' SALMAN HAMID, J.--- By this single handing down, reasons allowing these three appeals on 21-11- 2011 shall come to fore. In all the appeals, the common ground was that the plaint in the suits, those were preferred by the appellants, had been rejected under Order VII, Rule 11, Civil Procedure Code, 1908 (C.P.C.) and upon preferring first appeals thereagainst, such were also dismissed by the first appellate court, upholding the Order of rejection of plaint in the respective suits. Common ground for filing suits by the appellants were that the Pakistan Electronic Media Regulatory Authority, (PEMRA), (Respondent No,2) by way of a notice dated 16-1-2007, (Impugned Notice) demanded the appellants to obtain a licence for cable television (CTV) operations in. Their hotels and/or demanded them to get registered with the respondent No,2 being categorized as CTV operators. It would be apparent from the record of the files that earlier in time Respondent No,2 had served a notice dated 28-3-2005 (First Notice) on the Pakistan Hotels Association, (PHA) of which the appellants are the members, requiring them to obtain licence, mentioned above, which was challenged by PHA before this court by invoking its constitutional jurisdiction with a prayer that Pakistan Electronic Media Regulatory Authority Ordinance 2002, (Ordinance 2002) and Pakistan Electronic Media Regulatory Authority Rules 2002 (Rules 2002), under which the First Notice was purportedly issued was liable to be struck down and set aside. Such petition had been disposed of in terms of Order dated 14-12-2005 by observing that since the factual controversies were involved, such could be resorted to only by way of filing civil suit. PHA filed civil suit (First Civil Suit) and also obtained restraining order dated 28-3-2005 therein in respect of the First, Notice. The First Civil Suit was withdrawn by PHA upon respondent No,2's withdrawal of First Notice. However, yet again Impugned Notice had been caused on the appellants, individually again demanding them (appellants) to obtain CTV Operators Licence. Resultantly the appellants filed civil suits, (Second Suits) wherein interim orders in their favour were also passed. However, subsequently, upon preferring of application by respondent No,2 for rejection of plaint of Second Suits on the grounds that such were not maintainable having been hit by clauses (d), (i) and (j) of section 56 of the Specific Relief Act, 1877 (Act 1877) and by Section 42 thereof, same were rejected.
2. Learned counsel for the appellants essentially contended that since they had a right, status and legal character in the suits, which legal character, status and right had to be determined and decided by the trial court and decision was possible after evidence, the plaint in the suits could have not been rejected. It was also contended that in the Constitutional petition, that was disposed of by this court it was agreed consent that the remedy would be pursued by the appellants by way of filing of suits when it, (this court) came to the conclusion that remedy that was asked for required thrashing through evidence. It was also contended that the provisions of Ordinance, 2002 and Rules, 2002 were not applicable as according to the appellants they do not fall within the meaning of CTV Operators and/or they were not, "transmitting" and/or "broadcasting", through, "head-end" the channels their respective hotels as alleged by respondent No,2 in their Notices.
3. On the other hand learned counsel for the respondents argued that the appeals were not maintainable in their present form and such also hit by clauses (d), (i) and (j) of section 56 of the Act 1877 and section 42 thereof and the appeals were bad for joinder of necessary parties inasmuch as the cable operators had not been arrayed despite the fact that the appellants are receiving CTV signals and distributing the same through electronic media established within their hotels. It was also argued that the provisions of Cable Service is a licencable activity under Ordinance 2002 and carrying on a licencable activity without a valid licence is an offence under section 33 of such Ordinance..It was also argued that in terms of section 30-A of Ordinance 2002, this court lacks jurisdiction. Learned standing counsel adopted the arguments of learned counsel for respondent No,2.
4. I have heard arguments of the learned counsel for the appellants and respondent No,2 and of learned standing counsel for respondent No,
1. Since it would be within the domain of the trial court, after looking into the evidence, 'Whether the appellants are "transmitter" and/or "broadcaster" through "head-end", I would not like to travel into such a 'direction and encroach upon the jurisdiction of the trial court. The only controversy, according to me, which require a resolve: is whether the plaints in the suits could have been rejected by applying the provisions of sections 42 and 56 of the Act, 1877. It may be appreciated that the arguments raised by the learned counsel for the respondents by itself shows that it is yet to be seen and proved that whether the appellants are engaged in the business of transmission or re-transmission of audio visual programs by cables or by MMDS and whether such are services, licencable under Ordinance, 2002 and Rules 2002, all of which require evidence, more particularly, when prior in time such assertion of respondent No,2 was challenged by PHA, of which the appellants are members, by invoking constitutional jurisdiction of this court, praying therein that the provisions of Ordinance, 2002 and Rules, 2002 are not applicable and such petition was disposed of by an observation that such require evidence.
The argument of the learned counsel for the respondent No,2 that the impugned notice had not been sent to Pakistan Hotels Association and such was directed against an individual hotel (appellants herein) was not good enough, more particularly when at the time of passing of the injunction order in the suits, the trial court had come .To the conclusion that admittedly the appellants' hotels are providing hotel management services to its guests and therefore prima facie they are not involved in the transmission and distribution of the programs to the subscribers but the appellants are only using TV channels to ensure availability of programs to its guests.
5. Section 42 of the Specific Relief Act provides that any person entitled to any legal character, or to any right as to any property may, institute a suit against any person denying, or interested to deny, his title therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief, however, provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The narration of the above provision of law would make it abundantly clear that the expression, "legal character" as used therein is equivalent to a legal status and legal status is a legal right when it involves a peculiarity of the personality arising from any thing, unconnected with the nature of the act itself which the person of inherence can enforce against the person of incident. It would be evident from the present case that the appellants had a legal character to invoke the jurisdiction of the court for a declaration that the provisions of Ordinance, 2002 and Rules, 2002 are not applicable and if for any reason the. Respondent No,2 are adamant to thrust upon the licence and/or obtaining thereof under Ordinance, 2002 and Rules, 2002, then it was necessary, rather crucial to see and come to the close if the appellants had been providing CTV operation within the ambit of Ordinance, 2002 and Rules, 2002 which made them liable to obtain licence.
6. As to the argument that section 56(d), (i) and (j) of Act 1877 were into the way of the appellants when it comes to filing of suit by them, in my understanding is not as such inasmuch as such section speaks of injunction when refused. Clause (d) thereof speaks of interference with the public duties of any department of the Federal Government or any provincial government or with the sovereign acts of a foreign government whereas clause (i) of section 56 of Act, 1877 talks of an equally efficacious relief and obtaining by any other usual mode of proceedings except in case of breach of trust. Clause (j) of section under point stipulates that when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court. It would be evident from bare reading of the section under discussion that all this require evidence to come to the conclusion if there was any interference of the appellants whereby the public duties of any department of the federal government or any provincial government has been hampered or that whether any equal efficacious relief was available to the appellants more particularly when the constitution petition that was filed earlier in time had been disposed of by allowing the appellants and/or PHA, of which appellants are the members, to obtain equally efficacious relief which they did obtain by filing suits and, under such circumstances whether the conduct of the appellants as stipulated in (j) of section 56 of the Act, 1877 disentitle them to the assistance of the court still needs determination.
7. The argument that the appeals are, not maintainable under section 30-A of Ordinance, 2002 is far-fetched inasmuch as there was no decision of the Authority, established under section 3 of Ordinance, 2002 against the appellants with which they, (appellants) were aggrieved which could be challenged in appeal before the High Court, but it was the order/judgment of the trial court and first appellate court respectively under challenge when appellants' plaints in suits had been rejected by the trial court and then upheld by the first appellate court.
8. Since prima facie the case-of the appellants falls into the pail of section 42 of the Act, 1877, as discussed above, and that they have had and still have the legal character as propounded in the section under point, to dislodge such legal character, by merely relying upon section 56 of the Act 1877 or some of its clauses was not justified when on the face it still needs to be thrashed out, if at all the appellants were providing services, liceneable under the Ordinance, 2002 and Rules, 2002.
9. These are the reasons for allowing the appeals on the date mentioned hereinabove.