ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 325 of 2014
____________________________________________________________
DATE ORDER WITH SIGNATURE OF JUDGE
___________________________________________________________
Plaintiff: Venus Pakistan (Pvt.) Limited
Through Mr. Khawaja Shamsul
Islam, Advocate.
Defendant No.1: Pakistan Defence Officers Housing
Authority Through Mr. Asim
Iqbal, Advocate.
For hearing of CMA No.2544/2014.
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Dates of Hearing: 30.11.2018 & 14.12.2018.
Date of Order: 24.12.2018
ORDER
Muhammad Junaid Ghaffar J. This is a Suit for Declaration,
Injunction, Possession and Damages. This Order will decide CMA
No.2544/2014, which is an Injunction Application under Order 39
Rule 1 & 2 read with Section 94 CPC.
2. The precise facts, as stated, are that on 09.03.2012 a
License Agreement was entered into between Plaintiff and
Defendant No.1 (“DHA”) in respect of all building, structures and
construction on plot of land bearing No.DC-5 situated in Phase-VIII
of the Defence Housing Authority and measuring 15914 (Approx)
square yards and bounded of (Hotel & Villa/Bungalow with its
dimension more fully described in plan marked Schedule “A”, along
with another plot of land as described in the Agreement (“Carlton
Hotel”). The said agreement is valid till 31.12.2018. It is the case of
the Plaintiff that on the basis of License Agreement, possession of
the entire premises as mentioned in the Agreement was officially
handed over; whereas, the Agreement further provides that an
extension of 10 years can be granted with mutual consent. It is
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further stated that the plaintiff was forced to run the Hotel despite
the fact that the first floor was not in working condition due to a
fire broke out prior to the signing of the agreement and handing
over of possession. The cause of action for filing this Suit according
to the Plaintiff is that on 23.02.2014 in an uncivilized manner, the
DHA with the assistance of its duly armed guards took over the
possession unlawfully and dispossessed the Plaintiff from the
Hotel, hence instant Suit.
3. Learned Counsel for the Plaintiff has contended that as per
the terms of the License Agreement, the Plaintiff paid the upfront
money as well as security deposit and was handed over possession
of the entire premises as described in the Agreement and the
Schedule attached thereto. He has contended that though the
Agreement is termed as a License Agreement; but in pith and
substance, it is and must be read as a Rent Agreement, and
therefore, the Plaintiff could not have been dispossessed except in
accordance with law. Learned Counsel has referred to various
clauses of the Agreement and has contended that though the
possession was handed over; but there were certain shortcomings
in the building like faulty air-conditioning system and non-
operation of various other equipment, which required repair and
maintenance. He has referred to Clause 6.1 of the Agreement,
which provides that the Licensee shall provide the total building
equipment’s, furniture etc. in workable condition as per Inventory
jointly signed by the parties. Learned Counsel has then referred
Clause 8.4, 9, 10 & 11 and has contended that the Licensee was
empowered to run and manage and so also to make alterations
and other necessary jobs required thereof. Per learned Counsel the
dispute arose between Plaintiff and DHA in respect of non-
operation of the air-conditioning system and other equipment and
for this the Plaintiff after making regular payments of the license
fee till October, 2012, withheld further payments and approached
DHA to resolve the issue. According to him a joint Board meeting
was held on 30.3.2012, wherein certain terms of reference were
settled; whereas, the expenditure incurred by the Plaintiff was
admitted, but DHA refused to recognize this and also failed to
install new chiller / air-conditioning system; hence the
dispossession of plaintiff was not legal and justified. Learned
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Counsel has referred to various documents on record and has
contended that numerous equipment were non-operational;
whereas, DHA did not finally decided the dispute despite several
meetings. He has further contended that on 17.02.2014 impugned
Notice was issued through which the balance and outstanding
License fee was demanded, which was to be paid by 28.02.2014
and before such date, Plaintiff was dispossessed on 23.02.2014
notwithstanding the fact that Pay Orders of such amount were
given to DHA well before 28.2.2014. According to him instant Suit
was filed and on 27.02.2014, and Nazir was appointed to inspect
the property; whereas, the Plaintiff was directed to furnish Bank
Guarantee of the amount of License Fee being claimed by DHA,
and till the next date on furnishing of such Bank Guarantee, DHA
was restrained from creating any third party interest in the Subject
Property. Per learned Counsel Bank Guarantee was furnished
immediately; whereas, Pay Orders were also given to DHA earlier
as above, but despite this, third party interest has been created
and contempt has been committed of Order dated 27.02.2014.
According to him, the Plaintiff never defaulted and only withheld
payments for the dispute regarding non-operational equipment,
and therefore, the Plaintiff could not have been dispossessed,
hence a mandatory injunction be passed by putting the Plaintiff
back in possession, whereas, the time which has been lapsed and
consumed in Court Proceedings, cannot be accounted to the
Plaintiff, therefore, while giving back the possession, such period
be excluded from the license period as observed by this Court in its
Order dated 07.06.2017. He has next contended that various
equipment belonging to the Plaintiff have been taken over
unlawfully and illegally by DHA, and the same may also be ordered
to be returned to the Plaintiff. He has also referred to Order dated
10.02.2017, whereby, the application of DHA for rejection of plaint
under Order VII Rule 11 CPC was dismissed by this Court and has
contended that all such objections raised on behalf of DHA
regarding entitlement of the Plaintiff as a Licensee have already
been repelled by this Court. In support of his contention he has
relied upon the cases reported as Agha Saifuddin Khan Vs. Pak
Suzuki Motors Company Limited and another (1997 CLC 302),
Mst. Salma Jawaid and 3 others Vs. S.M. Arshad and 7 others (PLD
1983 Karachi 303), Roomi Enterprises (Pvt.) Ltd. Vs. Stafford
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Miller Ltd. and others (2005 CLD 1805), Shahid Mahmood Vs.
Karachi Electric Supply Corporation Ltd. (1997 CLC 1936) & Arif
Majeed Malik & others Vs. Board of Governors Karachi Grammar
School (SBLR 2004 Sindh 333).
4. On the other hand, learned Counsel for DHA has contended
that the Plaintiff continuously defaulted in payment of the License
Fee since October, 2012 for which several Reminders were issued,
and therefore, the action taken on 23.02.2014 was as per the
License Agreement, which provides a termination clause i.e.
Clause-20. Per learned Counsel the Plaintiff was even provided a
much longer period than as provided in the Agreement for making
payments of the License Fee; whereas, the impugned notice was
just a Reminder and it is the case of DHA that Plaintiff had
abandoned the property and left the same without a proper
handing over, therefore, DHA had no option but to take over the
property in question. Per learned Counsel the ingress and egress of
the property in question was always with DHA and was not an
exclusive possession of the Plaintiff to that extent. According to the
learned Counsel, the Plaintiff was earlier acting as a service
provider of another Licensee and in fact through fresh Agreement
again assignment was of a service provider and not a Licensee with
exclusive possession as contended. Learned Counsel has further
contended that when the Suit was filed, the Plaintiff was not in
possession, and therefore, the application for restoration of
possession must be dismissed as Plaintiff has also claimed
compensation and damages, which in the given facts is the
appropriate and maximum relief, which could be granted. Learned
Counsel has then referred to the Statement of License Fee and has
contended that the default has never been disputed, except the
ground that some equipment was not working; whereas, the
Agreement does not provide that any License Fee could be withheld
on this ground. Per learned Counsel clear and intentional breach
of the Agreement has been committed, therefore, the Plaintiff has
no case. He has also contended that immediately, as per the
Agreement, an application for referring the matter to Arbitration
was filed, and therefore, in view of the Arbitration clause, the
application otherwise does not merits consideration. He has
further contended that the Plaintiff in fact never made any attempt
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to run the Hotel properly and was only interested in arranging
wedding functions in the Banquet Hall and the open area and was
making money out of these functions. He has also referred to
various Intervenors Applications as well as their joining in the Suit
to substantiate his claim that Plaintiff was a continuous defaulter
of various other parties, who came before the Court seeking
repossession of their equipment as well as recovery of money. In
support of his contention he has relied upon the cases reported as
Messrs Sign Source Vs. Messrs Road Trip Advertisers and another
(2005 CLC 1982), Khalid & Company through Proprietor Vs.
Cantonment Board, Malir through President Commander Station
Headquarter, Malir Cantonment and Cantonment Executive Officer,
Karachi (PLD 2002 Karachi 502), Daewoo Pakistan Motorway
Services Limited through Chief Executive Vs. Sun Shine Service
(Regd.) through Chief Executive Officer and another) (2009 CLC
406), M.A. Naser Vs. Chairman, Pakistan Eastern Railway and
others (PLD 1966 Dacca 69), Malik Muhammad Jawaid Vs.
Province of Sindh and others (2008 CLC 348), Messrs Ad-Mass
Advertising (SMC-PVT) Limited through Chief Executive Vs. Civil
Aviation Authority through General Manager (2010 CLC 625),
Rehmatullah Khan and others Vs. Government of Pakistan through
Secretary, Petroleum and Natural Resources Division, Islamabad
and others (2003 SCMR 50), M.A. Naser Vs. Chairman, Pakistan
Eastern Railway and others (PLD 1965 Dacca 339), Messrs Zaidi’s
Entrprises and others Vs. Civil Aviation Authority and others (PLD
1999 Karachi 181), Messrs Noorani Traders, Karachi through
Managing Partner Vs. Pakistan Civil Aviation Authority through
Airport Manager, Karachi (PLD 2002 Karachi 83), M.A. Naser Vs.
Chairman Pakistan Easter Railways and others (PLD 1965
Supreme Court 83).
5. I have heard both the learned Counsel and perused the
record. The precise facts have already been stated hereinabove and
it is the case of the Plaintiff that on 09.03.2012 a License
Agreement was entered into with DHA in respect of complete
management of premises which is known as “Carlton Hotel” as
detailed in the Agreement, along with a Villa / Bungalow. It is the
case of the Plaintiff that at the time of handing over the Hotel, an
inventory was prepared and a number of items were non-
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operational, of which DHA had knowledge and was also apprised
of; but despite this, the said equipment was never made functional
and or replaced, and this was the bone of dispute between the
parties. It appears that due to this, the regular payment of License
Fee, after October, 2012, was stopped (though in para 12 of the plaint it
has been stated that it was paid till January 2013, but this is not borne out
from the Statement of Account filed by the Plaintiff pg:225). The License
Agreement provided a schedule of payment of monthly License Fee
as per Clause 2 which reads as under:-
“2. Monthly License Fee
2.1 The License Fee payable by the Licensee to the
Licensor for the License period as per following schedule:-
Sr Licensee Fee Licensee Fee
Period (Rs.P.M.) (Rs. P.
Annum)
1 09-Mar-12 TO 31-Dec-12 4,694,000 46,940,000
2 1-Jan-13 TO 31-Dec-13 5,069,520 60,834,240
3 1-Jan-14 TO 31-Dec-14 5,475,082 65,700,979
4 1-Jan-15 TO 31-Dec-15 5,913,088 70,957,058
5 1-Jan-16 TO 31-Dec-16 6,386,135 76.633,622
6 1-Jan-17 TO 31-Dec-17 6,897,026 82,764,312
7 1-Jan-18 TO 31-Dec-18 7,448,788 89,385,457
The license agreement further provided a termination clause which
reads as under:-
“20 Termination
20.1 In the event of Licensee’s default in any breach of the
License Agreement/violation of any term or condition of
this License Agreement, the Licensor will issue a written
notice giving 60 days for rectification of the default.
20.2 In case the Licensee fails to pay the License Fee and other
charges, if any, to the Licensor for consecutive Three
months, the Licensor will issue a show cause notices on
monthly basis to the Licensee and despite this if license fee
is not paid, the Licensor shall take over the possession of
the Demised Premises without further notice.”
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6. Learned Counsel for the Plaintiff has vehemently argued that
after handing over of the possession of the property in question the
same was being run properly and in terms of the agreement;
however, the air conditioning system as well as other equipment
which were handed over to the Plaintiff were non-functional since
its handing over, therefore, after making payment of license fee
from March, 2012 to October 2012 no further payments were made
and DHA was approached to either adjust the license fee against
the repair cost or in the alternative the same should be repaired
and or replaced by DHA. Plaintiffs further case is that an amount
of Rs.20,000,000/- was paid as upfront money, whereas, an
amount of Rs.28,164,006/- was paid as security, returnable on
completion of the Agreement. It is not in dispute that insofar as the
monthly license fee is concerned, the same was withheld from
October, 2012 till February 2014 and this amount was
Rs.84,157,382/ as mentioned in the impugned notice dated
17.2.2014. It is also a matter of fact that DHA issued its first notice
on 02.04.2013 regarding payment of outstanding dues in terms of
Clause 20.2 of the license agreement as above. The deadline for
payment was 10.04.2013 but apparently it was not paid.
Thereafter, on 10.01.2014 a similar notice was issued and Plaintiff
was given a further time up to 20.01.2014 for making payment of
outstanding dues of Rs. 77,762,983/-. To this effect there appears
to be no dispute that amount was outstanding and was not paid
despite these two reminders, whereas, the defence of the plaintiff is
that even by that time the equipment was not made functional.
Thereafter, another notice, which according to the Plaintiff is the
impugned notice was issued on 17.02.2014 and Plaintiff was asked
to pay an amount of Rs. 84,157,382/- by 28.02.2014. The
Plaintiff’s case is that during this period DHA was approached for
accepting payment of the said amount; but was not accepted, and
therefore, the action of DHA is illegal. After perusal of the record,
and on the basis of observations hereinafter in this order, I am not
inclined to accept this argument on the ground that even if this
notice is ignored, earlier two notices as noted hereinabove, were
also issued and there is no denial to this effect. These notices were
issued in terms of Clause 20.2 of the Agreement, which provides
that in case the Licensee fails to pay the License Fee and other
charges, if any, to the Licensor for three consecutive months, the
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Licensor will issue a show cause notice on monthly basis to the
licensee and despite this if license fee is not paid, the Licensor
shall take over the possession of the Demised Premises without
further notice. It is a matter of fact that first notice was issued on
02.04.2013 and even on the basis of this notice the licensor i.e.
DHA could have taken over the possession as per Clause 20.2 as it
is not in dispute that default in payment of license fee had
occurred for three consecutive months. The only stance which the
Plaintiff has taken is to the effect that this license fee was withheld
on the ground that various equipment was non-functional and
required repairs, maintenance and or replacement by DHA.
However, this does not appear to be an attractive ground for the
present purposes, as if that was the case, then the Plaintiff ought
to have approached this Court at the time when the very first
notice was issued. This was not done and again a second notice
was issued in January, 2014; but even at that point of time, the
Plaintiff did not approached this Court. It is only after the Plaintiff
has been dispossessed after invocation of the termination clause
that this Court has been approached and a mandatory injunction
is being sought for handing over of the possession back to the
Plaintiff. The above conduct of the Plaintiff depicts that the Plaintiff
has not come before the Court with clean hands and it is settled
law that the injunctive relief is a relief in equity whereas, the party
seeking such relief must come before the Court with clean hands.
The default is there and is very much apparent from the record to
which no substantial material has been placed to controvert the
same and the only stance is, that it was withheld for non-
operational equipment. This does not appear to be a valid and
justified ground. Even otherwise, it is also settled law that a license
agreement is always revocable in terms of the covenants provided
thereunder. The Plaintiff had agreed to the entire agreement
including Clause 20 in respect of termination of the Agreement,
whereas, the Court has not been assisted that in the event of any
equipment being nonfunctional, the payment of license fee could
be withheld. It is a matter of fact that the Agreement itself is silent
about any of the defects in the Chiller / air-conditioning system of
the Hotel as pointed out by the Plaintiff. Clause 6.1 of the
Agreement states that “the fixtures and fittings fixed thereto are in working
condition and the equipment installed thereto are workable and in accordance
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with the standard specification”. Clause 6.2 provides that “repair and
maintenance of the demised property during the License period shall be at the
cost of Licensee”. Whereas, clause 6.3 states “that….A Board of Officer
will be detailed to evaluate the life of originally provided items / equipment and
present status on the intimation by the Licensee and in case the equipment is
determined unserviceable / beyond repair, that will be removed by DHA and the
Licensee will replace the said equipment at his own cost, which will remain the
property of Licensee”. It is also a matter of fact that prior to this
Agreement, the Plaintiff was working as a Service Provider to
another Licensee of DHA namely, The Plaza Companies (Private)
Limited, and the said Agreement was terminated by DHA on
8.3.2012, whereas, the Agreement with the Plaintiff was signed on
9.3.2012. Therefore, a presumption of correctness is attached to
the fact that either all equipment including the chiller / air-
conditioning system were operational, and if not, then the Plaintiff
knew about the fault, and accepted the same on as is where is
basis, otherwise, nothing prevented the Plaintiff to object to clause
6 of the Agreement in question. Insofar as reliance by the Plaintiff’s
Counsel on certain documents confirming the non-operational
status of certain equipment is concerned, it may be observed that
the said documents are post Agreement, and this Court cannot
consider those, while interpreting the terms and conditions of the
Agreement which speak contrary to those documents. Learned
Counsel for the Plaintiff has also relied upon Clause 14 regarding
Force Majeure; however, the said clause is of no help as this is not
a case of Force Majeure as mentioned in the agreement itself. The
same only relates to destruction or damage to the demised
property and Force Majeure only comes into picture when such
destruction and damage is beyond the control of the parties. The
Plaintiff took over possession of the Hotel with an inventory and as
per the covenants of the Agreement, wherein all equipment has
been shown in workable condition. If it is the case of the Plaintiff
that such equipment were non-operational from day one, then in
such circumstances the withholding of the License fee ought to
have started from day one, and not a single installment should
have been paid then. This is not the case; rather, at least six
installments were paid, and thereafter, the stance has been
changed, on the pretext that equipment’s are non-functional,
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therefore, the License fee was not paid thereafter. This amounts to
blowing hot and cold at the same time.
7. As to the legal issue raised by the learned Counsel for the
Plaintiff as well as grant of a mandatory injunction, it would suffice
to observe that there is no cavil to this. The Court in appropriate
cases can grant a mandatory injunction or status-quo ante, but it
is always dependent on the facts of each case independently. In my
view the facts in the present case do not warrant any exercise of
such discretion in favor of the Plaintiff, who has per-se defaulted in
implementing and honoring the very terms of the Agreement, from
which now support is being solicited. The Agreement in question
stands terminated by the conduct of the Plaintiff and possession
has been taken over. Had this not been the case and the Plaintiff
had honored its part of the Agreement by making timely payments
of the License Fee, notwithstanding the complaints, then perhaps
the situation would have been different. But once the Agreement
stands terminated by the DHA in accordance with clause 20
thereof, the only remedy lies in claiming damages or compensation
and not by restoring the Agreement and the possession as well.
Learned Counsel for the Plaintiff made valiant efforts to argue that
this is not a License Agreement, but a tenancy Agreement, and
therefore could not have been dispossessed except in accordance
with law. It is settled law that a Licensee merely has a right to use
the property, and such right does not amount an easement,
whereas, the privilege of possessing the property is also subject to
the terms and conditions of the License. Once a License has been
terminated for violation of the terms, notwithstanding the
existence, or validity of the License, the Licensor is legally entitled
to deal with its property as may deemed fit, and it would be too far-
fetched to ask for a Decree of the Court to have the possession
back which was given to the Licensee pursuant to the grant of
License. For all legal purposes DHA terminated the License by
invoking clause 20 of the Agreement upon default, and thereafter,
the retention of possession by the Licensee also becomes
questionable. All along this period the Plaintiff never disputed or
challenged such termination notices and has only come to the
Court after being dispossessed. A learned Single Judge of the
Lahore High Court in the case reported as Abdul Rashid Khan v.
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President Services Institute P.A.F Base Lahore (1999 MLD 1870)
has been pleased to deal with issue in the following terms;
21. As regards second contention that petitioners cannot be
dispossessed otherwise then through a civil action, it may be stated that a
licensee merely has a right to use the property and such a right does not
amount to an easement or an interest in the property but is only a privilege
given to the licensee by the licensor. After termination of licensee, the
licensor is legally entitled and has a right to deal with his property in the
manner he feels like. This right, he gets as owner in possession of the
property against possession of the licence, would be deemed to be
possession of the lawful owner. He needs not to bring a decree of the
Court to obtain and enforce this right but is entitled to resist in defence of
his proprietary right the attempts of licensee to come upon his property by
exerting necessary and reasonable minimum force to expel the trespasser.
If, however, licensor uses excessive force, he may make himself liable to
be punished under the prosecution, but he will infringe no right of a
licensee.
8. In the case of M A Naser v Chaiman Pakistan Easter
Railways (PLD 1965 SC 83) the Hon’ble Supreme Court has
been pleased to observe as under;
Thus this being a revocable licence, the revocation thereof cannot be
prevented by injunction. In a case like this the licensee is entitled to a
reasonable notice in accordance with the D provisions of section 63 of the
Easements Act. If however, the licence is revoked without reasonable
notice the remedy of the licensee is by way of damages and not by way of
an injunction.
It may also be pointed out that as this contract cannot be specifically
enforced, clause (f) of section 56 of the Specific Relief Act will operate as
a bar to the grant of injunction. `' Section 21 of the Specific Relief Act
provides that…..
From the above provisions licence and as adequate relief may be obtained
by way of damages this contract, cannot be specifically enforced and as
such no perpetual injunction can be granted in this case.
In the suit there was also a prayer for a declaration under section 42 of the
Specific Relief Act that the contract in question was still subsisting. The
learned counsel has not pressed this point before us. Under the provisions
of section 42 of the Specific Relief Act a person entitled "to any legal
character" or to "any right to property" can institute for a declaratory relief
in respect of his title to such legal character or right to property. It will
therefore, suffice to say that section 42 does not contemplate a suit like the
present one.
9. A learned Division Bench of this Court in the case of Noorani
Traders, Karachi v. Pakistan Civil Aviation Authority
(PLD 2002 Karachi 83) has been pleased to hold as under;
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It would be seen that the controversy between the parties is that on
the one hand, the appellant has disputed the cancellation of the Licence
Agreement being an alleged arbitrary, mala fide and discriminatory
exercise whereas on the other hand, the respondent has denied this
claiming the right to cancel the Agreement in terms of powers derived
from the Agreement itself as well as being in the public interest. The legal
position regarding the rights and obligations of a licensee is well-settled
inasmuch as a licence does not contemplate a transfer of interest in
property and it is purely a permissible right which is at the behest of the
grantor. This position is in contradistinction to a lease whereby there is a
transfer of interest and an exclusive right to possession is granted. This
would therefore mean that a licensee holds the licensed property purely at
the behest of the grantor which can at any stage be revoked in which event
the licensee's only namely would be a suit for damages, as specific
performance or other equitable relief would not be permissible in the
circumstances of the case. The above formulation of law finds full support
in the Easements Act itself section 60 of which allows the revocation of a
licensee unless it is coupled with a transfer of property of the licensee has
executed works of a permanent character in the licensed premises. Further
sections 63 and 64 of the said Act provides for the consequences of such
revocation viz. reasonable time to the licensee for vacation of the property
and his right to recover compensation for damages etc. as result of such
eviction. In these circumstances, therefore, a suit for specific performance
would not be maintainable as laid down by the Honourable Supreme Court
long ago in M.A. Nasir v. Chairman, Pakistan Eastern. Railways and
endorsed by the superior Courts from time to time viz., in Royal Foreign
Currency Exchange v. Civil Aviation Authority, Zaidi's Enterprises v.
Civil Aviation Authority (supra) etc.
10. It is also an admitted fact that though License Agreement
was valid till 31.12.2018, but was for fixed period, even otherwise
and was not irrevocable in any manner. In fact it was a permission
or License as contemplated under Section 52 of the Easements Act,
1882, to do something in or upon an immoveable property. At the
most if any eviction has been made before having fully enjoyed the
right granted under the License, the Licensee could be entitled to
compensation under Section 64 ibid. Though the parties can agree
and there is no bar as to having such a License being irrevocable,
which otherwise is revocable in terms of Section 60 of the
Easements Act, 1882. However, in this case there is no such
consensus as to its irrevocability, on the contrary, there is a
termination clause which can be otherwise invoked even before the
expiry of the Agreement. Therefore, the bar contained in sections
21, 42 and 56 of the Specific Relief Act, 1877, will also be required
to be considered at least while considering an application for a
mandatory injunction. This will be an impediment in the grant of
relief being sought at this stage of the proceedings by the Plaintiff,
i.e. putting back the Plaintiff into possession. A learned Single
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Judge of this Court in the case reported as Malik Muhammad
Jawaid v Province of Sindh (2008 CLC 348) has been pleased to
dilate upon this issue in the following manner, which squarely
applies to the facts of instant case and reads as under;
Though a suit filed by a bare licensee for the performance of a
contract or for that purposes a declaration or injunction is not maintainable
as clause "d" of section 21 of the Specific Relief Act operates as a bar
from specifically enforcing a contract, "which by its very nature is
revocable Likewise a declaratory suit, under the provisions of section 42
of the Specific Relief Act can only be filed by a person, who is entitled "to
any legal character" or "to any right to property". In the same manner
clause "f" of section 52 of the Specific Relief Act operates as a bar to the
grant of injunction to "prevent the breach of an agreement the performance
of which would not be specifically enforced".
11. In view of hereinabove facts and circumstances of this case I
am of the view that the Plaintiff has failed to make out a prima
facie case as default has been committed in payments of monthly
license fee, whereas, two notices for termination of the Agreement
were earlier issued in terms of clause 20 thereof, which were
neither responded nor challenged before this Court; whereas,
balance of convenience also does not lie it its favor. As to causing
of irreparable loss, the plaintiff has already asked for
compensation and damages, which in the circumstances is the
appropriate remedy; hence no case for an injunctive relief is made
out. Accordingly, application bearing CMA No.2544/2014 is hereby
dismissed. It need not be reiterated that the observations
hereinabove are tentative in nature and shall not have any effect
on trial of the case.
Dated: 24.12.2018
Ayaz Judge
