1. C. M. No. 1841 of 1978 The facts which are material for the decision of the application under Order XXXIX, rules 1 and 2, C.
2. P. C. Read with section:151, C. P. C. As noticed from the averments made in the plaint, documents annexed thereto, affidavit in support of the application and the counter-affidavit are: On 13th November 1975 the Karachi Port Trust granted to Mohammad Ebrahim (since deceased) in the name of Muhammad Ismail & Company of which he was the sole proprietor as would appear from the agreement dated 28th October, 1975 between the Karachi Port Trust and him, a Stevedoring Licence for one year effective from 28th October, 1975 which was renewable on an application made before 28th July, 1976. The licence was granted to the said person after he had entered into a stevedoring agreement dated 28th October, 1975 with the defendants which contains the terms and conditions on which stevedoring was to be done, and which was also for one year ending on 27th October, 1976.
3. It appears that on or about 3rd June, 1976 Muhammad Ismail & Company applied to Karachi Port Trust for conversion of their firm into a limited liability company on which the Karachi Port Trust required certain information which according to the allegations made in the plaint was submitted to the defendants and the matter rested there till 2nd February, 1978 when the defendants in reply to the letter of Managing Director M. Ismail & Company in reply to his letter dated the 18th January, 1978, informed him that the question of conversion of Messrs Mohammad Ismail & Company into a limited company was under consideration which was ultimately approved by the defendants and the approval was communicated to the plaintiffs by the letter dated 18th April, 1978.
4. It further appears that in the meantime on the 2nd March, 1978 Mohammad Ismail & Company wrote a letter to the Traffic Manager, Karachi Port Trust informing him that they had applied for renewal of their licence vide their letter dated 27th April, 1976 in time and that they had com-- pleted all the formalities as required from time to time except. The requirement certificate from the Chief Accounts Officer which they could not submit due to non-clearance of the Karachi Port Trust cranage bills and due to the delay in the settlement of their outstanding bills. By the same letter, they further informed the Traffic Manager that they had then cleared the accounts and attached no dues certificate from the Chief Accounts Officer and requested the Traffic Manager to renew their licence in the name of Messrs Muhammad Ismail & Company.
5. Thus it is clear that after the expiry of the licence on 27th October, 1976, the same was not renewed.
6. It appears that plaintiffs wrote a letter dated 15th April, 1978 to the de--fendants in respect of the renewal of the Stevedoring Licence and the defendants by their letter dated 16th April, 1978 informed the plaintiffs that the case of renewal of their provisional Stevedoring Licence bad already been forwarded to the Chairman for consideration of the Board. Ultimately, the defendants by their letter dated 19th April, 1978, addressed to Ismail & Company (Now Messrs Mohammad Ismail & Co.
7. Ltd) informed them that the Karachi Port Trust Board had resolved that the Stevedoring Licence granted to them should not be renewed.
8. On receipt of this letter the plaintiffs have filed the present suit for declaration that the notice dated 29th April, 1978 cancelling the licence of the plaintiffs by the defendants is unlawful and without lawful authority and for permanent injunction restraining the defendants and their servants from cancelling the licence of the plaintiffs, alongwith the application under consideration which is also for restraining the defendants from suspending, cancelling or otherwise rendering ineffective the Stevedoring Licence.
9. On this application I had issued notice to the defendants and had ordered maintenance of status quo when they sought time to file counter affidavit.
10. Today, I have heard Mr. Khalid Ishaque, Advocate for the plaintiffs and Mr. Zaheeruddin Khan, Advocate for the defendants.
11. Mr. Zahdeeruddin Khan has raised two-fold objections to the grant of temporary injunction. The first objection is that the plaintiff's have no cause of action as the licence dated 13-1 I-1975 was granted to Muhammad Ibrahim as proprietor of Muhammad Ismail & Company which stood expired on 27th October, 1976 and the same was now renewed. The second objection is that the suit without one month prior notice as required by the provisions of section 87 of the Karachi Port Trust Act, 1886 (hereinafter called the Act) is not maintainable.
12. Be that as it may, the admitted position is that the licence bad expired on 27th October, 1976 and the same was not renewed and that Muhammad Ismail & Company as late on 2nd March, 1978, as is evident from their letter dated 2-3-1978, had requested the Traffic Manager for renewal of the licence and had explained why they could not earlier comply with all the formalities. Therefore, it is clear that the licence was not renewed till then and 'A thus there was no subsisting licence and as such the question of its cancellation does not arise and in these circumstances no injunction in terms prayed for can be granted.
13. If the plaintiffs were permitted to carry on stevedoring the questions which will require consideration would be who granted the permission and when and on what terms and what is its effect, keeping in view the provisions of section 18 of the Karachi Port Trust Act, 1886, particularly the provisions which require that every contract shall be in writing and shall be executed by the Chairman and two Trustees or by the Chairman according to the nature of the contract as mentioned therein, Now, I take up the second objection. It is admitted position that no notice as required under section 87 of the Karachi Port Trust Act, 18868 has been served on the defendants prior to the filing of the suit.
14. It cannot be denied that to grant, or refuse or renew or refuse to renew licences for stevedoring and other work are some of the functions of the Karachi Port Trust and under bye-law 32 of the General Bye.-laws no cargo could be loaded or unloaded except under the personal superintendence of a Stevedore or Contractor duly licensed by the Board, therefore, when the Karachi Port Trust refused to renew the licence or even if they cancelled the licence they were acting pursuant to the Act and the Bye-laws framed thereunder.
15. However, the submission of Mr. Kbalid 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.
16. 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 word `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 General Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887". 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.
17. 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 it' 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.
18. Reliance is placed on the Province of West Pakistan and others v. Ghulam Qadir and another (PLD 1963 Kar. 337) wherein his Lordship Waheedudin 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 80 was not applicable to the case before him cannot be upheld and must be set aside." .
19. 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.
20. 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).
21. 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. 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 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 Shahebzade Shahunshah Begum v. Fergusson and Muhammad Saddiq Ahmed v. Panna Lal 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 any act done by such public officer in the belief that be was acting in his official capacity. `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 of ten 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 which is true as well as of what is not true. A private individual who personated a police officer by wearing a police uniform and carrying a forged search warrant proceeded to search a house would be "purporting to act as a police officer, 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 before that question had 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 Govern--ment and get himself defended at the public cost. So notice is made compulsory in all suits against public servants for acts done officially."
22. 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.
23. However, the learned counsel for the plaintiffs relied upon The State v. Ziaur Rehman and others (PLD1973SC49) in support of the proposition that when a person acts mala 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 consistently held the view that a mala fide act stands in the same position as an act done without jurisdiction, because no Legislature when granted a power in, do an act possibly contemplate the perpetra--petition 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. I, 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.
24. 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 mala 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, in my opinion, squarely fall within the scope of the powers of the Board of Trustees given by the statute and since there is no allegation of male fide in this case, I am of the view that notice before the filing of the suit was necessary. The defendants in the present case have refused to renew the licence and have not-cancelled the licence which had a expired quite some time back. Even if it was a case of cancellation of the licence in breach of the agreement, the defendant in my opinion, would still be entitled to a notice as their action would be covered by words "purporting to have been done".
25. 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.
26. C. M. A. No. 2353 of 1978 [29.5-1978].----Mr. Khalid Ishaque, Advocate has presented an application under Order XXIII, rules 1 and 2, C. P. C., for withdrawal of the suit with permission to refile it for the reasons stated therein, in Court today.
27. Mr. Zaheeruddin Khan, Advocate who is appearing for the defendant and who is present has waived notice of this application and has no objection. I, therefore grant the same.
28. S. AH.Suit withdrawn.