' This suit has been filed for specific performance of contract dated 27-1-1978 whereunder the plaintiff was given the right to run Shaheen Cinema for a period of ten years at P. A. F. Base Masroor, Karachi. A permanent injunction has also been sought restraining the defendant from. Interfering with the peaceful possession and running of the said Cinema as per the terms and conditions of the contract. In the alternative, a sum of Rs, 3,15,000 has been claimed as damages for breach of contract. C. M. A. No, 4705 of 1982 is an application under Order XXXIX, rules 1 and 2, C. P. C. Seeking a temporary injunction. In the affidavit in support of the application it is averred by the plaintiff that on account of unlawful breach of contract and its termination by the defendant, the plaintiff is going to suffer immense loss. The counter-affidavit had been filed by the defendant to which a rejoinder has bet.. I filed.
2. The case of the plaintiff in the plaint is that from time to time the plaintiff was asked, to give explanations and to take various actions in connection with the running of the cinema in question.
According to the plaintiff, satisfactory explanations were given by the plaintiff and whenever anything was required to be done, the same was duly carried out. Then by letter dated 12-9-1982, the defendant gave 30 days' notice as per clause 9 of the contract for termination of the contract.
By a letter of the plaintiff which was received by the defendant on 16-9-1982, the plaintiff asked the defendant to reconsider the matter and withdraw the notice of termination. In para. 6 of this letter the plaintiff referred to an earlier letter dated 15-8-1982 of the defendant and stated that the plaintiff was still busy in carrying out the desired developments. Then there is another letter dated 12-10-1982 of the plaintiff addressed to the defendant in which reference is made to a meeting held on the same day and then it is stated as follows : - "Most respectfully it is submitted that I hereby promise to do my utmost to satisfy your honour about adequate and smooth functioning of Shaheen Cinema and will truly comply with the terms and conditions of the contract agreement, in letters and spirit. Sir, ,I further assure you that there will never come a chance in future to complain for my inadequate arrangements of Shaheen Cinema.
' I request your kind honour please forgive our past lapses and very kindly give us a chance to continue our contract to run the cinema. Sir, if we fail to satisfy your goodself and unable to fulfil the contract conditions, our contract may be cancelled."
' By letter dated 14-10-1982, on behalf of the defendant, the plaintiff was informed as follows :- "It has been decided that your contract for running cinema at this Base stands cancelled for the reason of non-compliance of terms, the details of which have been communicated to you in writing earlier. You are hereby given 17 days notice w,e,f, 17-10-1982. Thereafter you are to vacate the premises clearing alt your property. Please note that service property should not be damaged at all."
3. Thereafter the present suit dated 26-10-1982 has been filed. In the counter-affidavit of the defendant it has been averred that there were various violations of the terms and conditions of the contract, which were communicated through letters to the plaintiff filed alongwith the counter- affidavit. The case on behalf of the defendant is that the contract has been terminated for breach of conditions under clause 9 of the contract, which requires 30 days' notice, which has been given to the plaintiff. It has been further averred on behalf of the defendant that on 13-10-1982 the contract to run Shaheen Cinema was given to another contractor and that the plaintiff had removed the machinery installed by him in Shaheen Cinema. Then it is averred in para. 18 of the counter-affidavit dated 2-11-1982 of the defendant as follows :- "That the plaintiff removed the machinery installed by him in the Shaheen Cinema under his own arrangement. He also entered into a deal with the new contractor on 19-10-1982 for the disposal of fans (24), chairs (188) and cinema-screen for a sum of Rs, 33,980 only. Mr. Safdar Shah, the new contractor, paid a sum of Rs, 50,000 as advance money to the plaintiff through one Mr. Irfan, a local film distributor, which was acknowledged by the plaintiff on a plain piece of paper by authenticating his signature. A photostat copy of the said paper is attached as Annexure 'W'. Mr. Safdar Shah also paid a sum of Rs, 8,300 only to the plaintiff through Mr. Irfan. However, this amount was subsequently returned by the plaintiff on 1st November, 1982 whereas the sum of Rs, 5,000 is still with the plaintiff."
' In para, 10 of the rejoinder dated 3-11-1982, para. 18 of the courteraffidavit is denied but it is mentioned as follows :- "I have not removed any of my articles from the Cinema. Although most of the fixtures and fittings have been dismentled they are still in the cinema. I have not sold any of my articles, though there is a contingent agreement."
4. I have heard Mr. Nizam Ali Khan, learned counsel for the plaintiff, and Group Captain Muhammad Maroof Mir of P.A.F. Base. Masroor, who appeared in person. In para. 22 of the plaint it is mentioned by the plaintiff that he makes a clear profit of Rs, 5,000 per month. The plaintiff was present in Court on 4-11-1982 when the hearing of this application took place and on a question from me, the plaintiff through his learned counsel informed that he was making a profit of Rs, 2,000 per month. In the plaint it is nowhere stated that on account of the termination of the contract loss is being caused, which cannot be compensated in terms of money. On the contrary an unambiguous statement has been made "that the plaintiff makes a clear profit of Rs, 5,000 per month." Learned counsel for the plaintiff contended that the Court should take judicial notice of the fact that in future Indian films may be allowed to be imported and exhibited in the cinemas in Pakistan and if this happens the plaintiff will be earning much more the what he is earning today and as such it is not possible to assess the profits that the plaintiff would have made if the contract had not been terminated. There is no such averment in the plaint or anything in the affidavit on behalf of the plaintiff to that effect. I am afraid I am not going to take judicial notice of any such matter.
5. It was then contended that the contract was in fact a lease. Prima facie this point cannot be raised as there is no such averment in the plaint or in any affidavit on behalf of the plaintiff.
Learned counsel for the plaintiff then relied upon section 54(b) of Specific Relief Act of 1877. Prima fade the case as pleaded by the plaintiff in the plaint does not fall within section 54(b) of the Specific Relief Act, 1877. Learned counsel then relied upon two judgments in support of his contention that a case has been made out for grant of temporary injunction. The first case cited was Salahuddin Khan v. Sultan-e-Rome. In this case a learned Single Judge of the Peshawar High Court referred to the well-settled principles for grant or refusal of temporary injunction, which are, firstly, whether the plaintiff has made a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of injunction, thirdly, whether the plaintiff would suffer irreparable loss if the injunction is refused. The other case relied upon is Muhammad Arif Effendi v.
Egypt Air. In that case the Supreme Court of Pakistan dealing with the termination of an agency in the case involving consideration of circumstances under which a contract of agency of the kind involved in that case could be revoked ; whether section 202 of the Contract Act, 1872 was applicable to the facts of the case as well as true construction and scope of such section ; whether plaintiff was entitled to continue the agency and/or claim damages from the principal on the pleadings as made ; whether the plaintiff failed to submit his accounts to his principal in terms of the contract and whether the plaintiff was justified in withholding the same on any legal ground and whether the termination of contract of agency was lawful or not, held such questions to be substantial question of law and fact and involve careful study and scrutiny after leading appropriate evidence. The Supreme Court of Pakistan granted temporary injunction on certain terms calculated to meet ends of justice.
In my view neither of the two reported judgments relied upon by the learned counsel for the plaintiff supports the plaintiff's case for grant of temporary injunction. From certain relevant facts, as mentioned earlier, I am prima facie of the view that there has been breach of contract on the part of the plaintiff. This prima facie view I have taken inter alia on the basis of the admission made by the plaintiff in his letter dated 12-10-1982. I am also prima facie of the view that as the plaintiff has himself assessed his damages at the rate of Rs, 5,000 per month and there is no averment that irreparable loss will be caused to the plaintiff or that the plaintiff cannot be compensated in terms of money, no prima facie case has been made out. Then para. 18 of the counter-affidavit has also not been specifically denied in the rejoinder A by the plaintiff. His own case is that the machinery and other fixtures have been disma ntled. It has not been denied that he has entered into an agreement for the sale of dismantled material with the new contractor and that he has also received Rs, 5,000 as advance from the new contractor. In view of this, balance of convenience is also not in favour of the grant of temporary injunction to the plaintiff. No case has been made out for irreparable loss.
6. In the circumstances the plaintiff is not entitled to a temporary injunction. C. M. A. No, 4705 of 1982 stands dismissed. PLD 1973 Pesh. 95 1980 SCMR 588 1 2 1 2