1990 PLP 325 (MLD)

Farooq Naek for Plaintiff (in Suit No.1022 of 1989) and defendant (in Suit No. 931 of 1989). G.M. Qureshi for Plaintiff (in Suit No. 931 of 1989) and defendant (in Suit No. 1022 of 1989): Suit No. 931/89 was filed by Mst. Hamida Mullick claiming to be owner of property bearing No. 132/C, Survey No.26, "B" Commercial Area, Defence Housing Authority, Karachi. She has alleged that she had allowed defendant Syed Mushtaq Ali Zaidi temporary use of the above property which he vacated about a month back. Her sons were also in joint possession in the said shop alongwith defendant. After one month of vacating the shop the defendant at the instigation of certain persons had started laying claim to the occupancy of the said shop on the ground of being a tenant which was false. Hence this suit for a declaration that the defendant was not a tenant in respect of the said shop and for permanent injunction restraining him from interfering with plaintiffs possession. Alongwith this suit an application for interim injunction (C.M.A. 5566/89) has been filed. Suit No. 1022/89 has been filed by Syed Mushfiq Ali Zaidi against Mst. Hamida Mullick under section 9 of the Specific Relief Act. He has alleged that the disputed shop was in physical and peaceful possession of the plaintiff for the last 24/25 years. The plaintiff continued to be the tenant and the defendant had been receiving rent and issuing receipts to the plaintiff. During the night between 26‑8‑1989 and 27‑8‑1989 the defendant broke open the locks and substituted the same with his own locks. Next morning when the plaintiff saw this he broke open the locks of the defendant and entered into the shop to find his articles stolen. Next morning he found his locks broken again and the defendant in occupation of shop. He reported the matter to police but without any success. Hence this suit for restoration of the possession and mandatory injunction. Alongwith this suit an application for sealing the premises i.e. the disputed shop has been made which is C.M.A. No. 5940/89. Syed Mushfiq Ali Zaidi has produced photo copies of the receipts of rent from 1977 to 1987. These receipts include receipts issued under the signatures of plaintiff herself and pay‑in slips in the account of the plaintiff. The plaintiff has not denied these receipts. Photo copies of the bills of telephone and electricity have also been produced for the same period. Besides this assessment orders and a number of other documents have been produced to show that the plaintiff was occupying the disputed shop as a tenant till immediately before the filing of this suit. Even Mst. Hamida Mullick has admitted in para. 2 of her plaint that Syed Mushfiq Ali Zaidi has vacated the shop about a month before the filing of her suit. Hence there can be no doubt about the fact that Syed Mushfiq Ali Zaidi was occupying the shop in dispute as tenant from 1977 till August 1989. Ordinarily in these circumstances the allegation of Syed Mushfiq Ali Zaidi that Mst. Hamida Mullick forcibly ejected him seems to be more believable. Even otherwise there was no reason for Syed Mushfiq Ali Zaidi to have filed complaint before the police and not only contested Suit No.931/89 but to have filed Suit No. 1022/89 under section 9 of the Specific Relief Act. I am therefore of the view that whereas Syed Mushfiq Ali Zaidi has made out a prima facie case, Mst. Hamida Mullick has not been able to make out a prima facie case. Hence Mst. Hamida Mullick is not entitled to any interim injunction. Her application C.M.A. No.5500/89, is therefore dismissed. So far as C.M.A. No.5940/89, filed by Mushfiq Ali Zaidi is concerned, it is now to be seen whether an interim relief can be given to plaintiff Mushfiq Ali Zaidi in this case. The shop in question is presently in unlawful occupation of the sons of defendant Mst. Hamida Mullick. If the possession of the shop is not safeguarded pending the decision of this suit it is likely that she may give it to another tenant on rent and create third party interest. The possibility of dismantling the shop or making it unfit for being used by the defendant cannot also be ruled out. Under these circumstances I feel that if the immediate relief of scaling the shop is not granted the plaintiff would suffer irreparable loss. The balance' of convenience is also in his favour. Reliance was placed on Suit No. 57/87 where in similar circumstances Nasir Aslam Zahid, J had ordered to seal the premises in dispute after making an inventory of the goods and articles lying there. Hence I grant C.M.A. No. 5940/89 and direct the Nazir of the Court to seal the shop after preparing inventory of the goods lying there. The plaintiff shall continue to pay rent of this shop till further orders: I further direct that both the suits should be fixed for recording of evidence within three months of the framing of the issues. H.B.T./H‑188/K Order accordingly.