2002 PLP 1546 (MLD)

By order dated 20‑8‑2001, the parties were required to be present in Court for examination under Order X of the Code of Civil Procedure. The parties are present. A specific question was put to Mrs. Rubina Makhdoom, the plaintiff, as' to where the original of the agreement dated I1‑6‑1999 was. An attested copy of the said agreement has been produced alongwith the original of TCS receipt. Mrs. Rubina Makhdoom stated that the original was with Mrs. Sajida Ahmed. the defendant and that the same was not given to her. On the other hand, Mrs. Sajida has stated that she has never seen this agreement before and that she was ready to take special oath also. On this, Mrs. Rubina also stated that she was also ready to take special oath. These are questions of fact. which need to be determined. These questions can only be determined after evidence is led. Both the plaintiff and the defendant are willing to take Special Oath, which in itself shows that one of the parties to the proceedings is incorrect.

2. However, the case has been argued at length on the question of law on the presumption that the agreement has been executed. The question could, however, arise, as to why I presume the existence of the agreement. I have seen the attested copy and had asked Mrs. Sajida Ahmad to sign on the reverse of the photocopy of the agreement filed with the plaint. I have compared the signatures and find that they are similar. My assessment is, however, only for the purpose of deciding this application, but shall not have any effect on the eventual outcome of the case‑ There is on record the said agreement, which takes away the right of Mrs. Sajida Ahmed to open any school in P.E.C.H.S. or its adjoining vicinity and/or to use the name and style of the word 'Accel in any such school which she may open or run outside the area mentioned and also by any means not to use the above name in Pakistan. Earlier I had passed an order on 27‑7‑2001 on the basis of the fact that, it was reported by the bailiff that the notice had been refused. Ex parte order having been passed, that she was restrained from opening a school at 142/C, Block‑2, P.E.C.H.S., Karachi or anywhere else in P.E.C.H.S. or its adjoining vicinity and would not use the name 'Accel' in any other school outside P.E.C.H.S. area. The order was passed on the basis of aforesaid agreement. The application being C.M.A. 5889 of 2001 has been made for modification of the said order, in para. 5 of the supporting affidavit, the said Mrs. Sajida Ahmad had stated that she had no intention whatsoever to open a school at 142, P.E.C.H.S. or anywhere else in P. E. C. H. S., Karachi or its adjoining vicinity or use the name Accel in any other school outside P.E.C.H.S. area. The explanation of this, given by Mr. Lakhani is, that as there was an order of this Court, therefore, such has been stated but according to para. 7 also she is not debarred from practising her right and profession. According to him no contract can be made which is violation of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 and that section 21 of the Contract Act, 1872 would also be available that this being read as restriction on her right to profession and trade. He states that otherwise also the said agreement is forged. He states that otherwise also, in law if there is available anything contrary to the Constitution, such cannot be enforced.

3. Mr. Syed Samiuddin Sami, on the other hand, states and interprets clause 7 of the agreement, that the said Mrs. Sajida Ahmad had agreed to perform her part of the contract with full dedication and honesty and in case the mutual contract breaks, for any reason or terminates and the First Party (the defendant) departs from the school, she was bound not to open a school in P.E.C.H.S. and the adjoining vicinity.

4. I have heard the arguments of both the sides and examined the parties also. At this stage, it will not be appropriate to see whether the agreement is or is not a valid contract or that it is forged or otherwise. However, only clause 7 of the agreement needs to be interpreted. There are two assertions of clause

7. The first being that the said Mrs. Sajida Ahmed would be bound not to open a school in P.E.C.H.S. and the adjoining vicinity whereas the second portion of the agreement is that she is bound not to use the name and style of the word 'Accel' in any school which she may open or run outside the area mentioned and also by all means not to use the name 'Accel' in Pakistan. The only position would be what this words "adjoining vicinity" mean. If these terms have to be given a meaning, it could mean a very big area of Karachi, P.E.C.H.S. is almost at the heart of the city Defence Authority, Gulshan‑e‑Iqbal, or other surrounding areas are all adjoining areas. This is not specific. I am not inclined to allow the implementation of a term of an agreement which is not certain nor capable of being made certain. Whilst interpreting the clause of an agreement, it has to be borne in mind that anything which is vague is not enforceable, and is void. Such is provided in section 29 of the Contract Act, 1872 which clearly stipulates that any agreement, the meaning of which is not certain or is incapable of being certain or is vague, cannot be enforced being void. The word "adjoining vicinity" is vague, the meaning cannot be ascertained. Thus this part of the agreement is prima facie void. For this reason, though the injunction may be maintained as regards P.E.C.H.S., the order, dated 27th July, 2001 is to be modified, that the defendant may not proceed to open any school within P. E. C. H. S. only and shall not use the name and style Accel anywhere outside P.E.C.H.S. in any manner whatsoever. However, she may continue her lawful profession or business outside of P. E. C. H. S. H.B.T./R‑68/K