P L D 1957 (W (PLP)

INAMULLAH, J.

This is an application under Order XXXIX, Rules 1 and 2 read with section 151, Civil P. C. for an injunction restraining the defendant, the Karachi Municipal Corporation, from ejecting the plaintiff or any of his sub-lessees from the building known as "New Building on Mohan Road Nallah". The facts shortly alleged in the plaint giving rise to the present application are these ; The plaintiff contends to be the lessee of the building by virtue of an alleged agreement dated 14th December 1956 purported to have been executed by the Chief Officer, Karachi Municipal Corporation in favour of the plaintiff, whereby the possession of the building was given over to the plaintiff at the monthly rent of Rs. 1,

000. The plaintiff also paid a sum of Rs. 1,000 on 26th December 1956 towards the rent of the building. It is alleged in the plaint that the building consists of 67 shops, 21 offices and 18 residential flats. The building was leased out to the plaintiff alone as it was difficult for the Karachi Municipal Corporation to recover the rents from different tenants. Moreover, it was given on a comparatively very low rent as the plaintiff wanted to establish a hospital and other amenities for poor people at his own cost. The defendant served a notice on 27th February 1957 calling upon the plaintiff to vacate the premises in question on the ground that lie had unauthorisedly occupied the same. On the facts alleged in the plaint and set out in the various affidavits filed on behalf of the plaintiff it would appear that his case is that a lease was executed by the Chief Officer of the Karachi Municipal Corporation on 14th December 1956 in his favour and that he had taken possession of the building in question by virtue of that lease agreement and had also paid rent. He therefore could not be ejected by the Municipal Corporation. The Municipal Corporation has taken a very definite stand as regards the execution of the lease deed. The case of the Municipal Corporation is that no such lease deed as alleged by the plaintiff was executed in his favour. The affidavit of the Chief Officer, who is alleged to have executed the lease deed, has been filed. He has denied particularly the execution of the lease deed. The plaintiff has filed a certified copy of the said lease which is supposed to be certified by Mr. Rajabali the Deputy Chief Officer who has filed an affidavit and maintains that the copy of the lease deed is a forged one. The case of the Municipal Corporation further is that the building was under construction and that the same was being constructed by the firm known as "Modern Builders". Infact; so far as the question of the construction of the building is concerned, it is not denied by the plaintiff. An affidavit has been filed on behalf of "Modern Builders" and some Chowkidars and other persons on behalf of the Municipal Corporation alleging that the building was never in the possession of the plaintiff. On the other hand, the plaintiff has filed affidavits of numerous persons alleging that he was in possession of the building since December 1956. Mr. Aziz, the learned Advocate for the plaintiff, raised two preliminary objections. He contended in the first place that the affidavits do not conform to Rule 57 of the Sind Chief Court Rules. It is true that these do not conform to the rules of the Court in so far as there is no disclosure as regards the source of information. The discretion of the Court in this respect is not fettered and the Court under Rule 70 of the Sind Chief Court Rules has the power to admit even defective affidavits. Moreover, the Court has the power to allow the party concerned to file fresh affidavits in conformity with the rules. Mr. Aziz, however, did not press this objection and withdrew it. The second objection urged by Mr. Aziz was that the application before me was' only an application under Order XXXIX, Rules 4 and the main application has not been put. On my observation that this objection has been taken towards the close of the arguments at 3 p. m. while the argu ments started at 11-15 a.m, and that the arguments have been advanced by both the learned Advocates of the parties on the basis that I am hearing the main application, Mr. Aziz dropped this objection and did not press it further. Mr. Farooqi, the learned Advocate for Municipal Cor poration, raised four-fold contentions before me. In the first place, he contended that there was no valid lease in conformity with section 55 of the Karachi Municipal Act, 1933. In the second place it was contended that even if there was a lease the same being not registered cannot be used in evidence. In the third place it was contended that the lease in fact was a fictitious document as no such lease was ever executed, and lastly, it was contended that the plaintiff was never put in possession and as such the injunction application was not maintainable. On the other hand it was contended by Mr. Aziz and Mr. Mohsin Siddiqui for the plaintiff that the plaintiff has been able to make out a triable case inasmuch as there was a serious question to be considered as regards the tenancy of the plaintiff in respect of the building in question and there fore he is entitled to an interim injunction. I do not think it necessary, so far as the present applica tion is concerned, to consider in detail all the contentions raised by Mr. Farooqi. The main consideration so far as the facts disclosed by the parties are concerned is whether the plaintiff in fact was in possession at the time when the interim order for injunction was passed. Even if there was a serious question to be tried as regards the tenancy on the facts dis closed by the plaintiff and if the finding is that he was not in possession of the building in question at the time when the interim injunction was obtained, the injunction application must be dismissed. But before dealing with this question I would also briefly deal with the question whether the lease, even if existed was in conformity with the provisions of the Municipal Act and as such could be binding on the Municipal Corporation. The Karachi Municipal Corporation is a statutory body. Everything to be done by it or on its behalf has to be done in conformity with the Act known as "The City of Karachi Municipal Act, 1933". Section 55 of the Act deals with the condition under which the Municipal property can be disposed of and by whom can it be disposed of. Section 55 of the Act reads as under :- "

55. With respect to the disposal of property to the Corporation other than waste lands transferred to the Corporation by the State the following provisions shall have effect, namely :- (a) the Chief Officer may, in his discretion, dispose of by sale or otherwise any movable property belonging to the Corporation not exceeding in value five hundred rupees, or grant a lease of any immovable property belonging to the Corporation, including any right of fishing or of gathering and taking fruit, flowers and the like of which the premium or rent, or both, as the case may be, does not exceed rupees one thousand, for any period not exceeding twelve months at a time ; Provided that every such lease granted by the Chief Officer other than a lease of a class in respect of which the Standing Committee has by resolution exempted the Chief Officer from compliance with the requirements of this proviso shall be reported by him, within fifteen days after the same has been granted, to the Standing Committee (b) With the sanction of the Standing Committee the Chief Officer may dispose of, by sale or otherwise, any movable property belonging to the Corporation, of which the value does not exceed five thousand rupees, or grant a lease of any immovable property belonging to the Corpora tion including any such right as aforesaid, for any period not exceeding three years at a time of which the premium or rent, or both, as the case may be, for any one year, does not exceed rupee five thousand ; (c) With the sanction of the Corporation, the Chief Officer may lease, sell or otherwise convey any property, movable or immovable, belonging to the Corporation ; (d) the sanction of the Standing Committee or of the Corporation under clause (b) or (c) may be given either generally for any class of cases or specially in any particular case ; and (e) the aforesaid provisions of this section shall apply, respectively, to every disposal of property belonging to the Corporation made under or for any purpose of this Act Provided that- (i) no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed in such a manner that any trust subject to which such property is held is thereby affected ; (ii) no land exceeding ten thousand rupees in value shall be sold, leased or otherwise conveyed without the previous sanction of the Provincial Government and ever sale, lease or other conveyance of property vesting in the corporation shall be deemed to be subject to the conditions and limitations imposed by this Act or by any other enactment for the time being in force". The rental value of the property according to the plaintiff, would be Rs. 12,000 per annum. Even accepting the valuation of the rent as given by the plaintiff, it is clear from a perusal of the above section that the Chief Officer had no power to dispose of this property. In this case no sanction of the Corporation has been produced in conformity with section 55 (c), though a vague reference to the same is made in para. 6 of the rejoinder of the plaintiff. Moreover, even if there was the sanction of the Municipal Corporation for the lease of the property in question to the plaintiff, then proviso (I8) had to be conformed whereby it is provided that the previous sanction of the Provincial Government should be obtained. In the present case it is not even alleged that any sanction of the Provincial Government had been obtained. It is clear that section 55 of the Karachi Municipal Act, which lays down as to how a lease in respect of pro perty whose annual rental value, which according to the plaintiff was Rs. 12,000, has to be executed. The object of section 55 clearly is to safeguard the interest of the Municipal Corporation and a disregard of the same would be a fatal one. The Municipal Corporation cannot be said to be bound if an Officer of the Corporation chooses to take upon himself to disregard the mandatory pro visions of the Act. Mr. Farooqi relied upon a number of authorities in which different provisions of the Municipal Act were considered by Indian Courts and the principle deducible from those cases is where a certain agreement did not conform with the mandatory provisions of the Act, it could not bind the Municipal Corporation. The principle is deducible from the case of Ramaswamy Chetty v. The Municipal Council, Tanjore (I L R 29 Mad. 360), Raman Chetti v. The Municipal Council of Kumbakonam (I L R 30 Mad. 290), Rdha Krishna Das and others v. The Municipal Board of Benares (I L R 27 All. 592) and The Ahmedabad Munici pality v. Sulemanji Ismailji (I L R 27 Bom. 618). As I have already observed, the main consideration so far as the present application is concerned is whether the plaintiff was in possession at the time when he obtained the interim order from this Court. Even if I were to uphold the contention of Mr. Aziz on the basis of the copy of the alleged lease deed and also the receipt of the payment of rent, though these facts are disputed that a serious question for trial at the final hearing arises but if the plaintiff is found to be out of possession at the time when the interim order was made, the injunction will have to be withdrawn. I do not think it is necessary for me to consider at this stage the question about the admissibility of the copy of the lease deed filed by the plaintiff, though there is force in the contention raised by Mr. Farooqi that the lease, having not been registered, cannot be used as evidence. I would, however for the purpose of the present application take it that the same can be used in evidence. I will now proceed to consider the most important question whether the plaintiff was in possession of the pro perty in question on the date when he obtained the interim injunction viz. 1st March 1957. On behalf of the plaintiff, reliance has been placed on the affidavits filed by a number of persons who are said to be residing in front of the building in question. Affidavits, have also been filed by Chowkidars who were said to be employed by the plaintiff in order to keep watch over the building. There are also sub-leases by persons to whom tenements in the building have been sublet. The plaintiff, of course, relies upon the copy of the lease deed and on the rent receipt of the money he paid on 26th Decem ber 1956. He has also relied upon certain correspondence between the Municipal Corporation and himself in support of his contention that he was in possession of the building It was very strenuously contended by Mr. Aziz and Mr. Mohsin Siddiqi that all the various persons who have filed affidavits in support of the contention of the plaintiff that he was in possession are independent people, they cannot be said to be in any way under the influence of the plaintiff. It is contended by Mr. Aziz that so far as the persons who have filed affidavits on behalf of the defendants are concerned, they are employees either of the Corporation or that of the contractor "Modern Builders" and therefore, they cannot be relied upon. In my opinion it is not sufficient ground under the circumstances of the present case to discard the affidavits of those connected with the Corporation. Considering the number of circumstances which I will presently deal with, I have no doubt that the case of the Municipal Corporation so far as the question of possession is concerned must be accepted. I will now consider the circumstances which to my mind are of such weight that they lend great support to the various affidavits filed by the Municipal Corporation. In fact, the circumstances are such that by themselves also they would make out a great prima facie case in favour of the Municipal Corporation that the plaintiff was not in possession on the 1st of March 1957. I will now consider these circumstances. In the first place, it is admitted by the plaintiff himself that the building is not complete. According to the documents filed by him it would appear that the building is not habitable. The Karachi Municipal Rules also require that a completion certificate must be obtained before a building can be occupied for use. No reason whatsoever has been alleged, much less made out, as to why should the Municipal Corporation be in a hurry to put the plaintiff in possession of such valuable property. In this connection it may also be noted that the rental value of the property according to the Municipal Corporation, which was approved by the Standing Committee on 10th May 1956, much before the property was leased out to the plaintiff, was Rs. 54,000 per annum. The only ground given by the plaintiff for reduction of the rent to a nominal figure of Rs. 12,000 per annum is that he was to run some charitable institutions. This, to my mind, is not a cogent ground for the Municipal Corporation to have reduced the rent in favour of an individual. There is another very important circumstance which goes very much against the plaintiff and that is his letter dated 12th February 1957, addressed to the Municipal Commissioner. This letter has a reference to a press conference given by the Municipal Commissioner Mr. Qureshi. The report id the press has been filed by the defendant and the relevant portion reads as under :- "About the disposal of residential flats constructed over Mohan Road Nallah he said that they would be auctioned by the Corporation. The plaintiff wrote to the Municipal Commissioner as under :- "I am shocked to read your statement which you gave in your recent press conference that the markets and the shops which will now be constructed by the Corporation will be auctioned. I strongly protest against this move, because all the schemes for construction of markets and shops were framed and approved in 1951 for rehabilitation of the hawkers only. It was clearly stipulated in those schemes that the hawkers who are doing business on footpaths will be rehabilitated in the shops to be construct ed by the Corporation. I therefore, appeal to you to withdraw your statement given in the Press Conference." I asked the learned advocates for the plaintiff if they admitted this letter and was informed that they do admit this letter. The contents of the above letter make it very clear that upto 12th February 1957 the plaintiff, though he had come to know that the residential flats constructed over Mohan Road Nallah were to be auctioned by the Municipal Commissioner, did not contest the power of the Municipal Commissioner to do so in view of the fact that he was already in possession by virtue of being a lessee. To my mind this is a very important letter and it speaks about the frame of mind of the plaintiff as it was on 12th February 1957. He had upto that time not made up his mind to put forward a case of the nature that he has done today. This letter was, however, sought to be explained by the learned advocates for the plaintiff by stating that this letter was dealing generally with buildings which the Municipal Corporation sought to auction. This explanation does not appeal to me especially in view of the fact that there was a pointed reference to the Mohan Road Nallah building in the press conference. This is the biggest building, except the Municipal Corporation Building itself, which the Municipal Corporation has built. If the said building has been let out to the plaintiff he should have immediately protested after he read the press report. It is also of great importance that the plaintiff has failed to allege any conspiracy that may has been hatched by the Municipal Commissioner, who is a C. S. P., Officer in order to assert that the plaintiff was not in possession of the pro perty in question on 1st March 1957. The case put up by the Corporation as regards the possession of the plaintiff is within the knowledge of the Municipal Commissioner. I have no doubt that if it was within the knowledge of the Municipal Commissioner that in fact the plaintiff was in possession on the date that he obtained the injunction order, he would never have allowed this plea to be put forward by Municipal Commissioner. It appears that after the plaintiff obtained the injunction order from the Court, being armed with that order he thought that he could safely take possession of the building. It has not been alleged that the defendants having come to know about this order that they arranged to file a police report on the night of 1st and 2nd March 1957. In the absence of any such contention I have no doubt that the report that was lodged about the forcible possession of the building by the plaintiff has great force. The circumstances under which the lease is said to have been executed also appears to me to be dramatic. The lease is alleged to have been executed on 14th December 1956 on which date admittedly the Chief Officer was to hand over charge to the Municipal Commissioner and was to go out. The rent, as I have already mentioned, is very nominal. A building which has cost rupees eight lakhs, if the shops and the flats were to be auctioned they could easily fetch in the neighbourhood of about Rs. 10,000 to Rs. 15,000 as rent per month. I have tried to think of any cogent circumstance which may be in favour of the plaintiff for the Corporation to have given over the possession of the property in question to the plaintiff before the completion of the building, I find none. The various circumstances that I have mentioned above are sufficient that the plaintiff was never in possession of the building in question as alleged by him. I would hold that the plaintiff' was not in possession on the 1st of March 1957 when he obtained the interim order from me. I may, however, mention here that the appreciation of the evidence regarding the possession of plaintiff in this case would not be binding upon the Magistrate who may be trying the criminal trespass case against the plaintiff. He has to 'consider the criminal case on its own merits. I would, for the reasons given above, dismiss the appli cation with costs and withdraw the interim order. A. H.????????????????????????????????????????????Application dismissed.