1. ' SPED SAEED-UD-DIN NASIR, J.---Through this order I intend to dispose of C.M.A. No,12792 of 2013, which is an application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C., whereby the plaintiff seeks restraining order from this Court against the defendant No,1 from cancelling/withdrawing the offer of Dealership to the plaintiff and from issuing Dealership, Explosive Certificate as well as approval for completion of building plan in favour of any third party and consequently not to create third party interest in respect of dealership for establishment of Petrol Pump-cum-CNG Station at plaintiffs plot of land measuring 1500 square yards situated at Shahrah-e-Faisal, Jinnah International Airport, Karachi recorded in Survey No,143, Deh Safooran, District Malir, Karachi. (hereinafter referred to as the "said land" and C.M.A. No,1171 of 2014 which is an application under Order XXXIX, Rule 4 read with section 151, C.P.C. Whereby the defendant No,1 seeks order for recalling the injunction granted to the plaintiff on 19-11-2013.
2. ' The brief facts of the case according to Mr. Mushtaq A. Memon, learned counsel for the plaintiff are that the plaintiff is dealer in immovable aforesaid land and the defendant. No,8 i.e, Civil Aviation Authority (CAA) invited tenders through daily newspaper 'The Nation" Karachi dated 9-11-2010 from Oil Companies for establishment and operation of Petrol Pump cum CNG Station located on the aforesaid plot of land. The plaintiff being interested candidate of dealership of defendant No,1 for establishment and operation of Petrol Pump-cum-CNG filling station at his aforesaid land, applied through an application for dealership with the defendant No,l. Defendant No,1 issued offer letter dated 16-11-2010 of Dealership for establishment and operation of Petrol Pump cum CNG Station of Attock Petroleum Limited (APL) on the said land of defendant No,8 Civil Aviation Authority subject to fulfilment of all the requirements and procedures. A Tender opening Committee to receive tender for establishment and operations of Petrol Pump at Shahrah-e-Faisal Karachi had been composed, headed by CC&MO comprising Commercial Estates Legal and Finance Reps for opening of tender on 23rd November 2010 at 1200 hours in the office of CC&MO HQCAA, ultimately the tender in the. Name of defendant No,1 was opened and approved which was certificated in the minutes of said meeting. The plaintiff being interested candidate for the dealership of aforesaid tender paid 5% earnest money amounting to Rs,1300,000 (Rupees Thirteen Lacs Only) through Pay Order No,1726863 dated 23-11-2010 out of total Tender amount of Rs,3,10,00,000 (Rupees Three Crore and Ten Lacs Only) on behalf of defendant No,1.
3. ' The learned counsel for the plaintiff submits that on the basis of aforesaid payment by the plaintiff on behalf of defendants Nos.1 to defendant No,8 a lease deed dated 13th October 2011 was executed between defendant No,8 and defendant No,1 for the establishment of subject Petrol Pump and CNG Station and the expenditure of the lease deed was also borne by the plaintiff amounting to Rs,38,75,000 (Rupees Thirty Eight Lacs and Seventy Five Thousand Only) through Pay Order dated 7-10-2011, which was, however, later on reimbursed by the defendant No,1 to the plaintiff as per prevailing practice. On submission of letter dated 15-2-2012 from Deputy Manager creating such question is nothing but against all the rules and ethics as well as also against the contractual obligation and violative of Constitutions of Islamic Republic of Pakistan, 1973. 1 From the date of applying of NOC by the defendant No,1 the plaintiff is continuously approaching the defendants Nos.3 and 4 for enquiring about the NOC but they kept the plaintiff on false hopes and always kept the plaintiff hopeful, but the real story was otherwise. However, since the plaintiffs land was reserved for about 1-1/2 years and enormous losses are being faced by the plaintiff due to reservation of said land for the establishment of subject Petrol Pump cum CNG Station, therefore, the plaintiff also made hectic efforts for obtaining said NOC.
4. ' The learned counsel for the plaintiff further submits that the defendant No,3 also demanded huge bribe and gratification for finalizing and solving the present matter from the plaintiffs partner namely Aslam Shaikh and when no heed was given to him the aforesaid letters were issued by the defendant No,1 on the behest of defendants Nos.3 and 4. In this regard, the complaint was also made before the higher authorities of defendant No,1 who promised for conducting the inquiry against the delinquent personnel, but all efforts proved to be exercised in futility. It is a common practice that the dealership is assigned to a party without NOC, the NOC is submitted after granting dealership but in the present case for the first time the plaintiff faced such type of discrimination and difficulties.
5. ' The learned counsel for the plaintiff further submits that when the plaintiff came to know that the defendant No,1 is going to cancel and withdraw the offer of dealership of the plaintiff, and that on the basis of aforesaid NOC the defendant No,1 is going to award dealership to some other blue eyed entity after getting huge illegal gratification and also arranging for Explosive License as well as NOC for building plan approval in the name of third party by depriving the plaintiff from his legitimate and legal right over the aforesaid dealership, the plaintiff has come to this Court for redress. There is great apprehension that the defendant No,1 on misrepresentation of facts and by suppressing the real controversy will cause loss to the plaintiff just to deprive him from his legitimate right of dealership. There is no delay on the part of plaintiff as he submitted well within time all the required formalities but the apparent delay is on the part of defendant No,1 and the defendant No,1 just to save itself from the government authorities including defendant No,8, is causing loss to its dealer i.e, plaintiff just to accommodate other person of its choice. A huge amount of plaintiff is involved in the matter as the land is reserved for the said purpose for about 2 years and not using the same in any way is causing heavy loss to the plaintiff.
6. ' The act of defendant No,1 for cancellation and withdrawal of offer of dealership at this point in time of plaintiff is nothing but an act of excessive use of power by the defendants Nos.I and 2 to keep the plaintiff under pressure to get him withdrawn from the dealership of defendant No,1 in respect of subject pump on said land. Plaintiffs earnest money of 5% amounting to Rs, 13,00,000 is still unpaid by defendant No, 1.
7. ' In support of his arguments learned counsel for the plaintiff has placed reliance on section 202 of the Contract Act, 1872 which is reproduced as under for the sake of convenience:-- "S. 202---The termination of agency where agent has an interest in subject-matter. Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in'the absence of an express contract, be terminated to the prejudice of such interest."
8. ' Learned counsel for the plaintiff further submits that by virtue of letter No,APL/ RD / CAA/10-11 dated 16-11-2010 which is annexure 'A' to the plaint, appears at page-29 of the File, agency in terms of section 202 of the Contract Act is constituted, which is an agency coupled with interest and irrevocable in terms of section 202. Section 202 applies only wherein an agent has special kind of interest i.e, a preexisting interest in the subject matter of the agency which is sought to be protected through creation of agency and not an interest arising there from. Such contract, in certain special circumstances can be considered irrevocable. Learned counsel for the plaintiff has further argued that in order to attract provisions of section 202 the agent should have an interest in the property, as in the present case suit land, which is the subject matter of the agency. In such case the agency cannot be terminated to the prejudice of such interest, in the absence of any express contract.
9. ' To substantiate his arguments learned counsel for the plaintiff has firstly placed reliance on 1980 SCMR 588 (Muhammad Aref Effendi vs. Egypt Air), in this celebrated judgment of Hon'ble Supreme Court the same principle as contemplated by section 202 of the Contract Act, 1872 has been enunciated and the Hon'ble Supreme Court has meld that:- "0.X)0CDC, Rr. 1 & 2 and Contract Act (IX of 1872), S.202---Injunction, temporary---Termination of agency---Case involving consideration of circumstances under which a contract of agency of kind involved in case could be revoked, whether S.202, Contract Act, 1872 applicable to facts of case as well as true construction and scope of such section, whether plaintiff---Petitioner entitled to continue agency and/or claim damages from principal on pleadings as made, whether petitioner failed to submit his account to his principal in terms of contract and whether petitioner- justified in withholding same on any legal ground and whether termination of contract of agency lawful or not---Held: such questions substantial questions of law and fact and involve careful study and scrutiny after leading of appropriate evidence---High Court not justified to refuse grant of temporary injunction as prayed for--- Temporary injunction accordingly granted on certain terms calculated to meet ends of justice with observation that neither High Court's order nor order of Supreme Court be considered as expression of any opinion on merits of case or pleadings."
10. ' In this judgment Hon'ble Supreme Court has held that when the agency is coupled with interest the same would become irrevocable in terms of section 202 of the Contract Act, 1872. As narrated above, the plaintiff has interest in the subject matter of the suit property in as much as the plaintiff has invested huge amount of money in order to procure lease of the plot of land in question.
11. Secondly the learned counsel for the plaintiff has relied upon PLD 1979 Karachi 112, which is the order of this Court in the case of Zubair Ahmed v. Pakistan State Oil Co. Ltd. Wherein this Court has also, following the principle laid down in 1980 SCMR 588, has held that when the prima facie case is existing in favour of the plaintiff to indicate that his agency was coupled with interest and that the plaintiff had incurred expenses and put in labour in establishing and running agency and creating his goodwill among the customers. Throwing the plaintiffs out of agency without affording an opportunity to prove his case would be nothing but a hard blow on his established business and popularity in the business. The relevant portion of this case relied upon by the learned counsel for the plaintiff is reproduced hereunder:-- "O. =CDC, Rr. 1 & 2---Contract Act (IX of 1872), S.202---Application for injunction against termination of dealership (Petrol Pump)---Prima facie case existing in favour of plaintiff to indicate that his agency was coupled with interest---Plaintiff incurring expenses and putting in labour in establishing and running agency and creating a good-will among customers--- Throwing plaintiffs out of agency without affording an opportunity to prove his case would be nothing but a hard blow on his established business and popularity in business---Defendants on other hand had been regularly receiving their share and charges from plaintiffs and did not show that irreparable injury would be caused to them if they were not put in possession of land forthwith and plaintiff allowed to remain there subject to regularly paying all commissions and Government dues---Interim Injunction confirmed in circumstances."
12. ' In this case also the interim injunction was confirmed in favour of the plaintiff and the defendants were restrained from cancelling the agency of the plaintiff.
13. ' The next case-law cited by the learned counsel for the plaintiff PLD 1994 Karachi 194 (Karachi Catholic Coop. Housing Society Ltd. v. Jawad Baig). This case also deals with section 202 of the Contract Act, 1872 and affirms the principle laid down in the aforesaid two cases. The relevant portion is reproduced as under:- "S.202---Agent's authority coupled with interest in agency--- Effect--- Where agent had himself any interest in property, which formed subject matter of agency, such agency could not, in absence of any express contract, be terminated to the prejudice of such interest and would become irrevocable---Where, however, agent's authority was not coupled with interest and was given independently, then with the death of principal, such agency would stand terminated."
14. ' Mr. Umer Lakhani, learned counsel for the defendants Nos.1 and 2 submit's that the plaintiff has no cause of action against the defendants Nos.1 and 2 in as much as there was/is no enforceable agreement or contract of any nature, whatsoever, between the plaintiff and the defendants Nos.1 and 2 and more specifically the defendant No,1/APL. Thus, in the absence of legal relationship, the plaintiff has no right to seek any relief against the defendants Nos.1 and 2 and that the plaint is liable to be rejected.
15. ' Learned counsel for the defendants Nos.1 and 2 further referred to page # 29 of the File which is annexure A/1 to the plaint, and submitted that the document which is dated 16-11-2010 very clearly defines the plaintiff as "Prospective Dealer" and the document is titled "Offer of Dealership for Establishment and Operation of Petrol Pumpcum-CNG Station/Statioh of Attock Petroleum Limited
(APL) Petrol Pump on CAA land at Karachi. Learned counsel further submits that since there was no agreement/contract between the plaintiff and the defendants Nos.1 and 2, therefore, there is no vested right in favour of the plaintiff and that the plaintiff thus has no legal character and the instant suit f's not on legal basis. Learned counsel further submits that the Dealership, even otherwise, was subject to fulfilment of all the requirements and procedures necessary for obtaining of all requisite NOC's including but not limited to DOC's NOCs Explosive and OGRA licenses etc. Learned counsel for the defendants Nos.1 and 2 further states that defendant No,1 vide its letter dated 3-12-2012, which is annexure A/11 to the plaint, which is not a disputed document has already withdrawn the offer for dealership dated 16-11-2010. Inasmuch as the plaintiff failed to obtain necessary NOCs from the concerned authorities which the plaintiff was directed to obtain in the offer of dealership letter dated 16-11-2010. Learned counsel for the defendants Nos.1 and 2 'further submits that the plaintiff has filed the present suit in November 2013 when admittedly the officer, which even otherwise, had not matured into an enforceable agreement/contract which had already been withdrawn on 3-12-2012. Learned counsel for the defendants Nos.1 and 2 next contended that there explanation or reason cited in the plaint explaining the inordinate delay in filing the present suit and, therefore, this delay alone disentitles the plaintiff from any discretionary relief of injunction and declaration.
16. ' Learned counsel for the defendants Nos.1 and 2 draws attention of the Court to Clause IV of the Lease Deed dated 13-10-2011 which requires that the Lessee i.e, defendant No,1, shall complete the construction and/or allied works to meet the purpose of the lease (Petrol Pump-cum-CNGStation) within a period of two years from the date of assigning of the lease or during the specified extended period. Failure to commence construction work within three months or delay in launching/operation within specified period of two years or extended period as deemed fit by the Lessor. In view of the purpose of this lease, is subject to penalty at rates and manner as defined in the lease as Non Utilization Charges as decided by the Lessor (CAA) or shall result in termination of the lease and resumption of land. Learned counsel for the defendants Nos.1 and 2 has submitted a statement on behalf of the defendant No,1 dated 7-7-2014 along with which attached is a notice dated 26-6-2014 bearing Reference No,JIAP/1397-20/069/KCES/765 issued by the Civil Aviation Authority and served upon the defendant No,1 in respect of Non-Utilization Charges (NUC) for non- compliance of clause-IV of the lease agreement in respect of suit property. Learned counsel for the defendants Nos.1 and 2 submits that due to injunctive orders pending in the present suit, defendant No,1 was unable to comply with aforesaid Clause-IV of the lease agreement in respect of subject property and despite being well aware of the aforesaid injunctive orders the Civil Aviation Authority has issued the said notice calling upon the defendant No,1 to pay total Non-Utilization Charges for 8 months amounting to Rs,36,00,000. Learned counsel for the defendants Nos.1 and 2 further submitted that defendant No,I has also paid the monthly rent under the lease to Civil Aviation Authority i.e, defendant No,8 in this suit therefore, learned counsel contends that the application of the plaintiff under Order XXXIX, Rules 1 and 2 for injunction should be dismissed. Statement filed by the counsel for the defendants Nos. 1 and 2 is taken on record.
17. ' In support of his arguments learned counsel for the defendants Nos.1 and 2 has retied upon 2003 SCMR 50, relevant portion appears at page # 52. In this case it was an admitted position that between the parties no contract or agreement had ever been signed regarding the installation of filling station. The matter never proceeded beyond the submission of an application and a few occasions like preparation of feasibility report etc. The predecessor in the interest of the plaintiff made the infrastructure on plot of land allocated for filling station unilaterally, and the Hon'ble Supreme Court held that in the absence of any contract between the parties there could not be relationship of the principal and agent and that the instant condition does not at all create an agency. The applicant's legal heirs cannot assert any right of an agent, institution of agency was ruled out altogether. In my view this case cited by the learned counsel for the defendants Nos.1 and 2 is distinguishable from the present case on the sole ground that in that case. The applicant who was seeking execution of dealership agreement with Pakistan State Oil did not participate at all in procurement of lease of land on which the proposed filling station, was to be built. Whereas, in the present case the plaintiff has actively participated in procurement of lease in respect of plot of land on which the proposed filling station is to be built from the defendant No,8 in favour of defendant No,1 and also paid the initial payment of 5% earnest money amounting to Rs,13,00,000 to the defendant No,8 for the aforesaid purpose and by the time aforesaid lease was executed, the plaintiff had already borne an additional amount of Rs,38,75,000. Therefore, in my view this judgment is irrelevant to the facts of the case in hand.
18. ' The next cited case by the learned counsel for the defendants Nos.1 and 2 is PLD 2004 SC 860. In this case the Hon'ble Supreme Court held that sections 217 and 218 of the Contract Act laid down certain conditions that the agent is bound to pay to the principal all sums on his account received from the third party, but in case when the agent is not bound to render account to the principal under the agreement for the sum received from third party/person, the agreement is not that of agency. This case would have come to the help of defendant No,1 if the dealership agreement had been executed between the plaintiff and the defendant No,1 and while determining their relationship in terms of the same. Since no dealership agreement had been executed between the plaintiff and the defendant No,1, this case is irrelevant to the facts of the present case.
19. ' The next case-law cited by the learned counsel for the defendants Nos.1 and 2 is PLD 1958 West Pakistan (Lahore)
63. In this case the Hon'ble Court held that the plaintiff was not, and could not have been, in the legal sense called as an agent of the defendant for the sale of petrol in as much as the appointment letter only confers dealership upon the plaintiff and does not even remotely or indirectly suggest that he was to act as an agent. This case also defines the relationship of a dealer of petrol with the Oil Company under the dealership agreement, but in the present case the dealership agreement had not been executed between the plaintiff and the defendant No, 1.
20. Therefore, in my view this cited case-law is also irrelevant to the facts of the case in hand. The matter was reserved for orders on 11-7-2014, however, Mr. Mushtaq A. Memon, learned counsel for the plaintiff has filed a statement on behalf of the plaintiff today i.e, 12-7-2014, which is reproduced as under:-- "The plaintiff abovenamed agrees to pay the amount of Non-Utilization Fee (NUF) to the Civil Aviation Authority in terms of Clause 4 of Lease Deed dated 13-10-2011 (Annexure 'A/4' to the plaint) on account of non-completion of construction, imposed/ demanded by the Civil Aviation Authority (defendant No,8), if any, upto the filing of present suit viz. 19-11-2013 subject to execution of Dealership Agreement by the defendant No,1 in favour of plaintiff and subject to final adjudication of liability in the suit."
21. ' I have heard the learned counsel for the parties at length, perused the case-laws cited by them and examined the pleadings of the parties and have come to the conclusion that undoubtedly the plaintiff coaxed the defendant No,8 into executing the Lease Deed in respect of said plot of land in favour of defendant No,1 so that a fuel station/CNG could be constructed thereon, the dealership of which was promised to the plaintiff by the defendant No,
1. It is pertinent to mention here that the plaintiff in anticipation of getting the dealership as aforesaid participated in the tender for the grant of lease in favour of defendant No,1 before defendant No,8, paid 5% of the earnest money amounting to Rs,13,00,000 and by the time the actual lease was executed on 13-10-2011 the plaintiff had already borne expenditure of Rs,38,75,000. In this matter it can easily be said that the plaintiff acquired interest in the subject matter of the suit which is the said land in terms of section 202 of the Contract Act, 1872. Thereafter, the plaintiff must have put tremendous financial and other resources in order to obtain requisite NOC from different Government departments. The letter appearing at page-29 of the File as Annexure A/10 to the plaint dated 16-11-2010 titled as "Offer of Dealership for Establishment and Operation of Petrol Pump-cum-CNG Station of Attock Petroleum Limited (APL) on Civil Aviation Authority land at Karachi clearly shows that the defendant No,1 offered dealership of the subject mentioned above to the plaintiff subject to successful bidding of the plaintiff for the land in question. Admittedly, the plaintiff succeeded in getting the bid approved by the defendant No,8 in respect of the land on which the proposed filling station was to be constructed in the name of defendant No,1 and paid heavy amount to procure the lease as aforesaid. While the plaintiff was in the process of obtaining requisite NOCs from the Government departments for establishment and, operation of a Petrol Pump-cum-CNG Station, the defendant No,1 vide letter dated 3-12-2012 withdrew its offer regarding proposed dealership .In respect of subject SITE with immediate effect and without affording any opportunity to the plaintiff of being heard. Even otherwise it would be unjustified and improper if third party is allowed to reap the fruit of the tree which was planted and nurtured by the plaintiff right from the initial stages till it was grown bigger enough to bear fruit. The learned counsel for the defendants Nos.1 and 2 states during the course of arguments that the last NOC from the Commissioner Karachi Division, Karachi has still not been obtained by the plaintiff to which Mr. Mushtaq A. Memon, learned counsel for the plaintiff has replied in rebuttal that the plaintiff has obtained the said No Objection Certificate as well and a copy of which is available at page-79 of the File, annexure A/12 to the main plaint, which the plaintiff had withheld in view of apprehension that the defendant No,1 after withdrawing the dealership to the plaintiff might award the same to a third person/party, however, now the plaintiff is ready and willing to hand over the defendant No,1 for necessary action provided the defendant No,1 executes a dealership agreement with the plaintiff as promised as in the aforesaid letter dated 16-11-2010.
22. ' In view of above it is right that the defendants Nos.1 and 2 should be restrained from issuing dealership, explosive certificate as well as approval for completion of building plan in favour of any third party and from creating third party interest in respect of dealership to plaintiff for establishment of Petrol Pump-cum-CNG Station at the land measuring 1500 square yards situated at Shahrah-e-Faisal, Jinnah International Airport record in Survey No,143, District Malir, Karachi.
23. However, as per statement filed today by the plaintiff, the plaintiff shall pay a sum of Rs,36,00,000 as total Non-Utilization plaintiff shall pay a sum of Rs,36,00,000 as total Non-Utilization Charges for 8 months, which is subject to execution of dealership agreement by the defendant No,1 in favour of plaintiff and subject to final adjudication of the liability in the suit. In terms of above the instant application is allowed and consequently C.M.A. No,1171 of 2014, application under Order XXXIX, Rule 4 filed by the defendant is dismissed with no order as to costs.