1989 PLP 1599 (CLC)

4. In the counter‑affidavit the defendant maintains that the plaintiff has not come to the Court with clean hands and has suppressed material facts. He says that the plaintiff is motivated solely by obtaining enhancement of rent from Rs.3,000 to Rs.8,000 that he filed an earlier suit against the defendant bearing No.2508/83, in the Court of IInd Senior Civil Judge, Karachi (East), and obtained an ad interim order of injunction on 26‑6‑1983, restraining the defendant from undertaking any construction work, demolition, pulling down or making alterations in the suit premises, that the injunction application was dismissed per order dated 25‑7‑1983, and that an appeal taken (CMA‑172/83), was withdrawn on 20‑3‑1985, by consent of parties, on an undertaking not to raise any construction on the property except in accordance with law (underlining is mine). The defendant avers that in Rent Case No.207/85, subsequently filed, the allegation as to impairment, inter alia, was that the defendant had built a Tandoor in the Shop. The ejectment proceedings, it is said are dragging on as "the applicant is not proceeding with" the same. It is said that "the Tandoor" was, immediately, installed as soon as the defendant took possession of the premises for running a Restaurant. While in para 15 of the Counter‑affidavit, the defendant speaks of "the Tandoor", he has later altered the version to say, "the Tandoors are existing right from the date I was inducted in the premises". As regards the Shamiana, he says that Qanat was installed in order to safeguard the other shops from the dust and that nothing, apart from repairing the Tandoors, was being done, it being more convenient to do the same in the month of Ramazan.

5. On receipt of the Commissioner's Report on 25‑4‑1989, it. was considered appropriate to direct another inspection by the Commissioner, in sufficient detail, so that the actual position of the premises, as of now, can be determined and may be made use of in the subsequent stages of the proceedings. This has been done and another report has been submitted by the Commissioner, alongwith 21 additional photographs, which have also been signed and numbered by the Reader of this Court. 6. .Even though the learned counsel for the plaintiff had specifically taken time to submit a rejoinder on 19‑4‑1989, as the case diary would reflect, none has been filed. Besides, none of the parties has submitted any objections to the Commissioner's Report. Application for interim injunction, therefore, while absence of objections and rejoinder may imply some admissions has to be decided on the material as it presently exists on the record.

7. The photographs appended with the plaint would indicate that two Tandoors and one Degh were either being repaired, after breaking the ground, inside the premises or were being freshly introduced. However, the dates on which these. photographs were taken are not indicated on the photographs nor is any Receipt of a Photographer attached. As regards the photographs submitted by the Commissioner are concerned, the same indicate more or less the completed stage of the activity inasmuch as the excavation/dug out portion of the earth appears to be filled and the exercise seems to be more or less complete but there is no change in the number of units involved i.e. there is one Degh and two Tandoors inside the premises though Commissioner says that another Tandoor is outside the Restaurant and appears to have been in use as fire‑wood etc., have been found/located in its vicinity but, then, that could be on account of the works going on inside the shop and such outside Tandoor could have been improvised, as an alternative, till the inside works were completed. This of course is a passing and a tentative observation.

8. The admitted position, as reflected in Rent Case No.207/85, as referred above, is that the defendant, way back in 1985 or even prior after the civil suit was filed in 1983, had already built a Tandoor in the premises and that has been taken to be a ground. to support the impairment of the value or utility of the tenant‑hold and it is for this reason that an inference may be drawn that what the defendant was doing in the premises, which is in dispute here, could be a repair or restoration work and in the process, the defendant may have contrived to put another Tandoor in the premises. On the question of damage to the structure, inclusive of its foundation, on which the Commissioner was required to report, Commissioner's reports are silent, the inference being that there is no ostensible structural damage involved. This, at least, is a tentative inference. But it cannot be left unsaid that if the defendant has any intention of remaining in the tenant‑hold or in business, of which there are no apparent signs of his inclination to give up, there can hardly be any reason as to why he would want‑only damage something, from which he is manifestly drawing his livelihood.

9. These proceedings are not only of a peculiar but of a serious nature. For obvious reasons in civil proceedings, no orders of ejectment against a tenant can be passed, as there is a bar of jurisdiction in that context. Decrees for Declaration, Restraint or even Mandatory directions, if the requirements of law are met, can be passed and such decrees may touch upon even,‑pending proceedings of ejectment on grounds closely akin .to the civil proceedings but never intersecting each other. Likewise., and on a parity of reasoning, interim orders of injunction may be passed in relevant civil proceedings, directing restraint in respect of acts, which may be calculated to cause impairment in the value or utility of the premises. However, in exercise of such jurisdiction, a civil Court has to be extremely cautious and circumspect, inasmuch as, interim orders issued or final decrees passed may, one way or the other, affect or influence the proceedings in the quasi‑judicial tribunal, which is what the forum of Controller, under the Rent Laws, is. Extreme care and caution, therefore, is called for in matters of the kind, which is presently in hand and it is with these considerations in mind that this application is being dealt with.

10. Learned counsel for the plaintiff has placed the following citations for consideration before me in order to explain as to what can be the various acts of commission and omission which may result in an order of eviction:‑ (1) Shujauddin Qureshi v. Mst. Hasan Ara Begum (PLD‑19 Lah. 792) (2) Fayyaz Ali Khan v. Haji Mohammad Sharif (1981 SCMR 545). (3) Umar Din v. Fazal Mohammad (1980 SCMR 906). (4) Rana Khalil‑ur‑Rehman v. Addl. District Judge, Lahore & others (PLD 1983 Lahore 331) (5) Khatija Khatoon v. Dr. Begum Razia Khalily. 1984‑CLC 161). (6) K.C. Mamoo v. Mrs. Badrunnisa (1985 CLC 332).

11. For the reasons that have already been detailed above, it does not seem desirable, except to the extent necessary, to dilate upon the question as to what constitutes an act of impairment in the value or utility of a tenant‑hold premises. Patently, that is the jurisdiction of the Court of the Controller, where such proceedings are already pending or of the appellate forums, to which such proceedings may travel and that includes this Court, but in the exercise of jurisdiction of a different nature. Thus even so much on merits, as is recorded below, is limited to this application and shall have no other bearing.

12. In so far as this suit is concerned, the jurisdiction here and in particular at this stage of the proceedings is limited to restrain something, which is prima facie unlawful, which it is more convenient to prohibit than to let continue and which, unless stopped would cause irreparable loss or, in other words, loss which cannot be calculated in terms of money.

13. On the first question whether the acts on the part of the defendant are such as would impair the material value or utility of the premises, there is, speaking tentatively, little on the record, so far, to establish such a plea. Nor, as I have said earlier should that question, if it can be avoided, be decided in proceeding of this character. As to the first part of the observation, I would tentatively and provisionally opine that if a Restaurant is, admittedly, functioning in a premises (see the plaint), which was meant to be utilized for commercial purpose, Tandoor and Degh may, subject to proof, be essential elements/installations of such business and,perhaps, may be installed of course, if no impairment to the value or utilitv of the premises takes place on that account. That there was a Tandoor, already, prior to the Rent Case, there is no dispute about (but the question whether its installation provided a ground for ejectment is pending before the Controller) and in fact, Mr. AZher Ali Khan, without prejudice, concedes that if the defendant is restricted to one Tandoor inside the premises but no Degh, he would agree to the order. Still, if one Tandoor can be conceded, there can be no logical objection to another, provided of course, the concept of impairment does not come into play. Now, it would appear to me, that in so far as prejudicial effect to the foundation is concerned, none, so far, has been established. As regards the heat generated by the Tandoors and the operation of the Degh is concerned, these are manually operated devices and those who operate the same have to be in extremely close vicinity and if the heat was unbearable, the devices under reference would be rendered unworkable. It, therefore, has to be prima facie assumed that by working upon the Tandoors and the Degh, solely on account of the heat generated, no structural damage is likely to be caused to the building. In any case, I had required the defendant's Counsel to submit copies of gas bills utilized by him in the premises and some 19 or 20 bills of sui gas, for the period 1986‑88, have been submitted revealing an average consumption around Rs.8,000 to Rs.10,000 per month which is, to say the least, quite substantial and proves that at least one Tandoor and, may be, even a Degh have been there in the premises for quite sometime.

14. It would be unnecessary to say if the plaintiff had approached this Court before the second Tandoor was installed, the Court would have interfered in its installation for this, in the circumstances, becomes an academic question. The current situation is that two Tandoors have been installed and a Degh (not questioned in the application) is also there and all seem to be in a ready state and, according to the Commissioner, in the process of being connected with the gas outlet and, therefore, in the state of things as they are, a case for interference does not seem to be made out

15. Confronted with this situation, plaintiff's Counsel, after conclusion of hearing, cited the undernoted authorities:‑ (1) Nazar Hussain v. Shahsawar (1983 SCMR 937). (2) SA. Abbasi v. Chairman, District Council, Gulshan‑e‑Iqbal, Karachi (PLD 1985 Karachi 400). (3) Muhammad Adam v. Mahmood Ali and another (1980 CLC 160). First of these citations pertains to an order passed in apprehension of con: ruction whereas the two latter judgments deal with the grant of mandatory injunctions in appropriate cases or imposition of punishment for violation of orders. I am afraid that none of these references are attracted as neither a case for grant of mandatory. injunction nor for violation is made out, as not even a Rejoinder to the Counter‑affidavit is submitted Commissioner's observation regarding commencement of work after 4.00 p.m. is firstly, based on apparent hearsay and, secondly, no application for contempt or other action is filed nor was any such question raised in arguments.

16. This was so far as considerations on the ground of prima facie case are concerned. As to the balance of convenience, it would lie in continuation of the state of things as it hitherto was and if activities connected with Tandoor were going on, as the gas bills etc., would show, such factor cannot be ignored.

17. Finally, on the question of irreparable loss it would seem that unless something in the nature of effecting the foundation or the structure was brought out or even anything said, as to the strength of the building, was substantiated duly on the record, the element of irreparable loss could have come into play. In the context of things, the loss or damage if any, seems to be capable of being cured and compensated in terms of money. Accordingly, no element of irreparable loss seems to be attracted. Since all the three elements of prima facie case, balance of convenience and irreparable loss have to be present before an order of interim injunction can be granted, even if the findings on the two earlier questions were favourable to the plaintiff, there being no element of irreparable loss, the remedy of interim injunction cannot be allowed. Even so, while I would not be inclined to allow the application as prayed, in the interest of justice, I would still direct that the defendant shall be restrained from putting up any more Tandoors or other devices of a similar nature till further orders in this case and, likewise, he would also be restrained from utilitsing the Tandoor situated in front of the premises, for public property cannot be allowed to be invaded by anyone for such purposes. The defendant would be better advised to close such Tandoor altogether even if it was meant for a temporary purposes. The Commissioner shall be paid his additional fees of Rs.2,000 by the defendant as plaintiff has already paid like amount earlier on. As a result C.MAs' 2669/89 and 2670/89 stand disposed of. M.BA/M‑781/K Appeals dismissed.