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Petitioner: SHAHID SYED VS Respondent: TOTAL PARCO MARKETING LTD. through Company Secretary and another
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title:SHAHID SYED vs TOTAL PARCO MARKETING LTD. through Company Secretary
and another Case No.: Suit No.920 of 2015 Date of Judgment:2016-08-18 Reported As: 2017 YLR 2006 Result: Plaint rejected Judgment ORDER SALAHUDDIN PANHWAR, J.---Through instant application i.e. C.M.A. No. 8723 of 2015 (application under section 94 r/w Order XXXIX, Rules 1 and 2 and section 151, C.P.C.), the plaintiff prays as under:- - "...to restrain the defendants from interfering with the plaintiff's possession of the suit property and operations of the filling and CNG station thereupon.' 2.Succinctly, facts as set out in the plaint are that plaintiff is a businessman; prominent politician and a Senator; amongst his other businesses he is operating a filling station and CNG station in the name and style of 'Syed Service Station' upon plot No.B-73, SITE Karachi; defendant No.1 is a company dealing in distribution, marketing and sale of oil, gas and other petroleum products while defendant No.2 is a subsidiary and/or an associated company of defendant No. 1 . Defendant No.3 is the owner of the suit property having derived title through a lease from Sindh Industrial Trading Estate (SITE). In 1972, she leased out the suit property to defendant No.2 for a term of 25 years commencing on 01.7.1972 for the purpose of operating a filling station thereupon. Defendant No.2 was permitted to cause the construction of a filling station with all ancillary facilities upon the suit property and to sub-let or under-let the same and to remove all the construction, fixtures and fittings on the suit property upon vacation of the same. It is further pleaded that defendant No.3 was initially appointed as a dealer in respect of the filling station upon the suit property and was operating a filling station thereupon. As such, she was the original licensee in respect of the filling station on the suit property. Subsequently, in 1980 she transferred her license with the consent of the defendants Nos. 1 and 2 to one Ashraf Ghulam
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Hussain for a sum of Rs.2 million. Consequently, the defendant No.2 granted the said Ashraf Ghulam Hussain a fresh license for the operation of a filling station dated 10.11.1980; Ashraf Ghulam Hussain obtained a license in relation to the filling station on the suit property not merely upon payment of requisite license fees but also after paying valuable consideration to defendant No.2. As such, he was not a bare licensee but a licensee coupled with an interest and his license was conferred with the joint consent of defendants Nos.2 and 3. Eventually, around the year 1990, said Ashraf Ghulam Hussain transferred his dealership license to the plaintiff with the consent of defendants Nos.1 and 2 for the sum of Rs.4.5 Million. Accordingly, the plaintiff was granted a fresh license from the defendant No.2 to operate a filling station situated upon suit property thereby plaintiff entered into shoes of said Ashraf Ghulam Hussain and became a licensee coupled with an interest in respect of the filling station on the suit property. Moreover, like Ashraf Ghulam Hussain before him, his license was derived from both defendants Nos.2 and 3. At the time the plaintiff was granted a license to operate filling station upon suit property, it was in a state of poor upkeep with the obsolete and inefficient machinery and the structure being old and constructed of inferior material requiring considerable renovation. Over the years, with the knowledge and consent of all defendants, plaintiff invested millions of rupees in upgrading the said filling station. Apart from the above, the plaintiff has spent huge amounts of money over the years in ensuring the connection and maintenance of utilities to the subject property. On 13 3.1998 defendant No.3's lease was cancelled by SITE on account of 'violation of lease conditions and non-payment of lease rentals. Subsequently, on 26.5.1998 a fresh lease in respect of the suit property was executed and registered between SITE and defendant No.2; defendant No.3 then filed Suit No.1001 of 1998 against SITE and defendant No.2 challenging SITE's cancellation of her lease and execution of fresh lease in favour of the defendant No.2. Plaintiff was not made party to the said litigation and continued to operate his filling station on the suit property. During this period, to modernize the filing station and to offer additional services/products, the plaintiff applied for and obtained license from the Ministry of Petroleum and Natural IZe sources at a considerable cost to install CNG filling station; plaintiff also entered into a fresh agreement dated 05.10.1999 with defendant No.2 for the operation of .a CNG facility at the filing station upon the suit property. In August, 1999, the plaintiff imported a CNG plant with all attached paraphernalia from the Canada at the cost of USD 90,000/- and incurred significant additional expenditure in installation of plant, plaintiff also incurred huge costs in obtaining a commercial gas connection from the Sui Southern Gas Company; these huge investments made by the plaintiff upon suit property were fully within knowledge of defendants. Moreover, at that point, defendant No.2's stance was that it was the owner of the suit property as SITE had directly executed a fresh lease in favour of defendant No.2. Subsequently, in the year 2000 the issues between defendants Nos.2 and 3 were settled and SITE restored the original lease of the defendant No.3 and cancelled the fresh leas& issued to defendant No.2. The business of plaintiff was not interrupted and defendants continued to allow him to run his filling and CNG station on suit property. In 2001, defendant No.2 executed another CNG Filling Station Operation Agreement with the plaintiff and in 2003 the plaintiff was granted a CNG Marketing License from the Ministry of Petroleum; defendant No.2 renewed the earlier Petrol Filling Station License in the name of the plaintiff on 17.10.2004 for an indefinite term. Meanwhile, a fresh round of litigation ensued between defendants Nos.2 and 3 in respect of possession of the suit property and another property owned by defendant No.3's husband but leased to defendant No.2; that litigation was eventually settled vide settlement agreement duly recorded in order dated 28.1.2008 passed in C.P. No.242 of 2008 by this Court. On 31.5.2008 in accordance with the compromise order, defendant No.3 executed and caused to be registered a fresh 30 years' lease in favour of defendant No.2. 3. Further, plaintiff claimed maneuvering on part of defendants Nos.2 and 3 to evict him and claimed that soon after entering the said compromise and negotiating a fresh 30 years' lease from
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defendantNo.3, defendant No.1 deliberately defaulted upon the lease rentals in respect of the suit property thereby allowing defendant No.3 to bring a collusive ejectment application bearing Rent Case No.178/2009; an ejectment order was passed in said Rent Case which has been upheld by this Court vide order dated 15.4.2015 in C.P. No.S-1382/2013. Both parties deliberately avoided joining the plaintiff in said rent proceedings despite knowing that the most materially affected party in case of an ejectment order would be the plaintiff. Indeed plaintiff only became aware of those proceedings in the month of May 2015 when he was informed by a staff member of defendant No.1 that he would have to vacate the said property in a couple of weeks due to court orders passed behind his back. Plaintiff claims that in December, 2011 he (plaint(f) requested defendant No.1 to completely refurbish subject filling station and defendant No.1 vide its letter dated 6.1.2012 expressed its inability to accede to the plaintiff's request due to shortage of funds. Defendant No.1 asked the plaintiff to undertake refurbishment and modernization of the construction on the suit property at its own cost despite knowing fully well that defendant No.3 had preferred ejectment proceedings in relation to the suit property. As such plaintiffs incurred further expenditure running into millions of rupees by essentially reconstructing nearly all fixtures, fittings, installations and buildings on suit property. Once again, this investment and refurbishment was within full knowledge of all defendants and they never objected to same as they intended to profit from same after ousting the plaintiff. 4. In above background, plaintiff claims that he is entitled to a declaration of his status a licensee coupled-with-interest in suit property by virtue of licenses granted to him by the defendant No.2 with the knowledge and consent of other defendants and his right to continue in possession as licensee, and sought following relief (s):- A) Declare that the plaintiff is a licensee coupled with interest of the defendants in respect of the suit property namely No.B-73, SITE Karachi admeasuring 0.44 acres and is entitled to continue in possession thereof; B) Declare that the plaintiff is the owner of all the filling and service station constructed and installed upon the suit property including the buildings, canopy, office and the machinery and equipment including pump outfits and the CNG plant, underground storage tanks, pipelines and all other fittings and fixtures thereupon; C)Restrain the defendants from interfering with the plaintiff's peaceful and quiet possession and enjoyment of the suit property and from interfering with the plaintiff's ownership and enjoyment of the filling and service station constructed and installed upon the suit property including the buildings, canopy, office and the machinery and equipment including pump outfits and the CNG plant, underground storage tanks, pipelines and all other filling and fixtures thereupon. D)Grant damages of Rs.50 million against the defendants jointly and severally along with such further sums as may be determined at the time of hearing / disposal; E)Grant any other relief deemed fit and proper; F)Award costs and special costs. 5. Defendant No.3, filed Counter affidavit wherein denying any relationship with the plaintiff; acknowledged relationship with defendant No.1 which too as landlord/lessor; she claimed that in result of lawful rent proceedings eviction order against defendant No.1 has been passed/ recorded and instant suit is not sustainable against such earned right of the defendant No.3; while referring to clause 4(a) of her lease agreement with defendant No.1, it was insisted that defendant No.1 was not authorized to sublease subject property or part thereof hence any acts / omissions on part of defendant No.1 towards plaintiff shall not bring the defendant No.3 under any obligation. 6. It is worth to add that during proceedings/hearings, the plaintiff was also asked to satisfy the maintainability of the suit. 7. I have heard the respective sides and have gone through the available material.
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8. The learned counsel for the plaintiff has argued that the plaintiff has a prima fade case in his favour; valuable and independent rights are there showing independent title and interest of the plaintiff hence plaintiff is entitled to continue his business. Learned counsel while referring section 16 of Easements Act and paragraph No.3 of plaint coupled with other documents, contends that plaintiff is a licensee hence he is entitled for possession of the subject matter property; since long plaintiff is in possession and has incurred huge amount on the subject premises; vacation proceedings filed by defendants were collusive in nature; plaintiff was not party, even having no knowledge; the order of the apex Court which is result of compromise between the defendants and same is in personam would not be treated as in rein. At this juncture he referred Articles 55 and 56 of the Qanun-e-Shahadat Order 1984; per learned counsel case of in nersonam are covered by these articles whereas subject matter is not falling within that scope. He further contended that review application preferred by plaintiff was not decided on merits as well plaintiff was not precluded to file instant suit, he relied upon 1996 SCMR 218, PLD 1987 SC 145, 1996 SCMR 1145, 1985 SCMR 620, 1988 SCMR 1860, 2015 CLC 594, 1992 3CMR 1109, PLD 2015 Sindh 336, PLD 2010 SC 483, PLD 1974 Lahore 346, 1989 MLD 3653, 2005 CLC 1602, 2008 CLC 348, 2004 CLC 343, 1990 MLD 420 and PLD 1965 SC 83. 9. Learned counsel for defendant No.1 contended that dispute between the parties was hotly contested at various fora hence it cannot be said that these were collusive proceedings; plaintiff is not a licensee hence suit of the plaintiff is not maintainable. 10.In contra, learned counsel for defendant No.2 contends that construction raised by anyone on subject matter property was illegal as there was no consent to Caltex (defendant) the sub-lessee of the subject matter property. Since there was default by defendant No.2 thus defendant No.1 filed vacation proceedings, same was allowed, appeal preferred was dismissed. He also referred paragraph No.10 of the plaint which is:-- "However, the business of the plaintiff was not interrupted and the defendants continued to allow him to run his filling and CNG station on the suit property and continue to invest in the suit property and the station thereupon. In 2001, the defendant No.2 executed another CNG filling station operation agreement with the plaintiff and in 2003 the plaintiff was granted a CNG Marketing License from the Ministry of Petroleum Moreover, having witnessed the hard work and the investments made by the plaintiff in the successful operation of a filling station and CNG station on the said property, the defendant No.2 renewed the earlier petrol filling station license in the name of the plaintiff (and his sons) on 17.10.2004 for an indefinite term. While concluding his arguments he contended that licensee cannot be granted proprietary rights. He has relied upon PLD 2011 SC 44, 1986 SCMR 1638, PLD 2002 Karachi 83, PLD 1965 SC 83; PLD 1996 Karachi 267 and 2003 CLC 3. 11.On the other hand, counsel for defendant No.3 while referring to grounds / pleas, taken in counter affidavit, argued that plaintiff has no legal character at all hence question of any prima facie case does not arise; undisputedly plaintiff has no direct nexus or relation with defendant No. 1, the owner hence a legally earned right of taking possession cannot be avoided/defeated by plaintiff by filing instant suit. Reliance has been placed on the case laws, reported as Messrs Pakistan Burmah Shell Ltd v. Khalil Ahmad (PLD 1996 Karachi 467); M/s. Nooni Traders Karachi v. Pakistan Civil Aviation Authority (PLD 2002 Karachi 83); Pakistan State Oil Company Ltd v. Sikandar A. Karim (2005 CLC 3); M. A. Naser V. Chairman, Pakistan Eastern Railways (PLD 1965 SC 83); Muhammad Sarwar v. Muhammad Shall (1986 SCMR 1638) and Pakcom Ltd v. Federation of Pakistan (PLD 2011 SC 44). 12.Since question of the maintainability of the suit is strongly pressed, therefore, it would be in all fairness to decide this issue first because for deciding an injunction (interim order under Order XXXIX Rules 1 and 2, C.P.C.) 'prima facie' case is one of the ingredients which undeniably has nexus with maintainability of a lis. Therefore, in all fairness, I would like to attend the question of maintainability of suit first.
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13.It is settled principle of law that to examine the maintainability of a /is, the Court normally should confine itself to the pleadings (plaint) and documents, annexed therewith but since the law nowhere permits a right/status to remain under dispute (lis) by replacing the row of plaintiffs or by way of tilting the words. The law rather demands to give the due to the deserved one after proper adjudication in one round of litigation hence those facts and documents, which otherwise are undisputed can well be considered even if same pertain to other litigation which, however, must have bearing on fresh one. 14.The plaintiff has worded his pleading in a manner so as to bring it within meaning of the Specific Relief Act as number of declaration(s) have been sought though normally suit(s), based on license etc. are to be governed by the Easements Act. 15.Let's take up the matter treating it as an ordinary civil suit. The plaintiff has been insisting on three counts i.e. his status as dealer or licensee and that he (plaintiff) invested huge amount. Let's examine the same with reference to pleadings (plaint). A perusal of the plaint shall speak for itself that though the plaintiff admits the status of defendant No.3 as owner I lessee of subject matter yet does not claim any direct relation with the defendant No.3 nor he has claimed to have acquired the status of 'licensee' under the defendant No.3. A direct reference to relevant portions of the plaint, being material, is made hereunder:-- "Para-3. That defendant No.3 is the owner of the suit property, having derived title through a lease from Sindh Industrial Trading Estate ('SITE'). In 1972, she leased out the suit property to the Defendant No.2 for a term of 25 (twenty five) years commencing on 1.7.1972 for the purpose of operating a filling station thereupon. Thus, the plaintiff legally cannot take an exception to such ownership of defendantNo.3 and status of defendant No.2 to be lessee under defendant No.3 because one is always bound by his / her words (admissions). Worth to insist here that defendant No.2 per plaintiff himself is subsidiary or associated of defendant No.1 which means it (defendant No.2) has no independent character. 16. Let's first discuss the claimed status of plaintiff as holder of 'licenses' and 'dealership' which per the plaintiff himself were meant: 'Para-5. Eventually, Accordingly, the plaintiff was granted a fresh license from the defendant No.2 to operate a filling station...' 'Para-8. the plaintiff applied for and obtained license- at a considerable cost - to install CNG Filling Station from the Ministry of Petroleum and Natural Resources. A status of 'dealer' or 'licensee' shall not be used for any other purpose except to what same are limited by law. Before proceeding further, let's have an eye over the meaning of the terms 'dealer' and 'license' per Black's Law which are: 'dealer' A person who purchases goods or property for sale to others, a retailer. The above 'term' is clear in its meaning. However, the agreement of the plaintiff with the defendant No.2 only (Annexure-D) makes its purpose clear in its opening para i.e.: 'WHEREAS the company is the lessee of the land premises situated at B-37, ESTATE AVENUE, SITE Karachi... , and whereas the company has at the request of the dealer agreed to allow the dealer for a temporary use of the service / filling station as to sell the company's petroleum products by retail from the service / filling station for the consideration and on the terms. The above not only reaffirms the rights and interests of the plaintiff to extent of temporary use of the service /filling station as to sell the products of defendant No.2 but also the status of defendant No.2 as 'lessee'. The pleading (plaint) shall speak for itself that the plaintiff has placed much stress on possessing CNG license and installation of station on subject matter. At this place it is material to refer the meaning of term 'license' with reference to Black's Law Dictionary wherein it is defined as:
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'License'. A revocable permission to commit some act that would otherwise be unlawful, esp., an agreement (not amounting to a lease or profit a prendre) that it will be lawful for the licensee to enter the licensor's land to do some. The license, issued in favour of the 'plaintiff, by Ministry of Petroleum and Natural Resources, shall not authorize/ entitle the plaintiff to acquire any right, title and interest against the owner (defendant No.3) particularly when it is nowhere claimed to have been with consent of defendant No.3. A license or permission even may be from the highest status of the 'State' shall not be used or interpreted for a different purpose nor its (license's) scope can be extended particularly one guaranteed by the Articles 23 and 24 of the Constitution. It is not the status which is to be considered for determining the legality but determining thereof shall always be subject to 'legal competence of such authority'. Let me insist here that it is not the license alone which alone was sufficient for installation of CNG station on subject matter but it was an agreement between defendant No.2 (lessee of subject matter) and the plaintiff by which the plaintiff was allowed to 'operate' his CNG station on subject property. Thus, holding the license alone is of no help for the plaintiff to claim any right, interest and title in the subject matter. 17. The above legal position shall stand clear from the document, annexed with plaint as Annexure J/1 which is titled as 'COMPRESSED NATURAL GAS FILLING STATION OPERATION AGREEMENT', executed between defendant No.2 and plaintiff. The plaintiff was/is addressed and defined as 'operator' in the said agreement. The agreement defining ownership reads as: 1. OWNERSHIP. 1.1. That the piece of land whereupon the CNG equipment and facility will be installed shall always remain in exclusive use, occupation and ownership of the company, to the entire exclusion of all others, whoever he may be, including the operator herein. The above document, relied by the plaintiff, affirms that plaintiff under license of the CNG earned the status of 'operator' only over the subject matter while surrendering exclusion of his (plaintiff's) all rights in favour of the company (defendant No.2) therefore, I am unable to understand that how the plaintiff under an intentionally dressed title of 'dealer or operator' for selling product(s) of defendant No.2 only can claim a right of participation in dispute between the defendant No.2 (lessee) and defendant No.3 (owner). The litigation (ejectment proceedings) between defendant No.1 and defendant No.3 has admittedly ended in favour of the defendant No.3, therefore, the plaintiff legally cannot seek an exception to such earned right of defendant No.3 merely by referring to his status of 'dealer or operator'. No suit shall sustain against a person unless it is prima facie established that one (plaintiff) has an independent legal character against such person nor legally one can keep an earned right with reference to act or omission of some other person else a /is shall never serve its purpose and object which otherwise is meant determination of right through judgment and enforcement of such right through decree. In the instant matter, it is not a claim of the plaintiff that he (plaintiff) ever entered into any direct agreement with defendant No.3 but his all claims, rights and interests are under or through defendant No.2 which too to the extent of 'dealer and operator' hence present plaintiff was/is to sail or sink with defendant No.2. One legally cannot escape the principle of 'sail or sink' if he/she, as the case may, has no direct relation with the owner but claiming under lessee/ tenant, purchaser or licensee even nor he/ she can claim a legal proceeding to be not binding merely for reason of his/her impleading because, these persons, without any hesitation, do not normally qualify the term 'necessary party'. In the case of Pakistan Burmah Shell Ltd. v. Khalil Ahmed (PLD 1996 Karachi 467) it was held that:-- 'The applicant cannot claim to be tenant or sub-tenant or sub-lettee even if he is a dealer of the appellants he has no right to be added or impleaded in the ejectment proceedings which initiated between the appellants and respondents i.e landlord and tenant'. In another case of Pakistan State Oil Company Ltd. v. Sikander A. Karim and others (2005 CLC 3) , it
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is held that:-- '12. No doubt, the lease agreement did permit the tenant to sublet the demised property yet there was no privy in between the landlord and the sub-lessee. The sub-lessee got the lease from the lessee / tenant, therefore, he could not be acknowledged as co-tenant. It was rightly argued that the sublessee has to sail or sink with the tenant.' 18. As regard the plea of the plaintiff that the earlier judgment / order were in nature of personam hence be not treated as in rem. I have no hesitation in saying that this plea shall never be available for one claiming rights, titles and interests under one who otherwisewas a party to earlier proceedings else whole structure of 'administration of justice' shall fail and there shall be no "end" to a us. Such principle is in line with settled principle of law i.e. 'sail or sink together', as discussed above. Further, the said principle of 'sail or sink together' seems to be in line for which reference to relevant portion, defining the judgments in rem , in the case of Federation of…
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