutory application is where, with notice of the institution of the plaintiffs suit and the prayer made in it for an injunction to restrain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claimed his relief. An injunction issued in such a case in order that the defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survived and a new cause of action for a new type of suit had arisen. When such is found to be the position, the Court grants a mandatory injunction even on an interolcutory application, directing the defendant to undo what he has done with notice of the plaintiff's suit and the claim therein and thereby compels him to restore the position which exited at the date of the suit."

8. Learned counsel also placed his reliance on a passage from page 947, Halsbury's Laws of England, Fourth Edition, Vol. 24, which reads as follows: ‑ "A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the Court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application."

9. Mr. Khalid M. Ishaque, learned counsel for the defendants in reply to the submissions made by the learned counsel for the plaintiff on the above two applications submitted, on my query, in all frankness, that the action of the defendants in dispossessing the plaintiff as 'inappropriate'; they should have waited for the decision of this Court on the injunction, and that he apologise for it.

10. On the basis of the law, referred to above, I am of the view that the principle of the law laid down by the English, American as well as Indian superior Courts, as referred to above, is applicable to the present case. When the proceedings were instituted by the plaintiff and a notice of the injunction application was issued to the defendants calling upon them to show cause why a stay order should not be issued, its practical effect was to lay off for the time being, owing to the Court notice, as it is expected that the Government Institution and their functionaries will assist the Court in administration of justice and they will not try to change the factual position unilaterally to their advantage, in normal circumstances, particularly when a Court notice is received by the said Authority or functionary and the matter is fixed for hearing in the Court just the other day.

11. It seems settled law that an injunction in the mandatory form can be issued to restore status quo as on the date of the institution of the suit. If reference is needed, the same may be found in Mst. Sughra Bai v. Mst. Rabia 1982 C L C 344, Adamjee Paper and Board Mills Ltd. v. Maritime Agencies Ltd. 1984 C L C 440 and Ghulam Muhammad v. Ch. Khushi Muhammad and another 1985 C L C

457. I would, therefore, order restoration of possession of the shop in question to the plaintiff. The official Assignee is directed accordingly. Civil) Miscellaneous Application No. 3310 stands disposed of.

12. As regards Civil Miscellaneous Application 3241 of 1986 and 3311 of 1986, in view of the order passed herein on the Civil Miscellaneous Application 3310 of 1986, the 'basic objection' as raised by the learned counsel for the defendants that unless the plaint is amended no relief of interim injunction, as prayed for, can be granted to the plaintiff, has lost its force. I now to proceed to consider the other pleas as raised in these two applications.

13. Learned counsel for the plaintiff submitted that the plaintiff is a tenant of the defendants in respect of a shop in question measuring 240 sq. ft. which was leased out to him on 1‑9‑1976 on a monthly rent initially fixed at Rs.240. From December 1976 an additional open space admeasuring about 18.2 sq. yds. , adjacent to his shop, was also leased out to him at the rate of Rs.18.20 per month. The rent of the shop was, however, increased from time to time and the current monthly rent of the shop is Rs.480 per month, plus Rs.18.20 for the land, which stands duly paid upto July 1986. It was further submitted that although the agreements executed in respect of the premises as well as the land are described as licence agreements, they are, for all intents and purposes, lease agreements and the relationship between them from its very inception has always been that of the landlord and tenant. The plaintiff was given exclusive possession of the demised premises. The defendants did not have any control or supervision over the possession and use of the said shop of the plaintiff who has been using the same exclusively without any interference from the defendants for the last about 10 years. Now the defendants have invalid tenders for relating the said shop which is not available, in fact or law, for disposal by the defendants.

14. The learned counsel for the defendants, on the other hand, submitted that the agreements (Annexures 'A' and 'B' to the plaint) are mere licences, which have since expired as long back as 1977 and no further agreement in writing is in existence; the plaintiff is a mere licensee and has no right to remain in possession of the premises as under the terms of the agreement itself the licence is terminable at any point of time, without any notice. In this respect learned counsel referred to paragraphs 1 and 15 which read as under:‑

"(1) This agreement shall remain in force for a period of one year commencing from 1‑9‑1976, provided that the Licensor reserves to himself the right to terminate it any time without notice or at the end of the first month and thereafter subject to one month's previous notice in writing without any cause being assigned. (2) Subject to one month's previous notice in writing, the President reserves the right to cancel his licence without any liability for the payment of any compensation. Upon the Licence being so cancelled the Licensee shall forthwith hand over the said premises together with the fixture and fittings therein back to the President in good or torn condition, reasonable wear and tear accepted."

15. Learned counsel for the plaintiff, in support of the above applications, placed his reliance on a number of decisions namely: Abdullah Bhai and others v. Ahmad Din P L D 1964 S C 106, Abdul Rehman v. Haji Mir Ahmad Khan and another P L D 1982 Kar. 532, Ahmed Din v. Abdullah Bhai and others P L D 1962 (W.P.) Kar. 663, Ebrahim Brothers Limited Karachi v. Wealth Tax Officer P L D 1985 Kar. 407 and Goalundo Fishing Industries, Faridpur v. Pakistan and others 1970 D L C 304.

16. In the first named case P L D 1964 S C 106 while drawing a line of demarcation between a lease and a licence it was observed as under:‑ "The line of demarcation between a lease and licence will sometimes be a very thin though there is no doubt as to the principle applicable. A lease as will appear from section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e. the right of enjoyment of the property, for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed the rights in rem and not in personem and by the lease a right in rem is transferred to the lessee. On the other hand a 'licence' as will appear from its definition in section 52 of the Easements Act is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licence or and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee. Examples of a licence are a permission to cut grass from the land of another or to hold fares or run stalls on land in the possession of another. The right to cut grass from land belongs to the owner of land, being a part of the right of ownership. When the owner grants to another person a licence to cut grass, it does not even mean that the right to cut grass in so far as it is a" right in the land (a right in rem) passes to the licensee. If a right in the land itself passed an interest in the land would pass and it would not be a licence. When the owner of land grants licence to another to cut grass there is a simple personal contract that the owner will not interfere with the cutting of grass by the licence. This contract may be specifically enforced, but it grants only a right in personem." 17.In the second named case P L D 1982 Kar. 532 the agreement was held to be creating a tenancy though it described the tenant to be a 'Contractor'. It was thus observed as under:‑ "The language employed by the, parties in the first agreement would seem to indicate that the parties wanted to avoid the incidence of the old Ordinance. It is very difficult to agree with such an argument because basically an agreement of tenancy comes into existence when person agrees to let out premises on a fixed rental, or terms to another. If such basic requirement is fulfilled, the relationship of landlord and tenant will come in existence, and, in such circumstances, whether the parties chose to call themselves contractors, or contracting parties, the basic relationship between them is not altered. In our view, despite the use of the words 'first party' or 'contract' or 'a contractor', the parties are landlord and tenant, and the transaction between them is that of a tenancy agreement."

18. In the third named case P L D 1962 Kar. 663 (DB) discussing the distinguishing feature between a lease and licensee, it was observed that: ‑ "That most distinctive feature between a lease and a licence is that, in the former there is transfer of interest in immovable property whereas in the latter that element is expressly excluded. The transfer of interest in a case of a lease consists of the grant to the lessee exclusive right of possession of the demised premises. This right, in the first instance, vests in the lessor and is one of the most important incident of ownership. In granting a lease the lessor transfer this important right to the lessee. The right of exclusive possession involves an element of ouster and when the lessor grants this right to the lessee he totally excluded himself from that right, though it may be only for a certain time. This right is assignable and heritable and constitute property. On the other and, in the case of a licence there is a total absence of transfer interest in the immovable property. A licence is a personal right granted to an individual or to an ascertained number of individuals, to do or continue to do something in or upon the immovable property of the grantor, which in its absence would be unlawful. It is purely a permissive right and is neither assignable nor heritable. Notwithstanding the permission the grantor retains control over the property. The fact that a licensee occupies the property, that occupation does not confer upon him the right of exclusive possession as understood in law. Under the Transfer of Property Act, apart from the transfer of the right to enjoy property, there has to be also a consideration paid or promised and the lease has to be for a certain time. But these elements may often not be inconsistent with a case of licence. The mere fact that the occupant under the agreement says a monthly sum to the owner may not be conclusive because a licence may be for consideration. Similarly, the mere fact that he would cease to occupy the property by a certain date may not be decisive because a licence may be for a term. Therefore, when both these elements are present the factor which will decide the question whether the grant is a lease or a licence, would be the right of the grantee to exclusive possession of the property in the sense indicated above. If there is such right then the transaction is clearly one of lease because in it there has been a transfer of interest in the property. When there is written instrument recording the transaction it is the substance of it and not the form which will govern the case. The question of intention arises only when the term whether written or oral are not clear or when they are consistent both with the existence of a lease or a licence. It is only in such cases that the matter has to be decided with reference to the turn intention of the parties deduced from all the circumstances of the case. The use of certain technical expression in a document cannot turn a lease into a licence. Where, therefore, the nature of the transaction presents some difficulty in construing whether it amounts to a lease or a licence, the question to be asked is, has the occupant acquired an 'interest in land', that is, has the owner transferred a certain right of ownership in a way which extinguishes the enjoyment by him of that right and vests the same exclusive in the transferee. If he has then it is a case of a lease and not of licence. In the case before us the terms of the agreement between the parties are clear and have been admitted by the defendant in evidence. There was a transfer of interest in the shop premises in favour of the appellant by the agreement in question because before that he had no such interest, the tenancy having been granted in favour of Muhammad Siddiq. The appellant admittedly was given the right of exclusive possession of the premises and the respondent could not even enter it without his permission. There was also a fixed term and a price. We do not see how this transaction can be anything but a lease. The use of expression such as 'licence' instead of 'lease' and fee and compensation instead of rent in the document cannot alter its true character. The camouflage of phraseology cannot affect the true nature of a transaction."

19. In the fourth named case P L D 1985 Kar. 407, it was observed that: "In order to determine whether a person is a tenant or a licensee of an immovable property belong to another person, one of the criteria is to ascertain, whether he is in exclusive possession and its exclusive user, as a tenant lessee is entitled to exclusive possession of the property concerned and its exclusive user."

20. In the fifth case 1970 D L C 304 it was observed that:‑ "In considering whether Exh.l is a deed of lease or licence, it is necessary to find out the substance of the agreement. The form of the document or the wordings and the terms used in the same will not determine the subject. One of the crucial questions in this regard is whether any interest was created by the document. If, the document only permits another person to make use of the property when the same remained under the legal possession of the owner, then the document is a licence. If, on the other hand, the agreement grants exclusive possession even for a limited period and for specified purposes, then the transaction would prima facie amount to a lease. The entire set of circumstances relating to the same, are to be taken into consideration before it can be decided whether the transaction stipulated is a lease or a licence."

21. The learned counsel for the plaintiff also placed his reliance on Government of West Pakistan v. Meezan Corporation and another P L D 1971 Kar. 35 and Muhammad Hussain v. Habeeb Wali Muhammad and others P L D 1977 Kar. 1031 but I need not consider them in detail as the point at issue seem to be fully covered by the authorities already referred above.

22. Mr. Khalid M. Ishaque, learned counsel for defendants, in the first instance referred to clause 17 of the agreement which provided that 'nothing herein contained shall prevent the free use of the said premises by the President or his Authorised representative' and submitted that the possession of the plaintiff was not exclusive. In fact, it was subject to the right of free use of the defendants as reserved in the agreement. Mr. Shahenshah Hussain, in reply, submitted that the said clause of the agreement does not affect the plaintiffs' right of exclusive possession. For this, he placed his reliance on the following observation reported in Walsh and another v. Griffiths Jones and another (1978) 2 All E R 2, which reads as under:‑ "Reservation to a grantor of a right of access 'at all times' does not of itself destroy the right granted by contract to exclusive possession of room as a residence since the grantor has no right to occupy the rooms as a residence or to put any one else in them: see R v. Battersea, Wordsworth, Witcham and Wimbledon Rent Tribunal, ex parte Parikh (1957) 1 All E R 352 : (1957) WLR 410. "

23. Mr. Khalid M. Ishaque, however, placed his reliance on the case reported as Ashfaq Hussain and others v. Karachi Municipal Corporation and others P L D 1957 Kar. 918 which, I must say, is distinguishable as it was a case of purely a licence granted by the Karachi Municipal Corporation to a person putting up wooden Cabin on street for no interest in the land, much less exclusive possession was delivered to such Cabin‑holder.

24. Mr. Khalid M. Ishaque lastly submitted to quote in his words, that 'before the plaintiff can ask the Court to read the licence agreement as lease he is to lead evidence'. I agree with him. For the determination of the question, whether the agreement is a licence or lease the evidence will be necessary as it is the nature of the agreement, reading it as a D whole, and subsequent conduct of the parties which may be relevant for the purpose of determination of the exact relationship of the parties and not the title of the agreement and the terminology used therein.

25. At this stage, I am only concerned with the grant or refusal of a temporary injunction and for that it is to be seen whether the plaintiff has a prima facie case in his favour or not. On the basis of the present record, I am satisfied that the plaintiff enjoys uninterrupted and exclusive possession of the shop as well as adjoining land for about a decade and has allegedly invested certain amount of money on the construction/ reconstruction or renovation of the premises. Moreover, even if the agreement is regarded as a 'licence agreement' it is subject E to certain incidents as provided in s4ction 5 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 such as giving notice to the occupant and an opportunity of being heard, as made applicable to the Civil Aviation Authority by Ordinance XXII of 1984. Evan's case may as well be referred to as a pointer to this legal position. Having thus, taken into consideration all the facts and circumstances of the case. I am of the view that the plaintiff has a triable issue and prima facie an arguable case in his favour.

26. As regards irreparable loss and balance of convenience, the premises being admittedly in commercial use for the last 10 years, the dispossession of the plaintiff, in the circumstance, 'will not only be a physical ouster, but financial and economic disruption, reparation or restoration of which may, perhaps be not possible in the event of ultimate success of plaintiff'. For this view, reliance is placed on a decision of the Honourable Supreme Court, namely, Ismail Brothers v. Keval Ram P L D 1981 SC 545.

27. I would, therefore, grant Civil Miscellaneous Application No. 3241 of 1986 that the defendants are restrained from dispossessing the plaintiff from the premises in question during pendency of the suit Civil Miscellaneous Application No. 3311 of 1986 is also granted as confirming the ad interim injunction granted on 23‑7‑1986. However, in view of the submission made by Mr. Khalid M. Ishaque that the Airport is a sensitive area and there are some compelling circumstances for security reasons, I grant early hearing of the suit, to be fixed in January, 1987. M. Y. H . ‑‑‑‑‑ Stay granted.