1. The plaintiffs' case as stated in the plaint is that plaintiff I, Messrs General Carriers Limited applied for the Stevedoring Licence on 5-1-1977 which was provisionally granted on 11-5-1977 for a period of one year effective from 19-4-1977 after plaintiff 1 entered into an agreement dated 18-4-1977 with the defendant under which inter alia plaintiff I agreed to provide at the East and West Wharves and Transit Sheds and Plinth in readiness for work both by day and by night sufficient number of competent dock workers, supervisors, formen, syrangs and tindals to perform the work mentioned therein for handling the cargo at the rates mentioned in the agreement. This agreement was also for one year ending on 18-4-1978 and was liable to be terminated at any time by giving 3 months' notice in writing to the plaintiffs for any good and sufficient reasons. However, the plaintiffs claim that the decision of the defendants of termination of the licence of the plaintiffs is contrary to law, against the principle of natural justice and void, as according to them the licence could not be cancelled as the same was irrevocable and the defendants have had no lawful authority to cancel the same without good or sufficient cause and without serving 3 months notice. According to the plaintiffs the cause of action for the suit arose on 29-4-1978 when the plaintiffs came to know about the policy of the decision of the defendants of cancelling the stavedoring licences of the stavedoring companies. Therefore, the plaintiffs have filed the suit for a declaration that the threatened action of cancelling the licence of the plaintiffs by the defendants is unlawful and without lawful authority and for injunction restraining the defendants, their servants and agents from cancelling the licence of the plaintiffs. Along with the plaint the plaintiffs have also filed an application under Order XXXIX, rules 1 and 2, C. P. C. For injunction praying to restrain the defendants from suspending, cancelling or otherwise rendering ineffective the stevedoring licence issued to the plaintiffs.
2. The plaintiffs further claim that on or about 16-1-1978 they have applied for renewal of the provisional licence and the defendants required the plaintiffs to give further information in regard to their supervisory staff and G. I. R. Number in the Income-tax Department, etc. Which they have supplied. It is further claimed by the plaintiffs that they were informed that the renewal of the licence was merely a formality and the plaintiffs should continue to work as stevedoring company in accordance with the terms of the agreement dated 11-5-1977 and the plaintiffs continued working as stevedors after the expiry of the licence on 18-4-1978.
3. I had issued notice of this application and when the defendants sought time to file counter affidavit, I granted them time and ordered them to maintain status quo. The defendants have filed their counter affidavit raising several objections including the objection that the plaint does not disclose any cause of action and no notice as required under section 87 of the Karachi Port Trust Act, 1886 was served on the defendants.
4. The defendants further denied in their counter affidavit that they verbally informed the plaintiffs or gave any impression or assurance that the renewal of their stevedoring licence was merely a formality. They have annexed to the counter affidavit extract from the minutes of the proceedings of the meeting of the Board of Trustees of the defendants held on 26-4-1978 and it will be useful to reproduce the same in extenso; "7. Cancellation of Stevedoring Licences.-Chairman's Note, dated the 20th April f 978.
5. The Traffic Manager has reported vide his letter No. T/C-15(38)/310/77/ 2071 dated 30-3-1978 that in the following 4 cases Stevedoring licences were granted on the recommendation of then Federal Minister for Communications :-
(1) M/s. M. Ismail & Company.
(2) M/s. Sind Stevedoring Company.
(3) M/s. General Carriers Limited.
(4) M/s. Universal Commercial Corp.
6. As instruction has now been received from the Government vide letter No. 3-3/77-EC-Vol. II dated 29th March 1978 from the Section Officer, Ministry of Communications, Ports and Shipping Wing, Karachi that permits/licences, etc. Issued during the previous regime are to be reviewed in consultation with the Martial Law Authorities and as these licenses were granted on the political consideration, it is recommended that all the 4 licences greeted to these Firms be cancelled by the Board with immediate effect.
7. (File No. S/BS (3)/78).
8. Regulation No. 795.-The Board considered Agenda Item No. 7 and resolved that the Stevedoring Licences of the following firms should not be renewed and the agreements under the licence should stand terminated :--
(1) M/s. M. Ismail 8t Company (Now M/s. Muhammad Ismail & Co. Ltd.)
(2) M./s. Sind Stevedoring Company (Now M/s. Sind Stevedoring Co. Ltd.)
(3) M/s. General Carriers Limited.
(4) M/s. Universal Commercial Corporation."
9. It would be seen from the above minutes that the Board took two decisions one as to the cancellation of the licences and the other for not renewing the licences in case of those persons whose licences had already expired, the plaintiffs being one of them.
10. Today I have heard Mr. Khalid Tshaque, Advocate for the plaintiffs and Mr. Zaheeruddin Khan, Advocate for the defendants.
11. Mr. Zaheeruddin Khan has raised two-fold objections to the grant of temporary injunction. The first objection is that the plaintiffs have no cause of action as the licence dated 18-5-1977 stood expired on 18th April 1978, and the same has not been renewed. The second objection is that without one month prior notice the suit is not maintainable.
12. Mr. Zaheeruddin Khan Advocate had made a statement at the bar on 21-5-1978 that it is the normal practice of the defendants to allow a licensee whose licence has expired to carry on unfinished stevedoring work even after the expiry of the licence. He, therefore, submitted that the defendants have allowed the plaintiffs to complete the unfinished stevedoring work according to the normal practice and after the passing of the order of status quo on 7-5-1978 they have maintained the status quo. Be that as it may, the fact is that the licence of the plaintiffs stood expired on 18-4-1978. Further, if the plaintiffs were permitted to carry on stevedoring after the expiry of the licence, the question which will require consideration at the regular hearing would be, who granted the permission, when and on what terms and what is its effect, keeping in view the provisions of section 18 of the Karachi Port Trust Act, particularly the provisions which provide that every contract shall be in writing and will be executed by the Chairman and two Trustees or the Chairman according to the valuation of the contract. Furthermore even if it is accepted for the sake of arguments that the plaintiffs' licence was subsisting the same being revocable on 3 months notice for good and sufficient reasons the revocation thereof could not be prevented by an injunction. If a licence is wrongly terminated a suit for damages would lie and no suit for specific performance of the contract or for injunction, would lie in view of the provisions of sections 21 and 56 of the Specific Relief Act. Reliance is placed on a judgment of the Supreme Court in M. A. Naser v.
13. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83). I may also mention that there is nothing on record from which it could be prima facie found that the plaintiffs' licence was coupled with transfer of any immovable property within the meaning of section 60 of the Easements Act as was submitted by Mr. Khalid Ishaque during the course of his argument. There is also nothing on the record to show that the licensees acting upon the licence have executed a work of permanent character as provided in section 60 ibid. The next submission of Mr. Khalid Ishaque, Advocate was that no notice was necessary as firstly, a notice as mentioned in section 87 of the Karachi Port Trust Act, 1886 is required to be given to a person and Karachi Port Trust is not a person within the meaning of the word `person' as defined in section 3 of the General Clauses Act, 1894, secondly, the defendants have acted illegally as they have cancelled the licence of the plaintiffs without there being any good or sufficient cause and without giving notice of 3 months as provided in the agreement. .
14. With regard to the first link of the submission, the argument of Mr. Khalid Ishaque, Advocate was that according to the provisions of section 3 of the General Clauses Act, 1894 the definition of the `person' given therein would apply to the Acts which came into force after the enactment of the General Clauses Act and it does not apply to Acts which were enacted before coming into force of the General Clauses Act, and the Karachi Port Trust Act, 1886 is a prior Act. But this argument overlooks the provisions of section 4 of the Act which provides that the definition in section 3 of the following words and expressions, that is to say . . . . . . , . . . . . . . . "person", apply also, unless there is anything repugnant in the subject or context, to all Central Acts made after the third day of January 1868, and to all regula--tions made on or after the fourteenth day of January 1887.
15. Therefore, the definition of person as given in section 3 of the General Clauses Act is applicable to the word "person" used in section 87 of the Karachi Port Trust Act, 1886.
16. The other argument of Mr. Khalid Ishaque was that the defendants have acted illegally in cancelling the licence and therefore they have not acted pursuant to the Act and consequently no notice was necessary. Firstly, prima facie the defendants have not cancelled the licence but have refused to renew the same. Secondly, even if it is accepted for the sake of argument that the defendants have acted illegally, still in my opinion, notice would be necessary as they purported to act pursuant to the provisions of the Act.
17. Reliance is placed on the Province of West Pakistan and others v. Ghulam Qadir and another (PLD 1953 Kar. 337) wherein his Lordship Waheeduddin Ahmed, J. (as he then was) at page 341 of the report observed as follows :--- ` Merely because these orders according to the learned Subordinate Court were illegal or unjust, would not convert them into unofficial acts. In these circumstances, the view of the learned Subordinate Court that section EO was not applicable to the case before him cannot be upheld and must be set aside."
18. Although this case relates to the provisions of section 80, Civil P. C. The observations made therein are, in my opinion, equally applicable to the requirement of notice under section 87 of the Act.
19. Reliance can also be placed on the separate opinions of Sadasiva Aiyar and Spencer, JJ. Expressed in a Full Bench Decision of Madras High Court in Samanthala Koti Reddi v. Pothuri Subbiah and others (AIR 1918 Mad. 62).
20. It was observed by Sadasiva Aiyar, J. As follows;---- "An act done by public officer would "purport" to be an act done in his official capacity, not only if it was properly and rightly done by him in such capacity and within his powers, but also if it has such a reasonable resemblance (though a false or pretended resemblance) to a proper and right act that ordinary persons could reasonably conclude from the character of the acts and from the nature of his official powers and duties that it was done in his official capacity."
21. Spencer, J. Observed as follows :--- "I agree with the two judgments just pronounced and with the opinion of the Calcutta High Court in Jogendra Nath Roy Bahadur v. Price (1894) 24 Cal. 584 that whether the police officer's act complained of is legal or illegal, deliberate or inadvertent, notice under section 80, Civil P. C. Is necessary before a suit is instituted. I think with due respect, that the decisions of the Single Judges in Shahebzadee Shahunshah Begum v. Fergusson (1881) 7 Cal. 499 and Muhammad Siddiq Ahmed v. Panna Lal (.1904) 26 All. 220 were wrong. We have been asked to construe the words "any act purporting to be done by such public officer in his official capacity" as signifying.
22. "Any act done by such public officer in the honest belief that he was acting in his official capacity."
23. "Purporting" literally means, "holding out" and neither "profess" nor "pretend" is an exact synonym for it. "Profess", as its derivation suggests, generally implies an open declaration in words. "Pretend", more often than not, is used where that which is held out is not what it really is. I think that the word "purporting" covers a profession by acts or by words or by appearance of what is true as well as of what is not true. A private individual who per--sonated as a police officer by wearing a police uniform carrying a forged search warrant proceeded to search a house would be "purport--ing to act as a police o1ffcer, though not being a Police Officer, he would not be entitled to notice under this section. A real police officer who acted similarly would equally be doing an act "purporting to be done in his official capacity", and would be entitled to notice, even though his motives were malicious. When it is the intention of Government to protect official and judicial acts done by public servants in good faith, the Legislature makes use of the words "good faith" as may be seen from sections 76 to 79 and 99, I. P. C., section 156, C. 4, Local Boards Acts, and section 1, Judicial Officers Protection Act. But in section 80, Civil P. C , there is no qualification that the act must be one done in good faith to entitle the officer concerned to notice. In practice it would not always be easy at the stage of issuing notice to determine whether good faith existed before that question has been decided at the trial. Government undertakes the defence of their servants in actions brought against them personally for official acts done by them in cases where those acts are deemed defensible. The issue of notice gives time to the public officer to make amends for his acts or to report the case to Government and get himself defended at the public cost. So notice is made compulsory in all suits against public servants for acts done officially". Therefore, the suit without notice is not maintainable. For the reasons given above it cannot be said that the plaintiffs have made out a prima facie case for injunction."
24. However, the learned counsel for the plaintiffs relied upon The State v. Ziaur Rahman and others (PLD 1973 SC 9) in support of the proposition that when a person acts male fide he cannot be deemed to be acting or purporting to act in pursuance of the Act. He particularly referred to the following observations made by his Lordship Hamoodur Rahman, C. J., (as he then was) appearing at page 87 of the report :--- "It will thus be seen that, so far as this Court is concerned, it has con--sistently held the view that a: rnala fide act done without jurisdiction, because no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act mala fide. I am, therefore, of the opinion that the words"purported to be done or done in the purported exercise of powers" cannot cover acts which were not done by persons empowered under the statute or the legislative measure to so act or were clearly beyond the scope of the powers given by the statute or were done mala fide or , by practising a fraud upon the statute for a colourable purpose. 1, therefore, agree with the majority view which prevailed in the High Court that clause (2) of Article 281 of the Interim Constitution does not validate acts which are coram non judice or without jurisdiction or done mala fide."
25. However, I am of the view that this case does not apply to the facts of the present case, for there is no plea of any male fide in the plaint ; then, their Lordships were considering the words "purporting to be done" in relation to a plea as to ouster of the jurisdiction of the Court and not in relation to the requirement of notice under section 80, C. P. C. Or section 87 of the Act. To grant or refuse to grant Licence or to cancel or refuse to renew the same, are acts which, in my opinion, squarely fall within the scope of the powers of the Board of Trustees given by the statute. The defendants in the present case have refused to renew the licence and have not cancelled the licence which expired quite some time back. Even if the defendants had cancelled the licence in breach of the terms of the agreement, the action or decision, in my opinion, would still be within jurisdiction, for where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction, as was observed by their Lordships of the Supreme, Court in Nawab Syed Raunaq A.I, etc. v. Chief Settlement Commissioner and' others (PLD 1973 SC 236). Therefore, the defendants would, in my opinion, still be entitled to a notice as their action would be covered by the words "purporting to have been done" used in section 87 of the Act.
26. For the reasons given above I am of the opinion that the plaintiffs have not made out a prima facie case for grant of temporary injunction. I therefore, dismiss the application.