P L D 1956 Sind 55 (PLP)

It is pleaded in paragraph 8 of the plaint that no notice under section 80 of the Code of Civil Procedure was necessary "as the threatened act of ejectment summarily by use of force is mala fide, without authority or jurisdiction and not being an act authorised by law and in the course of official duties of the Estate Officer." Mr. Sadiq, the learned advocate for the plaintiff, has raised a two‑fold contention in support of his submission that no notice under section 80 C. P. C. was necessary. In the first place he contended that the use of force in ejecting the plaintiff cannot be said to be an official act within the meaning of section 80 C. P. C. In the second place it was urged that section 80 C. P. C. does not apply to future threatened acts of a public officer. I would consider these two contentions separately. I have heard Mr. S. Nasiruddin for the Estate Officer, and Mr. Sharifuddin as amicus curiae in reply to the arguments of the learned advocate for the plaintiff. In order to apply section 80 C. P. C. two things are essential; (a) the suit must be against a public officer ; (b) the suit must be in respect of an act purporting to be done by such public officer in his official capacity. Where both these two essentials of section 80 are fulfilled, no suit can be filed without the expiry of two months next after a notice in writing has been delivered to the public officer. In the present case it is not contended before me that the defendant, Mr. Syed Safdar Hussain Naqvi is not a public officer within the meaning of section 2 (17). of the C. P. C. The only question to be considered is whether the defendant has purported to act as such in his official capacity. In order to determine this question, I may shortly state how the Estate Officer happens to exercise the power to order persons under certain circumstances to vacate the premises in their occupation. Under F. R. Rule 45 of the Fundamental Rules framed under the Government of India Act, 1935, a local Government has power to make rules laying down principles governing the allotment to officers serving under its administrative control, of buildings owned, or held on lease, by it. The local Govern?ment of Karachi has framed rules, which are known as Allocation Rules. Under Rule 21 of the said rules, a Govern?ment servant who builds or acquires a house in Karachi, has to vacate the house allotted to him within 15 days of complet?ing the construction or acquiring a house. In the present case, a notice under rule 21 of the Allocation Rules of Karachi was served on the plaintiff asking him to vacate the premises in question within 15 days. On the face of it, the notice of June 17th 1955, whereby the Estate Officer called upon the plaintiff to vacate the house in his possession within 15 days, failing which the Estate Officer was to take possession of the house by force, appears to have been given by a `Public Officer' viz. the Estate Officer, in his capacity as such Estate Officer. The contention of the learned advocate for the Plaintiff however, is that under the Rules of Allocation; the Estate Officer, though has power to ask the plaintiff 'to vacate the premises, has no power to eject him by force, and there?fore, the defendant has acted without jurisdiction in threaten?ing the plaintiff to take possession of the premises in his possession by force. In this connection; the case of A. H. B. Gill and another v. The King (A I R 1948 P C 128) is noteworthy. In that case, the appellant Gill who was convicted for bribery, contended that sanction for prosecution under section 197 Cr. P. C. which is almost similar to section 80 C. P. C. was necessary. Their Lordships of the Privy Council held that it was not necessary, and observed "The test may well be, where the public servant, if challenged, can reasonably Claim that what he does, he does in virtue of his office." "A public servant charged for bribery", observed Their Lordships, "cannot justify his act of receiving bribery as an act done by him by virtue of the office that he held". Their Lordships further observed that a Government Medical Officer cannot justify his act of picking the pocket of a patient whom he is examining. In view of the observations the question is, is the act of the Estate Officer in ejecting the plaintiff by force after the expiry of notice, similar to the act of taking bribe or picking the pocket. In other words, applying the test laid down by their Lordships of the Privy Council, can the Estate Officer on being challenged; reasonably Claim that what he has done, he has done by virtue of his office. A distinction must at the very out set be drawn between what a public officer may reasonably Claim to be within his power and jurisdiction and what the Court may ultimately hold. In the present case, it is contended by Mr. Nasiruddin, the learned advocate on behalf of the Estate Officer that the Estate Officer under the Karachi Allocation Rules has power to eject the allottees of houses by the Local Government of Karachi. Mr. Nasiruddin relies on rule 19 of the Karachi Allocation Rules gazetted on July 11, 1953. Rule 19 reads as under :‑ "Acceptance of an allocation by a C. G. S. (i.e., Central Government Servant) shall imply his agreement to vacate the accommodation within fifteen days whenever ordered by the E. O. (i.e. Estate Officer) following either on can?cellation under these Rules or on an order of exchange. A. C. G. S. occupying accommodation otherwise than in accordance with a valid allocation order shall vacate within 3 days when ordered by the E. O. No sanction of Govern?ment to a vacation order given without the offer of alter?native accommodation will be necessary in such cases." It is admitted in paragraph 2 of the plaint that the premises in question had been allotted to the plaintiff by the Estate Officer. Prima facie, therefore, the Karachi Allocation Rules would apply. On the basis of the Allocation Rules, a notice under rule 19 was admittedly served on the plaintiff. It is contended by Mr. Nasiruddin that the position of the plaintiff after the expiry of 15 days was that of a trespasser, and the defendant could use necessary force to oust the trespasser. In this connection reliance is placed on the case of Hemmings and Wife v. The Stoke Poges Golf Club, Limited and another (1920 (1) K B 720). In that case, Hemmings and his wife lived in a cottage belonging to the defendants. Hemmings was in service and was required by the defendants to live in the cottage for the purpose, of his duties. Hemmings left the service of the defendants, but refused to give up the cottage after notice to quit. Thereafter, by command of the defen?dants, several persons entered the cottage and removed Hemmings and his wife and their furniture using no more force than was necessary for that purpose. In an action by the plaintiffs for assault, battery and trespass, it was held that the defendants were not liable, as they had right of entry. Another case relied upon by Mr. Nasiruddin is that of Aglionby v. Cohen (All Eng. L R 1955 (I) 785). It was held in that case that the landlord after the decree for ejectment of the tenant, was entitled personally to evict the tenant. The landlord in that case, after the writ for possession in his favour, had taken the law into his own hands and entered himself. Harman J. observed at page 786 " It has been well known to be the law ever since the celebrated case of Hemmings v. Stoke Poges Golf Club, that if no more force be used than is necessary, a man may turn a trespasser off his property and put his chattels out of the house." It was urged on the basis of these two cases that the plaintiff in this case, after the expiry of 15 days from the date of the notice to quit was a trespasser, and such force as may be necessary and no more, could be used against the plaintiff to eject him, as his position was no better than a tres?passer. Mr. Nasiruddin also urged that the common law principle, as laid down in the case of Hemmings, mentioned above, would be applicable where no specific statutory directions exist. In this connection, the following passage from the Interpretation of Indian Statutes by Jagadish Swarup, 1952 Edn. page 458, may usefully be reproduced :‑ " The principle that, in all cases for which no specific statutory directions were given, judges should act according to justice, equity and good conscience, was expressly formulated in section 93 of the Administration of Justice Regulation promulgated on the 5th July 1781. This rule was, thereafter, successively produced in section 21 of the Regulation 3 of 1793, section 24 of the Bengal Civil Courts Act 1871, and in section 37 Bengal Civil Courts Act, 1887. The decision of a case according to the principles of justice, equity and good conscience, during the British regime, general meant decision according to the principles of English Law applicable to a similar state of circumstances. In Waghela Rajsanji v. Masludin Lord Habhouse stated that 'Equity, Justice and Good Conscience' had been generally interpreted to mean the rules of English Law if found applicable to Indian society and circumstances." Mr. Sadiq, the learned advocate for the plaintiff, relying on the case of Dwarka Singh and others v. Ram Kishun Singh (A I R 1917 Pat. 542) and the case of Baldeo Prasad and others v. Emperor (A I R 1934 Oudh 281) urged that though a person may have a good title to the house, but he has no legal right to take forcible possession of the house in possession of another. These cases arose under the Penal Code. It was also contended by Mr. Sadiq in this connection that the Karachi Allocation Rules do not apply to a requisitioned property. Whether in law the Allocation Rules do apply to the requisitioned property or not, the fact remains that the house in question was allotted to the plaintiff under the same Rules. Whether the Estate Officer is entitled in law to use necessary force in ejecting the plaintiff and other allottees after the expiry of notice given to the allottees to vacate the premises in their possession, would depend upon the inter?pretation of the Allocation Rules, and also whether the common law principle can be applied to the circumstances of the present case in the absence of any specific statutory provision to the contrary. The interpretation of the Alloca?tion Rules or the question whether a tenant, after the expiry of the notice to vacate the premises in his possession, can be ejected by use of such force as may be necessary, is a question of law. A mistake in interpreting the rules or applying the common law principle by the Estate Officer would be Clearly a mistake in the exercise of his jurisdiction or power. In this connection, the case of Raleigh Investment Company limited v. The Governor‑General‑in‑Council (AIR (34) 1947P J8:PLD1947PC19) may be mentioned. In that case, the contention of the plaintiffs was that the Income Tax Officer had made the assessment under an ultra vires provision of an enactment, and therefore, the assessment was illegal. A civil suit was filed by the plaintiffs challenging the assessment on the ground that the Act, under which the assessment was made, was ultra vires. Their Lordships of the Privy Council while considering the question whether the Civil Court had jurisdiction to decide the suit in view of section 67 of the Income Tax Act 1922 debarring the jurisdiction of the Civil Court to set aside or modify any assessment made under the Income Tax Act, observed " An assessment made under the machinery provided by the Act, if based on a provision subsequently held to be ultra vires is not a nullity but a mistake made in the course of its exercise." In the present case also bearing this observation of their Lordships of the Privy Council in mind, I am of the opinion that the mere fact that the Court may on further consideration come to the conclusion that the Estate Officer could not by use of force eject the plaintiff under the law, can be no ground for holding that the Estate Officer cannot reasonably Claim that what he does, he does in virtue of his office. The act of using force to eject the plaintiff is not tantamount to accepting bribe or picking the pocket of a patient. This Claim of using force is sought to be derived from certain rules and law, though ultimately the Court may find that the defendant did not have such power. What may be held ultimately would not, in my opinion, dispense with the mandatory provisions of section 80 of the Code of Civil Procedure. The provisions of section 80 are imperative and admit of no exception or implication, as held by their Lordships of the Privy Council in the case of Bhagchand v. Secretary of State (A I R 1927 P C 176). The next contention of Mr. Sadiq was that notice under section 80 C. P. C. would not be necessary in the case of threatened actions. I can see no force in this contention, as the question has been considered in the case of Subedar Shingara Singh and another v. Brig. C. H. D. O. Callaghan and others (A I R 1946 Lah. 247). It has been held in that case relying upon the grammatical meaning of section 80 C. P. C. that a notice under section 80 is necessary in respect of threatened acts. The plaint can also be rejected under O. VII rule 11, C. P. C. on the short ground that the relief as prayed is wide enough to require a notice under section 80 C. P. C. The relief Claimed by the plaintiff is as under :‑ " That the plaintiff prays for judgment and decree for perpetual injunction restraining the defendant from ejecting the plaintiff from the first floor of bungalow No. 271 . . . . or in any manner interfering with or disturbing plaintiff's possession over the same." The above relief is not in any way confined to the alleged threatened act of the defendant in ejecting the plaintiff by force. In fact, there is no reference whatsoever in the relief to the ejectment of the plaintiff by force. On the contentions raised, the relief should have been only this :‑ " That the defendant be restrained from ejecting the plaintiff by force." The injunction, as prayed for, could apply even to any other method that may be open to the defendant to eject the plaintiff under the law. It would for the reasons given above, reject the plaint under O. VII, rule 11 C. P. C. and withdraw the ad interim order of injunction. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????? Plaint rejected.