IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 920 of 2015
For Plaintiff Mr. Salahuddin Ahmed, Advocate.
For Defendants No.1 & 2 Mr. Iftikhar Jawed Qazi, Advocate
For Defendant No.3 Mr. Arshad Tayabali, Advocate
1. Maintainability of suit
2. C.M.A. No. 8723 of 2015
Date of hearing : 14th April, 10th & 17th May, 2016.
Date of announcement: 18th August 2016.
O R D E R
SALAHUDDIN PANHWAR, J. Through instant application i.e. CMA No. 8723 of 2015 (application U/S 94 r/w O 39 Rules 1 & 2 & Sec. 151 CPC), the plaintiff prays as under:
“…to restrain the defendants from interfering with the plaintiff’s possession of the suit property and operations of the filling and CNG station thereupon.’
2. Succinctly, facts as set out in the plaint are that plaintiff is a businessman; prominent politician and a Senator; amongst his other businesses he is operating a filling station and CNG station in the name and style of ‘Syed Service Station’ upon plot No.B-73, SITE Karachi; defendant No.1 is a company dealing in distribution, marketing and sale of oil, gas and other petroleum products while defendant No.2 is a subsidiary and/or an associated company of defendant No.1. Defendant No.3 is the owner of the suit property having derived title through a lease from Sindh Industrial Trading Estate (SITE). In 1972, she leased out the suit property to defendant No.2 for a term of 25 years commencing on 01.7.1972 for the purpose of operating a filling station thereupon. Defendant No.2 was permitted to cause the construction of a filling station with all ancillary facilities upon the suit property and to sub-let or under-let the same and to remove all the construction, fixtures and fittings on the suit property upon vacation of the same.
It is further pleaded that defendant No.3 was initially appointed as a dealer in respect of the filling station upon the suit property and was operating a filling station thereupon. As such, she was the original licensee in respect of the filling station on the suit property. Subsequently, in 1980 she transferred her license with the consent of the defendant Nos.1 and 2 to one Ashraf Ghulam Hussain for a sum of Rs.2 million. Consequently, the defendant No.2 granted the said Ashraf Ghulam Hussain a fresh license for the operation of a filling station dated 10.11.1980; Ashraf Ghulam Hussain obtained a license in relation to the filling station on the suit property not merely upon payment of requisite license fees but also after paying valuable consideration to defendant No.2. As such, he was not a bare licensee but a licensee coupled with an interest and his license was conferred with the joint consent of defendant Nos.2 and 3. Eventually, around the year 1990, said Ashraf Ghulam Hussain transferred his dealership license to the plaintiff with the consent of defendants No.1 and 2 for the sum of Rs.4.5 Million. Accordingly, the plaintiff was granted a fresh license from the defendant No.2 to operate a filling station situated upon suit property thereby plaintiff entered into shoes of said Ashraf Ghulam Hussain and became a licensee coupled with an interest in respect of the filling station on the suit property. Moreover, like Ashraf Ghulam Hussain before him, his license was derived from both defendants No.2 and 3. At the time the plaintiff was granted a license to operate filling station upon suit property, it was in a state of poor upkeep with the obsolete and inefficient machinery and the structure being old and constructed of inferior material requiring considerable renovation. Over the years, with the knowledge and consent of all defendants, plaintiff invested millions of rupees in upgrading the said filling station. Apart from the above, the plaintiff has spent huge amounts of money over the years in ensuring the connection and maintenance of utilities to the subject property. On 13.3.1998 defendant No.3’s lease was cancelled by SITE on account of violation of lease conditions and non-payment of lease rentals. Subsequently, on 26.5.1998 a fresh lease in respect of the suit property was executed and registered between SITE and defendant No.2; defendant No.3 then filed Suit No.1001 of 1998 against SITE and defendant No.2 challenging SITE’s cancellation of her lease and execution of fresh lease in favour of the defendant No.2. Plaintiff was not made party to the said litigation and continued to operate his filling station on the suit property. During this period, to modernize the filling station and to offer additional services/products, the plaintiff applied for and obtained license from the Ministry of Petroleum & Natural Resources at a considerable cost to install CNG filling station; plaintiff also entered into a fresh agreement dated 05.10.1999 with defendant No.2 for the operation of a CNG facility at the filing station upon the suit property. In August, 1999, the plaintiff imported a CNG plant with all attached paraphernalia from the Canada at the cost of USD 90,000/- and incurred significant additional expenditure in installation of plant, plaintiff also incurred huge costs in obtaining a commercial gas connection from the Sui Southern Gas Company; these huge investments made by the plaintiff upon suit property were fully within knowledge of defendants. Moreover, at that point, defendant No.2’s stance was that it was the owner of the suit property as SITE had directly executed a fresh lease in favour of defendant No.2. Subsequently, in the year 2000 the issues between defendant Nos.2 and 3 were settled and SITE restored the original lease of the defendant No.3 and cancelled the fresh lease issued to defendant No.2. The business of plaintiff was not interrupted and defendants continued to allow him to run his filling and CNG station on suit property. In 2001, defendant No.2 executed another CNG filling Station Operation Agreement with the plaintiff and in 2003 the plaintiff was granted a CNG Marketing License from the Ministry of Petroleum; defendant No.2 renewed the earlier Petrol Filling Station License in the name of the plaintiff on 17.10.2004 for an indefinite term. Meanwhile, a fresh round of litigation ensued between defendants No.2 and 3 in respect of possession of the suit property and another property owned by defendant No.3’s husband but leased to defendant No.2; that litigation was eventually settled vide settlement agreement duly recorded in order dated 28.1.2008 passed in CP No.242 of 2008 by this Court. On 31.5.2008 in accordance with the compromise order, defendant No.3 executed and caused to be registered a fresh 30 years lease in favour of defendant No.2.
3. Further, plaintiff claimed maneuvering on part of defendant Nos.2 and 3 to evict him and claimed that soon after entering the said compromise and negotiating a fresh 30 year lease from defendant No.3, defendant No.1 deliberately defaulted upon the lease rentals in respect of the suit property thereby allowing defendant No.3 to bring a collusive ejectment application bearing Rent Case No.178/2009; an ejectment order was passed in said Rent Case which has been upheld by this Court vide order dated 15.4.2015 in CP No.S-1382/2013. Both parties deliberately avoided joining the plaintiff in said rent proceedings despite knowing that the most materially affected party in case of an ejectment order would be the plaintiff. Indeed plaintiff only became aware of those proceedings in the month of May 2015 when he was informed by a staff member of defendant No.1 that he would have to vacate the said property in a couple of weeks due to court orders passed behind his back. Plaintiff claims that in December, 2011 he (plaintiff) requested defendant No.1 to completely refurbish subject filling station and defendant No.1 vide its letter dated 6.1.2012 expressed its inability to accede to the plaintiff’s request due to shortage of funds. Defendant No.1 asked the plaintiff to undertake refurbishment and modernization of the construction on the suit property at its own cost despite knowing fully well that defendant No.3 had preferred ejectment proceedings in relation to the suit property. As such plaintiffs incurred further expenditure running into millions of rupees by essentially reconstructing nearly all fixtures, fittings, installations and buildings on suit property. Once again, this investment and refurbishment was within full knowledge of all defendants and they never objected to same as they intended to profit from same after ousting the plaintiff.
4. In above background, plaintiff claims that he is entitled to a declaration of his status a licensee coupled-with-interest in suit property by virtue of licenses granted to him by the defendant No.2 with the knowledge and consent of other defendants and his right to continue in possession as licensee, and sought following relief (s):-
A) Declare that the plaintiff is a licensee coupled with interest of the defendants in respect of the suit property namely No.B-73, SITE Karachi admeasuring 0.44 acres and is entitled to continue in possession thereof;
B) Declare that the plaintiff is the owner of all the filling and service station constructed and installed upon the suit property including the buildings, canopy, office and the machinery and equipment including pump outfits and the CNG plant, underground storage tanks, pipelines and all other fittings and fixtures thereupon;
C) Restrain the defendants from interfering with the plaintiff’s peaceful and quiet possession and enjoyment of the suit property and from interfering with the plaintiff’s ownership and enjoyment of the filling and service station constructed and installed upon the suit property including the buildings, canopy, office and the machinery and equipment including pump outfits and the CNG plant, underground storage tanks, pipelines and all other filling and fixtures thereupon.
D) Grant damages of Rs.50 million against the defendants jointly and severally along with such further sums as may be determined at the time of hearing / disposal;
E) Grant any other relief deemed fit and proper;
F) Award costs and special costs.
5. Defendant No.3, filed Counter affidavit wherein denying any relationship with the plaintiff; acknowledged relationship with defendant No.1 which too as landlord/lesser; she claimed that in result of lawful rent proceedings eviction order against defendant No.1 has been passed / recorded and instant suit is not sustainable against such earned right of the defendant No.3; while referring to clause 4(a) of her lease agreement with defendant No.1, it was insisted that defendant No.1 was not authorized to sublease subject property or part thereof hence any acts / omissions on part of defendant No.1 towards plaintiff shall not bring the defendant No.3 under any obligation.
6. It is worth to add that during proceedings / hearings, the plaintiff was also asked to satisfy the maintainability of the suit.
7. I have heard the respective sides and have gone through the available material.
8. The learned counsel for the plaintiff has argued that the plaintiff has a prima facie case in his favour; valuable and independent rights are there showing independent title and interest of the plaintiff hence plaintiff is entitled to continue his business. Learned counsel while referring section 16 of Easement Act and paragraph No.3 of plaint coupled with other documents, contends that plaintiff is a licensee hence he is entitled for possession of the subject matter property; since long plaintiff is in possession and has incurred huge amount on the subject premises; vacation proceedings filed by defendants were collusive in nature; plaintiff was not party, even having no knowledge; the order of the apex Court which is result of compromise between the defendants and same is in personam would not be treated as in rem. At this juncture he referred articles 55 and 56 of the Qanoon-e-Shahadat Order 1984; per learned counsel case of in personam are covered by these articles whereas subject matter is not falling within that scope. He further contended that review application preferred by plaintiff was not decided on merits as well plaintiff was not precluded to file instant suit, he relied upon 1996 SCMR 218, PLD 1987 SC 145, 1996 SCMR 1145, 1985 SCMR 620, 1988 SCMR 1860, 2015 CLC 594, 1992 SCMR 1109, PLD 2015 Sindh 336, PLD 2010 SC 483, PLD 1974 Lahore 346, 1989 MLD 3653, 2005 CLC 1602, 2008 CLC 348, 2004 CLC 343, 1990 MLD 420 and PLD 1965 SC 83.
9. Learned counsel for defendant No.1 contended that dispute between the parties was hotly contested at various fora hence it can not be said that these were collusive proceedings; plaintiff is not a licensee hence suit of the plaintiff is not maintainable.
10. In contra, learned counsel for defendant No.2 contends that construction raised by anyone on subject matter property was illegal as there was no consent to Caltex (defendant) the sub-lessee of the subject matter property. Since there was default by defendant No.2 thus defendant No.1 filed vacation proceedings, same was allowed, appeal preferred was dismissed. He also referred paragraph No.10 of the plaint which is :-
“However, the business of the plaintiff was not interrupted and the defendants continued to allow him to run his filling and CNG station on the suit property and continue to invest in the suit property and the station thereupon. In 2001, the defendant No.2 executed another CNG filling station operation agreement with the plaintiff and in 2003 the plaintiff was granted a CNG Marketing License from the Ministry of Petroleum. ………. Moreover, having witnessed the hard work and the investments made by the plaintiff in the successful operation of a filling station and CNG station on the said property, the defendant No.2 renewed the earlier petrol filling station license in the name of the plaintiff (and his sons) on 17.10.2004 for an indefinite term. ……”
While concluding his arguments he contended that licensee cannot be granted proprietary rights. He has relied upon PLD 2011 SC 44, 1986 SCMR 1638, PLD 2002 Karachi 83, PLD 1965 SC 83. PLD 1996 Karachi 267, 2003 CLC 3.
11. On the other hand, counsel for defendant No.3 while referring to grounds / pleas, taken in counter affidavit, argued that plaintiff has no legal character at all hence question of any prima facie case does not arise; undisputedly plaintiff has no direct nexus or relation with defendant No.1, the owner hence a legally earned right of taking possession cannot be avoided / defeated by plaintiff by filing instant suit. Reliance has been placed on the case laws, reported as M/s. Pakistan Burmah Shell Ltd vs. Khalil Ahmad (PLD 1996 Karachi 467); M/s. Nooni Traders Karachi vs. Pakistan Civil Aviation Authority (PLD 2002 Karachi 83); Pakistan State Oil Company Ltd vs. Sikandar A. Karim (2005 CLC 3); M. A. Naser vs. Chairman, Pakistan Eastern Railways (PLD 1965 SC 83); Muhammad Sarwar vs. Muhammad Shafi (1986 SCMR 1638) and PAKCOM Ltd vs. Federation of Pakistan (PLD 2011 SC 44).
12. Since question of the maintainability of the suit is strongly pressed, therefore, it would be in all fairness to decide this issue first because for deciding an injunction (interim order under Order 39 R. 1 & 2 CPC) ‘prima facie’ case is one of the ingredients which undeniably has nexus with maintainability of a lis. Therefore, in all fairness, I would like to attend the question of maintainability of suit first.
13. It is settled principle of law that to examine the maintainability of a lis, the Court normally should confine itself to the pleadings (plaint) and documents, annexed therewith but since the law nowhere permits a right / status to remain under dispute (lis) by replacing the row of plaintiffs or by way of tilting the words. The law rather demands to give the due to the deserved one after proper adjudication in one round of litigation hence those facts and documents, which otherwise are undisputed can well be considered even if same pertain to other litigation which, however, must have bearing on fresh one.
14. The plaintiff has worded his pleading in a manner so as to bring it within meaning of the Specific Relief Act as number of declaration(s) have been sought though normally suit(s), based on license e.t.c are to be governed by the Easement Act.
15. Let’s take up the matter treating it as an ordinary civil suit. The plaintiff has been insisting on three counts i.e his status as dealer or licensee and that he (plaintiff) invested huge amount. Let’s examine the same with reference to pleadings (plaint).
A perusal of the plaint shall speak for itself that though the plaintiff admits the status of defendant No.3 as owner / lessee of subject matter yet does not claim any direct relation with the defendant No.3 nor he has claimed to have acquired the status of ‘licensee’ under the defendant No.3. A direct reference to relevant portions of the plaint, being material, is made hereunder:-
‘Para-3. That defendant No.3 is the owner of the suit property, having derived title through a lease from Sindh Industrial Trading Estate (‘SITE’). In 1972, she leased out the suit property to the Defendant No.2 for a term of 25 (twenty five) years commencing on 1.7.1972 for the purpose of operating a filling station thereupon. …….”
Thus, the plaintiff legally cannot take an exception to such ownership of defendant No.3 and status of defendant No.2 to be lessee under defendant No.3 because one is always bound by his / her words (admissions). Worth to insist here that defendant No.2 per plaintiff himself is subsidiary or associated of defendant No.1 which means it (defendant No.2) has no independent character.
16. Let’s first discuss the claimed status of plaintiff as holder of ‘licenses’ and ‘dealership’ which per the plaintiff himself were meant:
‘Para-5. Eventually, …….. Accordingly, the plaintiff was granted a fresh license from the defendant No.2 to operate a filling station…’
‘Para-8. ……..the plaintiff applied for and obtained license- at a considerable cost - to install CNG Filling Station from the Ministry of Petroleum & Natural Resources……..’
A status of ‘dealer’ or ‘licensee’ shall not be used for any other purpose except to what same are limited by law. Before proceeding further, let’s have an eye over the meaning of the terms ‘dealer’ and ‘license’ per Black’s Law which are:
‘dealer’ A person who purchases goods or property for sale to others, a retailer.
The above ‘term’ is clear in its meaning. However, the agreement of the plaintiff with the defendant No.2 only (Annexure-D) makes its purpose clear in its opening para i.e:
‘WHEREAS the company is the lessee of the land premises situated at B-37, ESTATE AVENUE, SITE Karachi……., and whereas the company has at the request of the dealer agreed to allow the dealer for a temporary use of the service / filling station as to sell the company’s petroleum products by retail from the service / filling station for the consideration and on the terms…..’
The above not only reaffirms the rights and interests of the plaintiff to extent of temporary use of the service / filling station as to sell the products of defendant No.2 but also the status of defendant No.2 as ‘lessee’. The pleading (plaint) shall speak for itself that the plaintiff has placed much stress on possessing CNG license and installation of station on subject matter. At this place it is material to refer the meaning of term ‘license’ with reference to Black’s Law Dictionary wherein it is defined as:
‘License’. A revocable permission to commit some act that would otherwise be unlawful, esp., an agreement (not amounting to a lease or profit a prendre) that it will be lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal, such as hunting game.
The license, issued in favour of the plaintiff, by Ministry of Petroleum & Natural Resources, shall not authorize / entitle the plaintiff to acquire any right, title and interest against the owner (defendant No.3) particularly when it is nowhere claimed to have been with consent of defendant No.3. A license or permission even may be from the highest status of the ‘State’ shall not be used or interpreted for a different purpose nor its (license’s) scope can be extended particularly one guaranteed by the Articles 23 & 24 of the Constitution. It is not the status which is to be considered for determining the legality but determining thereof shall always be subject to ‘legal competence of such authority’. Let me insist here that it is not the license alone which alone was sufficient for installation of CNG station on subject matter but it was an agreement between defendant No.2 (lessee of subject matter) and the plaintiff by which the plaintiff was allowed to ‘operate’ his CNG station on subject property. Thus, holding the license alone is of no help for the plaintiff to claim any right, interest and title in the subject matter.
17. The above legal position shall stand clear from the document, annexed with plaint as Annexure J/1 which is titled as ‘COMPRESSED NATURAL GAS FILLING STATION OPERATION AGREEMENT’, executed between defendant No.2 and plaintiff. The plaintiff was/is addressed and defined as ‘operator’ in the said agreement. The agreement defining ownership reads as:
1.1. That the piece of land whereupon the CNG equipment and facility will be installed shall always remain in exclusive use, occupation and ownership of the company, to the entire exclusion of all others, whoever he may be, including the operator herein.
The above document, relied by the plaintiff, affirms that plaintiff under license of the CNG earned the status of ‘operator’ only over the subject matter while surrendering exclusion of his (plaintiff’s) all rights in favour of the company (defendant No.2) therefore, I am unable to understand that how the plaintiff under an intentionally dressed title of ‘dealer or operator’ for selling product(s) of defendant No.2 only can claim a right of participation in dispute between the defendant No.2 (lessee) and defendant No.3 (owner). The litigation (ejectment proceedings) between defendant No.1 and defendant No.3 has admittedly ended in favour of the defendant No.3, therefore, the plaintiff legally cannot seek an exception to such earned right of defendant No.3 merely by referring to his status of ‘dealer or operator’. No suit shall sustain against a person unless it is prima facie established that one (plaintiff) has an independent legal character against such person nor legally one can keep an earned right with reference to act or omission of some other person else a lis shall never serve its purpose and object which otherwise is meant determination of right through judgment and enforcement of such right through decree. In the instant matter, it is not a claim of the plaintiff that he (plaintiff) ever entered into any direct agreement with defendant No.3 but his all claims, rights and interests are under or through defendant No.2 which too to the extent of ‘dealer & operator’ hence present plaintiff was / is to sail or sink with defendant No.2. One legally cannot escape the principle of ‘sail or sink’ if he / she, as the case may, has no direct relation with the owner but claiming under lessee / tenant, purchaser or licensee even nor he / she can claim a legal proceeding to be not binding merely for reason of his / her impleading because, these persons, without any hesitation, do not normally qualify the term ‘necessary party’. In the case of Pakistan Burmah Shell Ltd. v. Khalil Ahmed (PLD 1996 Karachi 467) it was held that:
‘The applicant cannot claim to be tenant or sub-tenant or sub-lettee even if he is a dealer of the appellants he has no right to be added or impleaded in the ejectment proceedings which initiated between the appellants and respondents i.e landlord and tenant’.
In another case of Pakistan State Oil Company Ltd. v. Sikander A. Karaim & others (2005 CLC 3) , it is held that:
’12. …… No doubt, the lease agreement did permit the tenant to sublet the demised property yet there was no privy in between the landlord and the sub-lessee. The sub-lessee got the lease from the lessee / tenant, therefore, he could not be acknowledged as co-tenant. It was rightly argued that the sub-lessee has to sail or sink with the tenant.’
18. As regard the plea of the plaintiff that the earlier judgment / order were in nature of personam hence be not be treated as in rem. I have no hesitation in saying that this plea shall never be available for one claiming rights, titles and interests under one who otherwise was a party to earlier proceedings else whole structure of ‘administration of justice’ shall fail and there shall be no “end” to a lis. Such principle is in line with settled principle of law i.e ‘sail or sink together’, as discussed above.
Further, the said principle of ‘sail or sink together’ seems to be in line for which reference to relevant portion, defining the judgments in rem , in the case of Federation of Pakistan v. Qamar Hussain Bhatti (2004 PLD SC 77 as:
“Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceeding in which it was given. This rule of law is referable to the maxims of Roman Law namely, “Res inter alios judicata nullen inter alios prejudicium facet”, or Rest inter alios acta alteri nocere non debet”. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris. The reason why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine or cross-examine or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense.”
The above leaves nothing ambiguous that this plea shall never be available to a” man” if he claims, rights and interests are under one or those “who were parties to the proceeding in which it was given”.
In the case of Federation of Pakistan (supra) it is also mentioned as:
“8. It may be observed that Black’s Law Dictionary gives simple definition of the above two items by providing that ‘judgment in personam or inter parties’ is a judgment against a particular person as distinguished from a judgment against a thing or a right or status, whereas the term ‘judgment in rem’ has been defined as an adjudication pronounced upon the status of some particular things or subject-matter by a Tribunal having competent authority. Such judgment is binding upon all persons insofar as their interests in the property are concerned.”
From the above, now I can safely part above as:
‘judgment in personam or inter parties’ is a judgment against a particular person as distinguished from a judgment against a thing or a right or status:
‘judgment in rem’ is an adjudication pronounced upon the status of some particular things or subject-matter by a Tribunal having competent authority. Such judgment is binding upon all persons insofar as their interests in the property are concerned.”
Thus, if an adjudication decides status of some particular things or subject matter relating to a “right or status” of a person, it shall be a ‘judgment in rem’ and shall be of binding effect upon all claiming any interest in such thing or subject matter. In the instant matter the present plaintiff nowhere denies:-
1. ownership of defendant no.3;
2. defendant no.3 leased out property to defendant no.2 meaning thereby that defendant no.3 put the defendant no.2 into possession of subject matter;
3. defendant no.3 sued the defendant no.2 in eviction proceedings and a competent forum/tribunal adjudicated in her favour regarding her (defendant no.3’s) right to be put in possession of subject matter;
4. competency of forum / tribunal is not disputed;
19. Thus, said adjudication shall qualify the term ‘judgment in rem’ particularly when the present plaintiff does not claim any independent right and title with or against the defendant no.3 in respect of ‘subject matter’. Even if the case is viewed with reference to definition of “judgment in personam’ it was obligatory upon the plaintiff to prima facie establish his:
“i) independent right, title and character i.e should not insist his claims directly under defendant no.2 who was party to adjudication;
ii) should have established that adjudication was pronounced by an incompetent tribunal;
iii) should have established that adjudication was only against a person not for a right or status regarding a thing / subject matter;
which is not the case of the plaintiff. Now, I can safely conclude that where one fails in establishing above conditions, a mere stand of adjudication being a judgment in personam shall not be sufficient to defeat a legal right which one earned under a lawful adjudication. While parting from this, I without any hesitation say that an adjudication by owner against direct tenant / lessee shall be binding upon all subsequent claimants / persons as sub-lessee (lessee of direct lessee). The case laws, referred by learned counsel for the plaintiff are of no help in peculiar facts of the instant case.
Third contention of the plaintiff is to have invested huge investment hence has acquired right to continue operate his business over subject matter. I find not a bit of legal substance in such plea because ‘money (investment) alone can never earn a legal right or title’ but it (money/investment) must be a ‘legal consideration’. A single rupee can earn a right but not necessarily million(s) hence investment of money alone is never of any legal worth. It is worth to add here that agreement between defendant No.2 and defendant No.3 in respect of subject matter contains a specific ‘condition/term’ where the defendant No.2 (under whom the plaintiff is claiming) agreed that:
‘4 (a). The Lessee shall not be at liberty to underlet or sublease the demises premises or any part thereof’.
Thus, it leads to an undeniable conclusion that defendant No.2 was not legally competent to create a status of ‘sub-tenant or sub-lessee’ hence no except to such fact can be allowed to hold else it shall amount to leave a room for a legally established principle of law that ‘what one cannot get directly he / she cannot get indirectly. However, here stance of defendant No.2 is that plaintiff is a dealer.
20. The above discussion is sufficient to conclude that plaintiff has no independent legal character to maintain the instant suit. However, since the plaintiff has sought a declaration towards his status as ‘licensee coupled with interest’ therefore, I would also like to examine the case of the plaintiff strictly with reference to ‘Easement Act, 1882’ which deals with rights and liabilities of ‘licensee’.
The Section 52 of the Act defines the license as:
‘Where one person grants to another or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.’
The legality of license is dependent upon competence of the grantor in respect of immovable property therefore, it stands clear that it is not the writing which shall create the a right (license) but competence of ‘grantor’ . The position is further explained by Section 53 of the Act which reads as:
‘Who may grant a license.—A license may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in the property affected by the license.’
Since, defendant No.2 and plaintiff even were always aware of the legal status and competence of the defendant No.2 therefore, the defendant No.2 dressed up the plaintiff with status of ‘dealer & operator’ for purpose of sale of its (defendant No.2’s) products only at suit property. Therefore, by no stretch of imagination or even by allowing rounds of litigation the plaintiff cannot succeed in expanding scope of ‘dealer & operator’ therefore his (plaintiff’s) such status cannot earn him success in respect of prayer clause (a) as it includes ‘in respect of suit property namely No.B-73, SITE, Karachi admeasuring 0.44 acres and is entitled to continue in possession thereof’.
21. Not only this, but I have no hesitation in saying that order of ejectment of the defendant No.1 shall bring an end to such right (license) and status of the plaintiff i.e ‘dealer & operator’ in respect of suit property. There can be no denial to the fact that defendant No.1 and defendant No.2, being a subsidiary or associated company of the defendant No.1, on its ejectment from suit property shall have no right and authority to appoint its ‘dealer or operator’ for selling its product at suit property hence situation / circumstance of plaintiff squarely falls within meaning of Section 62(g) of the Act which reads:
’62. License when deemed revoked.—A license is deemed to be revoked.
(g) where the license is granted to the licensee as holding a particular office, employment or character , and such office, employment or character ceases to exist;
Further, the plaintiff has sought declaration (prayer clause b) of his ownership in respect of ‘filling and service station’, for which it would suffice to say that such declaration is not sustainable particularly with reference to provision of Section 63 of the Act which reads as:
’63. Licensee’s right on revocation.—Where a license is revoked, the licensee is entitled to reasonable 6time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property.’
Not only this, but the ‘lease agreement’ between the defendant No.1 and defendant No.3 also contains clause 4(b) which includes:
‘……At the expiration or sooner determination of the lease or within one month thereafter the Lessee shall be free to remove all buildings, fixtures erected on the premises without objection on the part of the lessor but in such case the Lessee shall make good any damage which may be caused to the demised land by such removal’
This right however is available for the defendant No.1 alone and present plaintiff can competently recover / collect his belongings, if any, through defendant No.1 and 2. In short, such prayer is also misconceived being already covered by the law itself hence needs no declaration.
22. Without prejudice to above, if for a moment, it is believed that plaintiff is ‘licensee’ and the defendant No.1 or defendant No.2 (being subsidiary or associated of defendant No.1) is ‘grantor’ even then the rights of the plaintiff shall be governed by the provision of Section 64 of the Act which reads as:-
’64. Licensee’s right on eviction.—Where a license has been granted for a consideration, and the licensee without any fault of his own, is evicted by the grantor before he has fully enjoyed under the license, the right for which he contracted, he is entitled to recover compensation from the grantor.’
Thus, it is quite obvious that even in such eventuality, a suit for ‘declaration’ shall not be maintainable in respect of a property (suit property) hence the suit of the plaintiff also fails on this count. If plaintiff sticks with his status of ‘licensee’ then only course available to him is that of bringing a suit for recovery of compensation which too against his ‘grantor’ which undisputedly is not the defendant No.3. Not only this, the present plaintiff cannot defeat or delay a lawful order of a competent court i.e ejectment order through independent suit (instant one) when he (plaintiff) claims all his rights, interests and rights under defendants No.1 and 2 who have contested such ejectment proceedings; his (plaintiff’s) rights are confined by the Act (Easement Act) to the extent of ‘compensation only’.
23. I am quite conscious that the present plaintiff has included a prayer for ‘grant of damages’ but since it is not under claim of ‘illegal eviction or revocation of license’ hence mere inclusion of a prayer under title of ‘damages’ shall not be sufficient to hold the suit maintainable nor it shall satisfy the thirst of Section 64 of the Easement Act, particularly where main relief (s) of declaration are not available for the plaintiff.
24. In view of above discussion, I am of the clear view that the plaint of the plaintiff in its present form is not sustainable hence the object of the powers conferred upon the trial Court under Order VII, Rule 11 CPC demands to put an end to such litigation at the very initial stage when on account of some legal impediments full-fledged trial will be a futile exercise. Reliance can safely be placed on the case, reported as 2014 SCMR 513 (Noor Din vs. Additional District Judge, Lahore).
25. In result of above conclusion, I am left with no option but to reject the plaint without any further discussion on interlocutory application(s), including the instant CMA which, in consequent to rejection of plaint, stood dismissed automatically.
J U D G E