1989 PLP 998 (CLC)

Z. U. Ahmed for the Plaintiff. Shahudul Haq for Defendant No.2. Zaheeruddin Khan for S.Inayat Ali for Defendant No.3. This application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. by the plaintiff for restraining the defendant No.2 from leasing out the land in suit, namely, 2666 square yards situated within the limits of PAF Base Masroor on RCB. High Way, Hub River Road,. Karachi, to any other person or persons whatsoever and/or affecting the status quo position and/or handing over possession of the subject land with any reasonable limitations as is deemed fit and proper in the circumstances of the case by this Court. On 14‑10‑1986 the plaintiff has filed the suit for declaration and mandatory injunction against the (1) Secretary, Ministry of Defence, Government of Pakistan; (2) The Base Commander, having his office in the name and style of the President Services Institutes PAF Base Masroor, Karachi and (3) Muhammad Umer Qureshi. The plaintiffs case as set up in the plaint is that he alongwith defendant No.3 and his partner Nazir S. Bhatti abovenamed had, in response to an Advertisement in a newspaper on 28‑1‑1984 inserted by defendant No.2 abovenamed informing the general public that a vast area was available for constructing a Petrol Pump, Truck Station, Services Station, Cinema and Shop Complexion, obtained a lease of an open plot of land measuring 2,666 square yards from defendant No.2 for the above purposes in the name of M/s. Friends Corporation. The plaintiff and defendant No.3 paid a sum of Rs.6,12,000 through cheque to the defendant No.2 as adjustable advance rerts of the Petrol Pump and Services Station at the rate of Rs.10,200 per month (later on, enhanced to Rs.10,500). The said sum was only contributed by the plaintiff, who was to finance the project and errection of Petrol Pump, Services Station on behalf of the M/s. Friends Corporation. The cheque was, however, dishonoured and hence on demand of defendant No.2 the plaintiff on 6‑3‑1984 paid the said sum of Rs.6,12,000 and Rs.18,000 on 10‑3‑1984 through Pay Order from his own account with the United Bank Limited, Lasbela Chowk, Branch, Karachi, whereupon a lease agreement dated 10‑3‑1984 was duly executed between the defendant No. 2 of the one part and M/s. Friends Corporation, Karachi, on the other part, represented by the plaintiff and the defendant No.3, was executed. The lease is for a period of ten years effective from (as per latter agreement) 1‑1‑1985 onwards with renewable option of ten years. Later on, some differences arose between the plaintiff and the defendant No.3. The defendant No.2 vide his letter dated 25‑2‑1986 called upon the plaintiff and defendant No.3 to take possession of the land and start construction work within 30 days failing which the agreement would be liable to be terminated. The defendant No.2, therefore, vide his letter dated 5‑10‑1986 to the plaintiff alone, illegally and arbitrarily terminated the agreement and cancelled the same. The plaintiff has assailed the illegality of this action taken by the defendant No.2 in view of the stipulation made in the agreement. The plaintiff has, therefore, filed this suit inter alia for mandatory injunction directing the defendants Nos. l and 2 to withdraw the notice cancelling, revoking and terminating the lease agreement dated 10‑3‑1984 and from allotting the same to any other person and/or from delivering the physical possession thereof to any one else except the plaintiff. Alongwith the plaint the plaintiff also filed an. application under Order XXXIX, rule 1, C.P.C. (CMA No.4541 of 1986) for temporary injunction in the above terms. The defendant No.2 opposed the said application by raising certain preliminary objections against the maintainability of the suit as well as the grant of temporary injunction. This application, was later on withdrawn by the plaintiff on 14‑12‑1986 and it was accordingly dismissed. In the meanwhile the defendants filed their written statements. The issues were also settled on 29‑11‑1987. It was on 18th June 1988 that the plaintiff again filed an application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. (CMA 3583/88) as well as two applications, one under Order I, rule 10, C.P.C (CMA No. 3584/88) for striking off the name of the defendant No.l from the title of the plaint and the other under order VI, rule 17 read with section 151 C.P.C. (CMA No.3584 of 1988) for permission to amend the plaint in the suit and in the manner stated therein. Together with the amended plaint these applications were fixed in Court on 23rd June, 1988 when the notice for the application (CMA No.3583/88) was ordered for 26th June, 1988 and so also notices were ordered to be issued to the defendants. A counter‑affidavit has been filed on behalf of the defendant No.2 whereas the defendant No.3 has not filed any counter‑affidavit and, on my enquiry, Mr. Zaheeruddin Khan, Advocate holding brief for Mr. S.Inayat Ali, Advocate, for defendant No.3 no counter‑affidavit is proposed to be filed on his behalf. The plaintiff has filed affidavit in‑rejoinder. I have heard the learned counsel for the plaintiff and the defendant No.2 and have also perused the record of the case. Mr. S. Shahudul Haq, learned counsel for the defendant No.2 raised a preliminary objection that the plaintiff having withdrawn the earlier application for injunction was estopped from making this application. He could not, however substantiate his contention with reference to any case‑law. I, however, do not feel hesitant to repel his contention as being devoid of force more particularly in view of the fact that while withdrawing the earlier application for injunction, the learned counsel for the plaintiff had clearly stated that he did not want to press the application for the time being. Mr. Z . U . Ahmed learned counsel for the plaintiff, on the other hand, submitted that since the defendant No.2 has received advance rent from the plaintiff and the defendant No. 3 for five years, i.e. from the plaintiff and the defendant No.3 for five years, i.e. from 1‑1‑1985 to 31‑12‑1989 and that there is an option of renewal (twice) for ten years also available to the plaintiff, the alleged termination of lease by the defendant No.2 and has no validity in law. He emphasised that the plaintiff is a financer and that it is his right to take possession of the suit land in question and the defendant No.2 is not legally entitled to oppose this application. The learned counsel for the plaintiff further drew my attention to the contents of the para. 11 of the counter‑affidavit filed on behalf of the defendant No. 2 urged that since the defendant No. 2 has admitted that the lease of the suit land is not being granted to any party nor possession of the same is being given to any party hence there is no legal impediment in granting temporary relief against the defendant No.l. The counsel further emphasised that there has come into existence a contractual relationship between plaintiff and the defendant No.2 and the plaintiff has paid substantial amount as advance rent to the defendant No.2, he (defendant No.2) is legally under an obligation to give possession of the suit land to the plaintiff and the insistence of the defendant No.2 to deliver possession of the suit land jointly to the plaintiff and the defendant No.3 is unjustified. The learned counsel for the plaintiff further submitted that the plaintiff is prepared to take possession of the suit land and to give an undertaking or bound himself against any claim by defendant No.2. Mr. S. Shahudul Haq the learned counsel for the defendant on the other hand, submitted that no fresh cause of action has accrued to the plaintiff for applying fresh temporary injunction and hence the application is liable to be dismissed on this score. He then drew my attention to clause 14 of the lease contract /agreement dated 10‑3‑1984 to urge that it gives right to the lessor, namely the defendant No.2 to terminate the contract by giving notice in writing to the lease upon their failure to comply with the terms and condition set forth in the agreement, and even otherwise to terminate the contract after giving the said notice without assigning any reason. He, therefore, submitted that in exercise of the power available to the defendant No.2 under the said agreement. he has determined the lease by serving final legal notice dated 5‑10‑1986. Mr. Z.U. Ahmed, in reply, submitted that the plaintiff has a prima facie case and the balance of convenience lies in his favour inasmuch as if the defendant No.2 grants the lease or otherwise disposes of the suit land to any other person it would create complications. The plaintiff in his submission will suffer irreparable loss if the injunction is refused. I have given due consideration to the submissions made by both the learned counsel for the parties and I find that notwithstanding the facts that in the counter‑affidavit filed by the Group Captain Dawood Khan President Services Institute of the PAF Base, Karachi the defendant No.2 that the suit land has not been rented out to one Mr. Ikhlaq Ahmad and that "the lease of the suit land is not being granted to any party nor possession of the same is being given to any party and as such there is no question of irreparable loss being caused to the plaintiff", I am of the opinion that in view of the defence taken by the defendant No.2 in the written statement filed on his behalf to the effect that the lease agreement has been terminated /cancelled vide notice dated 5‑10‑1986, this application to grant the temporary injunction as prayed for (sic). I may here also add that as matter of fact even an issue regarding the validity of the cancellation of agreement has been struck in the following manner. "Is the cancellation, revocation and termination of the Lease Agreement illegal and mala fide in view of 5 years' advance rents paid by the plaintiff and received by the defendant No.2 for the period ending 31‑12‑1989. if I grant temporary injunction as prayed it would, in my opinion,1 tantamount to prejudge the above issue against the defendant No.2.The prayer as made in the application cannot also be granted as such in view. of the fact that the case as set up in the plaint has not been supported by the defendant No.3 the co‑executant of the agreement. However, since the defendant No.2 has not denied the p, execution of the agreement of lease, of which the plaintiff is also a signatory, and the receipt of the lease money and since the said defendant has also admitted to have not leased out the said plot to any other person as yet, I, therefore, think it just and proper in the circumstances of this case to direct the defendant No.2 to maintain status quo until further orders. In the result the application stands disposed of as above. A.A./W‑35/K. Order accordingly