1. MUHAMMAD ALI MAZHAR, J. --- This application is brought under Order 39, Rules 1 and 2, C.P.C. The plaintiff has filed the instant suit for Declaration and Permanent Injunction with the following prayer:--
(i) For a declaration to the effect that defendant No. 4 shall become the dealer of the company and shall use the same site as after fulfilling the terms and conditions of the dealership agreement.
(ii) For permanent injunctions to the effect that defendant No. 4 be restrained from using the site by creating dealership agreement with defendant No. 5 as the plaintiff is a tenant of property bearing Nos. 10-E and 11-E, Jehangir Road, Karachi.
2. (i.e) Cost of the suit.
3. The bare bones leading to the present controversy as narrated in the plaint are that defendant No. 1 leased out the property bearing Nos. 10-E and 11-E, Jahangir 'Road, Karachi to defendant No 2 with specific instruction to sublet e same to a petroleum company. M/s. Dawood Petroleum Company requested the defendant No. 2 to grant sublease of the said plots for constructing a petrol pump.
4. The lease was granted for a period of 30 years. On 29.12.1976, M/s. Dawood Petroleum Company was merged with the plaintiff. Before the expiry of the lease agreement, plaintiff received a letter from defendant No. 2 intimating that the lease is going to expire. The plaintiff was further informed by such letter that the defendants had received several offers including highest offer of rent Rs.
5. 20,000/- per month plus deposit of Rs. 2 Million, therefore the plaintiff was asked either to vacate the premises or continue the lease on fresh terms and conditions. It is alleged that the plaintiff was threatened by the defendant No. 2 for dispossession from the property on which the plaintiff had invested more than Rs. 10 Million for construction of petroleum service station. The dealer of the plaintiff filed a Suit No. 1053/2001 in this Court which was dismissed while the Suit No. 1031/2000 filed by the plaintiff was also dismissed on technical grounds as the plaintiff had not joined the Federation of Pakistan as party to the said proceedings. Plaintiff again filed a Suit No. 565/2002 in this Court and prayed for declaration to the effect that defendants No. 1, 2 and 3 are not entitled to call for tender for leasing out the suit premises and also prayed that they are not entitled to dispossess the plaintiff from the suit premises. On 17.12.2002, the said defendants made a statement that they will dispossess the plaintiff through due process of law and on the basis of such statement Suit No. 565/2002 was disposed of. Thereafter, the plaintiff was running the petrol pump through its dealer Naveed Sadiq, who expired and his were (defendant No.. 4) filed S.M.A. No. 35/2005 which was granted in respect of the assets of late Naveed Sadiq. A settlement was reached between the legal heirs of the deceased Naveed Sadiq, on the basis whereof, the defendant No. 4 became entitled to run the business and dealership in respect of petrol pump in question. The defendant No. 4 applied to the plaintiff for execution of dealership license agreement for company's finance site, which was granted by the plaintiff. On 29.10.2008, the plaintiff wrote a letter to the defendant No. 4 calling upon her to deposit a sum of Rs. .1 Million as Dealership Security Deposit, which was a mandatory requirement. The defendant No. 4 replied the said letter expressing her desire to convert the site into new vision and also requested the plaintiff to waive the condition of dealership security deposit as a special case as she was not in a position to pay the said amount, which request was not entertained by the plaintiff. On this refusal, the defendant No. 4 contacted No. 5 to become their dealership who wrote a letter to the plaintiff to give N.O.C.So that the defendant No. 5 can'take over the site. The plaintiff declined to defendant No. 5 give N.O.C.
6. And categorically informed that the plaintiff wanted to retain the site After execution of dealership agreement by defendant No. 4 with the plaintiff, the defendant No. 4 is bound to pay Rs. 1 Million as 'security deposit and if she did not want-to pay the same, she has no right to continue as dealer of company and has to vacate the same. The defendant No. 4 cannot continue as dealer without fulfilling the terms of the dealership agreement. Since the defendant No. 4 is avoiding to honour the commitment, therefore the plaintiff has filed this suit.
1. PLD 1988 SC 190 (Mrs. Zarina Khawaja-v. ,Agha Mahboob Shah): In this judgment, continuance of statutory tenancy has been discussed and the Hon'ble Supreme Court held that after expiry of the agreement of tenancy the general law of holding over by .The tenant has not been repealed or modified by the rent laws except to the extent that. It comes in conflict with the provisions of the Rent Restriction Law. On the contrary, it was specifically provided in the definition of a 'tenant' in Section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959 that a tenant would include 'a tenant continuing in possession after the termination of the tenancy in his favour'. The definition of tenant in the present Sindh Law also provides that a tenant would include "any person who continues to be in possession or occupation of the premises after the termination of his tenancy".
2. 1985 M LD 536 (Mirza Jawad Baig v. Pakistan State Oil Co. Ltd.): In this judgment, the learned Single Judge of this Court has held that after expiry of lease by efflux of time, tenant had become statutory tenant and was governed by provisions of Section 13(2)(i) of the Repealed Ordinance VI of 1959.
3. 1988 M LD 210 (Pakistan Burmah Shell Ltd. v. Khalil Ahmed and another): In this judgment, it is held that where lessor agreed to a provision in lease deed that lessee would have option to ask for a renewal of lease at the determination of same for further period, such provision must be given effect to The main object of Sindh Rented Premises Ordinance is to make effective proviions for regulations of relation between landlords and tenants and to protect their interests in respect of rented premises and not to confer any new right of eviction on landlords. Ordinance pre-supposes existence of landlord's right to immediate possession, but his such right would be limited by provisions of Section 15 of the Ordinance. Landlord though has got a right to evict tenant under general law, yet he cannot get possession of premises unless one or other conditions specified in Section 15 of 'the Ordinance are complied with.
7. The learned counsel failed to point out or demonstrate through any document that the initial lease of ten years granted in favour of Dawood Petroleum Limited in the year 1971 was further renewed in favour of the plaintiff after its original tenure and first renewal term. The lease deed was not granted by a private party but the defendants Nos. ,1 and 2. In the injunction application, the plaintiff has not claimed the protection for its dispossession from the- site but restraining order has been sought against defendant No. 4 that she is the dealer of plaintiff and she cannot enter into an agreement with defendant No. 5. Even in the supporting affidavit of the injunction application, the authorized officer of the plaintiff admits that the pump site was leased out to Dawood Petroleum Company, which was merged in the P.S.O. By virtue of a Notification dated 29th December, 1976 under re-organization plan. It is also claimed by the plaintiff that at the time of leasing, a sum of Rs. 1 Million was invested by the plaintiffs company for construction and the present value is more than Rs:10 Million. It is reiterated that after the death of Naveed Sadiq; the defendant NO. 4, who is were of deceased dealer, applied to become a dealer of the plaintiff and entered into an agreement but since she failed to pay the dealership security deposit of Rs. 1 Million, the dealership agreement could not be materialized.
8. On the date of hearing, Muhammad Aslam, Superintendent, Legal Branch, P.W.D., Ministry of Works, was present. The learned Standing Counsel Mr. Abdul Karim Nizamani argued and referred to the written statement filed by the defendants Nos. 1, 2 and 3 in which it has been stated that the lease of the plaintiff expired on 25.8.2001, thereafter, the plaintiff failed to enter into a fresh agreement.
9. The plaintiff is an encroacher over the subject property after expiry of lease granted to the plaintiff within the definition of terms contained in Federal Government Land (Removal of Encroachments)
10. Ordinance, 1965, hence the suit filed by plaintiff is liable to be dismissed is the plaintiff has no legal character or locus standi. It was further submitted that after expiry of lease, the then dealer of Quaid Service Station filed suit No. 1053/2001, thereafter, Khushnood Sadiq filed an appeal but finally the appeal was withdrawn by him. After the sudden death of Naveed Sadiq, the defendant No. 4 approached this Court for Letter of Administration, thereafter, a settlement had taken plke between Khushnood Sadiq and defendant No. 4 and she was allowed to run the business/dealership of the said petrol pump, thereafter defendant No. 4 applied for fresh lease agreement in her favour and she became lessee as per, fresh lease agreement executed on 10.10.2007. It is further alleged that after expiry of lease agreement between Pakistan State Oil and the Government, the plaintiff failed to meet the fresh terms and conditions for renewal of lease and Government had lawfully auctioned the said property and made fresh lease agreement in favour of Khushnud Sadiq. Alongwith the Written Statement, indenture of lease of Government land, dated 1.10.2003 is attached, which was executed between the President of Pakistan as lessor and Khushnud Sadiq as lessee. Besides above, there is another indenture of lease of Government land dated 10.10.2007, which was again executed by the President of. Pakistan and Mst Lubna Jawaid, the defendant No. 4 in the present matter for the demised premises in question. It is further alleged that the plaintiff has no legal character to file the present suit.
11. Mr. Muhammad Saleem Thepdawala, learned counsel for the defendant No. 4 during his arguments also referred to the counter-affidavit filed by the defendant No. 4. From the counter- affidavit, he pointed out a letter dated 5.11.2008 in which the defendant No. 2 confirmed that Ms. Lubna Jawaid is sub-lessee of Government property bearing Plots Nos. 10-E and 11-E, Jehangir Road, Karachi-East (Quaid Service Station) as per indenture of lease agreement. In another letter dated 9.1.2008, the defendant No. 2 issued no objection certificate whereby defendant No. 4 was allowed to sub-lease the aforesaid plot to any oil 'company of Pakistan. Another _ certificate dated 23.1.2008 is also attached which was issued by the defendant No 2 certifying that plot of land bearing Nos. 10-E and 11-E situated at Jehangir Road, Karachi is Federal Government property and Pakistan Works Department is the custodian of all Federal Government land. The said plots have been leased out to Ms. Lubna Jawaid for running P.O.L. Business as per lease agreement dated 10.10.2007,. He further argued that first lease was executed in the month of August, 1977 by the defendant No. 2 in favour of P.S.O., which expired, thereafter, the lease of the plot was executed in favour of Khushnud Sadiq in the month of October, 2003 and after mutual settlement between the defendant No. 4, and previous lessee Khushnud Sadiq, the defendants Nos. 1 and 2 had executed the lease in favour of defendant. No. 4 in the year 2007. The plaintiff filed Suit No. 1031/2000, which was dismissed for non-joinder of Federation of Pakistan. Similarly in the year 2001, the then dealer Khushnud Sadiq had filed Suit No. 1053/2001, which was dismissed by this Court and against the said order, a High Court Appeal was filed which was subsequently withdrawn on 28.08.2003. The learned counsel further argued that after expiry of lease in the year 2001, the plaintiff filed a Misc. Rent Case No. 569/2001 under Section 10 of Sindh Rented Premises Ordinance in the Court of VIth Rent Controller, Karachi, East for depositing rent in the Court. The defendant No. 2 raised objections against the 'maintainability of application on the ground that since the land is owned by the Government of Pakistan, therefore, it does not come within the ambit and purview of Sindh Rented Premises Ordinance, 1979, He further argued that after hearing the parties, the learned Senior. Civil Judge dismissed the application vide order dated 12.11.2001 with the observation that since the land is owned by the Federal Government, therefore, under Section 3 of the Sindh Rented Premises Ordinance, 1979, the provisions of Rent. Laws are not applicable, hence, the Rent Controller has no jurisdiction to entertain the application. After dismissal of Misc. Rent Case in the year 2001, nothing further is available on record to justify- or to prove that the order passed by the Rent Controller was ever challenged in any appellate forum or not. All these material facts have been suppressed and concealed by the plaintiff in the plaint. The learned counsel further argued that in fact the plaintiff has filed the suit to pressurize the defendant No. 4 and trying to make the defendant No. 4 dealer under duress. The contents of plaint are itself showing that after executing the dealership agreement, the defendant No. 4 failed to furnish any security amount and in spite of her request for the waiver, the plaintiff did not accept the request, therefore, at present, there is no agreement in force between the parties as it never came into existence due to non-fulfilment of security clause. He further argued that the plaintiff has no right to seek any declaration to the effect that the defendant No. 4 shall become the dealer of the company after fulfilling the terms and conditions of dealership agreement. The plaintiff cannot ask for any restraining order against the defendant No. 4 not to enter into any agreement with defendant No. 5.
12. The learned counsel in support of his arguments, relied upon the following case-law:---
1. 2003 M LD 688 (Muslim Commercial Bank Ltd. And another v. Adamjee Insurance Company Ltd. And others). In this judgment, the Divisional Bench of this Court has held that the party seeking grant of injunction has to establish the existence of three essential ingredients i.e. Existence of a _prima facie case; likelihood of irreparable loss or legal injury for non-grant of temporary injunction, and that balance of convenience ought to be in favour of the party seeking temporary injunction. It is also the requirement of law that all the three requisites/essential ingredients must be fulfilled before injunction can be granted in favour of a party and absence of anyone of these essential ingredients would not warrant grant of injunction. Existence of prima facie case is to be judged or made out on the basis of material/evidence on record at the time of hearing of injunction application, and such evidence or material should be of the nature that by considering the same Court should or ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour , and that his case was not likely to fail on account of some apparent defects.
2. 1973 SCM R 184 (Muhammad Yaqoob v.
13. Health Officer, Municipal- Committee Hyderabad and another). In this judgment, the Hon'ble Supreme Court has considered Order 39, Rule 1, C.P.C. Read with Section 42 of the Specific Relief Act and held that after the license had expired by efflux of time, there could be no further question of continuing them or restraining the Municipal Committee from cancelling same. If the petitioner succeeds in his suit, he will be entitled to recover all damages suffered as a consequence of the cancellation and also to the renewal of his license. No irreparable injury will thus be suffered by him which cannot be compensated in terms of money.
14. Mr. Khalid Ahmed Tanwiri, learned counsel for the defendant No. 5 argued that the suit is barred under Sections 42 and 56 of the Specific Relief Act. The plaintiff has no legal character. The plaintiff has no right to file the suit or injunction application in respect of the property in question as the lease of the plaintiff with defendant No. 2 stood vanished due to completion of its tenure. The learned counsel also referred to letter dated 2.8.2006. This letter was written by Inspector of Explosives to the 6 different oil companies including the plaintiff. The subject of letter shows that requirement of a valid registered lease agreement is a pre-condition for issuance/amendment/renewal of storage license. In the body of letter, the Inspector of Explosives invited the attention to an office letter dated 30.8.2005 with the advise to furnish a valid registered lease agreement between the oil companies and their respective dealers for each site/petrol pump as a part of particulars for grant/renewal/amendment of license without further delay. The purpose of showing this letter is to invite attention of this.
15. Court that no explosive storage 'license for the oil lubrication can be issued to any oil company unless, they produce valid registered lease deed with the dealer owner of the plot and unless lease deed is produced, explosive license under the Petroleum Rules, .1937 cannot be renewed. He has also invited attention of this Court to a lease deed dated 8.5.2008 'executed by the defendant No. 4 in favour 'of defendant No. 5 for running a pump at the plot in question. Finally he argued that the defendant No. 4 by her, on freewill and consent entered into an agreement with the defendant No. 5 and the plaintiff has no right and authority 'to force the defendant No. 4 to become the dealer of plaintiff. The plaintiff and defendant No. 4 have no privity of contract, therefore the plaintiff has no locus standi or legal character to file the present suit.
16. After hearing the arguments of all the learned counsel appearing for the parties, I have reached to the conclusion that the plaintiff has no lawful right and authority to force the defendant No. 4 to become the dealer of P.S.O. The dealership agreement signed between the plaintiff and defendant No. 4 was not materialized and operative due to non-fulfilment of security clause and the stand of plaintiff is also hit by the principle of approbate and reprobate. Party cannot be allowed to approbate and reprobate in the same breath, rather it would be-bound by his previous stance. On one hand the plaintiff is forcing that the defendant No. 4 should become a dealer in view of the dealership agreement and on the other hand they refused to waive the security deposit condition when applied by the defendant No. 4. So in my view, there is no privity of contract between the plaintiff and defendant No. 4 and the prayer clause amounts to exertion of undue influence upon the plaintiff. The judgment relied upon by the learned, counsel for the plaintiffs on the principle of statutory tenancy are also not applicable in this case because not only the lease of the plaintiff expired but subsequently it, was executed in favour of Khushood Sadiq and then in favour of defendant No. 4 so the plaintiff is not 272 West Civil Law Reports (C.L.R.) VOI. XII entitled to claim the benefit of statutory tenancy on expiry, of its lease period particularly 'in the circumstances when the M.R.C. Filed by the plaintiff under Section 10 of the Sindh Rented Premises Ordinance, 1979 was dismissed on the ground that under Section 3, the provisions of Sindh Rented Premises Ordinance, 1979 are not applicable to the land owned by the Federal Government. It is an admitted position in this suit that the land in question is owned by the Federal Government and the defendants Nos. 1 to 3 in their written statement have clearly taken a plea that the plaintiff is an encroacher within the terms of Federal Government Land (Removal of Encroachments) Ordinance, 1965, The relief by way of an injunction whether, temporary or permanent is in the discretion of the Court. Under Section 21 of the Specific Relief Act, it is clearly mentioned that a contract cannot be.
17. Specifically enforced which in its. Nature is revocable and or a contract for non-performance of which compensation of money is an adequate relief. Similarly, Section 56 of the Specific Relief Act clearly provides that an injunction cannot be granted to prevent breach of a contract, the performance of which would not be specifically enforced. The main ground in the injunction application is that the defendant No. 4 may be restrained from entering into the agreement with the defendant No. 5 in respect of the plot in question on which the plaintiff has invested more than Rs. 1 Million for the construction of petrol pump. First of all no agreement came into existence due to non-fulfilment of security deposit clause, therefore no license/agency or franchise was issued by the plaintiff with clear denial to waive the security deposit clause. Therefore, the plaintiff has no lawful justification 'to force the defendant No. 4 for a reluctant relationship. The plaintiff itself filed a letter of defendant No. 4 as Annexure 'g' to the plaint in which the defendant No. 4 categorically submitted that she is not in a position to pay the required sum of Rs. 10 Lacs and requested for the waiver, which was declined. Since the request was declined, in fact there is no agreement between the parties. Article 8 of the agreement clearly stipulates and demonstrate that at the time of agreement ; it is a pre-condition that the amount should be deposited with P.S.O. In advance that is why Article 8 starts from the words "dealer has deposited with P.S.O. a sum of rupees ..." but in the agreement filed by the plaintiff the column of security amount is blank, which clearly shows that at the time of agreement nothing was deposited with P.S.O. To fulfill the material condition. Even nothing is mentioned in the agreement that certain time was granted to the defendant No. 4 to deposit the amount, but it was signed leaving the security deposit column blank & opened, which leads to the conclusion that there was no privity of contract due to the lack of security deposit.
18. Even otherwise, if the plaintiff in its on wisdom and prudence assumes that the defendant No. 4 has committed some breach of agreement, which caused some losses or damages to the plaintiff, the plaintiff may claim damages under Section 73 of the Contract Act, which provides as under:- "73. Compensation for loss or damage caused by breach of contract. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
19. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
20. Compensation for failure to discharge obligation resembling thine created by contract When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
21. Explanation. In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account".
22. It is clear from the aforesaid Section that if plaintiff deems that the defendant No. 4 has committed breach of an obligation resembling those created by contract has been incurred and has not been discharged, the plaintiff may claim compensation subject to explanation attached with this Section that in estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account and such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. The similar provision is available under Section 21 of the Specific Relief Act, which provides under clause (a) that a contract cannot be specifically enforced for the non-performance of which compensation is an adequate relief and another clause (d) further provides that a contract which in its nature revocable can also not be specifically enforced. Since the license agreements, agency/dealership agreements and franchising agreements are revocable in its nature, therefore, at the best, the aggrieved party can claim damages/compensation for its alleged breach subject to proof. So far as the judgment relied upon by the learned counsel for the plaintiff relating to the statutory tenancy are concerned, the judgments are based on the relationship of private persons and not against the Government as lessor and the private party as lessee. The judgments are relevant to the relationship of landlord and tenant in connection with the tenancy created under the Rent Laws including Sindh Rented Premises Ordinance, 1979 but in this case there is.a clear distinction which is a material fact available on record that in the year 2001 the plaintiff filed a Misc. Rent Case No. 569/2001 under Section 10(3) of the Sindh Rented Premises Ordinance, 1979 and sought the permission to deposit the rent in Court, which application was dismissed keeping in view Section 3 of the Sindh Rented Premises Ordinance, 1979 on the sole ground that the property in question is owned by the Federal Government, therefore Rent Laws are not applicable. The Hon'ble Supreme Court in its judgment reported in 1998 SCM R 2092 (Khaliq Raza Khan v. Messrs Pakistan State Oil Company Limited) has discussed Section 3 of the Sindh Rented Premises Ordinance in detail. The facts of this case are that the President of Pakistan granted lease of a plot to Khaliq Raza Khan for a period of 10 years in the first instance with the condition that the lessee shall not sublet, sell, mortgage or transfer in any manner or the part with the plot or structure erected/installed on the said plot of land or a part thereof to anyone except to a petroleum company without prior written permission of the Executive Engineer, P.W.D. Pursuant to the above clause, the appellant with the permission of the Executive Engineer leased out the plot to the respondent on 31.7.1957. Though in this case, the Hon'ble Supreme Court has held that since the Government granted lease to a private person with further right to sublet the plot subject to the permission of the Executive Engineer, therefore, the Hon'ble Supreme Court has held that bar contained in Section 3 of the Sindh Rented, Premises Ordinance, 1979 is not applicable but simultaneously, the Hon'ble Supreme Court has discussed Section 3 in detail and held that word "owner" has to be understood with reference to the context in which the same has been used. Lessee of Government would riot be able to invoke the provisions of Sindh .Rented Premises Ordinance, 1979 in a di p between him and his lessor, the Government I ever the dispute is betvveen lessee as the landlord and someone as tenant which does not involve the interest of Government as to the possession, game is covered by the provisions of Sindh Rented Premises Ordinance, 1979. Sub-section (1) of Section 3 of Sindh Rented Premises Ordinance, 1979 will be applicable if the lessee was to file a case against the Government as admittedly he is lessee from Government in respect of a plot which vests in the Federal Government. In other words, he will not be able to invoke the provisions of the Ordinance in a dispute between him and his lessor, the Federal Government. However, since the dispute was between the lessee as the landlord and tenant which did not involve interest of the government as to possession, it was covered by the provisions of the Ordinance and the lessee, the tenant and the suit land are covered by the definitions of the terms `landlords", "tenant" and "premises" given in Section 2 of the Ordinance.
23. Alongwith the plaint, the plaintiff has annexed a copy of suit No. 565/2002, which was filed in this Court for declaration and permanent injunction against the present defendants Nos. 1 to 3. In the prayer clause, the plaintiff claimed declaration to the effect that tender invited by the defendant No. 2 for leasing out the premises bearing No. 10- E and 11-E, Jehangir Road, Karachi in pursuance of acceptance of offer made by the defendant No. 2 and accepted by the plaintiff for taking the premises in suit on fresh terms and conditions be declared as null and void. The plaintiff sought the declaration for the same premises which is the subject-matter of this suit and during the course of arguments, the learned counsel for the plaintiff also shown a copy of order dated 17.12.2002 passed in Suit No. 565/2002 which was disposed of on the statement of Advocate appearing for the defendants Nos. 1 to 3 that his client shall only take action which is available under the law. On the basis of this statement, the suit was disposed of alongwith the listed application for injunction. The defendants Nos. 1 to 3 have filed various documents with their written statement and, annexure 'A' is the order High Court Appeal No. 110/2002 which was filed by the dealer of P.S.O. Khushnood. Sadiq against the same defendants in another suit which H.C.A, was withdrawn by him vide order dated 28.8.2003 -on the ground that parties have settled the matter outside the Court. The record shows that the appeal was withdrawn on 28.8:2003 and on 1.10.2003, the defendants Nos. 1 to 3 entered into an agreement with Khushnud Sadiq for the lease of same plots, thereafter Mr. Khushnud Sadiq has acquired two legal characters, one is the lessee of the Government for the same plots, the subject-matter of the suit while in another capacity, he was also a dealer of P.S.O. For the pump sites situated/located on the same plots. Though in the suit No. 565/2002, the plaintiff had challenged the tender of the defendants that except P.S.O. They cannot grant lease of the said plots to any other person, but record shows that when in the month of October, 2003 the lease of same. Plots was executed in favour of Khushnud Sadiq, the plaintiff maintained complete silence and they had not challenged this action of the Government and accepted the lease in favour of Khushnud Sadiq and allowed him to continue as dealer which shows that after the expiry of P.S.O.
24. Agreement with the defendants Nos. 1 to 3, they created new lease in favour of Khushnud Sadiq, who was already in possession as dealer and in the same sequence by virtue of a private settlement between defendant No. 4 and Khushnud Sadiq, she was operating the pump under same dealership as Mr. Khushnud Sadiq was running under the name and style of Quaid Service Station. The plaintiff itself filed a copy of agreement dated 28.9.2004 which was entered into between defendant No. 4 and Khushnud Sadiq and as per clause 2 of the agreement, the defendant No. 4 acquired absolute and exclusive ownership of properties and running business, in the manner as mentioned in para 1 of the agreement. The defendants Nos. 1 to 3 in para 7 of their written statement submitted that the defendant No 1 who accepted the fresh terms and conditions of the Government had already withdrawn all cases unconditionally, hence the plaintiff had not been dispossessed from the suit property though the plaintiff has no legal character, therefore, question of forcible dispossession does not arise. In para 8 it is submitted that dealer unconditionally withdrawn Court cases and accepted fresh terms and conditions, thereafter Government assured to the Court that the defendant shall take action which is available under the law. The plaintiff has also not produced any documentary evidence to whom it is paying rent for the premises. The plaintiff has suppressed the factum of grant of lease in favour of Khushnud Sadiq and also failed to take any action when the Government granted lease in his favour which shows that the plaintiff conceded to and accepted the grant of lease in favour of Khushnud Sadiq who was not only the lessee but also a dealer of the plaintiff for the same pump site. By virtue of a settlement, Khushnud Sadiq assigned the business to the defendant No. 4 and in the year 2007, the lease of same plots was executed by the defendants Nos. 1 to 3 in favour of defendant No. 4. The chronology of lease agreements show that after the expiry of P.S.O. Lease with the Government at least two lease agreements were granted subsequent to the expiry of P.S.O. Lease and against the grant of aforesaid two lease agreements, plaintiff (P.S.0) maintained complete silence and not raised any objection that they are allegedly in actual or constructive possession and the lease cannot be granted in favour of any other person. It is a matter of record that not only they did fail to raise any objection but also accepted the new lessees of the land as their dealer. Keeping in view the peculiar circumstances of the case, I do not think that any action was required to be taken by the defendants Nos. 1 to 3 under the provisions of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 (wrongly mentioned by the defendant Nos. 1 to 3 in WS as "Federal Government Land (Removal of Encroachment) Ordinance, 1965) against the plaintiff which waved its right to challenge the lease at relevant point of time. Had the plaintiff any grievance against the first lessee Khushnud Sadiq, it would have lodged legal proceedings in October. 2003 when the President of Pakistan executed lease of the Same plots in favour of Khushnud Sadiq but instead of raising any objection, they continued him to be their dealer and after execution of lease, the plaintiff has no right to claim that they are in actual or constructive possession. In fact the lease in favour of Khushnud Sadiq amount to waiver of P.S.O. Right and now at this stage they are estopped to claim any right of possession. The principle of estoppels is clear that when any person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and act upon such belief, he shall be estopped and not 'allowed to turn around. It appears to me that since the lessees are the same persons, who were also the dealer of P.S.O. And Operating the business as dealer, therefore the Government has simply granted lease without any action for the recovery of possession from P.S.O. Which his already reflected from para 2 of the written statement wherein the defendants Nos. 1 to 3 have mentioned that when the defendant No. 4 became the dealer then the plaintiff did not protest on any legal forum against the Government or the said dealer and were mutually agreed to supply oil and related products till 2007. However after sudden death of Navaid Sadiq, his were approached this Court and obtained letter of administration in respect of assets and properties left by the deceased which was granted by this Court, thereafter settlement had taken place between the plaintiff and defendant No. 4 and she was allowed to run the business/dealership of the said petrol pump. The defendant No. 4 applied for the fresh lease agreement in her favour and she became lessee as per lease agreement executed on 10.10.2007. During the said period' the plaintiff and defendant No. 4 were running the business amicably. It is further submitted in para 3 of the same written statement that after the expiry of lease agreement between P.S.O. And Government, the plaintiff failed to meet the fresh terms and conditions for renewal of lease and only then Government had lawfully auctioned the said property and made fresh tease agreement in favour of Khushnud Sadiq, the then dealer.
25. The bottom line of this discussion is that, I do not find existence of a prima facie case on the basis of material on record. The judgment of this Court relied upon by the learned counsel for the defendant No. 4 reported in 2003 M LD 688 is quite applicable in which it has been held that existence of prima facie case, likelihood of irreparable loss or legal injury for non-grant of temporary injunction and the balance of convenience, all three requisite/essential ingredients, must be fulfilled before injunction can be granted in favour of a party and absence of anyone of these essential ingredients would not warrant grant of injunction. The Court while granting injunction should or ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision; in his favour and that his case was not likely to fail on account of some apparent defects. There is no, logical justification or rationale in which the plaintiff is entitled to claim injunction, whereby, the defehdant No. 4 may be restrained from entering into dealership agreement with the defendant No. 5 or vice versa the defendant No. 5 may be restrained from entering into dealership agreement with defendant No. 4. In order to obtain an interlocutory injunction, it is not enough for the plaintiff to show that he has a prima facie case. He must further show that (1) in the event of withholding the relief of temporary injunction he will suffer an irreparable injury; and (2) in the event of his success in the suit in establishing his alleged legal right, he will not have the proper remedy in being awarded adequate damages. In such a situation the plaintiff must show a clear necessity for affording immediate protection to his alleged right or interest which would otherwise be seriously injured or impaired. According to Woodroffe's Injunction, (1964).
26. P. 237 (C.M. Row, Law of Injunction, Seventh Edition), the subject-matter of injunction therefore, in the case of obligations arising out of contracts or agreements bilaterally binding and voidable agreements which the parties who have the power to avoid them have elected to make it binding.
27. The distinction between a void and voidable agreement is that, which is void has never had any legal existence and can therefore, never be confirmed, while that which is voidable is valid as long as it is not impeached by the party who has in his power to avoid it. But, though valid, a 'contract so long as it is voidable cannot be specifically enforced. The Halsbuty's Laws of England, Vol. 21 para 798, p. 380 (3rd Ed), Vol. 24, para 988, p. 553 (4th Ed). (C.M. Row, Law of Injunctions, Seventh Edition), further clarified that it is not in every case of breach of contract or covenant that the Court will interfere by an injunction. The mere fact that the contract or covenant in ,question is clear, and the breach clear, is not of itself sufficient to warrant the interference of the Court, unless the contract or covenant is itself of such a nature that it can be enforced consistently with the rules and principles upon which the Court acts in granting an equitable relief.
28. So far the as the next claim in the same injunction application that the plaintiff has allegedly invested more than Rs. 1 Million for the construction of petrol pump, this aspect has already been answered by me that if the defendant No. 4 has allegedly committed any breach of dealership agreement according to the plaintiff, the compensation can be claimed under the provisions of Section 73 of the Contract Act including the amount of investment, if any borne by the plaintiff on the pump site.
29. For these reasons, I do not find any substance in the injunction application (C.M.A. No 11530/2008) which is hereby dismissed.
30. There is another, application pending (C.M.A. No 2665/2009) under Order 7, Rule 11, C.P.C., moved by the defendant No. 4 on the grounds that the plaintiffs suit is barred by Sections 42 and 56 of the Specific Relief Act and there is no privity of contract between the plaintiff and the defendant . Since the plaintiff has not filed any objections/counter-affidavit to this application, this application is deferred with the direction to the plaintiff to file counter-affidavit within two weeks as without giving an.Ample opportunity of hearing to the plaintiff on this application, it would not be justified to pass any orders thereon. .