BABA HANDI CRAFT Versus CIVIL AVIATION AUTHORITY

ORDER

Suit No. 905 of 1995.

1. C.M.A. No. 6598 of 1995 .

2.C.M.A. No. 478 of 1996 .

1. This is an application filed by the plaintiff under Order 39, rules 1 and 2, C.P.C. In support of application affidavit of Imtiazuddin son of Mumtazuddin has been filed. Counter‑affidavit of Aftab Ahmed on behalf of defendant has been filed to this application. Affidavit‑in‑rejoinder of Imtiazuddin son of Mumtazuddin has also been filed.

2. This application has been filed under section 151, C.P.C. by the plaintiff with a request to direct defendants to forward their application with recommendation to Airport Security Force for issue of passes for entering the International‑cum‑Transit Lounge. In support of application affidavit of Syed Imtiazuddin has been filed and counter‑affidavit to this application has been filed by Aftab Ahmed Khan on behalf of defendant.

Suit No.916 of 1995

1.C.M.A. No.6659 of 199 5

2. C.M.A. No.479 of 1996 .

1. C.M.A. No.6659 of 1995 has been filed by the plaintiff. In support of the application affidavit of Muhammad Abdul Rahim has been filed. Counter affidavit to this application has been filed by Aftab Ahmed Khan on behalf of the defendants.

2. C.M.A. No.479 of 1996 has been filed by the plaintiff with a prayer to direct defendants to forward their application with recommendation to Airport Security Force for issue of passes for entering the International cum‑Transit Lounge. In support of application affidavit of Abdul Rahim has been filed. Counter affidavit to this application has been filed by Aftab Ahmed on behalf of the defendants.

Suit No.932 of 1995

1. C.M.A. No.6757 of 1995 .

2. C.M.A. No.6836 of 1995 .

1. This application has been filed under Order 39, Rules 1 and 2, C.P.C. by the plaintiff. In support of application affidavit of Zahid Hussain Shah has been filed. Counter‑affidavit of Aftab Ahmed has been filed on behalf of the defendant. Affidavit‑in‑rejoinder has been filed by Zahid Hussain Shah?.

2. C.M.A. No.6836/1995 has been filed by the plaintiff under section 151, C.P.C. with a request to issue directions to the defendants not to disturb the enjoyment of Shop No.43 and not to refuse the entry passes to the Airport Lounge to the plaintiffs and their employees. In support of application .r affidavit of Zahid Hussain Shah has been filed. Counter‑affidavit of Daud Chohan, Manager Commercial has been filed.

Suit No.6 of 1996.

1. C.M.A. No.6850 of 1995 .

2. C.M.A. No.2531 of 1996 .

1. This application has been filed under Order 39, Rules 1 and 2, C.P.C. In support of application affidavit of Nizar Nooruddin has been filed, counter affidavit of Aftab Ahmed Khan has been filed on behalf of the defendants and rejoinder to counter‑affidavit has been filed by Nizar Nooruddin, the plaintiff.

2. This application has been filed with a request to direct the defendant to verify plaintiff's application for gate passes so that the plaintiff may be able to obtain gate passes for entering into Jinnah Terminal. In support of application affidavit of Nizar Nooruddin, the plaintiff has been filed. Counter‑affidavit to this application has been filed by Muhammad Sharif son of late Imam Din General Manager (Legal Services) has been filed.

Plaintiffs have filed the suit for declaration and permanent injunction and after institution of the suits applications referred hereinabove have been filed. The brief facts of the suits according to their averments are that the plaintiffs are very old tenant of defendant No.l and had been carrying on business of Jewellery, Pakistani stones and handicraft (in Suit No.905/95) at Shop No.l‑A at International Transit Lounge, Terminal No.l, Karachi Airport, Karachi, Marble industry and handicraft (in Suit No.916) at Shop No. 18 at International Transit Lounge at Jinnah Terminal, Karachi Airport, plaintiff is carrying on business of handicrafts (in Suit No.932 of 1995) at Shop No.43, at the International Transit Lounge at Quaid‑e‑Azam Airport, Karachi and the plaintiff is carrying on business of handicrafts (in Suit No.6 of 1996) originally obtained Shop No.13 and after carrying on correspondence ultimately Shop No.l‑A was allotted to the plaintiff with effect from November, 1993.

Suit No.905 of 1995 .

According to the plaintiff prior to the filing of this Suit No.509 of 1995 plaintiff, had filed Suit No.206 of 1989 in this Court which was also for declaration and permanent injunction and the suit Paving been placed before Wajihuddin Ahmed, the learned Judge of this Court was disposed of by way of compromise in the following terms:‑‑

The suit coming on this 26th day of March, 1992 for consideration before Mr. Justice Wajihuddin Ahmed in the presence of Mr. Shahenshah Hussain and Mr. I.H. Zaidi, Advocates for the plaintiff and Mr. Umer Qureshi, Advocate for the defendants, it is hereby ordered and decreed by oonsent of advocates for the parties as under:

1. That the defendant No.l will allot/letout shops in International Departure/Transit Lounge in the new Jinnah Terminal, Karachi Airport, Karachi, after inviting tenders in the newspapers. The bids will be submitted in sealed covers which will be opened in presence of plaintiff.

2. That if the plaintiff is ready and willing to match the highest bid in respect of a particular shop of his choice, the defendant No. l will let out that shop to the plaintiff on priority basis in the International Departure/Transit Lounge in New Jinnah Terminal, Karachi Airport, Karachi. The plaintiff will be bound to exercise the option within three weeks of the opening of the tender.

3. That the defendants will not dispossess the plaintiff from his present shop or interfere with his business till the plaintiff is accommodated in the International Departure/Transit Lounge of the New Jinnah Terminal at Karachi Airport, Karachi, in the manner explained above or fails to exercise his option in terms of para. 2 above or having exercised the option fails to duly formalise it.

4: That in the invitation to tender the defendant No. l shall carry a term that existing shopkeepers in terminals Nos. l and 3 are to have preferential and prior rights for allotment."

The contention of the learned counsel for the plaintiff is that after this, in December 1982 the defendant Civil Aviation Authority was established through a Statute and plaintiff entered into a licence agreement with the defendant on 12th day of October, 1992, thereby plaintiff was allowed to carry on his business for a period of three years with effect from 30‑12‑1992 in the premises on the monthly licence fee of Rs.32,790. The relevant paragraphs of the agreement are reproduced as follows:

1. Duration .

This licence in respect of the said premises shall remain in force for a period of three years commencing from 30‑12‑1992 to 29‑12‑1995 provided that the licensor reserves to himself the right to terminate it at any time without notice and without any cause being assigned and without any compensation.

2. Status of the licensee .

It is clearly understood by the parties to this agreement that the contents of this licence agreement or any part thereof shall not be construed or interpreted in a manner as to amount to creation of an easement, lease or any other interest except what is explicitly stated in this agreement in favour of the licensee in respect of the said premises. It is also clearly understood that the licensee shall have the status of an independent contractor and shall not consider to be a servant or agent of the licensor.

3 Licensee Fee .

The licensee shall pay to the Airport Manager on 30‑12‑1992 ac licence fee in advance for the current month i.e. on the date the possession thereof is handed over to the licensee. Thereafter, the monthly fee shall be paid in advance before the 10th of each month to which it relates, whether the licensee receives any bill or not. If the said licence fee or any part thereof shall be in arrears for one month or more after the same shall have become due (whether demanded or not), the Airport Manager may terminate the licence agreement and licensor or his authorized representative may upon such termination by the Airport Manager enter into or upon the premises and take over the same without any right or remedy to the licensee or any obligation to the licensor or charge a fine not exceeding Rs.500 for each day of such default which shall be paid/realised as mentioned in paragraph 29.

4‑A. Enhancement of Fee/Charge .

The licensor shall have the right during the currency of the licence Agreement to revise enhance the amount of the licence fee or the charges with prior notice and licensee shall be bound to pay the revised licence fee from such date as may be specified prospectively by the licensor.

5 Cash Security .

The Licensee shall, for the due performance of his obligations under this licence, deposit with the Airport Manager, Cash Security in the sum of Rs.65,580 (rupees sixty‑five thousand five hundred and eighty only) (an amount equivalent to the two months licence fee). The Security. will be refunded to the. licensee upon vacation of the premises, after deductions, if any, of any amount payable by the licensee.

6 Maintenance of Premises .

The licensee shall, at his own cost, maintain the said premises in good tenantable condition and maintain the said premises as well as the premises around in a proper state of cleanliness and sanitation at all times to the satisfaction of the Airport Manager and shall also obey all orders and instructions of the Airport Manager, or Health or other official of a competent Authority in respect of sanitation or. orderly running of the business.

7. Authorised Business only .

The licensee shall not use the said premises or any thereof for any purpose other than for which the licence has been granted.

10. Removal of Unauthorised Construction .

The licensee shall on the instructions in writing of the Airport Manager shall forthwith pull down and remove any building, erection or addition and reinstate any alteration made in breach of the provisions of this licence and immediately thereafter shall make good any resulting image.

13 Assignments Sub‑Letting .

The said premises or rights of the licensee which are of personal nature under the licence or any party thereof shall not be assigned, transferred, sub‑let, parted with or shared in any manner.

14. Fire Precaution .

The licensee shall not have or store any material of cumbustible or inflammable nature or any radioactive substance at the said premises nor shall light or use any fire or naked flame without prior written approval of the Airport Manager. The licensee shall also store or stock any material in such a manner which may constitute a fire hazard and he shall be responsible for all such damages to .the property for such violation and shall pay in full for the damage/damages so caused to the property or repair it to the satisfaction of the Airport Manager.

25. Insurance .

The licensee shall, obtain and maintain Insurance coverage of sufficient value as may be determined by licensor in the joint names of the licensor and licensee from a reputable insurance company or underwriters as approved by the licensor against all such costs, expense charges, damages, action, claims and demands as aforesaid. The licensee is also bound to provide on demand of the Airport Manager or his authorized representative the insurance policy purchased and financed exclusively by the licensee and the receipt for the last premium paid.

Special Conditions .

1. This licence may be renewed/extended for such period and on such conditions as may be determined by the licensor. However, any request by the licensee in this regard shall not be considered unless the licensee has cleared all dues for the expired period, payable to the licensor under the current licence and attaches with his request a No‑Objection Certificate signed personally by the Airport Manager concerned that no C.A.A. dues are outstanding against the licensee on any account. Such a request shall be made not later than two months before the expiry of the current licence.

2. Expiry of licence period shall be considered as expiry/determination of Licence Agreement and licensor shall have right to proceed further for recovery of dues and possession as may be required.

3. The licensee shall not claim any further right in the premises after expiry or determination of the licence agreement and will not have any objection, in any manner whatsoever, if the licensor retender the said premises as per policy at the appropriate time.

4. The licensee shall install his own modules for the shop at his own expense as per .approved structural plans of C.A.A. and which module/structure shall become the property of the licensor after expiry of the period of this licence Agreement or sooner determination thereof as the case may be.

5. The place of business is to remain always open round the clock for providing uninterrupted services to passenger, public and staff during the period of this Licence Agreement.

Suit No.916 of 1995 .

Whereas in Suit No.916 of 1995, the matter was placed before the same learned Judge and the previous suit was also disposed of by the same Hon'ble Judge with the order passed in Suit No.206 of 1989 referred hereinabove. In this matter plaintiff through a Licence Agreement took over the possession of Shop No. 18 at the rate of Rs.32,150 for a period of three years on the same licence agreement executed between the plaintiff and defendant with the same terms and conditions and special conditions mentioned hereinabove in the earlier part of this order in Suit No,905/1995.

Suit No.932 of 1995.

Prior to this suit, a suit between the plaintiff and defendant bearing No.206 of 1989 was disposed of by the same learned Judge of this Court on the same terms and conditions referred hereinabove in Suit No.905 of 1995. The plaintiff through the Licence Agreement and special conditions referred and reproduced hereinabove obtained the shop bearing No.43 at Quaid‑e‑Azam International Airport, Karachi on monthly lease/rent of Rs.25,252. According to the contention of the plaintiff even though after execution of the licence agreement 1‑12‑1992 the possession of the premises was not handed over to the plaintiff and the plaintiff received the possession of the shop from defendant No. l in March, 1993.

Suit No.6 of 1996.

In this matter according to the plaintiff through the same Licence Agreement, dated 25th November 1992, plaintiff obtained Shop No. 13 at Jinnah Terminal Complex, Quaid‑e‑Azam International Airport, Karachi from defendant on a monthly rent of Rs.25,000 but due to some changes in lay out plan and location of all the shops which resulted in the change location of Shop No.13, plaintiff commenced its business in the suit premises with effect from November, 1993 whereas according to Annexure "C‑2" the date of occupation has been shown as 26‑10‑1993. According to the plaintiff he is running business of handicraft which is in the exclusive possession of the plaintiff who has been paying the agreed amount of lease/rent. .

According to , the learned counsel for the plaintiffs that plaintiffs have received verbal instructions that the licence agreement after expiry of three years is not going to be extended by the defendants. That plaintiffs have incurred heavy expenses for the construction of the modules as per specifications and orders of the defendants on which the plaintiffs have spent huge amount. That plaintiffs have been carrying on their business since long even much before the present licence agreement because the previous suits which were filed by the plaintiffs referred hereinabove which ended in compromise before the Court and according to the orders of the Court the existing shopkeepers in terminals Nos. 1 and 3 were to have preferential and prior rights for allotment. That plaintiffs have totally abided by the terms and conditions of the agreement and have not violated any of the terms. That the plaintiffs are being dispossessed from their lawful business/shops/modules constructed at the specification given by the defendants and which have since been approved by the Chief Engineer of the defendant No. l on which plaintiffs have spent quite sufficient amount. That plaintiffs have not only established shops for the various types of business mentioned .hereinabove, the plaintiffs have also established reputation goodwill and actually plaintiffs have established a very decent and remarkable market at the Quaid‑e‑Azam International Airport, Karachi through which not only plaintiffs are earning their livelihood but through the same business the Government of Pakistan and its agencies are also earning a lot and thereby the commodities of the country are getting internationally recognition which also gives commandable approach to the Pakistani handicraft, stone, marble and other commodities. That country is also earning lot of foreign exchange through the business which is being carried on by the plaintiffs. That the defendants have not issued formal show‑cause notice to the plaintiffs for not extending the lease agreement. Without issuing show‑cause notice alleging breach if any is committed by the plaintiffs violating the terms/conditions of the licence agreement, which prima facie suggests that plaintiffs have not committed any breach of the licence agreement and special conditions attached with it. That even opportunity of personal hearing has also not been afforded to the plaintiffs which is against the natural justice, inasmuch as the plaintiffs are being condemned unheard with no fault of their own. Plaintiffs are even not defaulters in payment of the lease money whatsoever. That it is also not clear as to why the plaintiffs are being dislocated/dispossessed from their very old lawful business. That it is also not clear as to for what purpose/use the same premises will be utilized by the defendants. That the plaintiffs are likely to suffer irreparable loss at the hands of the defendants which cannot be measured in the shape of coins. Learned counsel for the plaintiffs have referred the following authorities:‑‑

(1) Ashfaq Hussain, and others v. Karachi Municipal Corporation and others (PLD 1957 (W.P.) Karachi 918).

(2) Pak Security Press Employees' Union v. Labour Commissioner and another (PLD 1962 (W.P.) Kar. 662).

(3) Abdullah Bhai and others v. Ahmad Din (PLD 1964 SC 106).

(4) Government of West Pakistan v. Meezan Corporation and another (PLD 1971 Kar. 35).

(5) Ismail Brothers v. Keval Ram (PLD 1181 SC 545).

(6) Noor Muhammad v. Civil Aviation Authority and another (1987 CLC 393).

M/s. Mustafa Lakhani and Amir Muslim Hani Advocates for the defendants have contended that the plaintiffs are licensee and that according to the terms and conditions of the licence agreement which was valid up to 29‑12‑1995 and the same has not been extended and that according to the agreement coupled with the special condition No.3 the plaintiffs were not entitled for relief of injunction. That the suit is barred under sections 21, 42 and 56(f) of the Specific Relief Act and plaintiffs have no legal character or right in the disputed property and the rights of the plaintiffs have expired and they have no right to remain in possession of the premises. That according to the licence agreement plaintiffs were allowed to instal a module so as to carry on his business as per Licence Agreement. That the plaintiffs are proprietor concern and that suits have been filed by individuals as such suits are not maintainable. That according to the Licence Agreement there is arbitration clause but instead of referring the matter to the arbitration, plaintiffs have chosen to come to the Court. That the plaintiffs have not come to the Court with clean hands. That the balance of convenience is not in favour of the plaintiffs neither they are likely to suffer irreparable loss or injury. Learned counsel for the defendants cited the following case‑law:‑‑

(1) Ismail Haji Sulam ian v. Messrs Hansa Line and another (PLD 1961 Dacca 693).

(2) M.A. Naser v. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83).

(3) Civil Aviation Authority v. Noor Muhammad (PLD 1988 Kar. 401).

(4) Habib Bank Ltd. v. Iqbal 1. Chundrigar and another (1983 CLC 1464).

I would like to discuss the case‑law referred by the learned counsel for the plaintiffs.

1. PLD 1957 (W.P.) Karachi 918:

In this case petitioners who were carrying on business of book‑sellers were allowed to put wooden cabins on Municipal land/street under the licence but the Chief Officer of the K.M.C. with due authority of the Corporation issued notices to them to vacate the premises as the same were installed on path and there was obstruction in the smooth flow of the Municipal streets and road as defined in section 4(46) of the Karachi Municipal Corporation Act, and the party approached to this Court and a learned D.B. consisting of Z.H. Lari and Wahiduddin Ahmed, JJ., learned judges (as their Lordships then were) rightly dismissed the writ petition. The cabins were installed in the street/road which had obstructed the smooth flow of traffic in the concerned street and road and subsequently the cabins were removed under the authority of the concerned officer finding no merit, the writ petition was dismissed. The facts of the present case are not relevant to the facts of the case in hand and this authority is not applicable to the present case.

2. PLD 1962 (W.P.) Karachi 663: '

A D.B. of this Court consisting of Wahiuddin Ahmad and A.S. Faruqui, the learned Judges of this Court (as they then were) observed that:

"...Where, therefore, the nature of the transaction presents some difficulty in construing whether it amounts to a lease or a licence, the question to be asked is, has the occupant acquired an 'interest in land', that is, has the owner transferred a certain right of ownership in a way which extinguishes the enjoyment by him of that right and vests the same exclusively :n the transferee. If he has then it is a case of a lease and not of licence."

Keeping in view the facts of the present case licence agreement was signed, possession of the premises and modules duly constructed at the specifications provided by the defendants with entire expenses incurred by the plaintiffs in my humble view this authority is helpful to the case of the plaintiffs.

3. PLD 1964 SC 106:

The brief facts of this matter are that Abdullah Bhai appellant let out the shop subject‑matter of the suit to one Ahmad Din who carried on business in this shop in the name of "Kashmir Palace". The appellant submitted an application to the Rent Controller of Karachi for a certificate that Muhammad Siddiq had sub‑let the premises without their knowledge and permission and that shop was required by the appellants for their own use, under the Karachi Rent Restriction Act a suit for ejectment of a tenant could not be filed except on the ground of non‑payment of rent. Ahmed Din the respondent to whom the premises had been sublet by Muhammad Siddiq was impleaded as a party in the proceeding for certificate on his own application his claim being that he and Muhammad Siddiq were running business in partnership in the shop in dispute, thereafter, a compromise was arrived at between the parties in accordance with which Muhammad Siddiq surrendered possession to the appellant but the respondent was to remain in occupation of the premises till 31st December, 1959 and had thereafter to hand over possession of the shop to the appellants, a sum of Rs.70 per month was to be paid by the respondent as compensation for the use of the shop to the appellants. If default was made in the payment of Rs.70 per month the respondent was liable to pay an additional sum of Rs.10 per day. These terms were incorporated in a compromise deed which was signed by the appellants, the respondent and Muhammad Siddiq. The compromise deed stated that respondent was a licensee and not a tenant. The respondent committed default in payment of Rs.70 per month and thereafter, litigation started between the parties before the trial Court and the trial Court after considering the lease and not a licence and suit was dismissed. On appeal the Additional District Judge held thafthe compromise deed created only a licence and passed a decree for ejectment of the respondent and also passed a decree for compensation at the rate of Rs.70 per month and in Second Appeal a Division Bench of the erstwhile High Court of West Pakistan after a review of decided cases came to the conclusion that the respondents had acquired the status of a lessee by the deed of compromise. In this background of the matter appeal was filed before the Hon'ble Supreme Court, the sole question for determination before the Supreme Court was whether compromise deed confers upon the respondent the status of a tenant and after considering the provision of Transfer of Property Act and justifying lessee and licensee and provisions of Karachi Rent Restriction Act, the Supreme Court held as follows:‑‑

"It will be observed that premises means a building which has been let out so that the use of this world in the definition of tenant implies that the premises have been let out to the person who is liable to pay rent. The word 'rent' has not been defined and would itself mean something payable by a tenant to the landlord. The reference to 'leased premises' in the definition of 'tenant' also shows that the existence of a lease is implied. The intention of the Karachi Rent Restriction Act appears to have been to give additional protection to those who according to the law as it stood were tenants and not to confer tenancy rights on persons who in accordance with law were never tenants. According to the ordinary law only a person who has in his favour a lease is a tenant.'

Whereas in the matter in hand the licence agreement is not under dispute. The monthly lease money which is in thousands is being paid to the defendants and the payment of which is not denied, the mere mention of licence agreement in view of the dictum laid down by the Supreme Court cannot take away the right of plaintiffs as a lessee/tenant.

4. PLD 1971 Kar. 35:

In this matter Railway invited applications from members of the public for the lease of plot for purposes of installing a public weigh‑bridge at its Kharadar Goods Shed on the Karachi Circular Railway for weighing vehicles, carts, etc. The weigh‑bridge was to be installed at the expense of the lessees, the Railway providing the plot. M/s. Mizan Corporation applied for the same in consequence of which they were called upon by the Divisional Superintendent Railway to appear before them and on 16th September, 1963, M/s. Mizan Corporation were granted the lease being required to instal the weigh‑bridge within two weeks from the date of receipt of the letter and M/s. Mizan Corporation was handed over possession of the plot and that since Corporation did not have the forms of lease agreement they produced a form of a licence which was then signed with the understanding that agreement was on the basis of lease, the weight‑bridge was installed within the period and was in the exclusive and peaceful possession of the Corporation having invested Rs.55,000. In somewhere after 26th. June, 1964 when the Railway served a notice on them purporting to be in pursuance of clause 10 of the described as the agreement for licence of the plot in dispute intimating to the M/s. Mizan Corporation their intention to terminate the licence and calling upon them to deliver possession and the construction raised on it. The M/s. Mizan Corporation filed a suit in Court of the I11rd Civil Judge First Class, Karachi for declaration and injunction, the Government of Pakistan through the Railway filed a suit against the Corporation and other partners in this Court on the basis of the lease agreement and notice claiming compensation for use and occupation of the plot as having been fixed at Rs.3,500 p.m. which the Corporation had failed and neglected to pay and that after the termination of the licence by the Railway and the Government the possession of the Corporation as illegal. The suit of the Corporation by consent was transferred to this Court and by consent both the suits were consolidated and after going through the pleadings of the parties Court settled the issues and evidence was adduced by the parties and after hearing the counsel for the parties the Court decided the suits with the following observations:

"The position, therefore, is that the Railway can evict the Corporation on the basis that their lease has been terminated but only on condition that the Corporation is compensated adequately for the amounts invested in it towards the installation of the weigh‑bridge, the cost of the weigh‑bridge less the rents that would be due from the Corporation to the Railway and the reasonable time to the Corporation to evict the premises. I have already held that the Corporation have established having spent Rs.55,000 over the installation and cost of the weigh bridge. In the context of the admitted position, the rent of the premises has to be fixed on the basis of the evidence of Muhammad Sharif (Exh.13), a witness for the Corporation. He is the land Surveyor of the Karachi Municipal Corporation and is acquainted with the area where the disputed plot is situated. He has stated that there were no commercial plots there. The value fixed by the K.M.C. from 1959 to 1964 round about the Wazir Mansion area was Rs.20 per sq.yd. Exh.14 is the Schedule of the rents area‑wise fixed by the K.M.C. from 1959 to 1964. The disputed plot would come within the area of Item No.39 Lyari sub‑area (f) Baghdadi where the Corporation has sanctioned land per square yard for a permanent lease at 0.38 paisas for commercial purposes and 0.19 paisa. per sq.yard for residential purposes. The area mentioned at Item No.39(f) is about a furlong and a half away from Wazir Mansion where the disputed plot is situated. In the circumstances the only basis for the fixation of the rent for the area of the disputed plot which is 500 sq. yards will be 0.38 paisas per sq. yard per annum amounting to Rs.100. I must also take into consideration the evidence of Nasim Ahmad Exh.16 and Dr. Inayat Hussain Exh.17, two witnesses of the Corporation, the first stating that their income from the weigh bridge is about Rs.100 to Rs.150 per day, the latter stating that their monthly income from the weigh‑bridge is Rs.2,000 to Rs.2,500 per month. This is the legitimate income from the weigh‑bridge and the Corporation, therefore, cannot say that they have been completely ousted from the business since the installation of the weigh‑bridge by the Railway:

Finally, therefore, I would conclude that the Railway can evict the Corporation on payment of compensation amounting to Rs.55,000 less the rent calculated on the basis earlier referred to. Thus, I hold that the Corporation have no claim against the Railway for declaration and injunction and consequently Suit No.226 of 1968 will be dismissed with no order as to costs and that Suit No.85 of 1965 will be decreed for possession in these terms. There will be no order as to costs. "

In these cases also the learned Judge has awarded compensation to the Corporation amounting to Rs.55,000, the amount which they spent at installation of the bridge. Here in this case defendants are seeking the dispossession of the plaintiffs lessees without considering the expenditure incurred by the plaintiffs for construction of Modules and other fitting and fixtures so far carried on by them for the smooth running of their business which is for handicraft, marble and other very precious and decent articles.

4. PLD 1981 SC 545:

In this matter no doubt litigation was between a tenant and a landlord respondent belonging to Mitakshara School of Hindu Law. On appeal filed by the appellant the Additional District Judge reversed the order and dismissed the ejectment application whereas in second appeal filed by the respondent the eviction order passed by the Rent Controller was restored. The appellant sought leave to appeal against that order of the High Court but was refused leave on 14‑1‑1980. He, thereafter, filed a review petition but withdrew it on the ground that he had instituted a civil suit taking up all the fresh grounds on which review was sought. Keeping in view the background of the case the Hon'ble Supreme Court held as under:‑‑

"As regards the balance of convenience and nature of injury likely to be caused the fact that the premises have since 1954, been put to commercial use and dispossession would not only mean physical ouster but financial and economic disruption, the reparation or restoration of which may not be possible in the event of ultimate success of the appellant is. sufficient to justify the claim of the appellant on this score."

5. 1987 CLC 393 :

In this case matter was between the petitioner and Civil Aviation Authority and another. In this matter after receipt of the Court notice plaintiff was dispossessed and learned counsel for defendants, Mr. Khalid M. Ishaque on query of the Court in all frankness submitted that the action of the defendants in dispossessing the plaintiff was inappropriate, they should have waited for the decision of this Court on the injunction and that he apologised for it. Resultantly Tamil‑ur‑Rehman, the learned Judge (as he then was) was pleased to allow the application and defendants were restrained from dispossessing the plaintiff from the premises in question and plaintiffs were put in possession of the premises.

I would like to discuss the authorities cited by the learned counsel for the defendants.

1. PLD 1961 Dacca 693 :

In this authority, the learned Dacca High Court has held that a person trading in an assumed or trading name may be sued in his trading name under Order XXX, rule 10 of C.P.C. but he cannot sue in that name. I am afraid for the decision of the interlocutory application, this authority in any case is not helpful to the case of the defendants.

2. PLD 1965 SC 83 :

In this matter by an agreement the Deputy General Manager Eastern Bengal Railways granted contract to M.A. Naser, Proprietor of Gulistan Restaurant, Dacca for a period of 3 years from 18th December, 1953 subject to the conditions and reservations contained therein the right to sell refreshments both solid and liquid of the best quality to the upper class passengers at the Refreshment Rooms at Chittagong, Laksam, Chandpur, Akhaura, Kulaura, Sylhet, Bazar, Dacca, Mymensingh, Sitakund and Arikhola and on Buffet Cars on the trains. The agreement was terminable on 17th December, 1956 on not less than 6 months' notice in writing by either party to the agreement. If it was not so determined the agreement was to continue subject to termination at any time in any subsequent year on not less than 6 months' notice in writing given by either party desiring to cancel it. In consideration of the grant of the contract the Contractor agreed to pay to the Railways, Licence Fee Rs.2,740 each year in advance and to deposit a sum of Rs.11,000, as security for the due fulfilment on his part of the conditions of the agreement. Pursuant to the agreement the Contractor catered refreshments at the abovementioned Railway Stations and on the Buffet Cars. As the contract was not terminated on the expiry of 3 years the Contractor continued to cater refreshments to the upper class passengers on the same terms and conditions. General Manager Railways on 20th September, 1960 issued the following letter to the contractor:

"Despite issue of repeated warnings and imposition of fines there has been no improvement in catering and service with the result that the Railway Administration has been receiving frequent complaints and thereby earning a bad name.

Please take notice that in terms of para. 2 of the Agreement your contract for running upper class Rooms and Buffet Cars will be deemed to have terminated on completion of six months, from the date of issue of this letter. This is without prejudice.

You should clear all railway dues before termination of the above contract. " .

And through subsequent telegram on 19‑3‑1962, thereafter, Chief Traffic Manager on 6th December, 1992 wrote to the Contractor as follows:

"930/1/CMG. Unclassified period of your contract is hereby extended by another six months from 21st instant on the terms and conditions of the existing agreement.

Reference is invited to this Office Letter No.93/CE/CMG. dated 20th September, 1961 and Telegram No.93/C/CMG, dated 19th March, 1962.

You are hereby informed to hand over the charge of all the Reft. Rooms and Buffet Cars run by you by 31st December, 1992 to the authorised individual appointed by the Railway Administration. You are also requested to clear all the Railway dues early."

Thereafter, this contractor and others submitted applications for fresh catering contract in respect of the aforesaid Railway Stations and Buffet Cars and along with application contractor also deposited Rs.500 as earnest money. The Chief Traffic Manager sent letter to the Contractor giving the names of the individuals who had been appointed catering contractors for refreshment rooms and buffet cars. As he was appointed catering contractor with respect to refreshment rooms at Laksam, Comilla, Akhaura, Sylhet and Buffet Cars of 21 UP and 22 DOWN, he was asked to deposit Rs.1,440 towards annual Licence Fees and Rs.4,100 as security deposit by 29th December, 1962. Contractor's lawyer wrote to the Chief Traffic Manager objecting to the legality of termination of the contract and prayed for a month's time to make personal representation to the authorities concerned and contractor was intimated that contract will be terminated on 1‑1‑1963 and was requested to hand over the room to the new contractors positively. Thereafter, contractor filed a suit in the Court of the First Munsif, Dacca for a declaration. The suit was contested by the Railways as well as by the Provincial Government and they also took the plea of estoppel, waiver and acquiescence. The suit was decreed by the Munsif, but, on appeal the decision was reversed and the suit was dismissed and a second appeal filed by the plaintiff was dismissed by the High Court and a Letters Patent Appeal against the judgment of the learned Single Judge was also dismissed and the plaintiff was granted special leave to appeal by the Hon'ble Supreme Court to consider whether a contract of this kind is one for which protection in law by the method of injunction could be claimed against termination otherwise than in accordance with the terms of the contract. The appeal of the plaintiff was dismissed by the Supreme Court and on the face of it facts of this case are different and distinguishable from the case in hand. .

3. PLD 1988 Kar. 401:

In this appeal the order of the learned Single Judge was passed in case Noor Muhammad v. Civil Aviation Authority 1987 CLC 393 in which ad interim injunction was granted and possession of the plaintiffs was restored referred hereinabove in earlier part of this order. The learned D.B. consisting of his Lordship Ajmal Mian and Muhammad Mazha' Ali, JJ., (as their Lordships then were) did not disturb the order of the learned Single Judge but directed the trial Court to dispose of the suit within a period of six months. I am afraid that this authority of a D.B. referred by the learned counsel for the defendant is not favourable to their case on the contrary it is helpful to the case of the plaintiffs.

4. 1983 CLC 1464:

In this case defendant No. 1 as a sole proprietor of Iqbal & Co. applied for opening an account with the plaintiffs. After opening of the account at the request of defendant No‑1 he was allowed to overdraft facility to the extent of Rs.50,000 with interest at 40% above the bank rate with a minimum 14% per annum with quarterly rests. Defendant No.2 executed letter of guarantee for repayment of the loan, defendant No. l executed demand promissory note, letter of arrangement and a letter of undertaking. Defendant No. l received from Habib Bank Ltd., the plaintiff, various sums of money by overdrawing the aforesaid account from 2nd December, 1974 onwards. The debt balance on 2nd November, 1979 was Rs.80,989.30, the plaintiffs by their various letters called upon the defendants to clear and adjust the debit balance which they failed to do. The defendant No. l in spite of service of summons did not appear nor filed any written statement. The defendant No.2 the surety filed written statement in which it was not denied that he stood surety for the repayment of loan advanced to lqbal I. Chundrigar, the defendant No. l and pleaded that the suit was time barred and further that the letter of guarantee did not contemplate past transaction or liabilities and as such all the advances and claims prior to the date of the execution of the guarantee cannot be realised from defendant No.2 even service of notice demanding the repayment of the loan from defendant No.2 was denied. On these pleadings issues were framed, evidence was adduced by the parties and the suit of the plaintiff against the defendant was decreed. In my humble opinion facts of this case are not relevant in any case to the facts of the present case.

Mr. Amir Hani Muslim learned counsel for the defendant has referred an order passed by a learned Single Judge in Chambers in Suit No.464 of 1995 and in Suit No.465 of 1995 on an application under Order 39, Rules 1 and 2 read with section 151, C.P.C. The facts of these two cases are that plaintiffs were authorised dealers of foreign exchange currency and were also money changers and were extended separate licences for this purpose by the State Bank of Pakistan under the provisions of Foreign Exchange Regulations Act, 1947. The plaintiffs were allowed booths/counters at the Quaid‑e‑Azam International Airport, Karachi for running the business of foreign exchange. Locations and the rents of the above three booths/counters were averred in the plaint. According to the case of the plaintiffs, on 22‑4‑1995 customs authorities visited these three booths and asked the cashier present there to count the cash of Pakistani rupees in their possession and thereafter directed them to remove such cash from the restricted area and customs authorities imposed restrictions on the plaintiffs not to transact business for more than Rs.500 or to keep any amount above Rs.500 at each booth/counter. Thereafter, plaintiffs approached the defendants as well as State Bank of Pakistan and informed them about the alleged acts of the said Custom Officers who had restricted functioning of the booths/counters, with the result that all the six booths/counters were shut down and could not function. That on the intervention of the defendants the plaintiffs were allowed to start business in two booths which were situated at International Arrival and International Departure but the plaintiffs were not allowed to transact any business at the International Transit Lounge and that plaintiffs due to abrupt disruption of their business they have suffered huge losses. In view of these circumstances plaintiffs filed the suits for declaration, damages and for perpetual injunction. The learned Judge after hearing the counsel for the parties and perusing the agreement finding that plaintiffs were allowed to run business as foreign exchange dealers at Jinnah Terminal for one year from 27‑8‑1994 and that since there was violation of Foreign Exchange Regulations Act, the application was dismissed. Furthermore, defendants have already taken over the possession of the booths in my humble view the case referred by Mr. Amir Hani Muslim is quite different and distinguishable inasmuch as the plaintiffs in these suits are running the business of selling the handicrafts, marbles and stones etc. Since more than a decade the decision of the previous suits ended in compromise before a learned Judge of this Court referred herein earlier part of this order giving preferential rights to the plaintiffs in getting allotment of the shops in the new arcade established by the Civil Aviation Authority at the Quaid‑e‑Azam International Airport. The case of the money changers referred by Mr. Amir Hani Muslim have no relevance to the case of the present petitioners.

I have gone through the material placed with the case and have given anxious thought to the contention of both the parties and have also minutely perused the order of the learned Single Judge passed while deciding Suit No.206 of 1989 referred and reproduced hereinabove which compromise decree is also helpful to the case of plaintiff in Suit No.916 of 1995, Suit No.932 of 1995. In view of the orders of the Court, plaintiffs were allowed shops/modules as per averments of the defendants, those modules have since been constructed by using wood and hard board as per specification and design provided by the defendants' Chief Engineer a technical hand. For the beautification of the shops/modules the necessary fitting and fixtures have also been affixed by the plaintiffs at their own costs/expenses. In my humble view these modules might have been designed and constructed keeping in view the decency and beautification of the new Quaid‑e- Azam International Airport constructed by the Civil Aviation Authority and handosme amount must have been spent by each of the plaintiffs for their respective modules for the construction, upkeep , and maintenance of the modules. The plaintiffs are in possession of the premises in pursuance to the compromise decree passed by the learned Judge of this Court dated 26‑3‑1992 referred hereinabove. Plaintiffs have neither committed violation of the compromise decree nor they have committed violation of the licence agreement so signed by the plaintiffs specifically mentioned and reproduced in the above order. On re‑hearing of the matter defendants were required to state in writing as to for what purpose the plaintiffs are to be evicted from the disputed premises and whether disputed premises are required by the defendants for any development purpose. It is pertinent to refer the exact statement submitted by Jamal Hussain, Air Commodore, Airport Manager C.A.A., Quaid‑e‑Azam International Airport, Karachi which reads as under:‑‑

It is submitted on behalf of the defendants as under:‑

(1) That the C.A.A. shall not re‑let the shop in question for any one in case the plaintiff is evicted from the disputed premises.

(2) That the C.A.A. shall use the disputed premises for their own Purpose."

Objections on behalf of the plaintiffs to this statement were filed in which it has been shown that Pakistan handicraft is also a tenant of the defendants like the plaintiff, it has been allowed to continue its business and recently the defendants have forwarded their application for renewal of airport entry passes. Another tenant of the defendants Shalimar Recording Company which has its shop at the International Departure‑cum‑Transit Lounge of Quaid‑e‑Azam International Airport, Karachi in the same arcade and is tenant of the defendants like the plaintiffs and their agreement have also been extended by the defendants. I would like to reproduce the letter of Pakistan Handicrafts written to the Commander Sindh, Airport Security Force, Q.I.A.P., Karachi through Airport Director C.A.A.Q.I.A.P.

"The Commander Sindh,

Airport Security Force,

Q.I.A.P., Karachi.

Through Airport Director C.A.A.Q.I.A.P.

Subject: Issuance of Airport entry passes for the year 1996 from 1‑10‑1996 to

31‑12‑1996.

Dear Sir,

The Airport entry passes of the following officer/official are going to be expired on 30‑9‑1996. You are therefore requested that the airport entry passes of the staff members may please be issued in their favour so that they may be able to perform their duties. The required necessary documents are enclosed herewith for your information and further necessary action please:

1. Mr. Muhammad Ali Shaikh Manager

2. Mr. Muhammad Khursheed Sales Assistant

3 Mr. Ghulam Yaseen Bohio Sales Assistant

4. Mr. Muhammad Iqbal Packer

Thanking you, Yours sincerely,

(Ghulam Shabbir Bohio)

Admn. Incharge SSIC PHS

Airport Karachi."

It would be advantageous to reproduce letter dated 12‑6‑1996 issued by Aftab Ahmed Khan, Airport Director Q.I.A.P., Karachi showing therein that M/s. Shalimar Recording Company has been granted extension by the defendants for five years to carry on their business in the same arcade which read as under:

Re:QIAP/3448/395/Com. Dated: 12th June, 96.

Dear Sir,

Extension in licence agreement M/s Shalimar Recording Company at J:T.C. Quaid‑e‑Azam International Airport, Karachi.

The Competent Authority has been pleased to extend the licence agreement of M/s. Shalimar Recording Company for a counter‑space in the International Departure Area at J.T.C. Q.I.A.P., Karachi for a period of five (5) years effective from 1‑7‑1996 on the following terms and conditions:

(i) M/s. S.R.C. shall pay to C.A.A. Rs.27,500 per month during 1st year Rs.35,000 per month during second year, Rs.42,500 per month during third year Rs.52,500 per month during 4th year and Rs.62,500 per month during 5th year as licence fee.

(ii) M/s. S.R.C. will be allotted an area measuring 100 sq.ft. at Jinnah Terminal for setting up their Audio/Video Shop.

(iii) M/s. S.R.C. shall ensure that the decor of their shop should be of high standard and shall match with the aesthetics of Jinnah Terminal.

2. You are requested to please deposit an amount of Rs.82,500 equal to two months licence fee as Security Deposit and one month licence fee as advance.

3. You are, requested to please execute the licence agreement in quadruplicate (draft licence agreement enclosed) the original being on the non judicial stamp paper of. appropriate value and others on bound paper and submit to this office at any date..

4. Please note that no erasure is allowed in the agreement and deletion if any, must bear your signature and rubber stamp. Every page should be signed by the licensee. Name, address and signature of 1st witness is required on the 2nd last page of each copy of the licence agreement.

Thanking you,

Yours faithfully,

(Aftab Ahmed Khan),

Airport Director,

Q.I.A.P., Karachi.

I have perused the letter referred hereinabove, the leases to M/s.IShalimar Recording Company and Pakistan handicrafts owned by Sindh Small Industries Corporation Government of Sindh have been extended, their respective/personnels have been recommended to get entry passes. All this has been done without assigning any cogent, convincing or plausible explanation as to why discretionary treatment is being meted out to M/s. Shalimar Recording Company and Pakistan Handicrafts though they have also been shown in the letter as occupants of the shops and enhanced rate of licence fee has been shown for five years whereas present plaintiffs are not being given just, fair and equitable treatment which the defendants are allowing to the Shalimar Recording Company and Pakistan Handicraft. The statement of the defendants which have been reproduced above clearly shows that C.A.A. shall not relet the shop, the word has been used as shop which prima facie supports the version of the plaintiffs that plaintiffs are actually in occupation, of shops though the same are constructed. with wood and hard board whereas throughout the contention of the defendant has been that these are not shops but are modules, the lease money which has been settled even according to licence fee is for Rs.32,790 in Suit No.905 of 1995, Rs.3,2,150 in Suit No.916 of 1995, Rs.25,252 in Suit No.92/95 and Rs.25,000 per month in Suit No.6 of 1996. This is quite sufficient amount which is being paid to the defendants in the shape of licence fee. Plaintiffs are not alleged to have committed default in payment of lease money neither suit premises are to be let out to other party nor the same are required for any development purposes, no cogent or plausible explanation is forthcoming as to why defendants are' bent upon to get the eviction of the plaintiffs. The contention of learned counsel for the defendants are that suits are barred under sections 21, 42 and 56 (f) section 21 provides that the following contract cannot be specifically enforced (a) a contract for the non‑performance of which compensation in money is an adequate relief.

Section 42: Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able‑to seek further relief than a mere declaration of title, omits to do so.

Section:

56. An injunction cannot be granted‑‑ section 56 (f) to prevent the breach of a contract the performance of which would not be specifically enforced;"

I am afraid that these sections in any case do not bar the Court not to pass equitable, fair and just orders in the interest of justice. For just and equitable decision of these applications I would like to refer a landmark judgment reported in PLD 1957 Kar. 892, a decision of learned D.B. consisting of Z.A. Lari and Wahiduddin Ahmed, JJ., (as their Lordships then were). The facts of the matter are that the petitioner was a building contractor who had been specially called from Delhi on the eve of partition for executing certain emergent works for the Government of Pakistan and was allowed the use of the plot in question for the purposes of building a godown to store construction materials and accommodating his staff. After the constructions entrusted to the petitioner were completed and the department wanted the petitioner to vacate the premises, but petitioner on relying on a circular dated 12‑12‑1950 requested that plot be allotted to him on rent and petitioner was allowed to remain in possession on payment of Rs.100 per month excepting the period during which he had executed works for the benefit of the Government of Pakistan. Subsequently, the Government required the plot and cancelled the allotment and called upon the petitioner to vacate the premises. The petitioner declined to vacate the plot and his case in the Court was that he was threatened with forcible ejectment without recourse to any Court of law. The Government of Pakistan and the Estate Officer alleged that the petitioner never became a lessee and was all along a mere licensee whose licence could be revoked at any time by the Government and the Government was entitled to eject the petitioner with the use of minimum force necessary for the purpose without having recourse to any Court of law. In this background of the matter petition proceeded in the Court which was contested and learned jurist Syed Sharifuddin Pirzada appeared in the Court as amicus curiae. The learned D.B. considered the case of Muhammad Khan son of Ali Sher and another v. Crown (PLD 1949 Lah. 421) reproduced the observations of the then acting Chief Justice of Lahore High Court which reads as under:‑‑

His position after the partition was that of a pure trespasser, and though nobody has a right to dispossess by force a trespasser who is in settled possession of land, and such trespasser is entitled to defend by force his possession even against the rightful owner unless he is evicted in due course of law, he is not entitled to rely on a stray act or even intermittent acts of trespass as giving him a right to possession as against the true owner.

The observation clearly implies that a person who has got settled possession cannot be evicted except through a Court of law.

Their Lordships further observed:

The petitioner is entitled to remain in possession till evicted in due course of law but the respondents have threatened to throw him out by force. The petitioner has thus succeeded in showing that an illegal wrong is about to be committed and is entitled to a writ restraining the respondents from ejecting the petitioner by force. We order accordingly.

Admittedly plaintiffs are carrying over their business since last so many years by spending handsome amount in installing a module as per contention of the defendants and shops as per contention of the plaintiffs which gets corroboration from the statement filed by the defendants referred and reproduced hereinabove in which Jamal Hussain has used the word shop. Plaintiffs might have established commercial background, reputation and goodwill in the market as well 'as abroad. The premises have been put to commercial use and dispossession of the plaintiffs would not only mean physical dispossession but actually the same would be financial and economic disruption which would not only adversely affect the plaintiff, Government as well as by not receiving due taxes and Civil Aviation Authority being deprived of their lease money which can be thousands hundreds of rupees if properly calculated.

Advisedly I refrain to dilate upon the aspect whether licence agreement is a lease or not because the same is to be analysed by the Court at the time when the evidence is recorded and concerned persons appear in the witness‑box to depose and face the test of examination and cross‑examination.

The authorities referred and cited by the learned counsel for the plaintiffs are relevant and helpful to their case whereas case‑law cited by the learned counsel for the defendants is not relevant and helpful to the present case. Prima facie balance of convenience is in favour of the plaintiffs and they are likely to suffer irreparable loss and injury which cannot be measured in the shape of coins. Under the circumstances I respectfully follow the rule laid down by the Hon'ble Judges referred and reproduced hereinabove, I am of the firm opinion that cases of the plaintiffs are made out for ad interim orders as prayed for. Consequently applications are granted and ad interim orders already passed are hereby confirmed.

The request of the plaintiffs is that defendants may be directed to forward their applications for issuance of passes for entering the International- cum‑Transit Lounge to the Airport Security Force. In support of the case a decision of learned Judge Syed Abdur Rehman (as he then was) has been referred and relied upon. The circumstances of the present cases and the case referred are the one and same. For the sake of convenience the order of the learned Single Judge is reproduced as under:‑‑

Mr. Umer Qureshi learned counsel for the defendants states that the defendants' function is to forward such application to Airport Security Force and they have no intention of detaining the application of the plaintiff. He, however, makes it clear that issuance of Airport Security Passes is the function of Airport Security Force, which is an independent body and the defendants have no control over it. He further points out that legally the application is not maintainable. Mr. Shahenshah Hussain and Mr. I.H. Zaidi submit that they will be satisfied, if the defendants forward their application to the Airport Security Force which may pass any order on their application. In view of the above statement, it is ordered that the defendants shall not detain the application for security passes made by the plaintiff and will forward the' same to Airport Security Force for appropriate orders. C.M.A. No.5920 of 1990 stands disposed of accordingly.

The case of the present plaintiffs is also on the same footing, their prayer is that their applications may be recommended by the Civil Aviation Authority to the Airport Security Force which may pass orders on their applications. Consequently I allow the applications.

By this pronouncement the Civil Miscellaneous Applications listed for orders stand granted. Orders accordingly.

A.A./B‑16/K Interim injunction granted.