AQEEL AHMAD ABBASI, J.-- Through instant High Court Appeal, the appellant has impugned the order dated 18.08.2016 passed by the learned Single Judge in Suit No, 920/2015, whereby, while hearing the application i,e, C.M.A. No, 8723/2015 [application under Section 94 read with Order XXXIX, Rules 1 and 2 and section 151, C.P.C., learned Single Judge of this Court has been pleased to reject the plaint, consequent to which, the listed application has also been dismissed.
2. Briefly the facts as stated in the Memo of Appeal, are that the appellant was operating a filling station and CNG station in the name and style of "Syed Service Station" situated upon Plot No, B-73, admeasuring 0.44 acre, SITE, Karachi [the subject property] for the last several years, which property is owned by respondent No,2, who has acquired the title of such property through a lease from Sindh Industrial Trading Estate [SITE]. In the year 1972, respondent No,2 leased out the subject property to Caltex Oil (Pakistan) Limited for a term of 25 [twenty five] years' commencing from 01.07.1972 for the purposes of operating a filling station thereon. Thereafter, according to the appellant, respondent No,1 has since taken over all operations of Caltex Oil (Pakistan) Limited, which was permitted to construct filling station with all ancillary facilities upon the subject property and also authorized to sub-let or under-let the same. According to the appellant, the respondent No,2 was initially appointed as a dealer in respect of filling station upon the subject property and was operating a filling station thereupon. Subsequently, in the year 1980, she transferred her license, with the consent of respondent No,1, namely, Chevron Pakistan Limited and Caltex Oil (Pakistan) limited. Consequently, the predecessor of respondent No,1 granted fresh license to one Ashraf Ghulam Hussain for the operation of a filling station, and executed a dealership agreement on 10.11.1980 to this effect. According to the appellant, said Ashraf Ghulam Hussain obtained a license in relation to the filling station on the subject property, not merely upon payment of license fee, but after paying valuable consideration to respondent No,2, therefore, it was not merely a license, but a licensee coupled with interest. In the year 1990, said Ashraf Ghulam Hussain transferred his dealership license to the appellant for the sum of Rs,4.5 million. Accordingly, the appellant was granted a fresh license from the said predecessor of respondent No,1, i,e, Caltex Oil (Pakistan) limited to operate a filling station upon the subject property. As such, according to the appellant, the appellant has stepped into the shoes of said Ashraf Ghulam Hussain and became a licensee coupled with the interest in respect of the filling station on the subject property.
3. It has been further stated that on 13.03.1998, lease in favour of respondent No,2 was cancelled by SITE on account of non-payment of lease rentals, however, subsequently, 26.05.1998, a fresh lease in respect of the subject property was executed and registered between the SITE and Caltex.
Thereafter, the respondent No,2 filed Suit No,1001/1998 against SITE and Caltex challenging the cancellation of her lease and execution of fresh lease in favour of Caltex, whereas, appellant was not made party to such litigation, who continued to operate his filling station on the subject property. The appellant applied for and obtained a license on 22.05.1999 to install CNG filling station from the Ministry of Petroleum and Natural Recourses and also entered into a fresh agreement dated 05.10.1999 with the Caltex for CNG filling station upon the subject property, and imported CNG plant with attached paraphernalia and incurred huge expenditure in installing the said CNG plant. The appellant also incurred huge expenses for obtaining a commercial gas connection from the Sui Southern Gas Company [SSGC] for operation of CNG plant on the subject property.
According to the appellant, the issues between the respondent No,2 and Caltex Oil (Pakistan)
Limited were settled in the year 2000 and SITE restored the original lease of the respondent No,2 and cancelled the fresh lease issued to Caltex Oil (Pakistan) Limited. In the year 2001, the Caltex Oil (Pakistan) Limited executed another CNG filling station operating agreement with the appellant, whereas, in the year 2003, the appellant was granted a CNG Marketing License from the Ministry of Petroleum, thereafter, Caltex Oil (Pakistan) Limited renewed the earlier petrol filling station license in the name of the appellant and his son on 17.10.2004 for an indefinite term. As per appellant, there was fresh round of litigation between the respondent No,2 and Caltex Oil (Pakistan) Limited in respect of possession of the subject property, however, it was settled between the parties vide Settlement agreement dated 28.01.2008, which has been duly recorded in order dated 28.01.2008 passed by a divisional bench of this Court in a Constitutional Petition No,D-242 of 2008. On 31.05.2008, pursuant to compromise order, respondent No,2 executed a fresh 30-years' lease duly registered in favour of the Caltex Oil (Pakistan) Limited.
4. Learned counsel for the appellant has argued that in the backdrop of above facts, after having entered into a compromise, by negotiating a fresh 30-years' lease from respondent No,2, it appears that Chevron Pakistan limited deliberately defaulted upon the lease rentals in respect of the subject property, thereafter, respondent No,2 filed a collusive ejectment case bearing Rent Case No,178/2009, and obtained an ejectment order, which has been upheld by this.' Hon'ble Court on 15.04.2015 in Constitutional Petition No,S-1382/2013. As per appellant, however, in the above rent proceedings, the appellant was not a party, who came to know about such proceedings in the month of May 2015, when he was informed by staff member of respondent No,1 that the appellant is required to vacate the subject property pursuant to Court's order in the aforesaid proceedings. Per learned counsel, the appellant in the month of December 2011, approached the predecessor of respondent No,1, i,e, Chevron Pakistan Limited with a request to refurbish the subject filling station in view of dilapidated condition of the structure and to upgrade and modernize its faade, machinery and canopy, building, underground tanks etc. in terms of the license, however, Chevron Pakistan Limited vide letter dated 06.01.2012, expressed its inability to accede to the appellant's request due to shortage of funds and asked the appellant to undertake the refurbishment and modernization of the construction on the subject property at its own cost, which was done by the appellant out of his own funds to ensure smooth running of his CNG/filling station. According to learned counsel, appellant, is in possession of subject property for more than 25 years' and carrying on his business by incurring huge expenses towards reconstruction and refurbishment and up-gradation of the filling station and also towards installation of CNG plant and machinery, which fact, according to the appellant was fully in the knowledge of all the respondents. Per learned counsel, appellant has a license coupled with interest hence entitled to remain in possession and to operate his business on the subject property, whereas, according to learned counsel, such license cannot be revoked without adopting due course of law. It has been contended by the learned counsel that the appellant cannot be ejected from subject land as the appellant has already paid all the amounts due against him as per terms of the license,. and has not violated any law or the terms of license agreement.
5. While concluding his arguments, learned counsel for the appellant has submitted that appellant is entitled to a declaration of his status as a "Licensee coupled with interest" in the subject property by virtue of license granted to the appellant by respondent No,2, and has prayed that the impugned order passed by the learned Single Judge, may be set-aside and the Suit No,920/2015 filed by the appellant may be decreed as prayed. In support of his contention, learned counsel for the appellant has placed reliance on the some case laws, which were cited before the learned Single Judge, however, according to learned counsel, have not been taken into consideration, while passing the impugned order.
6. Conversely, both the learned counsel for the respondents have vehemently opposed the contention of the learned counsel for the appellant, and have contended that the impugned order has been passed by the learned Single Judge, after taking into consideration the entire facts and has also applied the correct law to the facts of the case, by placing reliance in the judgments of this Court as well as of the Hon'ble Supreme Court on the subject controversy. it, has been contended by the learned counsel for the respondents that the appellant has no locus standi to claim any right or entitlement or even to retain possession of the subject property, which is owned by respondent No,2, particularly, when there is no agreement or relationship between the appellant and the owner/ respondent No,2. According to learned counsel for the respondent No,2, the lease agreement dated 31.05.2008 was signed between respondent No,2 and respondent No,1, whereby, sub-lease to any third party was specifically barred. It has been further contended by the learned counsel for respondent No,2 that the appellant has claimed to be a purported licensee of respondent No,1, whereas, in terms of order of eviction passed by the learned Rent Controller, which order, according to learned counsel, has also been upheld by the Hon'ble High Court in C.P.No,S- 1382/ 2013 vide order dated 15.04.2015 and also confirmed by the Hon'ble Supreme Court in C.P.L.A.
No,385-K/2015 vide order dated 04.09.2015, respondent No,1, has been directed to be evicted from the subject property, therefore, the appellant was not entitled to claim any relief by filing the suit, whereas, the relief sought is barred by law. Per learned counsel, pursuant to order passed by the Rent Controller, High Court and the Hon'ble Supreme Court in the ejectment case filed by the respondent No,2 against respondent No,1, respondent No,2 has filed Execution Application No, 5/2015 before the learned Rent Controller, wherein, writ of possession dated 24.05.2015 has already been issued against respondent No,
1. Therefore, under the above facts and the law applicable thereto, the learned Single Judge has rightly rejected the plaint for being barred by law.
7. We have heard the learned counsel for the parties and perused the record with their assistance, which reflects that the appellant, who claims to be in possession of suit property pursuant to a license agreement, filed a suit against the respondents seeking declaration to the effect that "appellant is a licensee coupled with interest in respect of suit property No,B-73, SITE, Karachi, admeasuring 0.44 Acre, and is entitled to continue in possession thereof", whereas, further declaration has been sought that "respondents may be restrained from interfering with the appellant's possession upon suit property upon which the appellant is carrying on his business of Filling and Service Station pursuant to a license issued in favour of the appellant by the competent authority". In addition to above relief, damages to the tune of Rs,150 million has also been claimed.
From perusal of the relief sought by the appellant in the suit, it appears that the appellant has claimed declaration in terms of Specific Relief Act, 1877, whereas, keeping in view the admitted position with regard to status of the appellant, it has transpired that the appellant is merely a licensee to carry on the business of filling station and had executed agreement of service station and dealership with Caltex Oil (Pakistan) Ltd. on 24.06.1999, whereas, appellant has no privity of contract, whatsoever, with the owner of the subject property i,e, Mst. Sultana Ahmed, respondent No,2 in the instant appeal. Admittedly, respondent No,1 i,e, Total Parco Marketing Limited A acquired possession of suit property from its owner i,e, respondent No,2 through a lease agreement, however, appellant has no privity of contract or an agreement whatsoever with regard to possession of suit property with its owner i,e, respondent No,2. It will be advantageous to reproduce the contents of paragraph 3 of the plaint, wherein such factual position has been duly admitted by the appellant, the same reads as follows:-- "Para-3. That defendant No,3 is the owner of the suit property, having derived title through a lease from Sindh Industrial Trading Estate (SITE). In 1972, she leased out the suit property to the Defendant No, 2 for a term of 25 (twenty five) years commencing on 1.7.1972 for the purpose of operating a filling station thereupon.
The aforesaid admission on the part of the appellant establishes the ownership of respondent No,2 upon the subject suit property as well as status of respondent No,1 as lessee under respondent No,2. It will be equally relevant to reproduce the opening paragraph of the agreement of the appellant with respondent No,1, which reads as follows:- "Whereas the company is the lessee of the land and premises situated at B-37, Estate Avenue, SITE, Karachi and whereas the company has at the request of the dealer agreed to allow the dealer for a temporary use of the service/ filling station and to sell the company's petroleum products by retail from the service / filling station for the consideration and on the terms..."
The above opening paragraph of the agreement executed between the appellant and respondent No,1 shows that right and interest of the appellant is only to the extent of temporary use of service / filling station and to sell the company's petroleum products. It also shows that pursuant to above agreement, the appellant was allowed a temporary use of the service/filling station and sell the company's petroleum products, therefore, the appellant could possibly be treated as a licensee of respondent No,1 for a limited Purpose and cannot claim any right over subject suit property owned by respondent No,2 with whom the appellant has no relationship whatsoever. The terms 'license' as defined in Black's Law Dictionary means "'License'. A revocable permission to commit some act that would otherwise be unlawful, esp., an agreement (not amount to a lease or profit a prendre) that it will be lawful for the licensee to enter the licensor's land to do some act that would otherwise be illegal, such as hunting game." In the instant case, the license was issued by the Ministry of Petroleum and Natural Resources, however, such issuance of license in favour of the appellant by Ministry of Petroleum and Natural Resources does not authorize or entitle the B appellant to claim any right, title and interest against the owner (respondent No,2), particularly, when there has been no consent of respondent No,2 in this regard. We may now refer to a relevant provision i,e, 4(a) of the lease deed executed between the respondents Nos,1 and 2, which reads as follows:- "4(a) The Lessee shall be at liberty to underlet or sub-lease the demised premises or any part thereof to any dealer or agent for use for all or any of the purpose aforesaid."
Perusal of hereinabove restrictive clause of the agreement executed between the respondents, it became clear that respondent No,2 was not legally competent to create any third party interest even in the possession of the subject property, whereas, no exception can be drawn nor any assumption contrary to express terms of agreement can be made in this regard.
8. It .will be advantageous to reproduce Section 52 of Easements Act, 1882, which reads as follows:- "Where one person grants to another or to a definite number of other persons, a right to do, or continue to do, in or upon the immoveable property of grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest i'lz the property, the right is called a license."
From perusal of hereinabove provisions, it is manifest that license is a right upon immoveable property of the grantor to do or continue to do something which would, in the absence of such right, would be lawful. In other words a license can be granted by anyone to the extent in which he may transfer his interest in the property affected by the license. In the instant case, the appellant and respondent No,1 were aware of the above legal position, therefore, the appellant was treated as dealer and operator only for the purposes of sale of its product at the suit property. It is an admitted position that respondent No,2 is the owner/lessee of the subject property, who has obtained an order of ejectment by filing rent proceedings against respondent No,1, which order has been duly approved and confirmed by the Hon'ble Supreme Court, therefore, the appellant, who claimed himself to be dealer and operator, carrying on his business upon the subject suit property through an agreement with respondent No,1 cannot claim any right or entitlement to remain in possession of such property and to carry on the business of selling its products as dealer or operator in the absence of any agreement with the owner i,e, respondent No,
2. Reference in this regard can be made to the provision of Section 62(g) of the Easements Act, 1882, which provides that "where the license is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist then license is deemed to be revoked." Whereas, in case, where a license is revoked in terms of section 63 of the Act, the licensee is only entitled to reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to ID place on such property.
9. It is pertinent to note that the present appellant has never executed any lease or rent agreement in respect of the subject suit property, which is admittedly owned by the respondent No, 2, nor has such agreement even with respondent No,1, whereas, the status of the appellant is only recognized through "a service station and dealership agreement dated 24.06.1990" executed between the appellant and the respondent No, 1 . In other words, whatever right or entitlement has been claimed by the appellant in the suit, is subject to terms and conditions of the aforesaid agreement.
It will be advantageous to refer to Para. 1 of the aforesaid agreement, which defines the status of the present appellant viz.-a-viz. subject suit property and reads as follows:- "1. The service / filling station shall at all times during the continuance of this agreement be and remain the absolute property and in sole possession of the Company.
The temporary use of the service/ filling station by the dealer for The Company and all other persons having a like right. This agreement shall not be construed as creating any right, interest or tenancy in favour of the dealer in respect of the service/filling station."
10.From perusal of the hereinabove para of the dealership agreement between the appellant and respondent No,1, it is crystal clear that the appellant through aforesaid dealership agreement was given temporary assignment of filling/service station for the purpose of retail sell of the company's products, whereas, it has been specifically mentioned in the aforesaid agreement that it shall not be construed as creating any right, interest or tenancy in favour of the deafer in respect of the service/filling station. The appellant has not produced any document or evidence, which may suggest that appellant has any independent right whatsoever to retain possession of the suit property nor could establish that he has acquired the possession of the suit property with the consent of its owner i,e, respondent No,2. From bare perusal of the pleadings, it is clear that the appellant has no legal character or any lawful cause of action to file a suit seeking declaration in the nature covered under the Specific Relief Act, 1877 or Easements Act, 1882, nor there seems any cause F of action having been accrued to the appellant for seeking enforcement by any contractual obligations pursuant to service and dealership agreement, particularly, when the appellant has not alleged any violation of such agreement by the respondents.
11. Keeping in view hereinabove factual and legal position as emerged in the instant case, we are of the considered opinion that the learned Single Judge has very aptly examined the pleadings and the legal provisions applicable to the facts of the instant case and has reached to a just conclusion that provisions of Order VII, Rule 11, C.P.C. are fully attracted in the instant case as the relief sought by the appellant through Suit No,920/2015 is barred by law, whereas, no cause of action has accrued to the appellant, which may otherwise justify filing of the suit in the instant form. Moreover, the dispute regarding possession of the subject suit property has already been decided by the Rent Controller, and such decision has also been approved by the Hon'ble Supreme Court.
12. It has been observed that the subject suit has been filed after order of ejectment passed in respect of suit property, which shows that appellant has made an attempt to frustrate the ejectment proceedings and to retain the possession of the subject property without any lawful basis. It is the prime duty of a Court not only to examine the territorial/monitory jurisdiction of the Court, as well as the maintainability of a suit in the first instance, so that, the mischief of law, if any, shall be nibbed in the bud, and the parties may not be allowed to abuse the process of law, by filing frivolous proceedings in Court. The object of the powers conferred upon Courts under Order VII, Rule 11, C.P.C. is that Courts must put an end to frivolous litigation at a very initial stage, when Court is of the view that on account of some legal impediment, full-fledged trial will be a futile exercise. Reliance in this regard can be made to the case of Noor Din and another v. Additional District Judge, Lahore and others [2014 SCM R 513].
In view of hereinabove facts and circumstances of the case, we are of the considered view that the impugned order passed by the learned Single Judge, does not suffer from any factual error or legal infirmity. Accordingly, instant High Court Appeal was dismissed in limine along with listed applications vide our short order dated 10.01.2018 and above are the reasons of such short order.