' KHALID ALI Z. QAZI, J.--- The plaintiff filed suit for declaration and permanent injunction with the following prayers:- "(a) A declaration be granted to the effect that the plaintiff is entitled to run and carry on his business on 5 Subzazar Lawns and KW&SB Officers Club Lawn in terms of the Agreement dated 7- 9-1989 and 23-1-1993 and cannot be dispossessed from the same without due process of law.
(b) That it may be declared that the action of the defendants Nos.2, 3, 5 and 6 calling upon the plaintiff to vacate and handover possession of the Subzazar Lawns and KW&SB Officers Club Lawn is illegal, unjust, arbitrary, mala fide and of no legal effect.
(c) A declaration be granted that in view of the fact that the defendants Nos.5 and 6 are legal owners of the land on which Subzazar Lawns and KW&SB Officers Club Lawn of the plaintiff are situated, any surrender of the said land by the defendants Nos.5 and 6 to the defendant No,3 is a mala fide and collusive in order to dispossess the plaintiff from the Subzazar Lawns and KW&SB Officers Club Lawn and as such any attempt/action to surrender the said land is collusive and of no legal effect.
(d) Permanent injunction be granted against the defendants, their agents, servants, employees, officers and/or any other persons claiming through or under them from dispossessing the plaintiff from 5 Subzazar Lawns and KW&SB Officers club Lawn situated at 9th Mile main Shahra-e-Faisal, Karachi.
(e) Permanent Injunction be granted against the defendants Nos.5 and 6 from surrendering the land of 5 Subzazar Lawns to the defendant No,3 as the said contemplated action of the defendants Nos.5 and 6 would be a mala fide and collusive action in order to dispossess the plaintiff from the said Subzazar Lawns and KW&SB Officers Club Lawn.
(f) Cost of the proceedings.
(g) Any other further relief(s) which this Honourable Court deems fit and proper in the circumstances of the case."
2. According to the plaintiff, the land, on which he carries on business of catering under the name and style of "Subzazar" Lawns, was allotted by defendant No,3 to defendant No,5 in its 4th meeting held on 29th August, 1989. This land was allotted by defendant No,3 to defendant No,5 as per the resolution passed in the meeting of defendant No,3 held on 29-8-1989. The relevant Resolution No,10 of the defendant No,3 as reproduced in the plaint is as follows:--- "The Board resolved to accord its approval for allotment of the land/plot measuring 15,000 sq. Yds at 9th Mile, opposite Machinery Pool Yard, Near Block "C", at Shahrah-e-Faisal, Karachi as requested by the President of KW&SB Engineers and Officers Associations vide their Revised Application dated 29-8-1989 for KW&SB Engineers and Officers Club by converting it into Amenity Plot as per KDA's Rules and rates i,e, Rs,20 per sq.Yds payable in six equal instalments within the period not more than 3 years. The possession will be handed over by the KW&SB to the KW&SB Engineers and Officers Associations on receipt of the first instalments amounting to Rs,50,000.
3. It is further the case of the plaintiff that the costs of the land situated at 9th Mile Shahrah-e- Faisal, Karachi was fixed at Rs,20 per sq. Yard which was to be paid by the defendant No,5. It is further case of the plaintiff that on 7-9-1989 the defendant No,5 entered into an agreement with the plaintiff for construction of double storey building for the Officers Club with the covered area of approximately 5000 sq. Ft. And 5 grassy lawns with boundary walls and in terms of the said agreement the total expenses for construction of a Club building and development of said grassy lawns were to be borne by the plaintiff and he was allowed to arrange marriage and other social functions. The booking and management of 5 Lawns were to be made exclusively by the plaintiff who was allowed to construct storeys, booking office, kitchen, bride rooms and both rooms etc. The rent of the lawns was to be fixed by defendant No,5 and it was agreed that out of total rental charges of the lawns 10% was to be taken out by the plaintiff towards adjustment of his investment until 75% of the investment was recovered while 25% of the same was to be remain as security deposit and 90% of the rental charges belonged to defendant No,5 and plaintiff was entitled to a lease for 5 years after recovery of 75% of investment. The plaintiff was also entitled to run cafeteria and supply food, snack, eatable, soft drinks etc.
4. It is further case of the plaintiff that an additional agreement dated 23-1-1993 was executed between the plaintiff and defendant No,5 whereby the plaintiff was required to construct a building of the club on 12000 sq. Ft. For defendant No,5. On 19-4-1993 a Tripartite Agreement was entered into between the plaintiff, defendant No,5 and one Messrs Dilco Civil Contractors, who have not made party in the above suit for the construction of the said Club at the cost of Rs,75,00,000. The said building was constructed and the plaintiff alleges that he further invested huge amount for carrying on business. The plaintiff alleges that he paid full cost to the defendant No,5 and defendants Nos.5 and 6 are the owners of land of the club. It is further case of the plaintiff that at the behest of certain vested interest number of attempts have been made to dislodge the plaintiff from the said lawns. On 2-10-1994, the staff of the then KMC with the defendants Nos.4 and 7 demolished the structure of lawns. Thereafter different suits were filed by the plaintiff in this Court as well as in lower Courts. It is further case of the plaintiff that in the year, 2004 a news item was published in daily Jang that the City Nazim gave a statement to the press that he has cancelled the allotment of the land allotted to defendant No,5, who filed a suit and then plaintiff also filed another suit which are pending. It is further case of the plaintiff that the defendants want to eject him from the said property.
5. The case of defendant No,3 is that the plaintiff entered into the agreements the defendant No,3 (who actually owned the property) has put his signatures or seal which shows that the defendant No,3 was not a party to these agreements. Therefore, when this objection was raised by the defendant No,3, the plaintiff moved an application under Order VI, rule 17 read with section 151, C.P.C. Praying that instead of defendant No,3, defendant No,5 may be read. This request was granted. The defendant No,3 in their counter affidavit took the following objections:
(a) At the relevant time when the Repopulation was passed Sindh Local Government Ordinance, 1979 was in force in the Province of Sindh and according to section 147(2) Clause 1(6) all properties movable and immovable held by KDA in relation to bulk supply as well as for Karachi Water Management Board stood vested in KMC.
(b) The spirit beyond the passage of special resolution was to provide recreational facility to the Officers and Engineers of KW&SB and that there was no motive to commercially exploit the said land.
(c) The contentions of the Agreements annexed with the plaint are evident to show that this facility has been misused by Officers Association i,e, defendant No,5.
(d) The KW&SB is not a party to the said agreements.
(e) The plaintiff had unauthorizedly started a Restaurant by the name of "Mela" over the said property without any permission whatsoever.
(f) The plaintiff can claim the cost of construction from defendant No,5 and defendant No,3 cannot be held responsible for the same.
(g) On 23-1-2006 defendant No,5 informed defendant No,3 that plaintiff had committed breach of the terms and conditions of the Agreement, therefore, defendant No,5 had cancelled the said agreement and that they were surrendering the land in question to defendant No,3. According to the said letter, the plaintiff was duly informed about the cancellation of the contract by defendant No,5 and the land was handed over back to defendant No,3.
(h) Upon receipt of said letter, defendant No,3 started demolition action so that proper wall may be constructed to protect the entire land. In the meantime, order of High Court was received and thereupon action of demolition was stopped.
(i) There was no privity of contract between the plaintiff and defendant No,3.
6. The plaintiff and defendants moved following applications:--
(i) C.M.A. No,740 of 2006 under Order VII, rule 11, C.P.C.; (ii) C.M.A. No,821 of 2006 under Order VII, rule 11, C.P.C.; (iii) C.M.A. No,426 of 2006 under Order XXXIX Rules 1 and 2, C.P.C.; (iv) C.M.A. No,599 of 2006 under Order XXXIX Rules 1 and 2, C.P.C.; (v) C.M.A. No,572 of 2006 under Order XL, Rule 1, C.P.C.; (vi)
C.M.A. No,957 of 2006 under section 34 of the Arbitration Act; (vii) C.M.A. No,1045 of 2006 under section 42 of the Specific Relief Act.
7. Thereafter affidavits, counter-affidavits and rejoinders were exchanged between the parties and the matter was heard and decided by a learned Single Judge of this Court on 20-12-2006. The order passed on the above applications was announced on 26-2-2007, whereby it was held as under:--- "Though the plaint could not have been rejected on the grounds agitated, but the questions 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."
8. In view of the above proposition, the matter was fixed from time to time for arguments and the same arguments were advanced by the respective Advocates of the parties and thereafter the learned counsel for the plaintiff and defendant No,3 filed written arguments on the point of maintainability of the suit.
9. The sum and substance of arguments advanced by Mr. Abdul Timm, the learned counsel for the plaintiff is that the issue of commercial use of the property was agitated by the Advocate of defendants Nos.2 and 3 during course of arguments as mentioned at page 4 of the order dated 26-2-2007 and this Court adverted to the issue raised by the Advocate for defendants Nos.2 and 3 at typed page 11 of the order dated 26-2-2007, which reads as under:--- "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."
10. It is further the case of plaintiff that in view of the above observation until and unless evidence of the parties is recorded, the question as to whether the plot in question was amenity or as to whether commercial use of the same by the plaintiff under an agreement with defendant No,5 was legal, proper and justified can only be decided after evidence of the parties recorded.
11. Mr. Anwer Mansoor Khan learned counsel for defendant No,2 filed his written arguments and contended that the agreement categorically shows that the plaintiff was never in possession but was only allowed to cater on the lawns exclusively. The defendants Nos.5 and 6 were in fact in possession and there is nothing on record to show that the said defendants paid requisite amount and a lease, therefore, had been granted in their favour. If the plaintiff have any grievance, it could be for recovery of money. If there is any payable by the defendants Nos.5 and 6. It is established that the money is adequate compensation and no suit for injunction shall lie under the circumstances. In support of his contention, learned counsel for defendant No,2 has relied on the following cases:-
(1) PLD 2004 SC 860, (2) 2002 SCM R 1269, (3) 2004 CLD 603, (4) 2001 CLC 1904, (5) PLD 2001 Kar. 185,
(6) PLD 1998 Kar.
1.
12. In these cases it has been held that if the plaintiff was not in possession and was only allowed a license or if there was no lease, no one can transfer a title better than what he has. In the above case admittedly, the lease was not in favour of defendant No,5. Therefore, the defendant No,5 could not have transferred any title to the plaintiff excepting that of a mere licensee to use the property for catering as a Licensee.
13. Mr. Anwer Mansoor Khan learned counsel for the defendant No,2 further contended that plaintiff has no locus standi to file the suit and the suit is barred by law. Admittedly the said lawns were given as amenity plot and no commercial activity could commence thereon. Further, the suit is barred under sections 42 and 56(1)(i) of the Specific Relief Act. To substantiate his submissions, learned counsel has placed reliance on the following judgments:---
(1) PLD 1993 Kar. 700, (2) 1994 SCM R 826, (3) 1980 MLD 1347, (4) PLD 1968 Kar. 107, (5) PLD 1965 SC 83,
(6) 1986 SCM R 820, (7) 2003 YLR 943.
14. Mr. Abrar Hassan learned counsel for defendant No,3 orally argued and also filed written arguments. The sum and substance of his arguments is that open land in question measuring about 15000 sq. Yards as well as the plot of land in occupation of the defendant No,5 as their club, belonged to the then KMC under section 147(2) clause 1(6) of the then Sindh Local Government Ordinance, 1979, and that it is also an admitted fact that this land was given by defendant No,3 to defendant No,5 as an amenity plot for amenity purpose of running the Engineers and Officers Club.
It is also an admitted fact that agreements dated 7-9-1989, 20-3-1993 and 19-4-1993 were executed between defendant No,5 and the plaintiff to which defendant No,3 was not a party and therefore there is no privity of contract between KW&SB and the plaintiff. It is further the case of the defendant No,3 that the conversion of this amenity plot into commercial by defendant No,5 and also by the plaintiff was not only unauthorized but was .Also illegal because under KDA (Disposal of Land) Rules, 1971, KDA (Sindh Disposal of Plots) Rules, 1980, with terms and conditions for allotment of sites for amenity plot and Sindh Disposal of Urban Land Ordinance, 1999, as well as the then Sindh Local Government Ordinance, 1979, do not give any power to defendant No,3 to convert the land into a commercial plot.
15. The plaintiff has admitted in his plaint and also the facts is evident from the contents of the agreements annexed along with the plaint that the plaintiff was using the land for commercial purposes, which is not permissible in any manner whatsoever. If the plaintiff has undertaken any construction over the said land and has spend money, the plaintiff as recourse for recovery of that money against defendant No,5. In support of his contentions reliance has been placed on 1999 SCM R 2883, 2003 YLR 1473, PLD 2005 SC 361 and PLD 2006 Kar.
10.
16. It is further case of defendant No,3 that plaintiff was a licensee of defendant 'No,5, who revoked the said license and according to defendant No,3, the defendant No,5 has surrendered the land to defendant No,3. According to section 62(d) of the Easements Act, the property affected by the license is now so permanently altered that the licensee can no longer exercise his right over the same. In support of his contention reliance has been placed on AIR 1962 Allahabad 44, AIR 1954 Mysur 59. He further argued that the suit is not maintainable and no useful purpose will be served by continuing with the case and same may be dismissed.
17. I have carefully examined the pleadings and material placed on record. I have also examined the case-law cited by the respective learned Advocates.
18. In fact the agreements dated 7-9-1989, 23-1-1993 and 19 April 1993, provide basis of the claim of the plaintiff in the suit. It is very strange that the first agreement dated 7th September, 1989 has been executed between KW&SB Engineering and Officers Association and the plaintiff, while the second agreement dated 23-1-1993, was executed between KW&SB Engineering and Officers Association and Jawed Malik, while the third agreement dated 19-4-1993 was executed between Officers Club of KW&SB, on one hand and Messrs Dilco on the other hand. In all these agreements, the Karachi Water and Sewerage Board is not a party. According to the terms of these agreements, defendants Nos.5 and 6 had in fact given possession for construction and obviously when the construction of the Club was complete, the possession pf the same, was returned to defendants Nos.5 and 6. It is apparent that after handing over the possession, the defendants Nos.5 and 6 granted license to the plaintiff to enter into said premises for catering purposes and there was no exclusive title or right in favour of the plaintiff. The agreement categorically shows that the plaintiff was never in possession but was allowed to cater on the lawns exclusively and that the possession in fact belonged to defendants Nos.5 and 6. It is also important to mention here that the plaintiff was not granted any lease or license by defendant No,3 and even if it is argued that the possession of the premises was given by defendants Nos.5 and 6 to the plaintiff and even if it is assumed that the plaintiff was in exclusive possession then the question would arise that the lease or license not having been granted by the owner of the land in question i,e, the defendant No,3 or the erstwhile KMC whether the plaintiff would have any legal status or right over the land in question C because no one can transfer title better than he has. Even the Resolution 10 which has been discussed above does not grant title in favour of defendants Nos.5 and 6 what to say to the plaintiff. No proof D of payment of cost of land has been filed by the plaintiff or defendants Nos.5 and 6.
19. It is, therefore, obvious that the plaintiff was only a licensee in order to carry on caters on the said club and lawns. I have been able to lay my hands on the case of M.A. Naser v. Chairman Pakistan Eastern Railways PLD 1965 SC 83, it was held in the case of railway contractor that "agreement merely conferred a right to carry on business of catering in the refreshment rooms and on the Buffet Cars. They were not given any general right of occupation but only a right to use the refreshment rooms allotted to them for the exclusive purpose of catering refreshments. Such a right does not amount to easement as defined in section 4 of the Easements Act or an interest in the property. Nor can it be regarded as a license coupled with transfer of property within the meaning of section 60 of the Easements Act. Nor can it be suggested that the contractor was required to execute any work of permanent character in connection with the business. No doubt his business may involve complex arrangements for continued supply of refreshments both solid and liquid but this cannot be regarded as an execution of work of permanent character.
20. License is only a permission to enter and perform without any F easement rights. Therefore, the argument that the plaintiff had invested certain amount on the construction, will not be of any avail, because if it is assumed that the plaintiff had invested certain amount of money and that, therefore, the plaintiff had a right to carry on his business of catering on the land in question, then in my opinion it is a question of account between the plaintiff and defendants Nos.5 and 6, whereas, defendant No,3 is not responsible for the same. If the plaintiff has invested any amount, which, according to the terms of the agreement, entitles him to share from the proceeds of catering, then he should file a suit for recovery of amount against defendants Nos.5 and 6. He has no legal right to file suit against defendant No,3. It has also come on record G that defendant No,5 had revoked the license and had surrendered said land to defendant No,3, who has already demolished the construction over the said land. The above suit is, therefore, not maintainable because not only the plaintiff and defendant No,2 attempted to convert the amenity plot into commercial but also that according to defendant No,5 have also surrendered land to defendant No,3 and the ground reality is that the land is now lying as an open plot of land, therefore, the above suit is not likely to succeed.
21. In the above circumstances, the plaint is rejected under Order VII, rule 11, C.P.C.