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Civil Petition for Special Leave to Appeal No. K‑30 of 1973, decided on 2nd March 1973.

(On appeal from the order of the High Court of Sind & Baluchistan, Karachi, dated the 11th December 1972, in Civil Revision Application No. 249 of 1971).

S. 42 and Civil Procedure Code (V of 1908), O. XXXIX, r.]‑Declaratory suit‑Injunction, inter locutory‑Licence (subject‑matter of suit), issued by Municipal Committee, expiring by efflux of time during pendency of suit- Question of continuing licence or restraining Municipal Committee from cancelling same, in circumstance, held, did not arise‑Petitioner if successful in suit will recover all damages suffered in consequence of cancellation and also be entitled to renewal of licence‑No irrepar able injury likely to be suffered and monetary compensation adequate remedy‑Injunction, held, rightly refused.

Zafar Hussain Mirza, Advocate Supreme Court instructed by M. L Memon, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 2nd March 1973.

This is a petition for special leave to appeal from the order of a learned Single Judge of the Sind‑Baluchistan High Court in two revisional applications.

The petitioners in these two revision petitions had stalls in a private market for selling beef and meat respectively under licences issued to them by the Hyderabad Municipal Committee, They complained that the Municipal Committee, without any notice to them, under instructions of the Commissioner, purported to cancel their licences with the option of being allotted shops in some other market, if they so desired. As the market in which the allotments were offered was at a considerable distance from the private market where they were carrying on business, they filed declaratory suits in the Court of the Senior Civil Judge, Hyderabad, challenging the orders of the Municipal Committee. They also applied, under Order XXXIX, rule 1 of the Code of Civil Procedure, for interim injunctions restraining the Municipal Com mittee from revoking their licences.

The senior Civil Judge dismissed these applications on the ground that the licences being revocable at the will of the licensor the latter could not be restrained from exercising his discretion. They went up in appeal to the District Judge without any success, They then came to the High Court in revision, The High Court took the view that, because the licences had since expired by efflux of time, no question of granting an inter order could any longer arise.

One of the petitioners has now come up for special leave to appeal, and it is contended on his behalf that the High Court had failed to notice that they had made out a strong prima facie case and, therefore, the interim order should have been granted, particularly since the application for the interim order was made at a time when the licence was still subsisting. The application should have been decided on the basis of the rights available on the date the application was moved and not on the date the same came up for hearing in the High Court.

Before us the learned counsel has also attempted to show that there was no power in the Municipal Committee to cancel the licence, because, no bye‑laws had been framed for regulating the grant and cancellation of licences under the Municipal Admini stration Ordinance, 1960, as required by section 61 (a) of the said Ordinance. The bye‑laws made under the Sind District Municipal Act only related to imposition, collection and realisation of fees for licences and did not make any provision for cancellation of licences, although section 48 of that Act did give the Municipality a power to regulate business in food products in private markets.

These questions, however, relate to the merits of the case which have yet to be decided in the suit. We, therefore, do not propose to express any views on these questions.

So far as the present petition is concerned, it must, in our opinion, fail, because, after the licence had expired by efflux of time, there could be no further question of continuing them o restraining the Municipal Committee from canceling the same.

If the petitioner succeeds in his suit, he will be entitled to recover all damages suffered as a consequence of the cancellation and also to the renewal of his licence. No irreparable injury will thus be suffered by him which cannot be compensated in terms of money.

No interference is, therefore, called for at this stage. This petition is, accordingly, dismissed.

Petition dismissed.

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