This Revision Application is directed against the judgment dated 22-11-1980, passed by the IInd Additional District Judge, Karachi, who dismissed the appeal against the order of IVth Senior Civil Judge, Karachi, rejecting the plaint under Order VII, rule 11, C. P. C.
2. The facts briefly stated are that the shopkeepers of the applicant association of Liaquatabad Super Co-operative Market Limited were allotted shops for doing their business on the Ist Floor of the Liaquatabad Super Market by the respondents. Before allotment of the shops they Were doing their business on the footpath around the market. The shopkeepers were shifted to the Super Market, the object being to clear the main road for public convenience. It happened that some of the shopkeepers were still doing their business in the surrounding of the Super Market, which affected the business of the shopkeepers of the applicant association as it was difficult for the customers to reach their shops. In spite of the protest of the shopkeepers in the Super Market the respondents failed to remove the unauthorised shopkeepers from the footpath. On the request of applicant shopkeepers the Mayor of the Karachi Corporation allowed them to carry on their business in front of the Super Market of Liaquatabad till Eid season (Eidul Fitr and Eidul Uzha). It is contended that the Ijazatnama was issued by the respondent No. 2 incorporating therein the conditions that the applicant should clear their 50 % dues in the third week of Ramqzan and remaining within six months. It is further contended that the said conditions were Illegal as no such conditions, were imposed by the Mayor of the Corporation, who on the contrary had given an undertaking to the shopkeepers on the Ist Floor of the Liaquatabad Super Market that they shall not be disturbed from carrying on their business in front of the Super Market on the footpath till unauthorised occupant shopkeepers of footpath were also removed from there. It is contended that in spite of the Ijazatnama and the undertaking the applicant shopkeepers were served with 24 hours' notice to vacate, with the result that they filed the suit for declaration on the basis of Ijazatnama and. Undertaking and consequently for injunction to the effect that they cannot be disturbed till unauthorised shopkeepers were also removed from the footpath in the Court of IVth Senior Civil Judge, Karachi, who rejected the plaint under Order VII, rule 11, C. P. C., resulting in appeal in the Court of find Additional District Judge, Karachi, who also dismissed the appeal resulting in the present Revision Application.
3. The learned Senior Civil Judge rejected the plaint under Order VII, rule II, C. P. C. On the ground that it did not disclose the cause of action. The learned Additional District Judge upheld the order of the learned Senior Civil Judge holding that the cause of action had ceased to exist as the Ijazatnama granted to the applicant shopkeepers was only for Eid season (Eidul Fitr - and Eidul Uzha), which period .Had expired. It has been contended by Mr. Muslim Naqvi, the learned counsel for the respondents that the suit from the statement in the plaint is clearly barred by law and the plaint was rightly rejected under Order VII, rule 11, C. P. C. He has mainly contended that the suit filed for the declaration on the basis of the 'Ijazatnama' coupled with obviously an oral undertaking is incompetent and that the injunction prayed for in consequence of such declaration was illegal.
Under the provisions of section 42 of the Specific Relief Act a person entitled "to any legal character" or to "any right to property" can institute for a declaratory relief in respect of his title to such legal character or right to property. Since no such right was created under the 1jazatnama and an undertaking, it has been contended that section 42 does not contemplate a suit like the present one.
4. It is true that from the statement in the plaint itself, the suit has been filed on the basis of the Ijazatnama coupled with an undertaking that the applicant shopkeepers were permitted to carry on their business on the footpath in front of the Super Market till Eid season and that they shall not be disturbed till illegal occupants shopkeepers on the footpath were removed. The Eid season is admittedly over long back. The Ijazatnama coupled with an undertaking does not create any right in the property, the title to legal character, obviously, is not involved in the circumstances of the present case. It is contended that the 'Ijazatnama' coupled with the undertaking as stated above neither creates lease in respect of the property in favonr of the applicant shopkeepers nor it would contemplate easement in their favour. Nor it would contemplate an irrevocable licence in favour of the applicant shopkeepers, and that it is a pure and simple licence which can be revoked and that the licensees are not even entitled to notice to quit before eviction.
5. In the Full Bench decision in the case of Abdullah Bhai and others v. Ahmed Din PLD1964SC106, the learned Judges of the Supreme Court observed as under :- "The line of demarcation between a lease and a lieence will sometimesbe a very thin though there is no doubt as to the principle applicable: A lease as will appear from section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e. the right of enjoyment of the pro--perty, for a period, for consideration. During the continuanice of the lease the right of enjoyment of the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed are rights in rein and not in personam and by the lease a right in rein is transferred to the lessee. On the other hand a "licence" as will appear from its definition in section 52 of the Easements Act is merely a competence to do something which except for the permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his ,possession. No right in rein passes to the licensee. Examples of a licence are a permission to cut grass from the land of another or to hold fares or run stalls on lands in the possession of another."
6. In another Full Bench decision in the case of M. A. Naser v. Chairman, Pakistan Eastern, Railways and others PLD 1965 SC 83, the learned Judges of the Supreme Court observed as under:- "From the above provisions it is clear that this agreement merely conferred a right to carry on business of catering in the Refreshment Rooms and on the Buffer Cars. They were not given any general right of occupation but only right to use the Refreshment Rooms allotted to them for the exclusive purpose of catering refreshment. 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 licence 'coupled with a 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 'execution of a work of permanent character'."
7. Keeping in view the facts and the circumstances of the present case in the light of the provisions of law and the authorities above-mentioned there is no doubt that the 'Ijazatnama' coupled with an undertaking I any granted in the present case would amount only to a permission to carry on a business for a particular period which, has expired. It would neither create lease in favour of the applicant shopkeepers within the meaning of section 105 of the Transfer of Property Act nor does in contemplate an easement as defined in section 4 of the Easements Act. Nor can it be regarded as an irrevocable licence within the meaning of section 60 of the Easements Act. It would amount of revocable lice within the meaning of section 52 of the Easements Act and can be revoked by the grantor. It is well settled that the Court of law should not grant diacretionary reliefs in such cases where they are liable to be frustrated of the authorities concerned by passing a fresh order or where they will lea e to injustice or clothe a suitor with an undeserving advantage or will inflic unjustified loss on the defendant. It is a necessary incidence in the trial of judicial issues that a suit which is on the face of it incompetent under the law should not be allotted to further encumber legal proceedings. Order VII, rule 11, C. P. C. Is obviously directed towards that end. Mr. M. M. Pirzada, the learned counsel for the applicant, in my view, has not bee able to rebut the legal position in that respect.
8. For the foregoing reasons, this Revision Application has no merit. It is, therefore, dismissed but with no order as to costs.