This appeal is directed against the order dated 05.09.2008, whereby learned trial Court confirmed the interim order in suit titled "Sun Shine Services etc. vs. Daewoo Pakistan Motorway Services Ltd."
2. Briefly the facts of the case are that, Respondent No, 1-Sun Shine Services was granted license to run restaurant in the left hall of the premises vide license dated 04.05.2004. The license expired on 30.06.2008; accordingly, expiry notice followed by a legal notice was issued to Respondent No, 1 by the appellant for vacation of the premises within fifteen days, as per terms of the license agreement dated 04.05.2004. In order to avoid handing over of the site in question on 28.06.2008, Respondent No, 1 managed to file a suit wherein prayer was made for declaration, injunction and specific performance of contract before the learned Civil Judge, Chakwal alongwith application under Order 39, Rules 1 and 2 C.P.0 for grant of temporary injunction against the appellant, claiming to be a lease-holder for three years and his rights were protected under the law to retain the possession written-statement and written reply to the suit, as well as application was filed by the appellant. The learned trial Court after hearing the arguments of the parties, proceeded to accept the stay application vide impugned order dated 05.09.2008, hence this appeal.
3. Learned counsel for the appellant submits that, the case of the respondent-plaintiff was that, respondent-plaintiff, being licensee has right to retain the possession of the premises. The suit filed by the respondent-plaintiff was not maintainable in its present form and was not entitled to grant relief of injunction in the suit. The impugned order was passed on the basis of conjectures and surmises. The learned trial Court arrived at erroneous and unwarranted conclusions for which, there existed no legal or factual justification and had decided the main issue, while deciding application for grant of temporary injunction and also failed to apply its judicious mind. Further argued that, the learned trial Court erred at law, while deciding the main issue i,e, (of license agreement) and had decided the suit. The learned trial Court had failed to appreciate that, a deed of license was not specifically enforceable under Section 56 of the Specific Relief Act, 1977. The licensee does not have a vested right to retain the possession of the premises. Reliance is made to Ch. Ghulam Rasool vs. Mrs. Nusrat Rasool and four others (2008 SCJ 588) and Muhammad Hashim vs. Zulfiqar Ali Khan, General Manager West Pakistan, Road Transport Board and other (PLD 1963 Lahore 419).
"A license is merely competence to do /something which except for such premises would be unlawful".
The respondents, under license were allowed to use the premises for the purpose of running restaurant. It was made clear that, the licensee would not allowed his employees, servants or other person to stay in the said premises other than performing their duties, thus, the licensee was strictly forbidden to case any area/premises. For selling food items or expansion in the furniture inside or outside, other then the premises defined in license agreement/as per design measurement approved for the allocated places. It was made clear in clause (8.1) that, the licensor had the right to terminate the licensor agreement in case the licensee violated any of the covenants of this deed particularly clause (2, 3 & 5). As per clause (8.4), this license agreement may be cancelled/terminated upon occurrence of any of the following events in clause (8-4.2. to 8-4.13). As per Clause (9-1), on the expiry, cancellation or termination of this license, the licensee shall vacate the said premises within 30 days from the expiry date of the termination notice and the licensee and its servants, employees, agents etc. shall remove belongings to them within 30 days. As per Clause (14-1), this license shall not create any kind of leaseholds rights with regard to the said premises in favour of the licensee. The possession of the premises and proprietary rights shall remain with the licensor and in case of any eventuality contained in Clause (10) of this license, the licensor shall have a right to lock/close the premises. It was also made clear in Clause (14-2) that, the license was not transferable and heritable and would be revocable at the will of licensor in case of violation of conditions by the licensee. The learned Court had not gone through the agreement, executed between the parties, but simply relying upon the contention of the respondent-plaintiff treated it as a lease agreement Respondent No, 1 does not have a prima-facie case for grant of injunction. Reliance is placed on Civil Aviation Authority vs. Ms. Providence Aviation (Pvt.) Ltd. (2000 CLC 1722). The learned trial Court also failed to appreciate that, the suit filed by Respondent No, 1 was barred by law and hit by Sections 21 and 56 (1) of the Specific Relief Act, 1877, which envisages that if a license is wrongly terminated, a suit for damages would lie and no suit for specific performance of the contract or for injunction or declaration.
The suit filed by Respondent No, 1 was, itself, barred by law. Finally argued that, no prima-facie, arguable case was made out by the respondent-plaintiff. When the suit, itself was not maintainable, case for grant of temporary injunction was not made out. Agreement was a license, which had expired; thus the respondent-plaintiff had no right to retain possession of the premises and the appellant would be justified in taking legal action against the respondent-plaintiff. In case of refusal of injunction, the respondent-plaintiff would not suffer any loss, which could not be compensated in terms of money and the remedy under the law for licensee is to claim damages, if any, therefore, impugned order be set-aside.
4. Conversely, learned counsel for Respondent No, 1 by vehemently supporting the impugned order argued that, the document dated 04.05.2004 was a lease agreement and not a license. It was yet to be seen by the learned trial Court and this could only be done by recording evidence. Prima- facie, keeping in view the correspondence between the parties, the document was to be read as a lease agreement and not a license. In view of the subsequent correspondence between the parties and payment of rupees five million by the respondent-plaintiff does create a right in favour of the respondent-plaintiff to retain possession of the premises, as lease holder to enjoy the rights.
Further submits that, an amount of rupees five million was paid by the respondent-plaintiff out of which rupees 2.5 million was paid towards construction of remaining two halls i,e, middle and right hall of the premises, which were under construction at the time of agreement. Rupees 2.5 million was paid as refundable security. It is incorrect that, rupee 2.5 million was paid as advance rent and rupees 2.5 million as refundable security. The portion consisting of 166 sq.ft. was constructed by the respondent-plaintiff in addition to the premises, leased out and by virtue of raising construction of 1600 sq.ft., status of the respondent-plaintiff was that of a lease-holder and not that of a licensee.
Reliance has been placed upon Noor Muhammad vs. Civil Aviation Authority and another (1987 CLC 393), where in it has been held that to determine question whether agreement was license or lease, relevant factors necessary for consideration, would be evidence of the nature of agreement reading it as a whole, and subsequent conduct of parties and not title of agreement."
Motsons vs. Trustees of the Port of Karachi [1988 CLC 1261] and Government of West Pakistan vs. Meezan Corporation and another [PLD 1971 Karachi 35] Further submits that, 'License' is defined in Section 52 of the Easement Act, 1882, "as a right to do or to continue, to do in our upon immovable property of the grantor something which would in absence of such right be unlawful and such right does not amount to an easement or an interest in the property"
Likewise, Section 105 of the Transfer of Property Act, 1882, says that, "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 premised, or of money, a share of crop service or any other occasions to the transfer by the transferee, who accepts the transfer on such terms." Finally argued that, a short prima-facie arguable case was made out in favour of the respondent-plaintiff.
5. Learned counsel appearing on behalf of National Highway Authority states that, the National Highway Authority is to owner of the premises and the same has been leased out to the appellant- company with the permission to further rent out the same for running the business. Certain arbitrations took place in the office of National Highway Authority and after agreeing to certain proposal, both the parties resiled from the same.
6. I have heard learned counsel for the parties, gone through the record, as well as, case law on the subject. While taking the first contention that as the status of the respondent-plaintiff is that of a licensee or lease-holder; the minute perusal of the pre-amble of agreement dated 04.05.2004, the licensor has decided to grant license to the licensee to use the premises to run a restaurant covering an area of 2984 sq.ft., situated in the Motorway Service Area, Kallar Kahar North at 223 km, Lahore-Islamabad Motorway. Consequently, the respondent-plaintiff entered upon the premises as per the agreement as a licensee. During this period, the, respondent-plaintiff raised construction of 1600 sq.ft. in addition to the premises, rented out to him. The respondent-plaintiff also paid rupees 2.5 million as advance rent as per condition V(2) and rupees 2.5 million as refundable security. The minute scrutiny of various construction reflects that, the appellant kept its overall control and supervision not only on the building but also on the other premises, whereas the respondent-plaintiff was only allowed to run the Restaurant in the rented area. It was made clear in Clause (14-a) that, this license would not create any kind of leasehold rights with regard to the said premises in favour of the licensee. The licensee was also agreed as per clause (4-1(a)) that, the licensee would not use the premises except for the purpose of running restaurant, the licensee would not allow his employees servants or other persons to stay in the said premises other than performing their duties.
7. In the circumstances, status of the respondent-plaintiff as per terms and conditions of the agreement, as detailed above, does not appear to be of lessee. The term "lease" is defined in 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 vahie, to be rendered, periodically or on specified occasions to the transfer by the transferee who accepts the transfer on such terms."
Bare perusal of the above provision reveals that the agreement executed between the parties on 04.05.2004, is not covered by definition as given in Section 105 of the Transfer of Property Act. The appellant never parted away with the possession of the premises. It was made clear to the respondent-plaintiff that, he could use the premises for running the Cafeteria. It was also made clear that, the employees, servants were not allowed to stay in the premises other than for the purpose of performing their duties. In Condition-XIV (a) of the agreement, it was made clear that, this license should not create any kind of leasehold rights with regard to the said premises in favour of the respondent plaintiff claiming that, he was in possession could not be taken to be correct. As discussed above, it was also made clear in sub-clause (b) of Condition-XIV of the agreement that, the license was not transferable and heritable and would be revocable at the will of licensor in case of violation of condition by the licensee. It appears that, it was in the mind of the licensor that, the agreement may be used as lease by the respondent-plaintiff. The same was clarified in sub-clause (b) of Condition-XIV of the agreement.
8. The other contention raised to the effect that, the construction of middle hall and right hall of the premises was raised with money advanced by the respondent-plaintiff for the construction on the same and the appellant promised to return the same to the respondent, after construction. This argument of learned counsel for the respondent-plaintiff was belied from the fact that, as per clause sub-clause (2) of Condition-V of the agreement, rupees 2.5 million was deposited as advance towards the license fee and as per Condition-VI, rupees 2.5 million was deposited as refundable security. The contention raised that, in certain meetings held in the office of National Highway Authority, the appellant agreed to the request by the respondent-plaintiff and Memorandum of Understanding was executed. In that Memorandum of Understanding, it was agreed by the appellant that, rupees 2.5 million was paid towards construction of middle hall and right hall of the premises, was belied by the document presented by the respondent-plaintiff. A copy of minutes of meeting held on 11.02.2008, wherein it was mentioned in Para No, 2(b) that Rs, 5 million were given to DPMSL for completion of MSA's at Kalar Kahar (North). The amount was adjusted as following:--
(1) Rs 2.5 million as rent advance.
(2) Rs,2.5 million as security.
9. Keeping in view the pleadings of the parties, agreement dated 04.05.2004 (license), particularly, terms and conditions referred to hereinabove, it appears that, license was issued to the respondent-plaintiff to run a canteen in the left hall of the premises of the appellant for a period of three years on certain terms and conditions for which rupees 2.5 million was paid as advance fee and rupees 2.5 million was paid as refundable security. Learned counsel for the respondent plaintiff has prima-facie failed to establish from the document, as well as, agreement that, it was a lease executed in his favour for a period of three years creating certain rights. The license period had already expired and notice of eviction was served upon the respondent-plaintiff. Instead of vacating the premises, the respondent-plaintiff filed a suit for injunction, declaration and specific performance of the agreement. Since, the respondent-plaintiff is a license holder in the premises for a certain period. The license is a transfer of an interest in the immovable property. Learned counsel for the respondent-plaintiff has also failed to show that, a prima-facie arguable case exists in his favour. The licensee has no vested right to continue in possession under the cover of interim injunction.
10. Grant of temporary injunction. Reasonableness of temporary injunction should be judged by principles like prima-facie case, balance of convenience, irreparable loss, conduct of parties, nature of suit, time limit likely to be absolved in it, stakes of parties and workability and reasonableness of order proposed to be passed. In the present case, the respondent-plaintiff has- not been able to make out a case for grant of temporary injunction in his favour. Since, the A respondent-plaintiff is only a license holder on the basis of which, no suit for declaration, injunction or specific performance could be filed and is maintainable as held in numerous authorities. At the most, if the respondent-plaintiff succeeded in the suit, he can recover the damages suffered in consequence of cancellation of the agreement or dispossession from the property. No irreparable injury is likely to be suffered, which cannot be compensated in terms of money. Recovery of damages is the declaratory remedy in eventuality. Reference is made to Muhammad Yaqoob vs. Health Officer, Municipal Committee, Hyderabad and another [1973 SCMR 184], Marghoob Siddiqui vs. Hamid Ahmad Khan and 2 other [1974 SCMR 519] and M/s. Iftikhar & Co. Ltd. Vs. Uzin Export Ent.
[1986 CLC 303(DB)].
11.In the circumstances, I am of the view that, prima-facie the contract was in the nature of revocable license. The period for which the license was granted has already expired and that the remedy if any, available to the respondent-plaintiff was by way of damages. The respondent- plaintiff in the garb of injunction cannot seek grant of license, which otherwise would be illegal.
12.For the foregoing reasons, this appeal is allowed and the impugned order dated 05.09.2008, passed by the learned trial Court is set-aside; consequently application for interim injunction under Order 39 Rules 1 and 2 C.P.0 is dismissed. There is no order as to costs.