SIND BALUCHISTAN TRADING COMPANY Versus COTTON EXPORT CORPORATION OF PAKISTAN (PRIVATE) LTD
ORDER
This application for injunction under Order XXXIX, Rules 1 and 2 restraining the defendants from storing or arranging permitting storage of cotton bales or any other goods, at open area of Plinth No. E‑12 of Plaintiffs at They Produce Yard in area of Karachi Port Trust and from ingress to the said plinth. Shortly put; the facts leading to the present suit for permanent injunction /possession and damages valued at Rs.1,11,750 are these.
2. The plaintiffs being lessees of the Karachi Port Trust in respect of Plinth No. E‑12 measuring about 2495 sq. yards' in or at Thole Produce Yard, Karachi, allowed the defendants to use open area of about 1350 sq. yards thereof, for storage of cotton bales for a period of six months with effect from 1st May, 1985 as per Agreement dated 5th June, 1985 on payment of a flat sum of Rs.4,250 per month for the use of the said open area. The right granted to the defendants was only licence for storage of bales and ingress and egress for purposes of storage and removal only. The plaintiffs vide their letter dated 1‑10‑1985 informed the defendants that they did not intend to renew the agreement for any further period after the expiry on 1‑10‑1985, and requested them to stop using and vacate the said open area by 31‑10‑1985. The defendants, however, vide their letter dated 10‑11‑1985 requested for extension of the agreement by at least three months as it was not possible for them to vacate the plinth due to heavy arrivals. The plaintiffs vide their letter dated 17‑11‑1985 expressed their inability to extend the agreement as the said plinth was required by them for their own use and that due to non‑availability of their own godown they were loosing Rs.300 daily. They further demanded the payment of Rs.300 per day from 1st November, 1985. The defendants did not comply with the plaintiffs' demand. Hence the plaintiffs filed this suit on 5‑3‑1987 for the reliefs mentioned in para 1 above.
3. The defence set up by the defendants, firstly, in the counter‑affidavit and later in the written statement filed on their behalf, is that they are the tenants of the plaintiffs in respect of Plinth in question against the payment of rent of Rs.4,250 per month for the purpose of storing their Cotton Bales. The plaintiffs demanded enhanced rent from them without justification which the defendants declined to increase. The defendant's case, therefore, shortly put, is that the plaintiffs are their landlords and the relationship between the plaintiffs and the defendants is that of landlord and tenant. Therefore, the rights and liabilities of the plaintiffs and the defendants would be governed under the Sind Rented Premises Ordinance, 1979 and not under the Transfer of Property Act, 1882. The Plinth in question belongs to the plaintiffs inasmuch as they hold the same under a 25 years lease. The plaintiffs' claim is described to be illegal, unjust and arbitrary.
4. I have heard the learned counsel for the parties. Mr. Rahmatullah, learned counsel for the plaintiffs submitted that notwithstanding the fact that in the agreement in question at certain place the word 'rent' has been used but a reading of the entire document gives a clear intention of the parties that the portion of the Plinth in question was given to the defendants as a licensee. The agreement, in fact, is an agreement of licence and not of a lease as alleged by the defendants. He submitted that one of the test to prove that the transaction in question was a licence and not the lease, is that in the case of lease exclusive possession is given to the lessee whereas in the instant case no such intention can be gathered from the agreement in question. He urged that if the plaintiffs would have given the whole of the plinth to the defendants, then it could, to some extent, be pleaded by them that it was a lease and not a licence but in view of the fact that only a portion of the plinth has been given to the defendants for the purpose of storing the cotton bales for a particular period, the transaction can be treated only that of a licence and not a lease.
5. In support of his contention that the plaintiffs have a strong prima facie case, the learned counsel for the plaintiffs drew my attention to the following authorities wherein a distinction between a licence and lease has been drawn:
P L D 1957 Kar. 918, 1983 C L C 3294 and 1987 C L C 39.
He has also placed reliance on an unreported decision of this Court in High Court Appeal No. 37 of 1983. He also submitted that the provisions of Sind Rented Premises Ordinance, 1979 are not applicable to the plinth of the premises in suit as the plinth is the property of the Karachi Port Trust and by virtue of Sind Government notification dated 15‑3‑1981 the Ordinance has been made inapplicable to the premises belonging to the Karachi Port Trust. In support of this contention he sought to place reliance on a case reported in 1986 CLC 1935.
6. The plaintiffs, therefore, urged that the temporary injunction as prayed for may be granted. Alternatively and without prejudice to the above contention, Mr. Rahmatullah submitted that if the injunction prayed for is not granted then the defendants be directed to pay to the plaintiffs the licence fee at the rate of Rs.300 per day. His submission was that it is a very reasonable amount which the plaintiffs claim by way of licence fee for daily use of the plinth in question made by the defendants during the pendency of the suit. The learned counsel submitted that the plaintiffs may also be allowed to withdraw the amount so deposited by the defendants upon furnishing surety to the satisfaction of the Nazir of this Court.
7. Mr. Maqbool Baqar, learned counsel for the defendants, on the other hand, submitted that the plinth in question was given to the defendants on payment of rent as is evident from the agreement (Annexure 'B' to the Plaint) for the purposes of storage of fully pressed cotton bales thereon. He urged that in the said agreement the payment of Rs.4,250 per month has been clearly described to be "monthly rent" and hence the plea of the plaintiffs that it was a licence fee is ex facie untenable. Placing reliance on a decision of this Court reported in 1987 C L C 393, the learned counsel submitted that in order to ascertain the nature of agreement it is imperative to read it wholly and also to examine the conduct of the parties. He also urged that the balance of convenience in the instant case was in favour of the defendants. In view of the fact that the plaintiffs have already claimed damages vide para 15 and clause (c) of para. 18 of the plaint, no irreparable loss will be caused to the plaintiffs if the temporary injunction prayed for is refused, whereas the business of the defendants will be greatly affected if it is granted. The learned counsel also submitted that the defendants although are a private limited company incorporated under the Companies Act, 1913, but they are, as a matter of fact, solely owned by the Federal Government of Pakistan and are the sole exporting agency of the cotton in Pakistan. He also contended that since the plaintiffs hold the said plinth on 25 years lease from the Karachi Port Trust, therefore, in relation to the defendants, the said plinth leased out to the defendants belong to the plaintiffs and not to the Karachi Port Trust and hence the Sind Government Notification dated 15‑3‑1981 on which the plaintiffs seek to place reliance would not be applicable to the instant case and the plaintiffs cannot take shelter there-under. Making his submission on the alternative plea of the learned counsel for the plaintiffs, Mr. Maqbool Baqar submitted that the demand of the plaintiffs for payment of rent at the rate of Rs.9,000 per month is unjust and arbitrary.
8. I have given my earnest consideration to the submissions made by the learned counsel for the parties and have also carefully perused the pleadings as well as affidavit filed by the plaintiffs in support of the application for injunction and the counter‑affidavit filed on behalf of the defendants and I am clearly of the opinion that it is a case wherein quite a serious question relating to the nature of relationship of parties is to be tried. In view of the various authorities cited at the bar, it cannot be said that the claim of the plaintiffs Is frivolous or vaxatious. In this view of the matter the fate of the application for injunction under consideration would depend upon the consideration of the balance of convenience. I am of the view that if the plaintiffs ultimately succeed in proving that the agreement in question created the relationship of licensee and licensor between the parties, then they would be entitled to be adequately compensated for the loss sustained as a result of defendants' continuing to remain in possession of the plinth in question; whereas if the defendants' version prevails to the effect that the agreement in question is a lease agreement, then irreparable loss would be caused to them if they are through a temporary injunction restrained from storing or arranging permanent storage of cotton bales on the open area of the plinth in question. I am afraid it will not be proper on my part at this stage to resolve the real conflict between the parties with regard to the nature of relationship created by the agreement in question. It will have to be decided at the trial.
9. I do not also consider it necessary to accede to the alternative prayer made by the learned counsel for the plaintiffs to direct the defendants to deposit the amount of damages at the rate of Rs.300 per day as I find that the defendants would be in a financial position to pay them, if ultimately the said damages are found to be recoverable from them. However, in appreciation of the fact that the real controversy between the parties rests upon the interpretation of the agreement in question and the application of the provisions of Sind Rented Premises Ordinance, 1979, it would meet the ends of justice if the suit is fixed for regular hearing after three months. It is ordered accordingly.
A.A./S‑121/K Order accordingly.