2000 C L C 1722

[Karachi]

Before Hamid Ali Mirza and Ghulam Rabbani, JJ

CIVIL AVIATION AUTHORITY---Appellant

versus

Messrs PROVIDENCE AVIATION (PVT.) LTD. ---Respondent

High Court Appeal No.2 of 2000, decided on 8th March, 2000.

(a) Limitation Act (1X of 1908)---

--S. 5---Application for condonation of delay---Non-filing of

counteraffidavit---Effect---Application for condonation of delay was supported by an
affidavit and the same had gone unchallenged---Contents of affidavit having gone
unchallenged were deemed to be true---Delay was condoned in circumstances.

(b) Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1, 2 & O. XLIII, RA(r)---High Court appeal against interim
injunction---Dispute was regarding start of licence period---High Court (Single Judge)
granted interim injunction in suit filed by the respondents---Contention raised by the
respondents was that the period was to start from the date when the appellant had
provided counters to the respondents to run their business---Validity---Licence agreement
did not show any condition which obliged the appellant to provide such
counters--Respondents were merely holders of a revocable licence and the appellant
reserved his right to terminate the same at any time without notice and without cause
being assigned and also without compensation---Licence agreement explicitly stated that
the same was to remain in force for a period of three years---When the interim injunction
was granted, the licence stood already expired---Respondents did not have prima facie
case for grant of injunction---Order of interim injunction was set aside in High Court
Appeal, in circumstances.

Amir Malik for Appellant. Shahenshah Hussain for Respondent.

Date of hearing: 8th March, 2000.

JUDGMENT

GHULAM RABBANI, J.--- Through this appeal, the appellants have challenged the
order, dated 12-11-1999 passed by learned Single Judge of this Court granting injunction
application in favour of the respondent.

2. Briefly stated, facts of the case are that the respondent/plaintiff (hereinafter to be
referred as respondent) filed a suit seeking declaration and injunction that the respondent
is entitled to carry on their business of 'Meet and Assist Service" at International arrival
and departure lounges and also at domestic arrival and departure lounges at Qaid-e-Azam
International Airport without interference from the appellants/defendants (hereinafter to
be called as appellants). The respondent also prayed for injunction with directions to the
appellant not to interfere with the aforementioned business of the respondent and also for
allotting the counters to them at the said airport. Their contention was that they were
accorded permission vide letter, dated 23-9-1996 followed by agreement, dated
10-11-1996 to carry on the aforesaid business from 7-10-1996 to 16-10-1999. Contention
of he respondent was that since the appellants had declined to allot the counters as
aforesaid and had also threatened to remove the counters of the respondent and to stop
them from carrying on their business, they were constrained to file the aforementioned
suit.

3 The respondent also moved a separate application for grant of temporary

injunction which has been granted under the impugned order with directions to the
appellant to allow the respondent to continue with the use of counters in the lounge on
payment of necessary fees.

4. We have heard the learned counsel for the parties and with their assistance
have also examined the available material.

5. At the very outset, the learned counsel for the appellant has urged that this appeal
has been filed with delay of three days which was beyond the control and power of the
appellant. He submitted that the appeal was prepared well in time inasmuch as that copy
of the same was forwarded to the respondent by Registered Post A.D. much before expiry
of period of limitation, however, the appeal could not be presented since the post of Law
Officer concerned remained vacant till 13-12-1999 when the new incumbent received his
posting order and on said date concerned officer attempted to come in High Court but his
entry in the premises was impossible due to restriction on account of a case fixed before
the Incharge, Anti-Terrorist Activities Court. Learned counsel for the appellant, therefore,
prayed that the short delay in preferring the above appeal be condoned under section 5 of
the Limitation Act. It is pertinent to note that the appellant has moved an l application for
condonation of the delay supported by an affidavit which has remained unchallenged by
the respondents. In the aforementioned circumstances, we are constrained to observe that
the contents of the affidavit having gone unchallenged are deemed to be true and the
delay in preferring the appeal is condoned. Next, learned counsel for the appellant
submitted that the period of licence, according to agreement, commenced from
17-10-1996 and expired on 16-10-1999, but the learned Single Judge under the impugned
order, dated 5-11-1999 has allowed the respondent to continue with use of the counters in
the lounges beyond stipulated period under the licence which had already lost its efficacy
by lapse of time. He further contended that the permission which was initially granted to
the respondent was in the nature of revocable licence thereby creating no vested right to
entitle him to the grant of injunction as prayed by him. Besides, he argued, during the
subsistence of licence, the respondent had misused the same as he stated soliciting.
customers looking for porters, a line of business for which the appellant had already
granted licence to other persons. He added that the respondents had caused harassment to
the customers and the complaints kept pouring in against him continually. Learned
counsel for the respondents. however, took up the stand, in his arguments, that though the
appellant had granted permission to the respondents to carry on the aforementioned
business; but, no counters were provided to the said respondents to conduct their business
practically and the respondents were not made factually capable to be in a position to
carry on their business, therefore; the term of three years is to be construed to run from
the day when counters were provided to them. He submitted that counters were provided
to the respondents under the orders of this Court passed on 22nd May, 1999, therefore,
the period of the permission is to run from that date notwithstanding the duration of
licence agreement viz from 17-10-1996 to 16-10-1999, therefore, the learned Single
Judge was justified in allowing him to continue the business under the impugned order.
To controvert the aforementioned submission, learned counsel for the appellant submitted
that according to the terms of licence the appellant was not under any obligation to
provide the counters to them, therefore, the ground raised by the respondent has no
weight. It is significant to note that with the assistance of both the. learned counsel, we
have gone through the licence agreement and do not find any condition to oblige the
appellant to provide counters after granting the permission to the respondents to run their
business.

6. Be that as it may, the respondents are merely holders of a revocable licence to be

construed so from the terms of the agreement to the effect that the licencor reserves the
right to terminate it at any time without notice and without causes being assigned and
also without any compensation. It is explicity stated in the said licence agreement than'
licence shall remain in force for a period of three years commencing from 17-10-1996 to
16-10-1999. Admittedly, the said licence stood already expired when the impugned order
was passed.

7. Considering the above facts and circumstances, we are of the view that the respondent
patently had no prima facie case for grant of the injunction under the impugned orders.,
Consequently, we set aside the impugned order and allow this appeal with no order as to
cost.

Q.M.H./M.A.K./C-5/K Appeal allowed.