' MUHAMMAD YOUNIS THAHEEM, J.---This civil revision petition is directed against the concurrent judgments and orders dated 21.5.2015 and 2.6.2015 passed by learned Civil Judge-XVIII, Peshawar and Additional District Judge-X, Peshawar respectively, whereby the former dismissed the application of petitioner for the grant of interim injunction, which order was upheld by latter in appeal filed before him.
2. Brief facts of the case are that petitioner/plaintiff filed a suit for declaration to the effect that being valid lessee of Marriage Hall Tehsil Gorgathri, Peshawar City, vide lease agreement dated 16.3.2005 and 23.9.2013 is entitled to extension of lease for further 5 years from 2015 to 2020; that fraud and forgery has been committed by the office of defendants Nos.1 to 3 by changing two pages of lease agreement dated 23.09.2013 which has been removed/replaced by inserting some conditions unilaterally without the consent of plaintiff/lesser and suit is for specific performance of lease agreements dated 16.3.2005 and 21.9.2013, mandatory injunction for further extension of lease period from 1.4.2015 to 31.3.2020 and restraining the defendants from forcible eviction from the lease property.
3. Along with suit, petitioner/plaintiff also filed an application for grant of temporary injunction against the defendants/respondents, which was contested by the other side by filing written statement and replication. After hearing arguments on application fot grant of temporary injunction, the learned trial Court rejected the same vide order dated 21.5.2015. Being aggrieved from the interim order, the petitioner preferred appeal, which was also dismissed by the Appellate Court vide judgment and order dated 2.6.2015, hence the instant revision petition.
4. Learned counsel for petitioners advanced following arguments:-- a. Petitioner was granted lease of a portion of Gorgathri Tehsil Peshawar City vide lease agreement dated 16.3.2005 and 23.9.2013 by then Tehsil Municipal Administration Peshawar Town- I, i.e, defendants Nos.1 to 3 who after getting said lease in his favour had developed it into marriage Hall; The lease as per terms of agreement dated 16.3.2005 initially was for five years which was extendable to further five years and after expiry of first five years period in the year 2010, it was further extended upto 31.3.2015 vide lease agreement dated 23.9.2013 wherein it was stipulated that it could be further extended subject to approval of Provincial Government. b. The learned counsel added that after expiry of second five years tenure of lease, i.e,, from 1.4.2010 to 31.3.2015 plaintiff applied for further extension of lease period as per terms of agreement given in clause 3 of agreement dated 23.9.2013 and his case was forwarded for further extension to competent authority i.e, Secretary Local Board for approval which was refused. In the instant lease agreement dated 16.3.2005 rate of rent was to be increased at the rate of 10% per annum but upon the pressure of respondents/Municipal Corporation of Peshawar the annual rate was further increased from 10% to 15% vide subsequent agreement dated 23.9.2013. c . That in the original and mutually agreed lease agreement the clause 3 was inserted which provided the period of lease for five years renewable for another five years and extendable for further five years period with the approval of competent authority i.e,, Provincial Government. But the original stamp papers wherein above conditions i.e, above Clause 3 was stipulated had been changed and replaced malafidely and fraudulently by including two new stamp papers through putting unilateral conditions inserting Clause 3 (A) (B) against the interest of lessee who had invested huge amount in millions by establishing Marriage Hall on the area given to him under said lease agreement and having notice of above mentioned fraud and forgery had challenged it along with other reliefs. d. That petitioner had invested millions of amount by renovating, reconstructing the dilapidated Gorgathri site so he has a prima facie case and balance of convenience tilts in his favour and if interim relief as prayed for is not granted, then the petitioner would suffer irreparable loss not only in monetary terms but also the fraud hatched by changing the stamp papers would be perpetuated. The above legal and factual position was overlooked and not properly appreciated by both the learned Courts below and has passed impugned orders and judgments by refusing temporary injunction. Lastly prayed that the impugned order and judgment of fora below may kindly be set aside and his petition be allowed.
5. On the other hand, the learned counsel for the respondent supported the orders and judgments of two Courts below by arguing the following:-- a. That the lease of portion of Gorgatri Tehsil being historical site was initially granted by the then Provincial Government through their then officers i.e, Administrator, Peshawar Municipal Corporation only for period of 5 years. Lateron after the expiry of first five years tenure of lease period, it was extended for next five years i.e, from 16.4.2010 to 31.3.2015 vide renewed lease agreement dated 23.9.2013. b. He added that according to lease agreement dated 23.9.2013, lease period was fixed w.e.f, 1.4.2010 to 31.3.2015 which lease agreement had already been terminated on expiry of lease on 31.3.2015. c. The respondents are not willing to further extend the contract of lease with the petitioner and contract of lease could not be extended upon the dictation of previous lease holder i.e,, petitioner. d. He further added that in order to ensure transparency and fairness if Provincial Government intended to grant the area of said Gorgathri site on lease that would be granted by putting it through open auction after advertisement but now as per instructions of his client, the Provincial Government in wake of Government policy vide notification No,SO1(M)4-9, 2000/Estt/ Vol-VII/3749- 53 dated 5.10.2007 has decided to preserve and restore the Gorgathri historical and archaeological site to its original position in the light of judgment of Hon'ble Supreme Court of Pakistan. e. That after the expiry of lease agreement on 31.3.2015 when there exists no contract between the parties then there arises no question of prima facie case, balance of convenience and irreparable loss in favour of plaintiff/petitioner. The suit for specific performance of a contract which after expiry has been terminated and no more exists in field then how a decree for specific performance and perpetual injunction in favour of plaintiff can be passed and if temporary injunction is allowed to petitioner it would create a new situation which would amount to a forced agreement between the private parties. The petitioner cannot compel the respondents to dictate its terms as any interim order which. Creates altogether a different and new situation in instant like case, the interim relief is not granted by the superior Courts.
6. Arguments heard and record perused.
7. From the perusal of record it reveals that admittedly petitioner was initially granted lease of some vacant portion of Gorgathri site vide agreement dated 16.3.2005 for five years on terms and conditions mentioned therein. Admittedly, "Gorgathri Tehsil" Peshawar City is a historical place and according to the above referred notification dated 5.10.2007 is one of old historical and Archaeological site of Peshawar. It is further admitted position that present petitioner as per averments in his plaint is involved in hoteling business having its chain with nomenclature of "Greens Hotels" at Peshawar, "Greens Restaurants" at Nathiagali Abbottabad, etc so after getting lease of this Gorgathri site they established it as Marriage hall.
8. The petitioner alleged that in the first least agreement dated 16.3.2005, the Clause 3 was stipulated which reads as below:--
3. The initial lease period will be for five years renewable for another five years and extendable for further period with the approval of Provincial Government. The period of this initial agreement expired on 16.4.2010.
9. It is pertinent to mention here that lease property is part and parcel of historical Gorgathri Archaeological site and first lease period of five years was expired on 16.4.2010 which was admittedly extended vide renewed lease agreement dated 23.9.2013 by respondents for further five years upto 31.3.2015, which date has also been expired. Both the parties are on agreement over the point that in the second lease agreement dated A 23.9.2013 upon expiry of lease period i.e,, 31.3.2015 it could be extended with the approval of Provincial Government. It is averred in the plaint that Provincial Government had refused to further extend the lease period, i.e,, upto 2020.
10. The suit is for specific performance, declaration, permanent injunction aiming at to seek further extension of lease period for next five years upto 2020 by challenging the vires of Clause 3 (A) & (B) of lease agreement dated 16.3.2005.
11. From the perusal of Clause 3 referred by petitioner and Clause 3-A are identical clauses while the clause 3-B has two parts. In first part it is same as in clause 3 (according to petitioner) referred by petitioner but petitioner has reservations about second part of clause 3-B. So there is no such contradiction or difference giving rise a picture of inequitable condition of lease agreement for which- petitioner contends that he has a prima facie case in his favour and as he has invested huge amount of capital on re-novation, reconstruction to meet the requirement of Marriage Hall etc therefore, would suffer irreparable loss if interim relief for grant of temporary injunction is refused, so petitioner is squarely entitled for the grant of temporary injunction is not a convincing argument.
12. The crux of arguments of learned counsel for petitioner consists of two folds. Firstly, he argued that two stamp papers containing favourable conditions to his client had been replaced/changed by respondents and two other stamp papers were included which requires recording of evidence as such extension of lease period is not valid argument as extension of lease period according to the lease agreement dated 16.3.2005 is subject to approval of Provincial Government is admitted condition. The lease deed was valid upto 31.3.2015 and has been acted upon to that date i.e,, 31.3.2015. The petitioner has been benefited from it duly signed by both the parties i.e,, Greens Group of Hotels alid Administrator Municipal Corporation Peshawar, duly witnessed having clause 3 in two parts i.e,, A & B which reads as below:-- "3.A... That the lease period will be for five years commencing from first of April 2010 upto 31.3.2015.
B. Mat if the lessee would request, the lease will be extendable for a further period of five years subject to the approval of Provincial Government. If the approval is not accorded by the Provincial Government of the extension of further five years, the lease shall stand terminated after the expiry of five years."
13. The perusal of lease agreement dated 23.9.013 and two separate papers produced by petitioner being not vetted or signed by the respondents reveals that in both the expiry date of lease is 31.3.2015 and if its extension is granted then the Provincial Government is competent authority to grant further extension but from the written statements as well as arguments of learned counsel for respondents and notification dated 5.10.2007 referred above, it transpires that Provincial Government is not intending to extend lease period more. Now the question for determination for this Court is as to whether any lease agreement after the expiry of lease can be extended through a suit for specific performance and secondly whether Court could force the private parties to re- write some agreements or add or delete some of its conditions. So in this regard this Court holds that the agreements or contracts being effected and executed among the private parties on their own free consent and Court cannot force them through any means to re-write some contract or extend the lease period as in the instant case.
14. Granting of interim relief through temporary injunction is governed by the provisions of Order XXXIX, Rules 1, 2 of C.P.C., for which three ingredients are necessary i.e,, prima facie case, balance of convenience, irreparable loss as existence of prima facie case, likelihood of irreparable loss or legal injury for non grant of temporary injunction, and the balance of convenience were the three essential ingredients which must be fulfilled before injunction could be granted in favour of a party and absence of any of those essential ingredients would not warrant grant of injunction. In the instant case there exists no lease agreement between the parties after the expiry of lease period on 31.3.2015, and the present petitioner is running his Marriage Hall on the orders of the Court and when decree for perpetual injunction could not be granted then there is no question of grant of temporary injunction in such like cases. In this regard wisdom is derived from the judgment of Hon'ble High Court in case "Cocentrate Manufacturing Company of Ireland and 3 others v. Seven- up-bottling Company (Private) Limited and 3 others (2002 CLD 77 Lahore). The relevant principle enunciated in the cited judgment is reproduced as below:- "If the appellants even for mala fide reasons has refused to sell the goods to the respondent, at the best the respondent can sue the appellant for damages, but no specific enforcement of the agreement can be obtained under the decree of the Court, as per provision of Section 56(f)(i) of the Specific Relief Act read with explanation to Section 12 of the Act, consequently when the perpetual injunction cannot be granted, it is settled law that there is no question for the grant of temporary injunction. Dilating the above point it may be stated that according to settled law a temporary injunction can only be granted if in a lis the grant of perpetual injunction is permissible. Sections 54 and 56 of Specific Relief Act which supplements each other are the provisions regulating the grant or refusal of permanent injunction."
' In the same judgment it has been held that:- "It is settled law that where the suit itself is not maintainable no interim relief can be awarded."
15 Secondly as discussed above, the place where Marriage Hall has been established is part and parcel of Pakistan's one of famous historical and archaeological site known as "Gorgathri Tehsil" and the Provincial Government in the light of judgment of Hon'ble Supreme Court had formulated a policy referred above and wanted to demolish all those new structures/constructions which were built to meet the requirements of marriage ceremonies rather to restore and preserve this historical and Archaeological site to its original position. If interim relief is granted then it would be public at large who would be suffered a lot and not the petitioner. Moreover the petitioner had earned huge profit by cashing the historical name of the site by running a marriage hall there and in no way would be a sufferer of any irreparable loss and granting temporary injunction in favour of petitioner would create altogether a new situation which is not permissible under the law. In this regard wisdom is derived from the judgment of Hon'ble. Supreme Court of Pakistan in case titled as "Islamic Republic of Pakistan through Secretary Establishment Division, Islamabad and others v.
Muhammad Zaman Khan and others (1997 SCM R 1508 d), wherein it has been held that:- "As regards the merit of the case, it may be pointed out that it is well settled proposition of law that the object of passing of an interlocutory order or status quo is to maintain the situation obtaining on the date when the parties concerned approach the Court and not to create a new situation. Another well settled principle of legal jurisprudence is that generally a Court cannot grant an interlocutory relief of the nature which will amount to allowing the main case without trial/hearing of the same."
16. Thus in the wake of above discussion, it is held that the petitioner has failed to make out a prima facie case in his favour and it is respondents to whom irreparable loss would accrue. The petitioner/ plaintiff s suit as discussed above is for specific performance of a contract, which is not in existence after expiry of its lease on 31.3.2015 and the Provincial Government i.e,, respondents Nos.1 to 3 had refused to extend it further. So the petitioner has no locus standi who failed to disclose any cause of action in his suit so this Court is of the firm view that instant suit had been filed to fetch more time to fetch more money and would serve no purpose being frivolous suit and such like suits shall be burned at their inceptions being not maintainable and barred by law. In this regard wisdom is derived from the judgment of Hon'ble Sindh High Court in case titled as "Messrs Zaidi Enterprises and others v. Civil Aviation Authority" (PLD 1999 Karachi 181(c)) wherein while seized of the matter pertaining to grant of temporary injunction the Hon'ble Sindh High Court dismissed the petition along with suit under Order VII, Rule 11, C.P.C. Being not maintainable. The same principle is reproduced as under:-- "Order XXXIX, Rr. 1, 2 & 0. VII, R.II.... Temporary injunction, grant of--- ' Be that as it may, it does not change the substantial position that after execution of license agreement by the parties, their relationship would be governed by the terms of the said agreement, the terms of which had been discussed in detail above.
' In view of above discussion, I am of the firm view that the agreement between the plaintiffs and C.A.A is a license agreement and that all the plaintiffs are the licensees of CAA and accordingly not entitled to the relief of injunction. The licenses having expired, the plaintiffs have no right to remain in the premises and the defendants would be justified in taking action against the plaintiffs for obtaining possession of the premises in accordance with law. If the plaintiffs are aggrieved by the action of C.A.A, there remedy is not by way of injunction but by way of damages as held in PLD 1965 SC 83.
' Having come to the conclusion that the plaintiffs are licensee of C.A.A and have no rights whatsoever in respect of premises in question, it is obvious that present suits are not maintainable and are accordingly rejected with costs under Order VII, Rule 11, C.P.C. (PLD 1967 Dhaka 1990). Consequently, all Miscellaneous applications also stands dismissed."
For what has been discussed above, the instant petition as well as suit of the petitioner is dismissed under Order VII, Rule 11, C.P.C., with costs.