1. By this order I intend to dispose of listed C.M.A. No,7207 of 2001, which is an application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Moved by the plaintiff, seeking following interim relief in the matter: "be pleased to restrain the defendants, their agents, officers from interfering with the import and storage of furnace oil at the Keamari terminals (and storage tanks there) while suspending the operation of impugned notice of cancellation of permission dated 26-9-2001 (Annexure E) and termination of the agreement dated 27-9-2001, alongwith all consequential orders, notifications, letters and actions, while further restraining the defendants, their officers and agents from taking any adverse action." Precisely, the relevant facts gathered from the plaint are that on 25-6-2001 plaintiff, a private limited company, entered into an agreement for storage and handling of fuel oil with defendant No,3, which was in pursuance of the letter, dated 12th December, 2001 issued by defendants Nos. 1 and 2 in favour of defendant No,3 extending no objection to the proposed import of F.O. By defendant No,3 at Keamari. On the basis of agreement executed between the plaintiff and defendant No,3 plaintiff made heavy expenditure for making arrangements Of storage and handling of furnace oil of defendant No,3 at Keamari. However, subsequently by letter, dated 26th of September 2001 permission/no objection accorded to the defendant No,3 vide letter dated 12th December, 2001 was withdrawn by, other defendants and thereafter vide letter dated 27-9-2001 defendant No,3 also terminated their agreement dated 25-6-2001 with the plaintiff. Further case of the plaintiff is that agreement between the plaintiff and defendant No,3 had created vested right in their favour and, therefore, subsequent action of withdrawal of permission/no objection in favour of defendant No,3 by the other defendants and termination of agreement dated 25-6-2001 by defendant No,3 are without jurisdiction, mala fide, in breach of principles of natural justice and also in violation of fundamental and vested rights of the plaintiff. In the listed application plaintiff has thus prayed for interim relief as reproduced above. In reply to the application Mr. Abdul Hayee Baloch, Deputy Director (M), Ministry of Petroleum and Natural Resources, filed his counter-affidavit wherein he disputed the status of .Plaintiff for filing the present suit. He further stated that the agreement between plaintiff and defendant No,3 was executed in violation of Rule 30 of Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 and was not binding on defendants Nos.1 and 2. He further stated that the letter of termination/cancellation dated 26-9-2001 relates to defendant No,3, which was issued for the shifting of import of furnace oil from Keamari Terminal to Port Qasim (FOTCO) due to Government guarantee given to Port Qasim Authority for the handling throughput of minimum 4 million metric tons per annum of furnace oil for which Government pays $4.483/MT to FOTCO/Port Qasim. If the four million tons throughput is not met then Government is liable to pay the penalties in view of the agreement signed between Port Qasim and Government of Pakistan in which the throughput guarantee has been given by defendants Nos.1 and 2. The injunction-application was, therefore, liable to be rejected with costs. In their rejoinder plaintiff reiterated same facts and further stated that rule 30 of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 has no application to the present case and the agreement between the plaintiff and defendant No,3 on the principles of promissory estoppel and vested right is binding on other defendants. Mr. Farogh Nasim in his arguments mainly urged that unilateral withdrawal of permission/no objection by defendants Nos. 1 and 2 is in violation of principles of natural justice as after grant of permission and execution of agreement between plaintiff and defendant No,3 vested rights were acquired by the defendant No,3 as well as by the plaintiff and on the principles of promissory estoppel, locus penitential as well as by virtue of section 21 of the General Clauses Act such rights are protected by law. In support of his contentions learned counsel placed reliance on the following cases:
(1) PLD 1969 SC 407; (2) 1986 SCMR 916; (3) 1986 SCMR 1917; (4) PLD 1987 Kar.63 and (5) 2001 PTD 1829. Mr. S. Amjad Hussain, learned counsel for defendant No,3 adopted the arguments of Mr. Farogh Nasim and supported the case of plaintiff. He contended that if the question of locus standi of the plaintiff is urged by defendants Nos.1 and 2 then defendant No,3, having common interest with the plaintiff can be transposed as co-plaintiff in the suit. On the other hand, Mr. Ziauddin Nasir, Advocate for defendants Nos. 1 and 2 urged that the plaintiff has no locus standi to challenge the withdrawal of "no objection" given by defendants Nos. 1 and 2 in favour of defendant No,3. Even the defendant No,3 was not competent to agitate such grievance before this Court before exhausting departmental remedy available to him. Learned counsel also disputed the assertions of the plaintiff that by grant of permission to the defendant No,3 for import of F.O. At Kearnari any vested right was either created in favour of the defendant No,3 for an indefinite period or as such in favour of the plaintiff. Lastly learned counsel urged that in view of section 56(d) of the Specific Relief Act, relief claimed in the application cannot be allowed as grant of such relief will hamper the smooth functioning of defendants Nos. 1 and 2. Learned counsel placed reliance on the following cases:
(1) 1998 SCMR 376; (2) PLD 1998 Kar.373; (3) 1998 CLC 760; (4) PLD 1973 Pesh.95; (5) 1998 MLD 234 and (6) 1997 MLD 2983.
2. I have considered the arguments advanced by the learned counsel and perused the material placed on record. It is an admitted position that between the plaintiff and defendants Nos. 1 and 2 there is no private of contract and whatever status plaintiff are claiming they are claiming through defendant No,3 while not only the defendant No,3 has not come forward to agitate any grievance in respect of letter, dated 26th September, 2001 regarding withdrawal of permission but in pursuance to this letter they have also terminated the agreement dated 25-6-2001 with the plaintiff vide their letter dated 27-9-2001, thereby dislodging the status of plaintiff for claiming any rights out of permission/no objection earlier granted to the defendant No,3. The perusal of terms and conditions of the terminated agreement dated 25-6-2001 go to show that under this agreement defendant No,3 was competent to terminate the agreement and provision for such eventuality was already provided under this agreement. Clauses 2, 10, 15 and 18 of the agreement, which provide for duration of agreement, liability and indemnity for the parties, termination of agreement, exigencies in case of "Force Majeure" are relevant for this purpose. Thus, if by entering into agreement, dated 25th June, 2001 with defendant No,3, due to subsequent withdrawal of permission/no objection by defendants Nos. 1 and 2 and alleged illegal termination of agreement by defendant No,3, the plaintiff have suffered any damages/financial losses then in terms bf the agreement they can only agitate, their claim against defendant No,3 and the other defendants cannot be .Forced to abide by the terms and conditions of such agreement which is no more alive. Learned counsel also failed to explain the status of the plaintiff after termination of agreement between plaintiff and defendant No,3 as stated in para. 7 of the plaint. To assess the conduct of plaintiff and defendant No,3 before this Court it is also relevant to mention that although during the course of arguments learned counsel for plaintiff as well as defendant No,3 had suggested for transposition of defendant No,3 as co-plaintiff by suo motu exercise of such power by this Court but significantly despite the fact that this case came up before the Court for hearing on several dates none of them, till today, moved any application in this context. Even otherwise when the plaintiff have claimed relief against the defendant No,3 in respect of alleged illegal termination of agreement dated 25-6-2001 vide letter dated 27-9-2001, their interest are conflicting and in such circumstances transposition of defendant No,3 as co-plaintiff cannot be ordered. Besides, in the fact and circumstances of the present case permission/no objection granted to defendant No,3 vide letter, dated 12th December, 2001 was a mere licence which had not conferred any vested rights in favour of the defendant No,3 or plaintiff for an indefinite period, which could not be revoked by defendants' Nos. 1 and 2. Even if for arguments sake a contrary view is taken than also only defendant No,3 could agitate their grievance against such withdrawal of permission/no objection. The plaintiff, having no/privity of contract with the defendants Nos. 1 and 2, have no locus standi 'to dispute this position. Moreso, when their own agreement with defendant No,3 has also been terminated on 27-9-2001 i,e, before institution of the present suit. The arguments of Mr. Farogh Nasim with reference to violation of fundamental rights guaranteed under the Constitution, acquiring of vested rights in favour of plaintiff by virtue of permission/no objection in favour c f defendant No,3, applicability of principles of promissory estoppel and locus poenitentiae, have also no applicability and force in the facts and circumstances of the case. In addition to this listed application also seems to be barred under section 56(d) of the Specific Relief Act as after the expiry of extended period up to the month of October, 2001, the permission/no objection in favour of defendant No,3 for import of F.O. At Keamari has been withdrawn and in the prevailing situation an interim order may disturb the smooth functioning and arrangements of defendants Nos. 1 and 2 regarding supply of fuel oil in the country. As a result of above discussion, I have come to the conclusion that the plaintiff have failed to make out a prima facie case for grant of interim relief prayed in the listed application. Accordingly, C.M.A.