1. SAJJAD ALI, SHAH, J.--- Listed applications, at Serial Nos.1 m and 2, have been moved under Order VII, rule 11, C.P.C. By defendants Nos.3 and 2, respectively seeking rejection of plaint on various grounds.
2. Briefly stated the facts for the purpose of deciding the listed applications are that the plaintiff claims to be a caterer and is conducting his catering business on the lawns developed by him on a piece of land approximately admeasuring 15000 sq. Yards which according to him was allotted by defendant No,3 to defendant No,5 vide Resolution No,10, dated 29-8-1999 the cost whereof was fixed at Rs,20 per sq. Yard payable in six equal half yearly instalments. The defendant No,5, therefore, on 7-9-1989, entered into an agreement with the plaintiff, whereby the plaintiff had to construct a double storey building for the Officers' Club with the covered area of approximately 5000 sq. Ft. Which subsequently vide Agreement, dated 23-1-1993 was enhanced to 7000 sq. Ft. And also to develop five grassy lawns and in turn he was allowed to arrange marriages and other social functions on the said five lawns and to facilitate such functions he was allowed to construct stores, booking office, kitchen, bride room and bath room on each lawn. It is asserted that the booking and management of such functions was exclusively to be made by the plaintiff, however, the rent of lawns was to be fixed by defendant No,3 and out of total rental charges 10% was to be given to the plaintiff towards adjustment of his investment until 75% of the investment was recovered while 25% of the investment was to be retained as security deposit as the plaintiff was entitled to lease of five years after recovery of 75% of the investment. The plaintiff was further entitled to run the cafeteria of the Officers' Club and supply food, snaks, eatable, soft drinks and extends services to the functions held on the said lawns. It is also claimed that besides bearing the said cost of construction in the sum of Rs,75,00,000 the plaintiff has invested a sum of Rs,2,21,00,000 and Rs,5,00,00,000 for carrying his business. It is asserted that the defendants Nos.5 and 6 have paid full costs of land to defendant No,3 as envisaged in the Resolution and have become absolute owners of the said land which is in plaintiff's physical possession since 7-9-1989 and therefore, the plaintiff has vested interest in the said land.
3. It is further asserted that due to certain vested interest number of attempts were made to dislodge the plaintiff which led to filing of various suits by the plaintiff as well as defendant No,5, which are pending before this Court. It is claimed that on 24-1-2006 the Chairman and office-bearers of defendant No,5 informed the plaintiff that the Managing Director of defendant No,3 has directed them to get the plaintiff ejected from the said lawns and since the officers and the Chairman being the employees of defendant No,3 cannot dare to disobey the Managing Director of defendant No,3.
4. In the circumstances, the plaintiff apprehending his dispossession has filed the instant suit seeking a declaration that he is entitled to run his business on five Sabzazar lawns in terms of Agreements, dated 7-9-1989 and 23-1-1993 and cannot be dispossessed without due process of law and the directions to vacate the said lawns being illegal. A further declaration that defendants Nos.5 and 6 being legal owners of said land and the surrender of their rights in the said land in favour of defendant No,3 being mala fide and collusive with intent to dispossess the plaintiff. Permanent injunction restraining the defendants from dispossessing the plaintiff from the said lawns and also restraining the defendants Nos.5 and 6 from surrendering the said five lawns in favour of defendant No,3.
5. Messrs Anwar Mansoor Khan and Abrar Hassan, learned counsel appearing for respondents Nos.2 and. 3 respectively have contended that the plaintiff being a licensee does not have a legal character in respect of suit property and therefore, the relief claimed through present suit is barred under sections 42 and 56 of the Specific Relief Act. In order to show that the status of the plaintiff was only of a licensee learned counsel have invited my attention to clauses 7, 13, 15, 19, 27, 37 and 43 of the Agreement, dated 7-9-1989.
6. It was further contended that the arrangements between the plaintiff and defendant No,5 as reflected from the agreement on record as pleaded appears to be that the plaintiff was only a caterer and was bound to render accounts to the defendant No,5 having no control or exclusive possession over the suit property and therefore, the entitlement of the plaintiff in case of breach at the most would be monetary compensation.
7. In support of his contention that a licensee cannot claim any right under section 42 of the Specific Relief Act Mr. Abrar Hassan has placed reliance on the case of M.A. Nasir v. Chairman, Pakistan Eastern Railway PLD 1965 SC 83. Whereas Mr. Anwer Mansoor Khan while drawing distinction between lease and license has placed reliance on the case of Abdullah Bhai v. Ahmed Din PLD 1965 SC 106 and Messrs Sign Source v. Messrs Road Trip Advertisers 2005 CLC 1982.
8. It was next contended that though Resolution No,10 (at page 39) reflects that lawns in question were allotted for amenity purposes but after such Resolution neither any allotment order nor any lease deed was executed in favour of defendant No,5 and therefore the defendant No,5 had no authority or power even to enter into Agreement subject-matter of present suit and further that since the said lawns were used for commercial purposes in blatant violation of the allotment, therefore, the allotment in favour of defendant No,5 was forfeited and the defendant No,5 has handed over the possession of the said plot to defendant No,3. It was further contended that the so-called allotment of the laws by defendant No,3 in favour of defendant No,5 was in clear violation of section 13 of "The Sindh Disposal of Plots Ordinance, 1980", which prescribes the procedure of disposing amenity plots and further that the admitted commercial use of the lawns is in violation of Terms Nos.10 and 11 of "The terms and conditions of allotment of sites for amenity plots" as set by the CDGK, which prescribes that in case the site allotted is used for any purpose other than for which it has been allotted, shall ensue cancellation, and therefore, the plaintiff cannot seek a declaration to that effect.
9. It was lastly contended that admittedly the plaintiff is out of possession and has not claimed the possession of suit property by way of present suit, and therefore, cannot simpliciter seek a declaration as to its use, per learned counsel the plaintiff is seeking resurrection of a contract after its breach which is not permissible as laid down by the Honourable Supreme Court in the case of Messrs Pakistan Construction Limited v. Asif H. Kazi and another 1986 SCM R 820.'
10. Mr. Khalil-ur-Rehman learned counsel for defendants Nos.5 and 6 has supported the arguments of Messrs Anwar Mansoor Khan and Abrar Hassan, appearing for respondents Nos.2 and 3 respectively.
11. On the other hand Mr. Sami Ahmed learned counsel for the plaintiff by referring various clauses of the Agreement, dated 7-9-1989, has contended that the same being' irrevocable in nature cannot be cancelled unilaterally as the plaintiff is not a licensee but a lessee and therefore, his rights are to be governed accordingly. It was further contended that even if the plaintiff is held to be a licensee his case would fall under subsection (b) of section 60 of Easements Act for the reason that the plaintiff acting upon the agreement has constructed a building for the defendant No,5 on spending a huge sum of Rs,50,00,000 and has further invested Rs,2,21,00,000, and therefore, even if the Agreement is construed as a license it cannot be revoked at will.
12. Mr. Sami Ahmed in response, while referring to the case of M.A. Nasir (supra) has argued that the Honourable Supreme Court in the said case has held that the license can only be revoked at will of the grantor if the same does not- fall within the ambit of clause (a) or (b) of section 60 of Easements Act and since the case of the plaintiff squarely falls under clause (b) of section 60 of the said Act, therefore, the dicta laid down by the Honourable Supreme Court in the said case is not attracted. While replying the objection as to non-claiming the relief of possession learned counsel has contended that the plaintiff was in possession at the time of filing suit and was dispossessed in blatant violation of the status quo order, dated 25-1-2006 and to redress such dispossession a contempt application is pending adjudication.
13. I have heard the learned counsel for the respective parties and have gone through the record as well as the case-law, cited before me.
14. Taking up the first contention as to the status of the plaintiff as a licensee, a perusal of preamble to the Agreement, dated 7th September, 1989 reveals that defendant No,5 was desirous, to construct a building for its officers to be used as club and further to develop lawns to hold functions and social gatherings on the land allotted to them by defendant No,3 whereas the plaintiff showed his willingness to construct the building as well as five grassy lawns with boundary wall etc. At his own cost which was subsequently recoverable from defendant No,5 in the manner prescribed in the said Agreement, in return plaintiff's offer to run the business of Officers Club, cafeteria including catering services to the function to be taken place in club or lawn was accepted. The plaintiffs consequently, constructed a double storey building on the said land according to the plan approved by defendant No,5 within specified period from his own funds of which proper account was to be submitted before the defendant No,5 and such building was to be handed over to the defendant No,5 after its construction. The plaintiff was further to develop the remaining land, into five grassy lawns with boundary wall and necessary facilities like, store, booking office, kitchen, bride room and bath room on each lawn in order to facilitate the holding of marriages/functions.
15. The building after its construction was to be handed over to the defendant No,5 whereas the lawns were to be used by the plaintiff for holding functions etc. However, the booking of such functions was to be made by defendant No,5 through the plaintiffs.
16. In order to recover the amount so spent, it was agreed that 10% of the rent so recovered from the said lawn will be adjustable by the plaintiff towards his investments till 75% was recovered whereas the remaining 25% was to be retained by defendant No,5 as security for the reason that the plaintiff, thereafter, was entitled to lease for a period of five years in consideration of his rendered services and thereafter the plaintiff was to hand over the complete vacant possession of the demise premises with fixtures to the defendant No,5 and in event of breach of any clauses, the security of Rs,1,00,000 was liable to be forfeited after giving an opportunity to the plaintiff to explain his position. The agreement was further covenanted to be irrevocable.
17. A minute scrutiny of various provisions of the agreement under consideration reflects that the defendant No,5 kept its over all control and supervision not only on the building constructed for its officers, but also on lawn by keeping the right of booking as well as the fixation of rent to itself whereas the plaintiff was only to be consulted while arranging, booking or fixing rent and that too, only to update the defendant No,5 as to the prevailing rate of rent of lawns in the city.
18. In the circumstances the status of the plaintiff per terms of the agreement and as dilated above does not appear to be of a lessee, as the agreement between the parties does not confer upon the plaintiff any right to enjoy the suit property as required under the law. In order to appreciate the claim of the plaintiff as a lessee it would be beneficial to go through the provisions of Transfer of Property Act which define lease. Term lease has been defined under section 105 of the Transfer of Property Act to the following effect:- "105. Lease defined.--- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferer by the transferee, who accepts the transfer on such terms."
19. A perusal of the above provision reveals that in order to claim the status of a lessee over an immovable property a claimant has not only to show a transfer of a right to enjoy such property in consideration of a price paid or promised but also has to show an exclusive possession over such property, as the lessee under section 108 of the Transfer of Property Act is entitled to be put in possession of such property and the lessor parts with his right to enjoy such property during the course of lease.
20. Since the defendant No,5 kept to itself the right to rent out the lawns for the purpose of holding marriages/functions against specified consideration which was also received by the defendant No,5 and the role of the plaintiff was only to provide catering services having no right to use the .Said lawns in his own right or even let out at his own, therefore, the plaintiff cannot claim the status of a lessee.
21. As regards the contention of Mr. Sami Ahmed, that even if the plaintiff is held to be a licensee still his license could not be terminated at will as plaintiff acting upon such licence has constructed a building and incurred heavy expenses. There is no cavil to the proposition that licence of a licensee under clause (b) of section 60 of Easements Act cannot be revoked at will where the licensee acting upon the licence has executed work of a permanent character and incurred expenses.
22. However, such construction or work of permanent character should be for the use of the licensee in his own right and not for use and occupation of the grantor for a .Price paid or promised in a specified manner. In the instant case admittedly the plaintiff has executed work of permanent character for the grantor and not only the cost of construction was determined, but its mode of repayment was also provided in the agreement, therefore, such work of permanent character undertaken at the direction of the grantor which after its completion was handed over to the grantor for the use and occupation of its officers would not covert a bare licence revocable at the will of the grantor into one which is irrevocable under clause (b) of section 60 of the Easements Act.
23. It is further important to observe that an agreement contemplating a bare permission/licence as envisaged under section 52 of the Easements Act to do something in or upon an immovable property which otherwise would be unlawful is revocable subject to a reasonable notice in terms of section 63 of the Easements Act and in case of eviction of the licensee before having fully enjoyed the right granted under the license, the licensee at the most could be entitled to compensation under section 64 of the Easements Act and therefore, the suit would be barred under section 21 of the Specific Relief Act. However, in present case parties as appears from clause 42 of the subject Agreement covenanted to make the agreement irrevocable and there appears to be no bar in the Easements Act barring such covenant. In cases where the parties by special contract agree to make a license irrevocable, which otherwise is revocable under section 60 of the Easements Act, then the license becomes irrevocable one and the bar contained in sections 21, 42, and 56 of the Specific Relief Act would not apply and therefore, the plaint cannot be rejected on this score.
24. Mr. Abrar Hassan, learned counsel for defendant No,5 vehemently contended that the dicta laid down by the Honourable Supreme Court in the case of M.A. Nasir (supra) is attracted on all fours to the facts of the present case and I do not see any reason to disagree with his contention. However, in the said case the Honourable Supreme Court has also left a room for a situation where the parties by mutual agreement make a bare license into an irrevocable one by observing:- "We may, however, point out that there may be cases where parties by special contract may make the license, which prima facie is revocable under section 60 of the Easements Act, an irrevocable one."
25. Though a suit filed by a bare licensee for the performance of a contract or for that purposes a declaration or injunction is not maintainable as clause "d" of section 21 of the Specific Relief Act operates as a bar from specifically enforcing a contract, "which by its very nature is revocable".
26. Likewise a declaratory suit, under the provisions of section 42 of the Specific Relief Act can only be filed by a person, who is entitled "to any legal character" or "to any right to property". In the same manner clause "f" of section 52 of the Specific Relief Act operates as a bar to the grant of injunction to "prevent the breach of an agreement the performance of which would not be specifically enforced'.
27. Taking up the contention regarding allotment of subject property for the purposes of amenity and its use otherwise, the plaintiff itself has not only placed on record a copy of Resolution No,10, whereby subject land was allotted by the defendant No,3 in favour of defendant No,5, but also has reproduced its contents on page 2 of the plaint and it would be beneficial to reproduce the same as under:- "Resolution No,10.--- The Board resolved to accord its approval for allotment of the land/plot measuring 15,000 sq. Yards at 9th mile opposite Machinery Pool Yard near Block "C" at Shahrahe- Faisal, Karachi as requested by the President, KW&SB Engineers and Officers Association vide their revised application, dated 28-8-1989, for KW&SB Engineers and Officers Club by converting it into amenity plot as per K.D.A.'s rules and rates i,e, 20.00 per sq. Yard payable in six equal instalments within a period of not more than three years. The possession will be handed over by the KW&SB to the KW&SB Engineers and Officers Association on receipt of the first instalment amounting to Rs,50,000."
28. It appears to be an admitted position that the subject land was allotted by the defendant No,3 to defendant No,5 for amenity purposes as is evident from a bare perusal of resolution 10, and its commercial use, of course, would entail consequence, as provided under the law. However, since the cancellation if any of such allotment and the resumption of plot as pleaded by defendant No,3 and conceded by defendant No,5 cannot be gone into without considering the defence which is not permissible, therefore, the submissions on this issue cannot be adjudicated upon at this juncture.
29. As to the last contention of Mr. Abrar Hassan that after termination of agreement defendant No,5 has handed over the possession of the said plots to defendant No,3, therefore, the plaintiff in fact through this suit is seeking resurrection of the said agreement which is not permissible under the law. Suffice it to observe that the plaint asserts the possession of the plaintiff and does not speak of cancellation of the plot, therefore, this submission also requires adjudication on merits, the applications in the circumstances stands dismissed.
30. Though the plaint could not have been rejected on the grounds agitated, but the question which constantly bothered me while deciding this application was "whether a declaration as to the commercial use of a property which admittedly was allotted for the amenity purposes can be granted by this Court" and if the answer is in "No" then in my view no fruitful purpose would be served by keeping this suit on the file of this Court. Since this issue was not agitated by the learned counsel for the defendants nor the plaintiff was given an opportunity of hearing therefore, before taking up this issue for adjudication, the plaintiff is put to notice to satisfy as to the maintainability of present suit on this score.