This order will dispose of C.M.A. No.5590 of 2004 under which the plaintiff has prayed that the defendants Nos.1 and 2 may be restrained from using and operating C.N.G. Facility on the Suit- Property bearing No.B-73 SITE Karachi till disposal of the suit.
' The facts giving rise to the present application are that the plaintiff and defendant No.2 entered into an agreement by which the suit-property was leased out to the defendant No.1 for five years from 1-7-1977 to 30-6-1982. It appears that the SITE who is the owner of the property cancelled the lease of the plaintiff in the year 1997, under which the plaintiff had leased out suit property to the defendant No.
1. The plaintiff filed suit bearing No.1001 of 1998 to challenge the cancellation of lease. The suit was decreed on 31-1-2003 and the lease of the plaintiff was restored. It further appears that in' the year 1999 the defendant No.1 through defendant No.2 installed CNG Gas facility in the Suit-property. The plaintiff objected to the installation of the said facility on the ground that it was an illegal act of the defendant No.1 as the same was installed without his permission and the defendant No.3 has objected to it because it is against the purpose of the lease granted to the plaintiff. The defendants have 'Ewen served. They have filed their counter-affidavits.
' I have heard the Advocates for the plaintiff, defendants Nos.1 to 3 and perused the record of this case very carefully.
' It is an admitted position that the Suit-property was leased out to the plaintiff. Subsequently the plaintiff leased out the property to the defendant No.
1. The lease Deed executed between the plaintiff and defendant No.1 has been produced. The relevant portion of clause (1) of lease reads as under:- "And together also with the right for the tenant to install, create and maintain in and upon the said piece of land roadways and pathways, underground petrol tanks and petrol pumps and shelter or attendant, service station and any other building, erections for equipment, whether of a permanent or temporary nature for the purpose of storing, selling or carrying on trade in petrol, petroleum products, oil and kindred motor accessories and any other pertinent business that can be conveniently carried on therewith and together also with the right for the tenant, its local dealers or agents to use the premises hereby demised."
' A perusal of above clause of the agreement reveals that apart from allowing defendant No.1 to install petrol pump it is further provided that the plaintiff had allowed the defendant No.1 to carrying out any other pertinent business that can be conveniently carried on therewith and together also with the right for the tenant its local dealers or agents to use the premises hereby demised at all times and fors all purposes specified in the agreement. From this para. It is clear that the Suit- property was leased out to the defendant No.1 for the business of other purposes relating to the main purpose. The CNG facility is an alternate fuel sources, which is provided to the motor vehicles therefore, it appears that the said business comes within the above clause of the agreeinent. The learned Advocate for the defendant No.1 stated that the CNG was installed after obtaining required permission from the concerned Authorities. Learned Advocate for the defendant No.2 has supported the arguments of defendant No.1 by stating that gas facility was provided after complying all the rules, regulations and laws.
' The learned Advocate for the plaintiff has mainly argued that the defendant No.1 did not obtain permission from him or the defendant No.3, therefore, the installation of CNG gas on the Suit- property is illegal. He referred to the letter dated 18th June, 1999 by which the defendant No.1 during the pendency of earlier suit applied to the defendant No.3 for issuance of No Objection Certificate so as to obtain the industrial gas connection from defendant No.2. The said matter was kept pending because the stay order was operating in the matter. The letter clearly shows that the NOC was required for obtaining the gas connection from defendant No.2. The defendant No.2 has categorically stated that the gas connection was provided after compliance of all the rules and regulations.
From the facts of the case it appears that at this stage the plaintiff has failed to establish the prima facie case in his favour. Balance of convenience is also not in favour of the plaintiff, as inconvenience would be caused to the defendant No.1 if the injunction is granted because the same is running under the above-referred clause of the agreement and sanction and orders of defendant No.2. No irreparable loss would be caused to the plaintiff. However, loss if any can be compensated in the shape of damages.
' After considring the material available on the record I am of the considered view that the application has no merits. The same is dismissed.
2. Learned Advocate for the plaintiff does not want to press the application hence the same is dismissed as not pressed.
3. Learned Advocate for the plaintiff has no objection to the grant of this application. By consent the application is allowed. The defendant No.1 may file the written statement. Adjourned.