RAHIM SHAH Versus KASSIM
1. SYED HAIDER ALI PIRZADA, J.‑‑‑ This High Court Appeal is directed against the order dated 29‑5‑1990 whereby allowing the applications under Order XXXIX, Rules 1 and 2, C.P.C. filed by the first respondent and restraining the appellant from executing the eviction order passed by the Controller in respect of tenement Nos. 9, 11 and 12 on Plot No. LR‑8/38, Lotus Street, Karachi.
2. The facts leading to the filing of the above High Court Appeal are that the second respondent was owner of the property bearing No. LR‑8/38, Lotus Street, Off Nishter Road, Karachi. The first respondent had filed a suit against the second respondent and the present appellant for declaration, specific performance and permanent injunction being Suit No. 323/1980. The case of the first respondent, as set out in the plaint, is that he purchased suit property which consists of land being No. 9, 11 and 12 on Plot No. LR‑8/38, Lotus Street for a sale consideration of Rs. 00,000 of which a sum of Rs. 43,000 was paid by the first respondent to the second respondent who had executed an agreement and also issued a receipt acknowledging the said payment. Under the agreement, balance of sale consideration was to be paid by the first respondent to the second respondent at the time of registration of the sale deed. One of the conditions of the agreement was that from 1‑7‑1978 the first respondent had ceased to be the tenant and would not be liable to pay rent in future. The first respondent's grievance is that the second respondent did not execute the conveyance deed and collusively transferred the property by a registered sale‑deed to the appellant. The second respondent filed written statement denying the execution of the sale agreement. After some time, he filed a second written statement in which he admitted the agreement and receipt of the part of sale consideration. However, the Court did not permit him to substitute this written statement in place of earlier written statement.
3. The appellant after serving legal notices, dated 5‑12‑1979 to all the tenants of the compound including the first respondent and his son Iqbal Kassim, filed eviction applications. 1t is the case of the appellant that all the tenants started paying rent to the appellant but the first respondent and his son neither paid the rent to the appellant nor replied to the notices with the result that the appellant filed eviction cases against the first respondent and his son Iqbal being R.C. Nos.3782 and 3783 of 1980. The eviction applications were allowed on 6‑3‑1983 and 31‑1‑1988. The first respondent and his son filed separate F.R.As. Nos.342 of 1983 and 176 of 1988. Both the appeals were dismissed on 11‑1‑989. The first respondent and his son filed Civil Petitions for Leave to Appeal in the Supreme Court being C.P.L.A. Nos. 120 and 121 of 1989. Both the C.P.L.A.S. were dismissed. The judgment is reported in 1990 SCMR 647 (Kassirn v. Rahim Shah).
4. It is advantageous to reproduce the relevant observations which are as follows:‑
5. "We have carefully considered the contentions of the learned counsel in the light of the order passed by the Rent Controller and the judgment of the High Court, and the evidence brought on record. We find that the most important witness in this case is the previous owner Budha son of Soomar. He has admitted his signature on the sale‑deed and the factum of sale made by him in favour of the respondent, but according to him he had intended to sell only five tenements out of 16 tenements standing on the land comprising the property commonly called Budha Soomar compound. This witness has admitted that he had not obtained partition of the property before the sale‑deed and has also admitted his signature on the letters of attornment addressed to his tenants for recognizing the respondent as their landlord. But his allegation is that his signature on these documents were obtained by fraud. We have perused the deed of conveyance executed in favour of respondent and registered on 11th August, 1979 which shows that the entire property comprising land admeasuring 1,213 sq. yds. bearing Survey No.1.R. 8, Lawrence Quarters of the city of Karachi with old structure standing thereon, was the subject‑matter of the sale as fully described in the schedule annexed to the sale‑deed. Therefore, the document purports to transfer the entire right and interest of Budha in favour of the respondent and that is, why he has filed a suit for cancellation of the instrument. His evidence further shows that he has stopped dealing with the property after the date of the sale although according to him he had entrusted the collection of rents from the tenants of the portion not covered by the sale‑deed to the respondent. All this evidence, prima facie, supports the plea of the respondent that he had acquired the right of the ownership in the property through sale‑deed. Until the sale‑deed is cancelled and is out of the field, the respondent can claim to have stepped into the shoes of the previous owner, entitled to recover rent from the tenants of the building which was the subject‑matter of the sale. There is another aspect of the case which cannot be ignored. Even if the agreement of sale was executed by the previous owner on a prior date before the registered sale‑deed, by virtue of section 50 the registered sale‑deed, nonetheless has precedence over the prior unregistered deed of agreement. This position would remain till such time the Civil Court passes a decree against the respondent in any of the suits pending in respect of the property. However, for the purpose of the Rent Controller, the position as it stands today was sufficient to satisfy the requirements of law that the respondent was landlord entitled to recover rent. In this view of the matter, we find no reason to interfere with the decision. of the High Court, which is unexceptionable."
6. The second respondent filed a suit for cancellation of sale‑deed in favour of the appellant which suit is still pending.
7. The learned Single ,fudge allowed the applications vide order, dated 29‑5‑1990. Aggrieved by the said order, the appellant has filed the present appeal.
8. We have carefully considered the contentions of the learned counsel appearing for the parties. We have gone thoroughly through the order. We have perused the record of the case.
9. The case of the first respondent, as set out in the plaint, is that the first respondent entered into an agreement of sale in respect of the property in suit. The total sale consideration is Rs.60,000 out of which a sum of Rs.43,900 was paid by the first respondent to the second respondent. One of the conditions of the agreement was that from 1‑7‑1978 the first respondent had ceased to be the tenant and would not be liable to pay rent in future. It is on the basis of that sale agreement the first respondent has come forward with the suit for specific performance and for injunction. Since he is already in possession of the suit property as purchaser, he has advantage of that possession before seeking to specifically enforce the agreement. Since he apprehended interference by the appellant, he filed applications under Order XXXIX, Rules 1 and 2, C.P.C. for restraining the appellant from executing the eviction order. The appellant has purchased the part of the property which is admittedly subsequent to the agreement of sale.
10. It cannot be disputed that the first respondent was tenant in respect of the suit property and had ceased to be the tenant with effect from 1‑7‑1978 and would not be liable to pay rent in future.
11. Mr. A.R. Mirza, learned counsel appearing for the appellant, vehemently contended that the sale‑deed has been registered in favour of the appellant and having prima facie title and ownership of the property, he cannot be restrained from executing eviction order which has been passed by the Controller holding him to be the landlord of the premises, which order has been confirmed by the Supreme Court. In support of this contention, reliance was placed on a case reported in 1984 SCMR at page 741.
12. It is not in dispute that the principles laid down in Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064) were clarified and explained by the Hon'ble Supreme Court. The learned Single Judge has rightly come to the conclusion that the facts of the case of Allah Yar are distinguishable from the facts of the present case. It has rightly been observed that in the present case an agreement exists which though first denied by the second respondent has been admitted subsequently. Even the respondent has filed suit for cancellation of sale‑deed executed in favour of the appellant and further the relationship of landlord and tenant between the first and second respondents ceased on execution of agreement to sell.
13. The learned counsel for the parties have referred a number of decisions in support of their respective contentions. We have. read these decisions carefully.
14. In Taj Din v. Shakoor Ahmad (1988 SCMR 1344), eviction order was passed by the Controller and affirmed in first and second appeal. Partition suit in respect of the property was pending and the findings of fact by all Courts were against the tenant. The petition for (cave to appeal was dismissed by the Supreme Court. While dismissing petition for leave to appeal the Supreme Court observed that dismissal of petition would be without prejudice to the partition suit pending before a Civil Court.
15. In Ghulam Muhammad v. Mst. Rashida Hamid and others (1989 SCMR 1763) the tenant riled petition for (cave to appeal before the Supreme Court against the dismissal of Constitutional petition which had arisen out of the order of his eviction under the Rent Restriction Law. The dispute is whether the portion in question stood transferred to the petitioner side or to the respondent side. On the basis of the evidence led before the Courts below, it was found that the disputed portion was transferred to the respondent side and that the petitioner's portion was only that of tenant. However, in the peculiar circumstances of the case, it was observed that the petitioner may, if so advised, file a suit in the Court of general jurisdiction (after surrendering the possession to the respondent successful party) for declaration of ownership and possession. With these observations, leave to appeal was refused by the Hon'ble Supreme Court.
16. In Kaneez Fatima v. Khalil Ahmad Sharar and 2 others (1989 SCMR 2041), the controversy before Courts was whether the petitioner who is stated to be the owner of the land under the building in dispute could be treated as tenant, vis‑a‑vis the superstructure belonging to the respondent/landlord. It has been found that the petitioner was inducted as tenant and was liable to pay the rent at least for the superstructure of the building, was a tenant in law, vis a‑vis, the building. The petition was dismissed but the petitioner was permitted to seek declaration of title regarding the land under the building in question by filing a suit in the Court of general jurisdiction. It was further observed that the petitioner would not be entitled to regain possession in contravention of the orders of the Controller which has been upheld by the High Court.
17. In Haji Abdul Aziz and others v. Muhammad Akram Bhatti and others (1990 SCMR 1210), the appellants filed eviction application against the respondent seeking his eviction from a portion of Property No.94‑R‑154 situate on Multan Road, Nawan Kot, Lahore. The application was resisted by the respondent on a number of grounds. He denied that he was a tenant under the appellants and set up the plea of adverse possession. The parties led evidence in support ‑of their respective contentions. After considering the evidence of both the parties, the Rent Controller came to the conclusion that the respondent was occupying the same as tenant under them. On the basis of these findings, he passed an order of eviction against the respondent. The respondent went in appeal before the Additional District Judge at Lahore. The respondent filed an application under Order XLJ, Rule 27, C.P.C. to seek permission to file number of documents. The application was rejected. After re‑appraising the evidence, the Additional District Judge affirmed the findings of the Controller and dismissed the appeal. The respondent then filed a Constitutional petition which was allowed by the High Court. The appellant went before the Supreme Court. It was held that it was well within the competence of the Rent Controller as well as the Additional District Judge to prefer the evidence of the appellant to that of the respondent. The High Court should not have, therefore, disturbed their findings and proceeded on a ground which was not taken up by the respondent in the proceedings before the Controller. In that view of the matter, the appeal was accepted and the judgment of the High Court was set aside.
18. In Aleem‑ud‑Din and another v. Muhammad Aslam and 2 others (1991 SCMR 850), leave to appeal was granted to examine whether the agreement of sale in favour of tenant in possession, would protect him against his dispossession, under section 53‑A, Transfer of Property Act. The appeal was dismissed with the observations "that the eviction order would remain valid till the final decision on the Civil Court side. It was further observed that the judgments impugned in this case shall be subject to the final verdict by the Civil Court. In exercise of the power to do complete justice, the appellants are allowed one month's stay to seek/apply for interim relief from the Civil Court".
19. In Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242), the tenant claimed that he purchased the premises in question. This claim was not accepted. An order of eviction on the ground of default and personal requirement was passed against her. The First Appeal was dismissed. Leave to appeal was granted. His appeal was finally dismissed. While dismissing the appeal, it was observed at page 245 as follows:‑
20. "In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate‑‑‑though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord." ,
21. The three principles which govern the grant of a temporary injunction are: (1) whether there is prima facie case, (2) whether any irreparable injury would be caused to the applicant if the injunction is not granted and (3) whether the balance of convenience is in favour of granting a temporary injunction.
22. In the instant case, the first respondent filed suit for specific performance and alleged therein that the second respondent entered into an agreement of sale in respect of the property in question. This agreement was prior to that of execution of sale‑deed in favour of the appellant. The second respondent filed a suit for cancellation of sale‑deed on the ground that he never agreed to sell the entire property to the appellant. It cannot be said that the plaintiff can never succeed in such a suit. Supposing the plaintiff succeeds in such a suit after trial, the plaintiff in such a case might suffer irreparable injury due to the failure to obtain an order of temporary injunction in his favour during the pendency of the suit. In such a case injustice may result if the plaintiff is not granted temporary injunction and the status quo not maintained. Temporary injunction may also be necessary to prevent multiplicity of proceedings.
23. The eviction order may have been obtained by the defendant to cause injury to the plaintiff. If the plaintiff ultimately succeeds in establishing that the eviction order is not binding, on him, the execution of eviction order may have caused irreparable damage to the plaintiff in the meanwhile before the suit is finally decided.
24. Hence if the plaintiff establishes that he has a prima facie case, i.e. that he prima facie is likely to succeed in the suit, then in such cases it means prima facie that injury is likely to be caused to him as contemplated under Order XXXIX, Rule 2 if the eviction order is allowed to be executed. It is true that the existence of an eviction order is very important circumstance against the plaintiff. Hence, it is more onerous for the plaintiff to establish a prima facie case where there is an eviction order in existence than in other cases. But it has to be remembered that the existence of an eviction order in favour of the defendant is one of the circumstances, though an important one, to be considered by the Court while deciding whether a prima facie case is made out or not. If the plaintiff in such a case establishes a prima facie case for the grant of a temporary injunction even in favour of the defendant, there is no reason why relief by way of temporary injunction should be refused just because there is an eviction order in existence in favour of the defendant. Of course, the! Court has to consider the other requirements; namely, the likelihood of irreparable injury and the balance of convenience also.
25. In the instant case, the learned Single Judge had come to the conclusion that the plaintiff/first respondent had made out a prima facie case and the learned Single Judge had come to the conclusion that the balance of convenience was more in favour of the plaintiff than in favour of the defendant /appellant. In the instant case, we arc of the opinion that the learned Single Judge had not exercised his discretion capriciously or arbitrarily, it is not a case for interference in appeal. In the instant case, the learned Single Judge has dilated upon the question and has applied his mind to the facts of the case. There seems to be no justifiable reason to interfere with the discretion exercised by the learned Single Judge.
26. In the result, the appeal stands dismissed. In the circumstances of the case, the parties are directed to bear their own costs.
27. H.B.T./R‑204/K Appeal dismissed.