1. ORDER CH. UAZ AHMAD, J.- Brief facts out of which the present revision petition arises are that the petitioner executed an agreement with the respondent on 1.8.1998 for one year. Petitioner allegedly requested respondent to fulfill their obligation on the basis of the terms of the agreement but the respondent failed to do so. Petitioner being aggrieved filed suit for declaration, Specific Performance and Mandatory Injunction before the Civil Judge Lahore on 6.4.1999 along with application under Order 39, Rules 1 and 2. Respondent filed written statement controverted the allegations levelled in the plaint and also filed reply of the application. Learned Civil Judge First Class dismissed the application under Order 39, Rules 1 and 2. And also rejected the plaint under Order 7, Rule 11 vide order dated 21.12.1099. Petitioner being aggrieved filed appeal before the Addl.
2. District Judge who also dismissed the same vide order dated 28.3.2000. Learned counsel for petitioner submits that both the Courts below wrongly held that agreement executed between the petitioner and respondent is licence and not lease. Therefore, same is not in accordance with law laid down by the superior Courts. He relied upon 1999 CLC 1076 (Sindh Industrial Trading Estate Ltd.
3. V. Kemia Industries Ltd.). He further submits that both the Courts below misconstrued the terms of the agreement. He further submits that clause 1 and 2 of the agreement clearly reveals the intention of the parties as the word lease is mentioned in both the classes. He further submits that by virtue of Clause-13 petitioner has to pay rent from the date the restaurant start functioning. The function of the restaurant was not started as the respondent failed to fulfil their obligation by virtue of the terms and conditions of the agreement.
2. I have given my anxious consideration to the contentions of the learned counsel for the petitioner and perused the record myself. It is better and appropriate to reproduce the facts in chronological order to resolve the controversy between the parties:-
(i) The agreement was executed between the parties on 1.8.1998 for one year till 31.7.1999. The same will be extended by mutual consent of the parties.
(ii) The agreement was terminated on 6.4.1999 by the respondent as the petitioner violated the terms and conditions of the agreement.
4. (i.e) Plaint was rejected vide order dated 21.12.1999 after the expiry of the lease period which has upheld by the first Appellate Court.
(iv) Period of lease is to be extended with the mutual consent of the parties but in the present case, the respondent has already terminated the agreement allegedly on account of violation of the terms and conditions by the petitioner.
5. Both the Courts below have given concurrent findings of fact against the petitioner that suit for declaration with permanent injunction is not maintainable. In view of the aforesaid circumstances, the petitioner has alternative remedy to' i.e a suit for damages against the respondent-, defendant.
6. The lease period has already expired. Therefore, findings of both the Courts below are upheld. The Hon'ble Supreme Court has laid down a principle for the determination of the question whether agreement is a licence or lease in Abdullah Bhai and others V."Ahmed Din (PLD 1964 S.C. 106) and observed as under:- "The line of demarcation between a lease and a licence will sometimes be a very this though there is no doubt as to the principle applicable. A lease as will appear from section 105 of the Transfer of Property Act is a transfer of an interest in immovable property. Ownership of Physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e. The right of enjoyment of the property, for a period, for consideration. During the continuance of the lease right of enjoyment of the property belongs to the' tenant and not to the landlord. The right of ownership as well as the rights of which it is composed are fights in rem and not in personam and by the lease a Right in rem is transferred to the lessee. On the other had a "Licence" as will appear from its definition in section 52 of the Easements Act is merely a competence to do something which except for the permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licence only a personal agreement between the licensor and the licensee whereby the licensor agrees not t6 interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee. Examples of a licence are a permission to "cut grass from the land of another or to hold fares or run stalls on lands in the possession of another."
7. Similarly the Hon'ble Supreme Court considered the aforesaid proposition in M.A. Naser V.
8. Chairman, Pakistan Eastern Railways and others (PLD J965 S.C. 83) and observed as under:- "From the above provisions it is clear that this agreement merely conferred a right to carry on business of catering in the Refreshment Rooms and on the Buffer Cars. They were not given any general right of occupation but only right to use the Refreshment Rooms allotted to them for the exclusive purpose of catering refreshment. Such a right does not amount to easement as defined in section 4 of the Easements Act or an interest in the / property. Nor can it be regarded as a licence 'coupled with a transfer of property' within the meaning of section 60 of the Easements Act.
9. Nor can it be suggested that the Contractor was - Required' to execute any work of permanent character' in connection with the business. Mo doubt his business may ' involve complex arrangements for continued supply of refreshments both solid and liquid but this cannot be regarded as ' execution of a work of permanent character.
10. Keeping in view the facts and circumstances of the present case in the light of the provisions of law and the authorities, above-mentioned there is no doubt that the agreement executed between the parties would amount only to a permission to the petitioner to carry on a business for a particular period which has already expired. It would neither create lease in favour of the petitioner within the meaning of Section 105 of the Transfer of property Act nor does contemplate an easement as defined in Section 4 of the Easements Act. Nor can it be regarded as an irrevocable licence within the meaning of section 60 of the Easements Act. It would amount to revocable - licence within the meaning of section 52 of the Easements Act and can be revoked by the grantor. It is well-settled that the Court Of Law should not grant discretionary reliefs in such cases where they are liable to be frustrated by the authorities concerned by passing a fresh order or where they will lead to injustice or clothe a suitor with an undeserving advantage or will inflict unjustified loss on the defendant. It is a necessary incidence in the trial of judicial issues that a suit which is on the face of it incompetent under the law should not be allotted to further encumber legal proceedings.
3. In view of what has been discussed above, this revision petition has no merit. Therefore, the same is dismissed with no order as to costs.