1. ' On 25-7-1992, Civil Aviation Authority ("CAA") as Licensor and Aer Rianta International Pakistan (Pvt.) Ltd. ("ARI") as Licensee executed a License Agreement for a period of 10 years under which CAA granted a license to ARI to establish Duty Free Shops at the Jinnah Terminal Complex, Quaid- e-Azam International Airport. Under the Agreement ARI was required to pay CAA, inter alia, a fixed fee of US $ 1 million per annum and a percentage on gross turn over after a specified period. A dispute arose between the parties as a consequence of which CAA filed this suit for Specific Performance and seeking an injunction against ARI to perform its part of the contract under the terms of the License Agreement and for permanent Injunction to restrain ARI from closing down the business of duty free shops at the Airport premises until expiry of the License Agreement. On 10-11- 1994 ARI filed an application under Order XXXIX, rules 1 and 2 read with sections 94 and 151, C.P.C.
2. (C.M.A. No,5547 of 1994) to restrain CAA from cancelling and/or terminating the License Agreement, dated 25-7-1992 executed between the parties till the disposal of the suit or disposal of C.M.A.
3. No,3977 of 1994 filed under section 34, Arbitration Act, 1940. The Court granted status quo order on the same day which was extended on 5-6-1995. ARI also filed an application under section 34 of the Arbitration Act, 1940 for stay of proceedings as there was an arbitration clause in the License Agreement (C.M.A. No,3977 of 1994). After hearing the parties, by order, dated 14-12-1998 the Court disposed of the application in the following terms:- "(i) The dispute between the parties be referred to arbitration in accordance with clause (31) of the License Agreement as agreed by them.
(ii) ARI should pay to CAA the agreed Fixed License Fee of US $ one million only per annum.
(iii) The payment must be made on quarterly basis in advance before 10th of the month in which it falls due as provided in the agreement, whether the licensee/ARI receives any bill or not.
(iv) The sum of US $ one million per annum shall be calculated and he payable from the date of ARI unilaterally reduced the amount from US $ one million to US $ 3,00,000 per annum.
(v) ARI shall pay US $ 75,000 per quarter directly to CAA as is being done and shall pay the balance of US $ 1,50,000 per quarter to the Nazir of this Court by Bank Draft drawn in favour of the Nazir of High Court of Sindh as specified in paragraph 3 above. This arrangement shall continue as provided in the License Agreement until the dispute is settled by arbitration. The amount lying with the Nazir shall be paid to the successful party after the Arbitration Award is made Rule of the Court.
(vi) ARI shall deposit the arrears of the Fixed License Fee calculated on the basis of US $ one million per annum with the Nazir of this Court within 15 days hereof.
(vii) The Nazir shall open a Foreign Currency Account with a Schedule Bank and with the permission of the Court invest the deposited amount so that it earns the maximum possible profit."
4. ' With regard to C.M.A. No,5547 of 1994 the Court ordered that it shall be disposed of after= hearing the parties. The order of status quo thus continues to be in operation and CAA cannot take any action against ARI.
5. ' On 4-3-1999 ARI filed an application under section 114 read with Order XLVII and section 151, C.P.C.
6. For review of the aforesaid order, dated 14-12-1998 (C.M.A. No,1824 of 1999) on the ground that ARI had entered into the License Agreement on several representations made by CAA including the number of flights to be routed through Jinnah Terminal, the flow of incoming/outgoing passengers and access to the duty free shops to these passengers which was violated by CAA and the facts and figures given to ARI were incorrect and contended that in the order, dated 14-12-1998 CAA had not been directed to fulfil its obligation and duties under the Agreement which is a mistake/error apparent on the face of the record. It added that CAA had shifted the terminals for Hajees, a number of world famous Airlines had closed their operations in Pakistan which had adversely affected its business resulting in losses which needed revision of the terms and conditions of the Agreement between the parties.
7. ' CAA and its counter-affidavit denied the allegations made by ARI and contended that the License Agreement, dated 25-7-1992 was a valid contract between the parties which included all the terms and conditions which had to be performed by both and that CAA was performing its duty in accordance with the Agreement while ARI had not only violated the License Agreement but also the order of the Court, dated 14-12-1998 requiring ARI to pay US $ 75,000 per quarter directly to CAA and deposit the balance of US dollars 1,50,000 per quarter with the Nazir of this Court by Bank Draft before 10th of the month in which it falls due.
8. ' In view of ARI's failure to deposit the amount with the Nazir of the Court pursuant to the Court's order, dated 14-12-1998, CAA filed a contempt application against ARI which is being contested by the latter (C.M.A. No,5913 of 1999).
9. ' On the suggestion of the Court, the counsels of both the parties attempted to settle the matter out of Court but in vain. Consequently, arguments of both counsels were heard on the review application and orders reserved thereon.
10. ' On 8-12-2001 CAA filed an application under Order XXXIX, rule 4, C.P.C. (C.M.A. No,9166 of 2001) for discharge of the status quo order granted on 10-11-1994 and 5-6-1995 which by implication of order dated 14-12-1998 apparently continued to operate as the disposal of the application had been deferred on that day. The reason for the discharge of the status quo order stated in the application is that ARI had not only violated the Courts order dated 14-12-1998 for payment of the agreed License Fee of US Dollars one million per annum but had also not paid the Electricity Consumption Charges and a sum of Rs,32,802,444 was outstanding against it. ARI filed a counter- affidavit wherein it denied all the allegations including the one relating to electricity consumption charges and stated that it had been making payments towards the License Fee and electricity charges even though it was not liable to pay as it was an issue in the arbitration proceedings and added that because the review application of ARI was pending non-payment under the said order could not be deemed to be a violation of the same.
11. ' Mr. Sajid Zahid, learned counsel for the ARI, in support of his application for review, vehemently contended that the basic issue between the parties was the License Fee of US Dollars one million per annum and, therefore, the order of this Court, dated 14-12-1998 was an error which goes to the root of the dispute and as the matter had been referred to arbitration, the Court ought not to have required ARI to deposit US Dollars 1,50,000 per quarter. He stressed that there was an erroneous assumption of fact that CAA was performing its part of the obligations when it had violated the same and ARI was continuing its business of Duty Free Shops in spite of huge losses suffered by it on account of several breaches of the Agreement by CAA which were apparent from the documents available on the record which was a sufficient ground for review of the order and referred to the following cases in support of his contention:-- ' 1995 SCM R 922, 1997 CLC 1332, PLD 1979 SC 741 and AIR 1966 All.
12. 516.
13. ' In reply to the review application, Mr. Faisal Arab, learned counsel for CAA, submitted that his client was performing all the obligations enumerated in the License Agreement, dated 25-7-1992 and the Court could not go beyond the provisions of the Agreement which is the fundamental document and forms the basis of the relationship between the parties. He also referred to PLD 1979 SC 741 in support of his argument that it is not a fit case for review.
14. ' With regard to the application for discharge of the status quo order (C.M.A. No,9166 of 2001), Mr. Zahid Ibrahim, learned counsel for CAA, submitted that ARI had violated the Court's order, dated 14- 12-1998 in that it had not deposited the required License Fee with the Nazir of the Court, had abused the status quo order of this Court by enjoying its protection without complying with its obligations and had not even paid the electricity consumption charges which it was required to pay under the License Agreement which was not the basic dispute when the proceedings were stayed and the matter referred to arbitration. He pointed out that in the counter-affidavit in relation to the payment of electricity consumption charges (paragraph 8 of the affidavit) the denial of ARI was evasive and mala fide as it had not anywhere in the counter-affidavit stated the total amount it had paid towards power consumption and the amount due, if any, up to October, 2001.
15. ' Mr. Sajid Zahid, learned counsel for ARI, vehemently opposed CAA's application for discharge of the status quo contending that ARI had paid the License Fee at the rate of US $ 3,00,000 per annum as well as the electricity charges which were legally due and if there was any balance outstanding on account of oversight or calculation.Error, the same would be paid. He added that CAA had on a number of occasions rendered more than one bill for the same period, bills with incorrect readings and bills for areas not occupied by ARI and the dispute in respect of electricity charges also was a matter which was an issue in the arbitration proceedings which had been referred to the Umpire after difference of opinion between the two arbitrators. He urged that the proceedings before the Umpire would conclude within a short period and therefore, it would not be proper and just to disturb the status quo until the decision by the Umpire.
16. ' I have heard the arguments of Mr. Faisal Arab and Mr. Zahid Ibrahim, learned counsels for the plaintiff/CAA and Mr. Sajid Zahid, learned counsel for the defendant/ARI, on the aforesaid application who have also referred the points of arguments on the application for grant of status quo and the review application.
17. ' ARI has filed the application for review of order, dated 14-12-1998 generally under section 114, C .P .0 . And particularly under Order XLVII, rule 1, C.P.C., which read as follows:-- ' Section 114. Review.--- (1) Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
(2) Nothing contained in subsection (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court."
18. "Order XLVII. (1) Application for review of judgment.--- (1) Any person considering himself aggrieved-
(a) by a decree order from which an appeal is allowed, but from, which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
19. A simple reading of the two provisions show that section 114, C.P.C. Grants a right of review subject to the conditions and limitations prescribed in Order XLVII, rule 1. Therefore, in order to succeed, the party seeking a review must prove to the Court, inter alia, that on account of some mistake or error apparent on the face of the record or for any other sufficient reason, the judgment or the order may be reviewed so that justice may be done. He must fulfil the conditions and limitations stated in the above provision as interpreted by the superior Courts. Mr. Sajid Zahid has referred to four judgments, one of which has also been relied upon by the counsel for CAA to show that the application filed by ARI is misconceived. Before proceeding further, it would be appropriate to refer to some of the judgments on the issue of review by the Court as they would help in deciding the present applications.
20. ' In the case of Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741 at page 768, the Honourable Supreme Court observed as follows:-- "43. From what has been said in the preceding paragraphs, it follows ' that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination.
21. The contention that the exposition of the law is incorrect or erroneous, or that the Court has gone wrong in the application of law to the facts of the particular case; or that erroneous inferences have been drawn as a result of appraisal or appreciation of evidence does not constitute a valid ground for review." (Emphasis added).
22. In the case of Messrs M.Y. Malik & Co. v. Messrs Spendilours International 1995 SCM R 922, the Supreme Court reviewed its order on the ground that it had overlooked some important piece of evidence which was present on the record.
23. And in the case of Maulana Abdul Quddus Bihari v. Member (Land Utilization), Board of Revenue, Sindh 1997 CLC 1332, a learned Division Bench of this Court allowed review of such part of the judgment, which was based upon erroneous assumption of facts brought to the notice of the Court.
24. ' The basis document between the parties is the License Agreement, dated 25-7-1992, which is very clear in its terms and there is no ambiguity in its provisions. I have perused my order, dated 14-12- 1998 very minutely and find that there is neither any error of law or fact in the order which is so manifest and clear that no Court would permit such an error to remain on record nor any important piece of evidence has been overlooked. The order is also not based upon erroneous assumption of facts. The order is simply based upon the provisions of the License Agreement between the parties and the fact that a dispute has arisen between them on the clause requiring ARI to pay License Fee of US $1.0 million per annum to CAA.
25. ' All the arguments advanced by Mr. Zahid, learned counsel for the ARI, are nothing but a repetition of the argument he had advanced in support of the application for stay of the proceedings in the suit and referring the matter to Arbitration. Mr. Sajid Zahid wants the Court to look at the documents exchanged between the parties prior to the execution of the agreement and the changes that have occurred in the CAA policies and the decrease in the number of passengers using the airport thereafter. At this juncture, it would be appropriate to refer to two judgments of the Supreme Court of Pakistan relating to the construction of written agreements.
26. ' In the case of Housing Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society 1992 SCM R 19 at p.28, the Honourable Supreme Court observed as follows:-- "The main purpose of construction of terms of a written agreement is to find out the intention of the parties to the agreement. By looking to the words used one has to construe the intention which has persuaded the parties to enter into the agreement. "
27. ' In the case of Sandoz Limited v. Federation of Pakistan 1995 SCM R 1431 at p.1447, the Honourable Supreme Court observed as follows:-- .... " in case of any ambiguity in a contract document, the Court in order to resolve it and to ascertain the real intention of the parties, can have resort to the correspondence preceding and/or subsequent to the execution of the contract document, conduct of the parties and the attending circumstances. "
28. The intention of both the parties is very clear from the License agreement and I do not find any ambiguity in the same. It is, therefore, not necessary to refer to the correspondence preceding and/or subsequent to the execution of the agreement. While passing the order on 14-12-1998, I took reasonable care to safeguard the interest of both the parties. Under the terms of the Agreement ARI is required. Inter alia, to pay License Fee of US $ 1 million per annum to CAA in respect of which a dispute arose between the parties and ARI instead of paying US $ 1 million under the agreement, unilaterally reduced the amount to US $ 3,00,000 per annum which resulted in the reduction of income of CAA to the extent of US $ 7,00,000 per annum. To maintain sanctity of the agreement and to safeguard the interest of both parties, the Court ordered that ARI instead of paying US $ 7,00,000 per annum to CAA in accordance with the License Agreement fulfil its obligation by depositing the same with the Nazir of the High Court on the due dates, which apparently ARI has not done. I asked Mr. Zahid to show the specific obligation which has not been fulfilled by CAA and instead of pointing out any violation he repeated his argument that CAA had provided wrong figures and changed the sky policy as a result of which ARI's business had suffered on account of several Airlines closing their business in Pakistan.
29. ' After partly hearing the parties on 18-2-2002 the matter was adjourned to 4-3-2002 for further arguments. Today Mr. Zahid informed that he had filed a statement on behalf of ARI on 2-3-2002 giving the history of the case and the position regarding payment of the License Fee and the electricity charges up to. February, 2002. From the documents filed he showed the ARI had paid a total sum of Rs,11,883,758 towards electricity charges and that the Company had also issued four post-dated cheques totalling Rs,984,226 which would be handed over to CAA during the course of the day and that the matter of payment of electricity charges would be settled with CAA amicably after clarifying the anomalies which exist in respect thereof. He again emphasized the breach committed, misrepresentation made and open sky policies changed by CAA resulting in several Airlines to discontinue or suspend their operations in Pakistan which reduced the volume of passengers resulting losses by ARI. He asserted that the inability of ARI to pay was primarily due to the circumstances created by CAA and the recession which engulfed the world economy.
30. ' In reply thereto, Mr. Ebrahim, learned counsel for CAA, pointed out from the' documents filed by ARI that it had not paid the fixed License Fee from August, 1995 to December, 1996 and had also not paid any amount towards the fixed License Fee from July, 2000. Similarly, from the statement he showed that ARI had not paid the electricity charges from August, 1995 to August, 1999 and again defaulted in payment of the same from, October, 2000 up to date except payments of Rs,213,179 in June, 2001, Rs,160,837 in January, 2002 and Rs,142,302 in February, 2002. He also pointed out other short payments/nonpayment's by ARI in respect of other License Agreements.
31. ' From a bare perusal of the statement filed by ARI, it is apparent that ARI did not comply with the provisions of the License Agreement and also did not pay any License Fee at the rate of US $ 75,000 per quarter which it had again unilaterally changed to US $ 25,000 per month from July, 2000, which it was required to pay under the said order. It is an admitted position that ARI has not even deposited US $ 7,00,000 per annum with the Nazir of this Court. The arguments of Mr. Zahid that the pendency of review application is a continuation of the proceedings and non-payment of any amount under the order of which review has been sought is not a violation is misconceived. Any order until it is reviewed continues to be in operation and does not entitle any party to violate the terms of the order unless specifically permitted to do so. The position is similar to that of filing of an appeal which does not stay the operation of the order or judgment appealed against unless specifically ordered by the Court.
32. ' ARI had filed an application to restrain CAA for cancelling or terminating the License Agreement (C.M.A. No,5547 of 1994) on which status quo order was granted which is continuing. It is a well- established principle of law that a person who comes in equity must do equity. ARI succeeded in obtaining stay of the proceedings, reference of the dispute to arbitration and an order of status quo thereby restraining CAA from cancelling or terminating the License Agreement but it did not perform its own obligations under the Agreement which were very clear that it shall pay, inter alia, License Fee of US .$ 1 million per annum to CAA for running Duty Free Shops at the Airport. CAA has now filed an application under Order XXXIX, rule 4, C.P.C. (C.M.A. No,9166 of 2001) to recall the status quo order on the ground that ARI has not only disobeyed the order of this Court but has also not paid the electricity, consumption charges. In the present case, it is clearly established that ARI has disobeyed the order of the Court in not making the deposit with the Nazir as directed by this Court and has also not paid the electricity dues in accordance with the agreement.
33. ' In view of the above discussion, I have no alternative but to dispose of the above applications in the following terms:--
1. Application for Review under section 114 read with jj Order XLVII, rule 1, C.P.C. Is rejected.
34. 2 and 3. Application under Order XXXIX, rules 1 and 2, C.P.C. (C.M.A. No,5547 of 1994) filed by ARI is rejected and application for discharge of status quo order under Order XXXIX, rule 4, C.P.C. (C.M.A.
35. No,9166 of 1994) filed by CAA is allowed and status quo order granted earlier is hereby recalled.
4. Adjourned to a date in office. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.