ZAFAR AHMED RAJPUT, J.----By this order, I intend to dispose of C.M.A No.9915 /2017, filed by the plaintiff under Order XXXIX, Rules 1 and 2, read with section 151, C.P.C. praying therein for interim injunctive order restraining the defendant No.1 from entering, excavating or carrying on any works upon the plaintiff's property, i.e. land measuring 8.45 acres adjacent to Jinnah Bridge and bounded by KPT Head Office (North), China Creek (South), M.T. Khan Road (East) and West Wharf (West)
(hereinafter referred to as "the Property") and from disrupting access to the same or otherwise interfering in any way whatsoever with the plaintiff's possession and use of the property.
2. Briefly stated, the facts of the case are that the plaintiff, claiming to be a company incorporated in Pakistan, has filed the instant suit for declaration and permanent injunction alleging therein that it engages in the operation of a large food court on the Property, pursuant to an Implementation Agreement executed between Grand Leisure Corporation (Pvt.) Ltd. and Karachi Port Trust i.e. defendant No.2 on 29.11.2004, where under the former agreed to setup jointly a food court operating company with the object of financing, constructing, developing, operating and managing a food court where dining and other recreational services would be provided and; thereafter, as per Article 13 of the Implementation Agreement, the plaintiff entered into a Lease Deed on 07.02.2006 where under the defendant No.2 leased out the Property to plaintiff. It is further alleged that the plaintiff has incurred huge infrastructural development costs in transforming the Property into Karachi's leading family recreational and dining areas with a pier featuring numerous restaurants, retail outlets and various attractions and invested approximately 1.5 billion rupees. It is also alleged that on or about 11.09.2015, the plaintiff received an email from an engineering firm, i.e. Barqtron Engineering Solutions, in whose favour a tender letter was issued, by the defendant No.1 for survey, design etc. a 220 KV underground transmission line from Lalazar Grid Station to Power Line Draw Point Near ICI Bridge, proposing to lay such transmission line through the Property and attached a drawing of an already buried 220 KV cable passing through the Property. However, the plaintiff verbally informed the defendant No. 1 as well as said engineering firm that it would not authorize lying out the proposed transmission lines on the Property as it would lead to immense disruption of the plaintiff's business and; thereafter, no further approach was made to the plaintiff till 11.01.2017, when defendant No.1 sent a letter to plaintiff stating that it plans to "lay out 220 KV underground transmission line from Lalazar Grid Station to ICI PLDP, which would run through the Property, and annexed an NOC issued by the defendant No.2. It is the case of the plaintiff that since the food court on the Property is now a "fully built up complex" any excavation through it will be impossible as it would destroy the plaintiff's private property, disrupt the operation of the food court, cause severe inconvenience to its customers and thereby cause the plaintiff's business to suffer irreparable damage. It is further case of the plaintiff that it suggested an alternate route for the lying of electricity lines on the water edge and through the railway land which would avoid entering into the Property and any excavation through the Property and also offered to facilitate the lying of the electricity lines through the alternate route. It is further case of the plaintiff that it apprehends that the defendant No.1 will enter forcibly into the property to carry out excavation and lying out of electrical transmission lines and in such case it shall suffer irreparable harm.
3. Defendant No.1 has filed counter affidavit to C.M.A., wherein it is stated that the defendant No.1 awarded contract for laying 220KV double circuit underground oil filled transmission line from Lalazar Grid Station to ICI PLDP and 220KV double circuit overhead transmission line from ICI PLDP to Maripur Grid Station in the year 2001. Total transmission line of 6.987 km was commissioned in the year 2003 which includes an underground portion of 4.1.km and overhead portion of 2.887 km. The defendant No.1 being owner of transmission line obtained the requisite N.O.C., dated 21.12.2016, from the defendant No.2; however, the plaintiff claiming to be a lessee of the Property, which is owned and controlled by the defendant No.2, is creating hurdles and hardships for the defendant No.1 by devising obstacles in progress of the transmission line. It is further stated that the transmission line is already in existence and is passing through the Property and there also exists a Stop Joint Bunker and the defendant No.1 has been performing maintenance activities in coordination with defendant No.2 for the last 15 years, and now the defendant No.1 has decided, with the approval of defendant No.2, to replace the oil filled cable of the transmission line with XPLE cable, which is the latest oil free technology, and the same has been proposed on the same route as previously allowed, being the only available and convenient passage/route, where right of way already exists in favour of defendant No.1 . It is also stated that the plaintiff has come to this Court with unclean hands; it does not have prima facie case and no loss would cause to it, on the contrary, irreparable loss is being inflicted to the defendant No.1 and would, continue if the present application is allowed
4. The learned counsel for the plaintiff, while reiterating the facts of memo. of plaint, has contended that the plaintiff is the lawful lessee of the Property, on which it is operating a valuable and massive recreational complex in accordance with the Implementation Agreement and Lease Deed executed in its favour by the defendant No.2; therefore, the defendant No.1 cannot enter into the Property or carry on any work thereon claiming any right whatsoever in relation to the Property. He added that the defendant No.1 has no right of way to lay down a transmission line across the Property, being the private property of the plaintiff, by excavating it without the permission of plaintiff. He has further contended that the alleged N.O.C., dated 13.08.2002, issued by the defendant No.2, is only a one time license and does not give the defendant No.1 perpetual right of way along the route of the transmission line while NOC, dated 21.12.2016, has been obtained by the defendant No.1 from the defendant No.2 either through false pretexts and collusively, or at best, issued as a matter of routine by the officials of defendant No.2 without realizing that the transmission line passes through the property leased out to the plaintiff; even otherwise, the defendant No.2 is not competent to give permission for lying a new transmission line through the Property, which is now under lease to the plaintiff, as such, N.O.C., dated 21.12.2016, is without any legal authority.
5. Conversely, learned counsel for defendant No.1 has maintained that the defendant No.1 is working to provide uninterrupted power supply to the people of Karachi and have absolutely no animosity with the plaintiff or their activity and the subject project of lying new transmission line is imperative to complete the 220 KV transmission ring for Karachi and the project bears national importance due to its long lasting effect over the demographics of energy sectors in Karachi. He added that even the Lease Deed, executed between the plaintiff No.1 and defendant No.2 safeguards the utility services, including service of electricity in terms of Clause 15, and the subject work of lying down new transmission line is carrying out with the approval of the defendant No.2, being competent authority and the plaintiff is obliged to abide the terms and conditions of Lease Deed.
6. I have heard the learned counsel for the parties and perused the material available on record with their assistance.
7. Injunction, by its nature, is a preventive remedy for the purpose of preserving the status quo of the matter of suit pending the determination of suit. By use of words "status quo" all that can 'be implied is that same status in regard to title or possession of immoveable property as existed on date of filing of suit is to be maintained. For issuance or refusal of interim injunction what the Court has to see is that I a good prima facie arguable case is made out in favour of the plaintiff and if the plaintiff succeeds in establishing a good prima facie arguable case then, other two ingredients, irreparable loss and balance of convenience would be looked into. The Court has to make only a tentative assessm ent of plaintiff's case for enabling itself to see whether above mentioned three prerequisites for grant of injunction exist in favour of plaintiff or not. While dilating upon the merits of a case on these parameters, the Courts may tentatively examine the pleadings, affidavits, counter affidavits, rejoinder, if any, and the documents annexed thereto.
8. In the instant case, the plaintiff claims its lease hold rights in respect of Property/premises on the basis of Lease Deed, dated 07.02.2006, whereunder the defendant No.2 has handed over the premises to plaintiff together with the buildings and erections built thereon and all rights, easement and appurtenances belonging thereto to hold the premises for the period as agreed between the parties. However, Clause 15 of the said Lease Deed provides that the plaintiff shall at all-time take due care and necessary percussions to the satisfaction of the Engineers to safeguard all electric, telephone, water, gas, communication lines and cables, pipelines and drains underground or overhead already passing through the premises or which KPT may find necessary to lay on over or through premises. It has further been provided that all existing services will remain operational and they may be relocated with the approval of KPT and concerned agencies if required. Meaning thereby, it is the authority of defendant No.2 to grant approval to concerned agency for lying electric lines on over or through premises and for its relocation as per the requirement of concerned agency.
9. There is no denial to the fact that the transmission line of defendant No.1 is already in existence and the same is passing through the Property and such N.O.C. was already obtained by the defendant No.1 from defendant No.2, vide letter dated 13.08.2002, much before entering of plaintiff with defendant No.2 into Implementation Agreement and Lease Deed. There is also no denial to the fact that the new transmission line has been proposed on the same route as it exists presently. The contention of the plaintiff in this regard is that it was only a one time license and does not give the defendant No.1 perpetual right of way along the route of the transmission line. The defendant No.1 has also produced, along with its counter affidavit, a copy of N.O.C. dated 21.12.2016, issued by the defendant No.2 for the subject work and, in this regard, it is the assertion of the plaintiff in its rejoinder to counter-affidavit that it has been obtained by the defendant No.1 from the defendant No.2 either through false pretexts and collusively, or at best, issued as a matter of routine by the officials of defendant No.2 without realizing that the transmission Me passes through the property leased out to the plaintiff. I am afraid; the contentions of plaintiff in respect of both the N.O.Cs are prima facie not correct, for the reasons that Clause 15 of the Lease Deed, as mentioned above, provides that all existing services would remain operational and they may be relocated with the approval of KPT and concerned agencies if required. Thus, the defendant No.2 has issued the said N.O.C. to defendant No.1 being competent authority to carry out the subject work, which under no stretch of imagination can be considered as one obtained by the defendant No.1 through false pretexts and collusively, or as a matter of routine. As such, the defendant No.1 has the license to enter upon the Property to carry out the subject work.
10. For the foregoing facts and reasons, I am of the view that the plaintiff has failed to make out a prima facie case for the grant of injunction. The balance of convenience also does not lie in favour of plaintiff but in defendant No.1, who are under obligation to ensure constant supply of electricity for its consumers and to achieve such objective to carry out overhauling work and there appears no question of irreparable loss to plaintiff as the alleged work of lying transmission line shall be carried out by the defendant No.1 on its already existing line. As such, I am not inclined to grant discretionary relief of injunction and, therefore, this application (CMA No.9915/2017) is dismissed with no order as to cost.
11. Observations made by this Court in this order are tentative in nature and will not be taken into consideration by this Court while deciding main suit after recording evidence of the parties.