NAZIM HUSSAIN SIDDIQUI, J. -This Revision under Section 115 C.P.C., is directed against judgment and decree dated 15-2-1990 and 19-2-1990 respectively, passed by the then learned IIIrd Additional District Judge Karachi, East, in Civil Appeal No. 177/89, whereby he set aside judgment/order dated 21-11- 1989 passed by the learned IVth Senior Civil Judge Karachi, East, rejecting the plaint and the injunction application. The facts relevant for decision of this revision are as follows:-
2. The respondents No. 1 on 29-11-1988 filed the Suit No. 1608/88 before learned Senior Civil Judge Karachi, East, for declaration and permanent injunction in which the applicant and respondent No. 2 Nawab Chaudhry were shown as the Defendants. The case as set up in the plaint was that M/s. Data International were licensee by virtue of licence granted by the applicant, which was dated 31- 8-1984. It is alleged that they (M/s. Data International) raised construction of permanent nature, now valued about Rs. 20,00,000/- (Rupees Twenty Lacs), wherein they were carrying on the business of left behind luggage facility (Cloak room) for last about 4 years. It is said, upto 5th April 1987, the management of respondent No. 1 was with respondent No. 2 and thereafter it was being conducted by respondent No. 3 Mst. Mehmooda Sultana, under a valid contract whereby the respondent No. 2 had divested himself from the management and business of respondent No. 1 and the same was given to respondent No. 3. It is alleged that the applicant was not entitled to cancel the licence referred to above. According to plaint, the respondent No. 3 had approached applicant to mutate her name in the relevant record in place of respondent No. 2 and the applicant, mis-conceiving the facts and circumstances, issued a notice dated 22-11-1988 to respondent No. 2 threatening therein to cancel the licence. Hence, the suit was filed for the following reliefs:-
(i) Declaration that the Licence registered at 5440 at Page 23 to 27 of Vol 3253 Book I, Adi: dated 12- 9-1984 granted to the Plaintiff is not liable to be cancelled by the Defendants and that Begum Mehmooda Sultana wife of Shaikh Liaqat Hussain is competent to continue to conduct business for the remaining term of licence or for such extended/renewed period the licence under reference is renewed / extended.
(ii) Injunction restraining the defendants, their servants, agents and persons acting under then from interfering, and/or stopping the plaintiff, her men, servants, agents, from conducting and continuing the business in the premises and also from ejecting and or dispossessing the plaintiff from the premises and conducting the defendants in the manner prejudicial to the interest and the business of the Plaintiff.
Any other relief under the circumstances, the Court deems fit and proper.
The cost of the Suit.
3. Alongwith the suit the respondent No. 1 had filed an application, under Order 39 Rules 1 & 2 C.P.C, for granting temporary injunction and the applicant moved an application, under Order 7 Rule 11 C.P.C, for rejection of plaint. Learned Senior Civil Judge by Order dated 21-11-1989 rejected the plaint and dismissed the injunction application. Against this order/judgment the appeal was preferred, which was heard and decided by learned IIIrd Additional District Judge Karachi, East, who, by impugned judgment, set aside aforesaid order of learned Senior Civil Judge in respect of rejection of plaint and granted Status-quo till disposal of the suit.
4. Learned First Appellate Court in the impugned order held that licence in question was not revocable as it was covered by Section 60(a) (b) of the Easements Act, 1882, and the licensee acquired the rights in the property, which were transferable, assignable, and inheritable. He also observed that licence agreement dated 31-8-1984, though was for a period of 7 years, but it could be renewed in terms of clause 15 of the agreement. He held that respondent No. 1 had acquired legal right and character, as such, prima facie, case was made out in their favour.
5. Learned counsel for the applicant argued that impugned order is based upon mis-reading and mis-interpretation of the clauses of said agreement. Since learned First Appellate Court had held that the licence is not revocable and it is covered by Section 60 (a) (b) of the Easements Act, and learned counsel for the respondent No. 1 strongly supported said findings, I think it would be proper first to examine the various clauses of said agreement and to see whether it is licence or lease, and whether Section 60 of the Easements Act is attracted to the circumstances of the case or not.
Learned counsel for the respondent No. 1 inspite of the fact that in the suit it was referred as a licence attempted to, argue that, in view of permanent construction raised on the premises it attained the status of permanent lease, which is defined in Section 105 of the Property Act, as follows:- "105. A lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or implied, or in perpetuity in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."
Licence has been defined in Section 52 of the Easements Act, as follows:- "52. When 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 immovable property of the grant or, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."
6. The licence was granted by the applicant to respondent No. 1 for establishing and running left behind luggage facility (Cloak room) at an open space measuring 1000 Sq. Ft, in front of Terminal No. II. As per Clause 2, the building was to be constructed by the licensee and the licence was to remain in for a period of 7 years from the date of completion of building, and the building, so constructed, was to be the property of licensor and the rights so granted in this licence do not mean an easement or interest in the premises. According to Clause 3, licensee shall pay by way of licence Fee for said premises Rs. 12,000/- per month. According to Clause 6, the licensee shall use the premises solely for the purpose for which licence has been granted. According to Clause 7, the licensee shall not raise any permanent structure on or alter the said premises without previous permission in writing of the Airport Manager. According to Clause 8, if the licensee kept the premises closed or does not open within a month's time from the commencing date of the agreement the licence would stand cancelled and the licensor shall be entitled to take back the said premises forthwith without notice. According to Clause 9, the right of the licensee, under the licence or any part thereof, shall not be assigned, sub-let, transferred, or otherwise parted with by the licensee, except with the previous consent in writing of the Director General, Civil Aviation Authority. Under Clause 14, in case of violation of terms the licence could be cancelled. Clause 15 provided that unless extended in writing by the licensor the licence shall expire after seven years from the commencing date and the premises shall be vacated after expiry of licence without notice by the licensor. Clause I6 provided that in the event of cancellation of the licenee before expiry of the stipulated period the licence shall be paid compensation proportionate to un- expired portion of the licence for the investment made by him in construction of the building. For the purpose of this clause, the value of the building was to be taken at Rs. 1,60,000/- and its life as 7 years. The Clauses 4 & 5 and 18 to 25 of licence agreement are not relevant for the purpose of this matter as such they are not mentioned.
7. Learned counsel for respondents No. 1 cited P.L.D. 1962 Karachi, 663 Ahmad Din Vs. Abdullah Bhai and Others to contend that use of certain technical expression in a document cannot turn a lease into a licence. Settled proposition of law, however, is that when there is a written instrument regarding the transaction, its substance is to be looked into for the purpose of determining that whether it is a lease or licence. In the instant case, from the various clauses of the agreement mentioned earlier it is evident that it is a licence and not a lease. The permission so granted to the licensee, could be recalled by the licensor. The main difference between the lease and licence is that in the former there is a transfer of interest in immovable property, whereas,-in the latter no interest is transferred, but it gives only a personal privilege. The licensee in this case neither could assign, sublet or transfer and not otherwise part with his rights. This being the nature of licence, it can not be argued it has become irrevocable. Section 60 of the Easements Act is not at all attracted to the circumstances of this case. As per clause 2, the building so constructed belongs to the licensor. The terms of licence, which are not inviolation of any provisions of the Easement Act, would be binding up the licensee. It being so, even the construction of permanent character and incurring expenses in that regard, would not make any difference. Admittedly, no previous consent in writing regarding the transfer of rights was obtained from the applicant. In this connection, reference can be made to the case reported in P.L.D. 1965 S.C. 83 MA. Naser Vs. Chairman, Pakistan Eastern Railways and Others. In this case, the relevant authority granted to the contractor for a period of 3 years the right to sell refreshment to the passengers at various railway Stations and also on buffet cars on the trains. It was held that it was a revocable licence and its revocation could not be prevented by injunction.
8. It is noted that respondent Nos. 1 and 2 by virtue of Clause 9 of the agreement, could not assign, sublet, or transfer the licence to any-body without permission of the applicant. It is clear from the circumstances that, in violation of this clause, they had transferred the licence in favour of respondent No. 3 Mst. Begum Mehmooda Sultana. This was against the terms of the agreement and it empowered applicant to cancel the licence.
9. The rejection of the plaint was sought on the grounds that respondent No. 1 had not legal right and title, in the suit property and the suit was barred under Section 42 of the Specific Relief Act and also under Sections 10 and 11 of Central Government Lands and Buildings Recovery of Possession Ordinance, 1965. Maintainability of the suit before Lower Court was also challenged under Sections 5, 18 and 19 of Civil Aviation Ordinance. This ground, however, has not been pressed before this court. From perusal of plaint, it is clear that the suit was not maintainable and was hit by the provisions of order 7 Rule 11 C.P.C. It is the duty of the court to reject a plaint which is incompetent by its inception. On this point reference can be made to the cases reported in P.L.D. 1967 Dacca 190 Burmah Eastern Ltd Vs. Burmah Eastern Employees Union and Others. (2) P.L.D. 1968; Karachi 107 Pakistan through Secretary, Ministry of Refugees and Rehabilitation and another Vs. Devachand Muljimal and Others. (3) 1981 S.C.M.R. 878. Muhammad Akhtar Etc. Vs. Abdul Hadi Etc. (4) N.L.R. 1979, Civil Lahore 386 It. Col. M. Ahsanul Haq Vs. Sh. Manzooml Haq and 2 Others (5) 1982 C.L.C. 1570 N.A.
Shahriyar Vs. Messrs Conforce Ltd. Since respondent No. 1 have no legal right or title in the suit property, as such, the suit was barred by Section 42 of Specific Relief Act. Learned counsel for respondent No. 1 argued that learned Senior Civil Judge could only take into consideration the contents of plaint, and not the contents of application moved under Order 7 Rule 11 C.P.C, and since learned Civil Judge had taken into consideration the contents of said application, he committed illegality by rejecting the plaint. The Documents filed alongwith the plaint and referred therein can be looked into for the purpose of rejection of plaint. Such documents, indeed, are a part of the plaint. The licence agreement was filed alongwith the plaint. The suit was also barred under the provisions of Section 10 of Central Government lands and Buildings Recovery of Possession Ordinance, 1965. By virtue of provisions of this Section, Civil Court was not competent to grant a temporary or interim injunction restraining the Central Government from taking possession of any land or building under this Section. In fact, the suit was filed by respondent No. 1 on behalf of the respondent No. 3. There was no privity of contract between the respondent No. 3 and the applicant and on that score also the suit was not maintainable. Besides, the licence was for seven years from September, 1984 and said period expired in September, 1991. On that account also, the suit had become infructuous. In the prayer clause also, it was prayed that the respondent No. 3 be permitted to conduct business for the remaining term of the licence. The plaint was rightly rejected by learned Senior Civil Judge.
10. Accordingly, I hold that learned First Appellate Court has exercised a jurisdiction not vested in it by law. The revision is allowed with cost. The order of First Appellate Court is set aside and the order of Senior Civil Judge is restored.