IN THE HIGH COURT OF SINDH AT KARACHI
Feroz Ali Gaba vs. Fishermen’s Cooperative Society Limited and others.
Suit No.258 of 2014
Plaintiff: through Mr. Sattar Muhammad Awan
Advocate.
Defendants No. 1 & 3: through Kh. Naveed Ahmed.
Defendant No.2: through Mr. Ghulam Muhammad.
Suit No.641 of 2014.
Plaintiff: through: Mr. Sattar Muhammad Awan
Advocate.
Defendants No.1 & 2: through Mr. Ghulam Muhammad
Advocate.
Date of hearing: 25.08.2014
Date of Order : 11.09.2014
O R D E R
SALAHUDDIN PANHWAR, J. Through instant order I intend to dispose of two applications Under Order XXXIX Rules 1 & 2 CPC (CMA No. 1993 of 2014 in Suit No. 258/2014 & CMA No. 5114/2014 in Suit No. 641/2014).
2. Succinctly, Plaintiff filed the captioned suits, seeking therein relief (s) of ‘Declaration, Injunction & Recovery of Damages’: plaintiff claims that he is sole proprietor of M/s. SON OF THE SEA, which deals in the business of fish processing and export of all kinds of frozen seafood; that the plaintiff is Sub-lessee of plot No.K-II/A measuring 1149 square yards through lease deed dated 7th April 2012 for the period of 25 years to be used for purpose for which it has been so defined in lease agreement i.e ‘cold storage and freezing plant ; Plaintiff is running its business since 1974 and having many other companies in same trade; Defendant No.2 according to terms and conditions of Sub-Lease is under obligation to provide all utilities; that Plaintiff received notice dated 26.08.2013 issued by Defendant No.2 (Karachi Fisheries Harbour Authority) alleging therein that Plaintiff has encroached area admeasuring 348 square yards and failed to comply with instructions of Board of Directors. It was further alleged that Plaintiff was required to make Flake Ice Plant and Cold Storage Systematical Plant functional adjacent to auction halls and to ensure the use of plot in accordance with the purpose mentioned in the Sub-Lease as well as it was alleged that Plaintiff is defaulter in payment of outstanding amount of Rs.679, 400/- towards Ground Rent for the year 2012-13. It was further pleaded that Defendant No.3 in capacity of an Administrator of Defendant No.1 maneuvered and succeeded in issuance of notice dated 28th January 2014 contending therein that Plaintiff has taken possession of different spots in an unauthorized manner, on these pleadings in Suit No.258/2014 Plaintiff assailed letter dated 28th January 2014 issued by Defendant No.1 and further seeks relief regarding running of smooth business and peaceful possession on aforementioned plot.
In suit No.641 of 2014 the plaintiff, while pleading above back-ground, contended that defendant No.2 issued a notice No.KFHA/ESTATE/29/2014 dated 11th April, 2014 directing plaintiff to note that in pursuance of Board’s decision, lease of plaintiff bearing plot No.C-3 & (K-AA/A) Karachi Fish Harbour will be cancelled and Anti-Encroachment Law will be invoked within period of seven days.
3. In contra defendants’ side denied the claim of the plaintiff while pleading that since the plaintiff has been claiming under the lease hence breach of objective term thereof legally justified the defendants to issue notice (s); not only the maintainability of application (s) but of suit (s) were questioned by defendants. However, pursuant to the order passed by this Court dated 15.02.2014 Nazir has submitted his report. Being relevant, paras-2 & 3 are reproduced hereunder:-
“2. In compliance of the Court’s order, the Nazir fixed the matter to visit the Fish Harbor on 25.02.2014 and deputed to the undersigned for compliance of above order. On 25.02.2014 the undersigned with staff member accompanying with Feroz Ali Gaba, petitioner reached at the site i.e. K-2, Auction Hall, and Fisher Harbor at 3.10 p.m. At the site Mr. Fareed-ul-Hassan Abbassi, Advocate for the Defendant No.1 & 3 and Haji Wali Muhammad, Manager FCS and Mr. Nasir Bonheri Incharge watch and ward FCS were present. The under signed visited the factory and found that there was lot of water in the overhead tank of K-2 Hall which was over flowing and water was falling on the floor due seepage from the roof which was badly damaged and it appeared that there was sufficient/plenty water supply was found available to the plaintiff. There are two cold storages setup at the place. One cold store was found vacant/empty and no seafood was kept there. The other cold store was full of seafood. The plaintiff stated that the cold store which is found empty is because he had no water therefore he has shifted items at another place.
3. On inquiry Haji Wali Muhammad Manager F.C.S. and Mr. Nasir Bonheri informed that they have never been stopped/interrupted the water supply of the plaintiff, they further informed that this place was allotted to the plaintiff for establishment chiller room and installing Flake ice plant which was the requirement of European Union. The Plaintiff after taking possession of the premises has not installed Flake ice plant and in violation of terms and conditions of allotment, has not established/installed Flake Ice Plant. The Plaintiff is using the premises as fishing processing factory/cold store. This premise has not been given to him by the Fisherman Cooperative Society for establishing his private factory for fish processing. This premises was exclusively given to him for installing Flake Ice Plant which was the basic requirement of European Union who purchases fish form Pakistan and want to ensure that their health standards for freezing the fish should be hygienically adhered to.”
(underlining has been supplied for emphasis)
4. Learned counsel for the Plaintiff while reiterating the contents of both plaints argued that Defendants (Fisheries Cooperative Society Limited) has no authority to disturb the peaceful business of the Plaintiff; Plaintiff has invested huge amount in his lawful trade whereby this country is earning a handsome amount as exporter in business of seafood; he has brought many businessmen from abroad interested in this business; according to lease, the Plaintiff is entitled to hold the premises upto the period of 2031 thereby Defendants are not competent to cancel the lease of the Plaintiff as the Plaintiff has not violated terms and conditions of lease deed. In support of his contention he referred many clauses of lease agreement and further pleaded that Defendants are required to provide basic amenities under the lease agreement but they are violating the same, hence actions of defendants are based on mala-fide. Besides, he contended that Board is not competent to cancel the lease deed of Plaintiff thereby notice regarding issuance of cancellation of lease deed is from the face of it void ab initio.
5. Conversely, learned counsel for the Defendant No.1 and 3 has argued that defendant No.1 and 3 have no concern with the affairs of the Plaintiff but Plaintiff has deliberately joined the Defendants with ulterior motive and is getting advantage of interim order passed by this Court. Under the garb of this order, Plaintiff is continuing his business against the lease agreement, thus Defendant No.1 being society is under liability to report the matter before the concerned authorities.
6. Learned counsel for the Defendant No.2 has contended that defendant No.2 has moved an application under Order 1 rule 10 CPC for deleting his name as Plaintiff in para-11 of the plaint in suit No.258/2014 has categorically contended that “he has not seeking any relief against Defendant No.2 who is only a Proforma Defendant”, whereas, in latter Suit he argued that in terms of lease agreement Plaintiff can only run the business of Cold Storage but he is violating the same since allotment of aforesaid plot, which was meant for specific purpose. Both the suits of the Plaintiff are not maintainable under the law, prima facie, Plaintiff has no cause of action; in-spite of repeated notices plaintiff has failed to complied with the directions; as per lease deed, Plaintiff was bound to install Processing, Freezing Unit and Flake Ice Plant but he has failed to do so, thus, contaminated seafood is being supplied to the citizens, which is hazardous for health of consumers.
7. After carefully consideration of contentions raised by learned counsel for the respective parties and meticulous examination of available record it becomes quite obvious that the plaintiff does not deny to have acquired rights, interests and claims under the ‘lease agreement’. It is also not a disputed position that the plaintiff, acknowledging the legal status and authority of the quarter concern i.e. Defendant No.2 (Karachi Fisheries Harbour Authority), signed the document (lease) and continuing the possession of subject matter under the very authority (lease). The plaintiff has alleged number of illegalities on part of the defendants to maintain the instant suit (s) and continuity of injunction.
8. Before going any further on merits of the instant application (s), it would be just, proper and necessary to mention that an injunction is not to be granted where the party, claiming injunction, fails in establishing co-existence of all three required ingredients for grant of injunction which are ‘prima facie case, balance of inconvenience and irreparable loss / injury’. It is always necessary to give due meaning and weight to each ingredient because each is not simply a word but a circumstance showing existence of some fact to a prudent mind. It is not the claimed rights, convenience of a party or investment and even an apprehension of some loss or injury but what shall make one entitled for grant of injunction is :
i) Prima facie case is existence of legal right which should appear to a prudent mind with a probability of success at the end of the day;
ii) Balance of inconvenience is existence of circumstance (s) through which the plaintiff establishes that his inconvenience shall be greater than that of opposite party if injunction is not granted;
iii) Irreparable loss / injury do not refer to a damage or loss which can be ascertained or compensated but to such an injury which cannot be adequately compensated.
It should always be kept in mind that plaintiff has to establish co-existence of all said ingredients through pleading, document (s) attached therewith and affidavit, so sworn in support of the injunction application. Through discretionary powers, including Under Order 39 r 1 & 2 CPC the Court is bound to protect legal rights, their infringements, mala fide exercise of jurisdiction by an authority but such discretion should always to be used in aid of justice, equity and fair play but not in aid of a prima facie illegality or improper relief. I may safely refer to the case of PURI TERMINAL LTD. versus GOVERNMENT OF PAKISTAN reported as 2004 SCMR 1092, wherein it is held that:-
“21. No doubt an injunction is a form of equitable relief and is to be issued in aid of equity and justice, but not to add injustice. Form grant of such relief, it is mandatory to establish that in order to obtain an interim injunction, the applicant has not only to establish that he has a prima facie case, but he has also to show that the balance of convenience is on his side and that he would suffer irreparable injury / loss unless he is protected during the pendency of suit.”
In the case of Marghub Siddiqui vs. Hamid Ahmed Khan & 2 others [1974 SCMR 519] wherein it is held that:-
“It is well settled law that an injunction is not to be granted only on the basis that a prima facie case exists in favour of the plaintiff. The Courts are required to take into consideration whether the question of balance of convenience or irreparable loss to the party seeking such relief co-exists or not.”
9. Now, let’s revert to merits of the case in search of existence of said ingredients in favour of the plaintiff or otherwise. In instant suit (s) the plaintiff has, nowhere, denied that he is claiming all his rights under lease document, but insisting to use the subject matter other than that for which it was licensed / leased. To give a better view to position, it would be proper to refer relevant clause of the document (lease agreement) describing the object and purpose of subject matter. Same reads as under:-
“The LESSOR demises into, the LESSEE the site to have and hold possession thereof from the 16.09.2006 for period of 25 years, which expires on 15.09.2031 measuring 1149 Sq.Yards @ Rs.600/- Sq.Yards per annum as per sketch attached herewith for the purpose of Cold Storages and Freezing Plant upon the terms and conditions mentioned hereinafter provided that an area 269 Sq. Yards shown in graph is surrenderable when and where required by the KFHA for extension and renovation of Fish Market, however, the lessee will be provided alternate area.”
10. Here, it would be germane to mention that the plaintiff himself has attached a letter, addressed to the Managing Director, Karachi Fisheries Harbour Authority; Fish Harbour, West Wharf, Karachi. The operative para whereof reads as under:-
‘Since long time I am suffering huge loss due to heavy cost to maintain the said Flake Ice Plant in operational condition. Now I hereby request to your goodself to kindly allow me to use the said Premises of Old Cold Storages with the Fish Market as Processing , Freezing packing of seafood with sale point of seafood and cold storage as without proper supply of water, it is difficult to maintain in operational condition the said Flake Ice plant and accordingly, Lease may be amended regarding the use of said premises beside the Additional Land allotted to me for which I have already paid charges for such allotment of additional land’
11. Thus, the plaintiff, nowhere has claimed any amendment in ‘use of the premises’, therefore, perusal of lease agreement, Nazir’s report and above letter of the plaintiff, it is evident that plaintiff was authorized only to plant Flake Ice & Processing Unit and abide the terms and conditions as provided under the lease deed. Since it is a matter of record that whole claim of the plaintiff is resting on the lease document then plaintiff would not be , prima facie, justified in continuing a position which is not within ‘objective’ of such document. Therefore, I conclude that prima facie case is not in favour of the plaintiff.
12. Although, failure to establish prima facie case is sufficient to disentitle one from insisting an injunction in his faovur, however, let’s proceed further to see whether any question of irreparable loss / injury is involved, even if the injunction is declined. It is also surfaced on record that the both notices impugned in the instant suit reflect that plaintiff has not complied with terms and conditions and even he is not running the business in accordance with the lease agreement, therefore, the authority intends to cancel the license. The status of the defendant No.1 to be lessor is not disputed therefore, competence is with such authority to resort to procedure in event of any breach of license or terms thereof. Thus, issuance of notice by an authority to its lessee cannot be said to be entirely illegal or beyond jurisdiction but, at the most, course or procedure could be challenged. It is a matter of record that license of the plaintiff has not been cancelled but plaintiff has been served with a notice in that respect. Issuance of notice for cancellation of license cannot be termed to be ‘cancellation’ which, could give a legal right to aggrieved to resort to proper available legal remedy, including filing of suit if law so permits. Therefore, plea of irreparable loss / injury is also not available with the plaintiff particularly when the plaintiff has sought a relief of ‘damages’ questioning / referring to certain acts of the defendants. The plea of the plaintiff to have made a huge investment is not sufficient to keep an authority away from its right in event of breach of terms of agreement/lease.
13. As discussed above, both the instant applications are dismissed.
J U D G E
SAJID