SHAHID COAL AGENCY vs THE CHAIRMAN (Now GENERAL MANAGER), PAKISTAN RAILWAYS AND ANOIHER

ORDER

This revision petition is directed against the order dated 1-4-1982 passed by the District Judge, Sibi whereby the petitioner's application for grant of injunction has been rejected. It arises in the following circumstances. The petitioner was allowed to use four pieces of land bearing plot Nos. 42 to 45 at the Railway Station Sibi for stocking material such as coal. As agreement in that behalf was made between President of Pakistan acting through the Pakistan Railway Administration and Messrs Shahid Coal Agency, Quetta i.e. The petitioner which however was not renewed afterwards and finally it was cancelled on 18-11-1978 but the petitioners are continuously occupying the plots and on about 15-3-1982 filed a suit far declaration and injunction against the present respondents and along with the suit also made an application for the grant of interim injunction and prayed that interim stay restraining the respondents from dispossessing the plaintiff from the plot Nos. 42 to 45 from Railway Station Sibi till the decision of the case be granted. The Civil Judge, Sibi vide his order dated 19-11-1981 granted the prayer but the learned District Judge, Sibi vacated the stay order on 1-4-1982 and against this order the present revision is filed. An application for injunction was also moved in this Court.

2. I have heard the learned counsel for the petitioner on considerable length. From the perusal of the agreement in persuance whereof the petitioners were given a licence it is found that the railway administration had unfettered right to determine the agreement without any notice and without being liable to pay any compensation whatsoever and by Clause 15 A thereof it was made clear :- "Nothing herein contained shall be construed to create a tenancy in favour of the Licensee(s) of the said land."

The first question therefore is whether this licence (though it has already expired) creates any right in favour of plaintiff/petitioners, the denial whereof entitles them to claim a declaration under section 42 of the Specific Relief Act, for which protection the method of injunction could be claimed against the Railway Administration. The petitioners were not granted any general right of occupation but only the right to use the plots for stocking the coal for the purpose of despatch from the railway. Station and such a licence was revokable at the will of the grantor. The Supreme Court of Pakistan in M. Nasir v. Chairman, Pakistan Eastern Railway PLD 1965 SC 83, in somewhat under similar facts where a contractor was granted a right to carry on business of catering in the Refreshment Rooms and on the Buffect Cars, and whose licence was determined and was required to handover the charge of rooms had brought an action against the Railway and had sought as injunction, has held that the contract could not be specifically enforced and clause (f) of section 56 of the Specific Relief Act is as bar to the grant of injunction Section 56(f ) of the Specific Relief Act reads as under :- "Section 56. An injunction cannot be granted.

(f) to prevent, the breach of a contract the performance of which would not be specifically enforced."

Respectfully following the law laid down by the Supreme Court I hold that the petitioner cannot claim injunction.

3. Learned counsel for the petitioners then urged before me that if no stay order is granted and the petitioners dispossessed the very object of filing the suit as well as this application shall be defeated. I am afraid this argument has no force. It is settled law that the issuance of a temporary injunction is governed by the same principles as the grant of a permanent injunction at the trial of a case. It is no sufficient reason for the purpose of issuing a temporary injunction that the suit would be infructuous if it did not issue. I am fortified for this view by an authority reported in N. W.

Railway v. N. W. Railways Union, Lahore AIR 1933 Lah. 203. The learned -District Judge, Sibi, relying on a Division Bench judgment of this Court in Ghulam Murtaza v. D. S. Railway, Quetta (C. P. No. 170 of 1978) has held that since the occupation of the plot by the petitioner is unauthorised the petitioner is not entitled to the relief of injunction to perpetuate the ill-gotten gain. The grant of injunction is a matter within the discretion of the Court and I am of the considered view that itshould not be issued in favour of a trespasser. It is well settled that the law does not lean in favour of the trespasser. To grant an injunction in such a E case would be tantamount to giving a right both present and future to trespasser which he could not legally claim. (AIR 1950 Pat. 222 may b referred).

The upshot of the discussion is that the petition fails and is accordingly dismissed in limine.

S. A. H.