By this order I intend to dispose of C.M.A. 123 of 2002 filed by the defendant under Order VII, rule 11, C.P.C.
2. Brief facts relevant for the purpose of deciding this application, as disclosed in the plaint, are that the plaintiff is a proprietorship firm and has been carrying on business for the last several years. In the year 1998 the defendant invited bids for establishing a Cattle Mandi in the area falling within their jurisdiction. The plaintiff was declared as a successful bidder in the auction held on 30-11-1998 for award of a contract for a period of four years and was required to make a total payment of Rs,32 lacs i,e, Rs,8 lacs in each year. Accordingly the plaintiff deposited a sum of Rs,8 lacs being 1/4th of the bid amount. It is averred that subsequently the defendant unilaterally enhanced the bid from Rs,32 lacs to Rs,44 lacs which too was accepted by the plaintiff, as such, sanction was granted and site for Cattle Mandi was also handed over to the plaintiff. The plaintiff paid an additional sum of Rs,1,50,000 and requested for short, time to pay the balance amount of Rs,1,50,000 which request was allowed. It is averred that after few days of taking over the possession of the site by the plaintiff, a false F.I.R.
Was lodged against the plaintiff under section 188, P.P.C. At P.S. Gaddap with the result the work of the plaintiff at Cattle Mandi became stand-still. Several representations and letters submitted by the plaintiff also bore no fruit and heavy financial loss was caused to him. Subsequently the plaintiff was made to deposit another amount of security of Rs,1,00,000.
Thereafter, the plaintiff was offered the contract, but the bid money was further enhanced to Rs,65 lacs. The plaintiff on his own cost acquired 134.18 acres of land on rent by paying advance rent of Rs,21 lacs for running Cattle Mandi. Ultimately a contract was entered into between the parties for a period of four years against payment of Rs,65 lacs. Grievance of the plaintiff is that though the plaintiff always abided by the terms and conditions of the contract and had invested a huge amount, yet the Cantonment officials started causing undue pressure. On 3-2-2002 a public notice was published by the defendant in daily "Nawa-i-Waqt" inviting bids for running the Cattle Mandi in Malir on partnership basis. Hence the plaintiff being aggrieved by such notice filed the present suit wherein the plaintiff has prayed for, (i) declaration that the- plaintiff is a lawful contractor for running the Cattle Mandi and the public notice is illegal,
(ii) permanent injunction against the defendant from acting upon the impugned public notice, (iii) mandatory injunction directing the defendants to perform their part of the contract and assist the plaintiff in running the Cattle Mandi.
3. In pursuance of summons having been served on the defendants, they filed written statement wherein following preliminary objections were raised:--
(a) That the suit filed by plaintiff is barred by section 273 of the Cantonments Act, 1924.
(b) That no cause of action accrued to plaintiff to sue the defendant as never any contract was awarded by defendant to plaintiff.
(c) That amount deposited by plaintiff Rs,8,00,000 was for a different contract in the year 1998 and the same was forfeited by the Board because of default on part of plaintiff and plaintiff did not take any action/steps against the decision of Board as Messrs Khalid & Company lost its legal remedy available to him.
(d) That Station Headquarter, Malir and Cantonment Board, Malir Cant. Are two different institutions/agencies, former works and discharge its duties under the provisions of Army Act, while later performs and discharges its duties under the provisions of the Cantonments Act, 1924.
(e) That plaintiff have mixed up two different institutions with mala fide intention in order to mislead this honourable Court.
(t) That plaintiff can only be sued through its Executive Officers and not through Commander Station Headquarters and institution of present suit is not proper.
(g) That suit filed by the plaintiff is liable to be dismissed."
4. Without prejudice to the legal objections, it is stated in the written statement that after the deposit of Rs,8,00,000 the plaintiff was to deposit a further sum of Rs,3,00,000 to complete the 1/4th of the total bid amount but despite various chances given to him, he failed to deposit the required amount. Registration of F.I.R. Against the plaintiff was denied for want of knowledge. They have denied that the plaintiff has deposited a total sum of Rs,9,50,000. The defendants have denied having entered into any contract with the plaintiff. It is stated that some dealing for contract of Cattle Mandi was going on between the plaintiff and Station Headquarter but as plaintiff had not fulfilled the requirements, a notice was served upon him for cancellation of proposed dealing and ultimately the same was cancelled. According to the defendant, the contract executed by the Station Headquarter is not binding on the defendant, as such no cause of action accrued to the plaintiff against the defendant.
5. The application in hand under Order VII, rule 11, C.P.C. Has been filed by the defendant praying therein for rejection of the plaint on the grounds that (i) the suit having been filed in the name of proprietorship concern and not in the name of the proprietor is hit by Order XXX, rules 1 and 10, C.P.C., (ii) the suit is barred by section 42 of the Specific Relief Act, (iii) the suit is barred by section 273 of the Cantonments Act, 1924.
6. I have heard the arguments advanced' by Mr. Raja Qureshi, Advocate in support of the application and Mr. Akhtar Hussain, Advocate appearing for the plaintiff.
7. It was canvassed by Mr. Raja Qureshi that the suit was not competently filed and that since no notice as provided under section 273 of the Cantonments Act, 1924 was served prior to filing of the suit, the same was incompetent. It was further argued that the suit was not maintainable being hit by the provisions of section 42 of the Specific Relief Act as no cause of action accrued to the plaintiff to file the present suit. It was next argued that the plaintiff has concealed the material facts and that the plaint was liable to be rejected. He has drawn my attention to the letter dated 27-1- 2001 which was addressed to the plaintiff whereby the plaintiff was required to clarify his position with regard to certain irregularities. Learned counsel has also referred to the notice of cancellation issued to the plaintiff vide letter dated 31-1-2001. In support of his contention, learned counsel has placed reliance on (i) 1999 M LD 1781, (ii) PLD 1961 Dacca 693, (iii) NLR 1988 Civil 422 and (iv) 1988 CLC 1182.
8. Conversely it was contended by Mr. Akhtar Hussian, learned counsel appearing for the plaintiff that the above. Contentions were raised on behalf of the defendant while arguing the application under Order 39, rules 1 and 2, C.P.C. Which were dealt with by the learned Single Judge while disposing of the said application and injunction was granted in favour of the plaintiff. He further submits that the authority cited at Serial No,(i) is no more in the field as the same has been overruled. He submits that the High Court Appeal filed against the injunction order passed by the learned Single Judge also failed. He further argued that no notice was required and that the consequential relief was sought by the plaintiff. In support of his contention, learned counsel placed reliance on (i) 1992 CLC 691, (ii) 1996 CLC 31,
(iii) AIR 1961 SC 808, (iv) PLD 1971 SC 762 and (v) 1989 M LD 3125.
9. I have considered the respective contentions raised by the learned counsel for the parties and have perused the material placed on record. The case-law relied upon by learned counsel for the parties have also been examined.
10. In order to appreciate the case-law relied upon by Mr. Raja Qureshi, learned counsel for the defendant, it may be stated that the authority cited at Serial No,(i) since does not hold the field as pointed out by the learned counsel for the plaintiff, need not be considered as this fact has not been disputed by the learned counsel for the defendant. Even otherwise there is an application being C.M.A. 1396 of 2002 moved on behalf of the plaintiff under Order VI, rule 17, C.P.C. Seeking the amendment of the title insofar as the status of the plaintiff is concerned. In this view of the matter, the contention raised by the learned counsel for the defendant that the suit has not been filed by a competent person, does not appear to have much force.
Regarding the service of notice, the law has been settled by the Honourable Supreme Court in the case of Muhammad Hussain reported in PLD 1976 SC 785 wherein it has been held that no such prior notice will be necessary in case of a suit against the Board where the only relief claimed is that of an injunction of which the object would be defeated by giving of the notice or the postponement of the institution of the suit or proceedings. Since in the present suit the relief of injunction was also sought, therefore, the learned Single Judge while hearing the application for injunction duly considered the objection and came to the conclusion that for the grant of injunction no notice was necessary. Strangely enough the plaintiff has so far neither amended the plaint nor prayed for any such amendment in the plaint and the prayer of declaration still exists which even otherwise cannot be granted to the plaintiff. Admittedly no notice as required under the law was I served on the defendant and the suit for declaration is, thus, liable to fail on this count.
However, the third objection raised by the learned counsel for the defendant to the extent that no consequential relief was sought is devoid of force as consequential relief is being sought in the plaint. The relief by way of injunction was held to be further relief in AIR 1961 SC 808.
11. Adverting to the contentions raised by the learned counsel for the plaintiff, it may be stated that perusal of order passed in High Court Appeal No,49 of 2001 copy whereof has been placed on record, reveals that the same was dismissed as having become infructuous on the statement of the learned counsel appearing for the defendant to the effect that the contract was awarded in favour of another bidder on the same date to run "Maveshi Bazaar" during the period between 11-2- 2001 and 10-3-2001 and the notice which is impugned in the suit had already been acted upon, thus the injunction had become infructuous. The authority at Serial No,(i) is in relation to a notice under the Sindh Building Control Ordinance, 1979 which is not relevant in the circumstances of this case. The authority cited at Serial No,(ii) is in regard to the Colonization of Government Lands (Punjab) Act, 1912 and relates to bar of jurisdiction of Civil Court in terms of section 36 of Colonization of Government Lands (Punjab) Act, 1912 and has no nexus with the present suit.
It was held in the authority cited at Serial No,(iv) that the suit could not fail merely by reason that the consequential relief by way of possession was not claimed. It was held that the Court in such circumstances should allow the plaintiff to amend the plaint by adding prayer for possession and paying appropriate of ad valorem court-fee. It will not be out of place to mention here that despite having the knowledge about such plea having been raised, the plaintiff did not care to get the plaint amended. The authority relied upon at Serial No,(v) is also on the same point.
12. As per facts disclosed in the plaint itself, the document purporting to be, Agreement placed on record as Annexure P/19 was executed between the plaintiff and the Station Headquarters, Malir Cantonment. This deal between the parties appears to be a licence for running Cattle Mandi on payment of consideration for a period of four years. According to clause (k) of this contract if the contractor is unable to fulfill any condition of the agreement, then the Station Headquarters is authorized to impose penalty on contractor. It further provides that if it is deemed necessary, contract can also be cancelled. Besides the contract bears a condition that for any dispute/difference whatsoever the contractor will not approach Court at anycost and Station Commander Headquarter will be the sole competent authority to give any judgment on the dispute. The condition further stipulates that the Station Commander is also competent to cancel without any notice once the contractor defaults in payments. It is also one of the conditions appearing at clause (v) of the agreement that the arrangement will be automatically terminated for any of the following:
(1) On orders from higher authorities for any reasons deemed suitable.
(2) In case of irregular payment and insolent behavior.
(3) If there is breach of the conditions contained in the contract. (4) In case of not resolving complaints in time.
13. It is apparent from Annexure P.21 annexed with the plaint that a coordination conference for establishment of Cattle Mandi was held on 31-1-2001 to formulate modalities, working, parameters and other related issues in connection with the establishment of Cattle Mandi for forthcoming Eid- ul-Azha. The said letter dated 29-1-2001 reveals that a copy of the same was also sent for information to the plaintiff. The notice which has been impugned by the plaintiff appears at Annexure P.21 the contents whereof reveal that decision was taken in the meeting held by Commissioner, Karachi on 22-1-2001 that the Cantonment Board itself will run this Cattle Mandi. On perusal of above documents, it transpires that the plaintiff himself was fully in picture of the developments having taken place in respect of the establishment of Cattle Mandi. In the circumstances, it appears that the averments made in the plaint were afterthought. The plaintiff concealed the fact and did not approach this Court with clean hands. The plaintiff was, thus, not entitled to any discretionary relief, and the plaint was liable to be rejected on this score.
14. There is thin line of demarcation between a lease and a licence. It is a settled principle that a lease is a transfer of an interest in immovable property while the licence is merely a competence to do something which except for this permission would be unlawful. The distinction between lease and licence was elaborately discussed in the case reported as Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106.
On perusal of the pleadings made in the plaint, it is abundantly clear that the relationship between the plaintiff and the defendant is that of licensee and licensor.
15. The question of licence came under discussion before the Honourable Supreme Court in PLD 1965 SC 83. The facts of the reported case were that the appellant was granted licence whereby he was given a right to use refreshments rooms allotted to them for the purpose of catering refreshment. It was held that such a contract does not amount to easement as defined in section 4 of the Easements Act, 1882 or interest in the property nor it could be regarded as a licence within the meaning of section 60 of the Easements Act. It was, thus, held that this being a revocable licence, the revocation thereof cannot be prevented by way of injunction. It was observed by the apex Court that in a case like this the licensee is entitled to a reasonable notice in accordance with the provisions of section 63 of the Easements Act. The Honourable Supreme Court in the said case while dilating upon the provisions of section 21 of the Specific Relief Act, observed that it is clear that as it is a revocable licence and as adequate relief could be obtained by way of damages, this contract cannot be specifically enforced as it was a contract which in its nature was revocable.
In the circumstances, the plaintiff cannot be granted a perpetual injunction as provided under section 56 of the Specific Relief Act in view of sub-clause (f) of section 56 which provides that an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced.
16. Apart from praying for permanent injunction, the plaintiff has also prayed for declaring that the plaintiff is a lawful contractor of the Cattle Mandi. Under the provisions of section 42 of the Specific Relief Act, a person entitled to any legal character or to any right as to any property can institute a suit for a declaratory relief in respect of his title to such character or right. It will, therefore, suffice to say that section 42 does not contemplate a suit like the present one. Reference can conveniently be made to the case of Bahmah Eastern Ltd. Reported in PLD 1967 Dacca 190.
17. It is an undeniable fact that the contract between the parties has since been terminated. The copy of the order passed in H.C.A. Nd.49 of 2001 which has been placed on the record by the plaintiff discloses that the impugned notice appearing in the newspaper has been acted upon. A fresh contract has since been executed by the defendant with another contractor. In the circumstances, the only remedy, if any, available to the plaintiff will be to claim a compensation as a consequence of breach of contract, in case it was proved that the same was revoked, renunciated or repudiated without notice or otherwise in violation of the terms of the contract itself.
In PLD 1965 (W.P.) Karachi 202, a learned D.B. Of this Court observed as under:-- "It is true that the respondent could not compel the appellants for the continuation of the relationship after the later had revoked his authority. His remedy lay only in an action for damages for breach of the contract." This authority was upheld by the apex Court in the citation reported in 1973 SCM R 555. In the case reported in 1995 SCM R 1431 it was observed by the Honourable Supreme Court as under: "Repudiation is the refusal by a party to discharge its obligations under the contract. It occurs when one of the parties to a contract evidence by his conduct or openly declares his intention not to fulfill his obligations under the contract. 'Where there has been such repudiation by one party of his contract obligations the other party may either acquiesce and betake himself to a claim for damages for breach or may contest the repudiation, but if his protests are unavailing, as he cannot in general enforce specific implement, his only remedy in the end is also a claim of damages for breach."
As observed earlier, the plaintiff has thus no right or legal character within the contemplation of section 42 of Specific Relief Act to maintain a suit for declaration. In view of the above legal proposition, the plaint is liable to be rejected.
18. It is not only the requirement of law, but it is in the interest of the litigants that the incompetent suit should not be allowed to further encumber legal proceedings. Still born suit must be buried at its inception, without formal funeral ceremony. It will be advantageous to reproduce the following observations made by the apex Court in (S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan) reported in 2002 SCM R 338: "It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest 'of the litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes."
For all that has been stated above, I am persuaded to allow the application under Order VII, Rule 11, C.P.C. Moved by the defendants. Resultantly the plaint in the suit is hereby rejected. Consequently all the pending/listed C.M.A's. Stand disposed of having become infractuouss.