' Through this order, I intend to dispose of two applications under Order 39, Rules 1 and 2, C.P.C.
Read with section 151, C.P.C. Filed separately in both the above suits since the facts and the law involved are common in both these suits. Briefly, the facts of the plaint are that the plaintiffs are authorised dealers of foreign currency and are money changers. They were extended separate licences for this purpose by the State Bank of Pakistan in furtherance of the provisions of the Foreign Exchange Regulations Act, 1947. Through three different agreements, all dated 31-8-1994, both the plaintiffs were allotted booths/counters as the Quaid-e-Azam International. Airport, Karachi for running the business of foreign exchange. All these three agreements for each booth/counter are filed as Annexures-A, Al and A2 respectively with the plaints in both the suits.
Locations and the rents of the above-said three booths/counters as averred in the plaints are as follows:-- "(1) International Transit Lounge, Level II. Rs,1,38,998. 00
(2) International Departure Lounge, Level II. Rs, 1,49,998.00
(3) International Arrival Lounge, Level I. Rs,328,998.00"
2. The case of the plaintiffs is that on 22-4-1995 the Custom Authorities visited all the six booths of the plaintiffs and asked the cashier present there to count the cash of Pakistani rupees in their possession and further directed them to remove such cash from the restricted area; that the Customs Authorities imposed restrictions on the plaintiffs not to transact business for more than Rs,500 or to keep any amount above Rs,500 at each booth/counter. That the plaintiffs approached the defendants as well as the State Bank of Pakistan and informed them about the alleged acts of the said Custom Officers who had restricted functioning of the booths/counters. It is further alleged that as a result of the same all the six booths/counters were shut down and could not function.
That on the intervention of the defendants, the plaintiffs were allowed to start business in two booths which were situated at International Arrival and International Departure but the plaintiffs were not allowed to transact any business at the International Transit Lounge. It is the further case of the plaintiffs that due to abrupt disruption of their business, they have suffered huge losses. In view of these circumstances, the plaintiffs have filed the above suits for declaration, damages and for perpetual injunction. In the alternate, plaintiffs have also prayed for filing of arbitration agreement in Court and to refer the dispute for arbitration to an independent and disinterested sole arbitrator.
3. Through these two applications, the plaintiffs are seeking temporary injunction against the defendants, their servants, agents, attorneys, assigns restraining them from interfering with the business of the plaintiffs in all the six booths/counters situated at Jinnah Terminal Complex, Quaid- e-Azam International Airport, Karachi. I have heard Mr. Abrar Hasan, Advocate for the plaintiffs and Mr. Amir Hani Muslim, Advocate for the defendants. It is argued by Mr. Abrar Hasan that due to unlawful and mala fide interference from the side of the Custom Authorities, the plaintiffs were not able to run their respective business, smoothly and efficiently, due to which they have suffered heavy losses and damages. That they are entitled to continue with their foreign exchange business in the abovementioned booths and counters. Mr. Abrar has further contended that the agreement executed between the plaintiffs and the defendants for the abovesaid business amounts to lease and it cannot be treated as licence, therefore, according to the learned counsel, the defendants were not entitled to take physical possession of the premises of all these six booths on 27-8-1995.
Mr. Abrar Hasan has relied upon the cases reported as Messrs Shaukat and Raza Ltd., Karachi v. The Karachi Development Authority and another (1980 CLC 346), Messrs Commodities Trading International Corporation v. Trading Corporation of Pakistan and another (1987 CLC 2062), Messrs Central Insurance Co. Ltd., Karachi v. Messrs Khyber Textile Mills Ltd. And another (PLD 1978 Karachi 908) and Federation of Pakistan and others v. Captain Anwar Khan and another (1986 MLD 1800) in support of his argument that this Court has power to issue injunction even in relation to an arbitration proceedings. However, in the present case the arbitration proceedings have not yet commenced and the applications for appointment of an Arbitrator and filing of arbitration agreement is pending alongwith the present injunction application.
4. Mr. Amir Hani Muslim,. Advocate for the defendants has seriously contested both these applications on the grounds that the plaintiffs have no legal authority to continue with the possession after expiry of the licence period. He has also contended that there 'is an arbitration clause in the licence agreement, as such the suit is liable to be stayed in view of section 34 of the Arbitration Act, 1940. Mr. Hani has vehemently prayed for dismissal of these applications. It is an admitted position that the plaintiffs were allowed to run business as foreign exchange dealers at Jinnah Terminal for one year from 27-8-1994. Contents of the licence agreement are not disputed by the parties. It would be advantageous if some of the relevant clauses viz., 3, 9, 16 and 30 of the licence agreement dated 31-8-1994 are reproduced herein below as the case of both the parties are based on the interpretation of these clauses:-- "Licence Fee:
3. The licensee shall pay to the Airport Manager up to 10th of each month as licence fee in advance for the current month i,e, on the date the possession thereof is handed over to the licensee.
Thereafter, the monthly fee shall be paid in advance before the 10th of each month to which it relates, whether the licensee receives any bill or not. If the said Licence fee or- any part thereof shall be in arrears for one month or more after the same shall have become due (whether demanded or not), the Airport Manager may terminate the licence agreement and licensor or his authorized representative may upon such termination by the Airport Manager enter into or upon the premises and take over the same without any right or remedy to the licensee or any obligation to the licensor or charge a fine not exceeding Rs,500 for each day of such default which shall be paid/realised as mentioned in paragraph 29.
9. No Permanent structure or tampering with the premises:--The licensee shall not raise any permanent structure or alter the said premises or make any addition or alteration to the electrical circuit, gas or water connections without previous permission in writing of the Airport Manager and make good any damage to the fixture and fittings of the said premises resulting from such addition/erections/alterations or cause by or resulting from any default or negligence of licensee or by its servants, agents or invitees, in accordance with the assessment of the Airport Manager, provided always that all the alterations made by the licensee shall be removed by him at the expiration or sooner determination of the licence and the said premises shall be restored to their former condition, unless othewrise directed in writing by the Airport Manager.
' And provided also that the licensee's legal status under this agreement shall continue to remain the same, any permission for raising of any permanent structure under this clause notwithstanding.
16. Interruption of business.--The licensor is under no obligation to provide any compensation whatsoever if the business is interrupted or affected either for any reasons beyond the control of the licensor or for ensuring compliance of orders of the Federal Government or any lawful authority.
The licensor is also under no obligation to provide any compensation or alternate place or replacement of the damaged premises for any period or any such part of licence agreement for which licensee have not occupied the premises due to the damage caused by fire, accident or any other incident. However, licensee may not be charged any licence fee for such period or any part thereof as may be decided by the licensor.
30. Disputes:--In case of any dispute arising between the licensor and the licensee in respect of the interpretation, conduct or performance of any terms or conditions of this licence, the same shall be referred to the Director-General, Civil Aviation Authority whose decision thereon shall be final and conclusive and not open to challenge. "
' From the perusal of the abovequoted paras of the agreements, it would not be advisable to say with conclusively at this stage whether the said agreements are in the nature of lease or licence.
However, this Court in several cases has clarified the difference between a licence and a lease. In the case of Muhammad Azim v. P.E.C.H.S. And others (PLD 1985 Karachi 481), Mr. Abdul Hayee Kureshi, J. (as he then was) while interpreting section 52 of the Easements Act, 1882 held that whenever a person grants to another person, a right to do or continuing to do something which without such grant would be unlawful, such rights will be a licence. It was further held that if a right creates an interest in the property i,e, if the right gives a person to raise construction of a permanent nature then it amounts to a lease. Several cases including the case of Anwar Sultana and others v. P.E.C.H.S., Ltd. (PLD 1969 Karachi 474) and the case of Abdullah Bhoy and others v.
Ahmad Din (PLD 1964 SC 106) were considered and followed in the said reported case.
6. In reply to the contentions of Mr. Abrar, the learned counsel for the defendants Mr. Hani has referred to the case of M.A. Naser v. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83). In this reported case, through an agreement the appellant was granted right to run refreshment rooms at different railway stations including Chittagong, Dacca and Mymensingh. One of the conditions of this agreement was that it was liable to be terminated on giving a notice of not less than six months. Accordingly, after a lapse of nearly 7 years, Pakistan Railway served a notice for termination of the agreement. Several communications were exchanged between the parties and finally appellant in the month of January, 1963 filed a suit in the Court of First Munsif at Dacca (the then East Pakistan) for declaration that the said contract was still subsisting and for an injunction restraining the defendants from interfering with his right of catering in terms of the agreement. The said suit was decreed by the trial Court but on appeal judgment was reversed by the First Appellate Court and the suit was dismissed. The second appeal filed by the plaintiff was also dismissed by the erstwhile High Court of East Pakistan. His Letters Patent Appeal was also dismissed. Then the plaintiff of the reported case preferred a petition for grant of leave to appeal before the Hon'ble Supreme Court of Pakistan and accordingly the leave was granted. In the appeal, it was held that the rights conferred upon the plaintiff/appellant through the agreement do not amount to easement as defined in section 4 of the Easements Act or an interest in the property nor the licence was coupled with a transfer of property within the meaning of section 60 of the Easements Act, 1882. It was further held by the Hon'ble Supreme Court as follows:-- "Thus this being a revocable licence, the revocation thereof cannot be prevented by injunction. In a case like this the licensee is entitled to a reasonable notice in accordance with the provisions of section 63 of the Easements Act. If however, the licence is revoked without reasonable notice the remedy of the licensee is by way of damages and not by way of an injunction.
' It may so be pointed out that as this contract cannot be specifically enforced, clause (f) of section 56 of the Specific Relief Act will operate as a bar to the grant of injunction..."
7. Mr. Abrar Hassan has also referred to the case of Noor Muhammad v. Civil Aviation Authority and another (1987 CLC 393) in support of his argument that the contract under discussion amounts to a lease and that the same is irrevocable. In the reported case of Noor Muhammed the plaintiff was occupying a shop measuring 240 sq. Ft. Situated near Air Freight Unit, Terminal No,1, Karachi Airport through an agreement dated 1-9-1976 on monthly rent initially fixed at Rs,240. The said agreement was to expire after one year. In the reported case, it was further agreed between the parties that the licensor shall have the right to terminate the said agreement at any time without prior notice. A learned Single Judge of this Court Mr. Tanzil-ur-Rehman, J. (as he then was) considered several cases namely, Abdullah Bhai and others v. Ahmad Din (PLD 1964 SC 106). Abdul Rahman v. Haji Mir Ahmed Khan and another (PLD 1982 Kar. 532), Ahmed Din v. Abdullah Bhai and others (PLD 1962 Karachi 663) and the case of Ashfaq Hussain and others v. Karachi Municipal Corporation and others (PLD 1957 Karachi 918) and held that for the determination of the question, whether an agreement is a lease or licence, recording of evidence is necessary as it is the nature of agreement and subsequent conduct of the parties which may be relevant for the determination of the exact relationship of the parties and not the title of the agreement and the terminology used therein. It was in these circumstances that the said learned Judge granted interim injunction in favour of the plaintiff and also ordered earlier hearing of the suit.
8. The question whether a grant is lease or licence was considered by a Division Bench of this Court in the case of Ashfaq Husain and others v. Karachi Municipal Corporation and others (PLD 1957 (W.P.) Karachi 918). In this reported case, three different writ petitions were filed by the booksellers who were running their business in wooden cabins installed by the K.M.C. On payment of monthly rents. The Municipal Corporation terminated their licences without giving an opportunity to show cause and directed the petitioners to vacate the sites/wooden cabins within 24 hours. All the three constitutional petitions were dismissed and it was held that to determine whether a grant is lease or licence, the chief consideration to be borne in mind is whether any right of exclusive possession is given to the grantee or not. It was further held that a licence is a mere voluntary suspension of the licensor's right to treat certain acts as wrongful and that no person can put up any cabin on the street except with the permission of the Municipal Corporation and the keeping of such cabin is lawful so long as permission continues. In the present case, it is an admitted position that the premises of Quaid-e-Azam International Airport belongs to Civil Aviation Authority and no person or authority can put up any cabin or establish a shop in the said premises without the permission of the Civil Aviation Authority. The difference between a lease and a licence was also considered by the Hon'ble Supreme Court of Pakistan in the case of Abdullah Bhai and others v. Ahmad Din (PLD 1964 SC 106). In this case, it was held by the Hon'ble Supreme Court that the line of demarcation between a lease and a licence is some time very thin. It was held that the right transferred through the lease amounts to right in rem while the right transferred through the licence as provided under section 52 of the Easements Act is only a right in personam whereby the licensor agrees not to interfere with the doing of particular acts on a property which is in possession of a licensee. I am of the view that the principle laid down in the cases of Abdullah Bhai and Ashfaq Hussain is fully attracted in the circumstances of the present case.
9. It is pertinent to note that the case of Noor Muhammad was considered in a High Court appeal by a Division Bench of this Court comprising of Mr. Ajmal Mian, J and Mr. Muhammad Mazhar Ali, J.
(as their lordships then were) in the case of Civil Aviation Authority v. Noor Muhammad PLD 1988 Karachi 401, wherein it was held as follows:-- ".....We have gone through the order under appeal and we have noticed that the learned Single Judge while deciding the question of prima facie case has not dilated upon the effects of the various clauses contained in the licence.
6. We would, therefore, order that in case the suit is not disposed of within a period of six months, the learned Single Judge will decide the question of grant of injunction afresh after taking into consideration the factum which of the parties delayed the disposal of suit, terms and conditions of the licence and the other material which the parties may bring on record."
10. If the clauses of the agreements in this suit as well as in the case of Noor Muhammad (supra) are examined then it will indicate that these are quite different. The case of Noor Muhammad is not applicable. On the contrary, the rule laid down by the Hon'ble Supreme Court in the case of Abdullah Bhai and M.A. Naser and the rule laid down by the Division Bench of this Court in the case of Ashfaq Hussain are fully attracted to the facts of the present case. I am inclined in the circumstances to follow the rule laid down by the Hon'ble Supreme Court in the abovementioned two reported cases as fully applicable to the fact in these suits.
11. Facts and circumstances of the case of M.A. Naser are similar to the facts of the instant cases.
The plaintiffs' case in both the suits is that through the agreements they were granted permission and licence to run the business of exchange of foreign currencies in six different booths/counters at Jinnah Terminal, Karachi. And that the agreements once acted upon are not liable to be revoked. All these arguments have been repelled by rule laid down by the Supreme Court. It is an admitted position that the contracts were revocable after giving 30 days' notices. Agreements were executed for one year which expired on 27th August, 1995. It has been vehemently contended by Mr. Amir Hani Muslim that for the last 4/5 months the plaintiffs are not tendering even the licence fees which have accumulated up to more than one million rupees. If it is true, then such acts of the plaintiffs even otherwise disentitle them for the equitable and discretionary relief.
12.
12. It is well-settled law that for obtaining an interim injunction, the plaintiff must establish all the three ingredients i,e,, existence of a prima facie case, irreparable loss and injury in case of refusal and that the balance of convenient' is in his/their favour (for any reference, see the case of Marghoob Siddiqui v. Hamid Ahmad Khan and 2 others 1974 SCMR 519, M/s. Ittikhar & Co. Ltd. v. Uzin Export Ent. 1986 CLC 303 (DB), Haji Khan and another v. Government of Sindh 1990 MLD 155, National Construction Ltd. v. Aiwan-iIqbal, Lahore PLD 1992 Lahore 86). In the circumstances, I am of the view that prima facie the contracts are in the nature of revocable licences. That the period for which the licences were granted have already expired and that the remedy, if any, available to the plaintiffs is by way of damages which they have already claimed in the suits. The plaintiffs in the garb of injunction cannot seek grant of licences which otherwise would be illegal. Both these applications for interim injunction merit dismissal. C.M.A. No,358/95 and C.M.A. No,3583/95 are accordingly dismissed.