' SADIQ HUSSAIN BHATTI, J.---Being aggrieved by and dissatisfied with the impugned order dated 20-1-2011, passed by the learned VI Additional District Judge Karachi South, vide Civil Appeal No,209 of 2010, filed by the applicant was dismissed and the order dated 11-5-2010, passed by learned V Senior Civil Judge, Karachi South, rejecting the plaint in Suit No, 692 of 2007, under Order VII, Rule 11, C.P.C. Was maintained, the applicant preferred this Revision Application.
2. The facts, leading to the instant Revision Application are that the applicant is a businessman dealing with wholesale business of Rectified Spirit for the last 15 years in the name and style of Aman Associates as its sole proprietor. The respondent No, 2 has granted such licence to the applicant for the sale of Rectified Spirit on payment of prescribed licence fee yearly, which the applicant was regularly paying through bank challan. The respondents have also provided denaturing room/go down at the bonded warehouse at Block D, Shershah, Gulbai Karachi, where the applicant used to store all of its licensed material and still storing the same, for ,which the applicant is also paying rent to the authorized collector of respondent at the rate of Rs, 48,000 per annum.
' As per terms and conditions of the licence the applicant was liable to store the Rectified Spirit at the said government bonded warehouse under the supervision and control of nominated staff of the respondents and that the applicant was allowed to remove the Rectified Spirit only under the permit issued by the authorized person of the respondent, from time to time, on payment of prescribed duty and fees. The applicant by abiding all the terms and conditions of license, so also the relevant rules and regulations peacefully, carrying on business of Rectified Spirit within lawful limits, when all of a sudden a show-cause notice dated 9-8-2007, issued by respondent No,2, was received whereby the applicant was required to show case as to why licence should not be cancelled on account of its failure to submit Explosive License issued by Chief Inspector of Explosive under the provisions of Petroleum Act, 1934 and Petroleum Rules, 1985.
' The said show-cause notice was replied on 17-8-2007, it was iterated that the applicant was not supposed to submit such Explosive License as necessary license for storage and sale of Rectified Spirit has already been obtained which is legal and valid. The notice issued by respondent No,2 was mala fide and issued with intention to harass and black mail the applicant to vacate the premises/bonded warehouse, otherwise there was no necessity to obtain such Explosive License.
' Earlier in the year 1991 also such notices were issued to applicant and many others but subsequently the same were withdrawn.
' Since the act of issuing of show-cause notice is without any legal justification and was mala fide, the applicant challenged the same by filing First Civil Suit No, 692 of 2007 before the learned trial Court.
' The respondents were served with summonses of the court and in response thereto they appeared in Court and filed an application under Order VII, Rule 11, C.P.C. For rejection of the plaint.
' The learned trial Court appointed a Commissioner to visit the site and submit report to that effect and on the basis of the said report, the learned trial court rejected the plaint in Suit No,692 of 2007, under Order VII, Rule 11, C.P.C., vide impugned order dated 11-5-2010.
' The applicant feeling aggrieved with the said order, preferred Civil Appeal No, 209 of 2010 before the learned District Judge, Karachi South. The said appeal was entrusted to the learned VI Additional District Judge Karachi South, who after hearing the counsel for the parties dismissed the appeal vide impugned judgment dated 20-1-2011 hence the present Revision Application.
3. Learned counsel for the applicant submitted that it is well settled law that while considering application under Order VII, Rule 11, C.P.C., only averments of memo of plaint can be looked into and the same must be considered as true. However, in the instant case, the learned appellate Court had given undue weight to the commissioner's report, which has no legal value in the eyes of law.
He has further submitted that rejection of plaint under Order VII Rule 11, C.P.C. On the basis of commissioner's report without verifying its contents and authenticity is illegal, unwarranted and utter violation of law.
' It is further contended by the learned counsel for the applicant that the trial Court, in judgment dated 11-5-2010 has given reference to Paragraphs 12 and 13 of the licence, granted to the applicant. In para 12 of the license, it has been mentioned that the licensee shall not sell, transfer or sublet the rights conferred upon him by this license nor shall he enter into any agreement or arrangement, which in the opinion of the Director General is of the nature of a sublease. Admittedly, there is nothing in show-cause notice to show that the applicant had sold, transferred or sublet the rights conferred upon him. Likewise, in para 13 of the license, it has been mentioned that licensee shall not sell or have in his shop or warehouse adulterated or spurious Rectified Spirit of any kind.
' As a matter of fact and record there is no allegation against the applicant that he was selling or kept any adulterated or spurious Rectified Spirit of any kind in the shop/warehouse. The observations made by the learned trial Court in the impugned order dated 11-5-2010, are thus imaginary, personal assumption and presumption, hence the same has no legal value.
4. On the other hand, learned Assistant Advocate General has submitted that notice was issued to the applicant for production of Explosive License, required under the provisions of Petroleum Act, 1993 and Petroleum Rules, 1985, but instead of producing such licence, the applicant filed Suit No, 529 of 2007, which was dismissed by V Senior Civil Judge Karachi South vide its order dated 11-2- 2010 and appeal filed against such order was also dismissed by the learned VI Additional District Judge, Karachi South.
' Learned A.A.-G. Has further submitted that the go down/ warehouse in question was acquired by Amna Associates, who sublet the same to the applicant, which is against the terms and conditions of license. He has further submitted that since the applicant was dealing in highly inflammable material, therefore, he was required to obtain Explosive License under the provisions of Petroleum Act, 1993 and Petroleum Rules, 1985.
5. I have heard Mr. Jamil Ahmed Rajpar, learned counsel for the applicant and Mr. Muhammad Waseem Samo, learned Assistant Advocate General, Sindh, perused the record and have gone through the findings of both the Courts below.
6. It is an admitted position that the applicant is a licensee of respondent No,2 and license was granted to the applicant by respondent No,2 under some terms and conditions. If any of those terms and conditions is violated by the applicant/licensee, he will have to explain himself to the pecuniary measures by the authority, which had issued the license. Admittedly, show cause notice was issued by the Director General, who was competent authority and the applicant was called upon to reply the same within 14 days. It would have been appropriate if the applicant had faced the proceedings before the competent authority and only after final order so passed against him, which may have given any A cause to the applicant, the applicant should have been well within his right to have approached the Court of competent jurisdiction. Thus, at the time of filing of suit, there was no cause of action available to the applicant to file the same and the learned trial Court has rightly dismissed, the same under Order VII, Rule 11, C.P.C.
' Learned counsel for the applicant has not been able to show as to how the applicant was aggrieved by issuance of show cause, still no such adverse action was taken against him nor it was shown that cause notice issued by a person who was not competent to issue the same.
' The prayer itself shows that the applicant is seeking declaration to the effect that he is licensee of wholesale of denatured spirit. He is licensee and therefore a show-cause notice was issued to him to ensure that he complies with all the terms and conditions of license. Thus merely receiving of a show-cause notice, no cause of action accrued to the applicant to file the said suit, which was rightly dismissed by the trial court.
7. Learned counsel for the applicant has relied upon a number of cases but the same are distinguishable to the facts of the present case.
8. In view of the above, there being concurrent findings against the applicant, since no cause of action accrued to the applicant to file the said suit, I am of the considered view that two courts below were right in B dismissing the suit/appeal of the applicant. Accordingly this Revision application is devoid of any merits and the same is hereby dismissed with no order as to costs.