Mst. SAJEDA Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Interior
ORDER
ZAFAR AHMED RAJPUT, J.--- By this order, I intend to dispose of application bearing C.M.A. No. 16151 of 2016, filed on behalf the defendants Nos. 3 and 4, under Order VII, Rule 11, C.P.C., seeking rejection of plaint.
2. Briefly stated, the facts of the case are that the plaintiff filed the instant suit for specific performance of contract and permanent injunction, averring therein that on 01.03.2008, she entered into an agreement with defendant No.4 i.e. Civil Aviation Club through its President, for catering and decoration services in the premises of the Club/Jogging Track. It is further averred that on 28.07.2011 the defendant No. 4 called pre-qualification proposals from caterers/ decorators for utilizing the Jogging Track for ceremonial functions and the plaintiff opted the opportunity of fresh contract as a highest bidder and the defendant, vide letter dated 19.08.2011 , approved the proposal of the plaintiff subject to deposition of annual subscription of Rs.1,800,000/- along with security deposit of Rs.4,100,000/-, which amount, the plaintiff paid vide letter dated 24.08.2011 and thereafter, an agreement was executed between the parties for five years on 30.08.2011 (hereinafter the "Agreement"), which was extendable for further period of five years, whereafter the defendant No.4 formally handed over the possession of the area to plaintiff under certificate of handing over and taking over dated 09.09.2011 and she started her business by spending huge amount on the development of the area. It is also averred that in the year 2012 Additional Director, National Accountability Bureau. (Sindh) inquired from the Director General of Civil Aviation Authority (defendant No.3) regarding hiring of the premises by the plaintiff and consequently the defendant No.4 issued notice dated 10.08.2015 for the termination of the Agreement, which coerced the plaintiff to approach this Court through instant suit.
3. Learned counsel for defendants Nos. 3 and 4 has contended that the instant suit is barred by law, as the plaintiff being a licensee cannot seek specific performance under Specific Relief Act, 1877, and the subject license is revocable at the will of the grantor as it does not fall either within Clause (a) or (b) of the section 60 of the Easements Act, 1882 and therefore, the specific performance and other equitable relief are not available to plaintiff/licensee; however, the remedy of the licensee could be a suit for damages which she has already preferred by filing four civil suits for damages against the officials of defendants, and the same are pending adjudication before this court; that the plaintiff has no cause of action to file the instant suit, as a civil Suit bearing No. 1575 of 2015, filed by Muhammad Raza, the partner of plaintiff, on the same cause of action has already been dismissed by this Court, vide order dated 16.11.2016, on being not pressed without seeking permission to file fresh suit; hence, the present suit is barred under Order XXIII, Rule 1, C.P.C. and section 11 of the C.P.C. He added that since the license agreement has already expired, the plaintiff has no cause of action to maintain this suit.
4. Conversely, learned counsel for the plaintiff has maintained that the instant suit is maintainable as the defendant No.2 has committed fraud to the plaintiff by writing the licence agreement instead of rental agreement, as the approval of the Board and the President, Civil Aviation Club, dated 19.08.2011 was for the annual rental purpose; that the plaintiff has executed work of RCC three bridal rooms, offices, washrooms, prayer area, marriage hall etc. by spending millions of rupees; that the instant suit has been filed by Mst. Sajeda, who is the proprietor of M/s. Al-Mubarak Caters and Decorators, while Suit No.1575 of 2015 was filed by an unauthorized person, namely, Muhammad Ramzan who was neither attorney nor partner of the plaintiff in the business and he was only a witness in the Agreement, and he filed the said suit without the consent of the plaintiff; as such, the said suit was withdrawn by him on 16.11.2016, after filing of this suit by the Plaintiff on 27.10.2016; that the Agreement was initially for a period of five years, however, it is extendable for further period of five years by mutual consent and was effective after completion of mobilization period; which has yet not expired; hence the plaintiff has a right to continue her business in the suit premises up to December 2021; that there exists no ground for the rejection of plain under Order VII, Rule 11, C.P.C.; therefore, this application is liable to be dismissed.
5. Heard the learned counsel for the parties and perused the material available on record.
6. As regard filing and withdrawal of earlier suit bearing No. 1575 of 2015 unconditionally by the partner of the plaintiff, namely, Muhammad Raza, I am not convinced that the present suit is barred under section 11, C.P.C., as the present suit was already instituted by the plaintiff on 27.10.2016 before withdrawal of earlier suit on 16.11.2016. Reliance in this regard may be placed on the case of Ghulam Nabi and others v. Muhammad Yaqoob and others (PLD 1983 SC 344).
7. It would be seen that the plaintiff in his pleadings has not pleaded that she is a tenant, not a licensee, and that the defendant No.2 has committed fraud by mentioning her in the Agreement as licensee. In order to figure out the controversy, it would be expedient to reproduce recitals and certain relevant clauses of the Agreement, which reads as under:-
LICENSE AGREEMENT FOR UTILIZING JOGGING
TRACK AREA FOR CEREMONIAL FUNCTIONS
This license agreement is made on 30th August, 2011 initially for a period of five years, further extendable to another five years by mutual consents and shall be effective after completion of mobilization period.
BETWEEN
The Civil Aviation Club, Star Gate Shahrah-e-Faisal, Jinnah International Airport, Karachi, through its President hereinafter called the "LICENSER" (which terms shall include its authorized representatives, successors, assigns and the President the Club or who so empowered for this purposes), of the One Part.
AND
M/s. Al-Mubarak Caterers and Decorators through it Proprietor Mrs. Sajeda Musthaq, CNIC # 42201:104226472 having its, office at SA-3 Office # 2 KMHS, Sirajuddullah Road, Karachi hereinafter called the "LICENSEE" which shall include its/his legal heirs, authorized representatives, assigns and the executors of the other part
WHEREAS the "LICENSOR" has agreed to grant License/Permission to the "LICENSEE" for Catering and Decoration services only in the premises of Jogging Track Area upon the Terms and conditions of his agreement.
AND WHEREAS the objectives are clearly understood by the "LICENSEE" and is willing to provide catering/decoration services for the public ceremonial functions in the aforesaid premises on the terms and conditions mutually agreed by this agreement.
2. The Licensee will be solely responsible for providing the following at his own risk and cost:-
(a) -------------------------------------
(b) -------------------------------------
(c) Development Work
The Licensee shall make his own investment for construction of washrooms for functions dressing room, store, office and pantry/food warming place, whereas, NO RCC construction/building is allowed anywhere in Jogging Track Area. On the termination of contract the "LICENSEE" shall not dismantle the installations /construction and shall hand over the same to CA Club.
10. The "LICENSEE" shall not make any RCC structure/construction in any area of Jogging Track except development work.
14. The Club reserves the right to cancel this agreement by giving 30 days' notice on any ground. In such a case, after formal intimation of cancellation, the balance of Security deposit will be refunded through crossed cheque to the "LICENSEE" within 30 days of the cancellation, provided that nothing is outstanding in any manner against the Contractor.
8. Perusal of the above recitals and Clauses of the Agreement reflects that the plaintiff agreed to her status as "LICENSEE" as described in the Agreement, which contains four pages and each page is signed by the plaintiff in English and execution thereof has not been denied by her. Clause (2)(c) of the License Agreement provides that the Licensee shall make his own investment for construction of washrooms for functions dressing room, store, office and pantry/food warming place, whereas, no RCC construction/building is allowed anywhere in Jogging Track Area. It has been agreed between the parties under Clause 10 of the Agreement that the "LICENSEE" shall not make any RCC structure/construction in any area of Jogging Track. Further under Clause 14, the Club reserves the right to cancel this agreement by giving 30 days' notice on any ground to the "LICENSEE". It may also be seen that the Pre-Qualification Proposal invited by the defendant No.4 on 28.07.2011 (Annexure "B" at Page 47 of the memo of plaint) shows that the said defendant intended hiring of Jogging Track on yearly basis under a license agreement. Further, the approval letter, dated 19.08.2011, issued by the defendant No.4 (Annexure "E": at Page 103 of the memo of plaint) indicates that the plaintiff was directed to deposit annual subscription and security deposit within one week with further directions in para No. 4 thereof that a formal license agreement would be handed over to plaintiff for signature and return the same for issuance. The plaintiff, through her partner Muhammad Raza replied the said approval letter, vide letter dated 24.08.2011, (Annexure-"F: at Page 105 of the memo of plaint) requesting the defendant No.4 to issue draft copy of formal license agreement. Whereafter, on 09.09.2011 the defendant No.4 formally handed over the possession of the area to plaintiff under certificate of handing over and taking over to the license agreement (Annexure "G: at Page 107 of the memo of plaint). All the four aforesaid documents are admitted documents being relied upon by the plaintiff; therefore, I am not persuaded to hold the contention of the learned counsel for the plaintiff that the plaintiff is a tenant, not a licensee, and that the defendant No.2 has committed a fraud by mentioning her in the Agreement as licensee. I am; therefore, of the view that the case of the plaintiff, is covered under section 52 of the Easements Act, 1882, which provides that where one person grants to another, a right to do so, or continue to do so, in or upon the immovable property to the grantor, something which would, in absence of such right, be unlawful, and such right does not amount an easement or an interest in the property, the right is called a license.
9. The legal position regarding the rights and obligation of a licensee is well-settled inasmuch as licence does not contemplate a transfer of interest in property and it is purely a permissible right which is at the behest of the grantor. This position is in contradistinction to a lease where there is a transfer of interest and an exclusive right to possession is granted. This would therefore mean, that a licensee holds the licensed property purely at the behest of the grantor which can at any stage be revoked in which event the licensee's only remedy would be a suit for damages, as specific performance or other equitable relief would not be permissible in the circumstances of the case. In this regard section 60 of the Easements Act, 1882 may be referred to which allows the revocation of a licence unless it is coupled with a transfer of a property or the licensee has executed work of permanent character in the licensed property. Further sections 63 and 64 (ibid) provides for the consequences of such revocation viz. reasonable time to licensee for vacation of the property and his right to recover compensation for damages etc: as result of such eviction however in such circumstances a suit for specific performance or declaration would not be maintainable. Reliance in this regard may be placed in the case of M. A. Naser v. Chairman, Pakistan Eastern Railways and others (PLD 1965 Supreme Court 83) and M/s. Zaidis Enterprises and others v. Civil Aviation Authority and others (PLD 1999 Karachi 181).
10. For the foregoing facts and reasons, I am of the view that instant suit is not maintainable being barred by law; therefore, I allow the application in hand and reject the plaint in suit under Order VII, Rule II, C.P.C. resultantly, all the pending applications have become infructuous and are dismissed accordingly.
SA/S-52/Sindh Suit dismissed.