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

--- O. XXXIX, Rr. 1 & 2-General rule that Courts in certain situa tion could not decree performance, held, not unexceptionable Cases which could be exceptions to this general rule "illustrated".

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

O. XXXIX, Rr. 1 & 2-Contract Act (IX of 1872), S. 202- Application for injunction against termination of dealership (Petrol Pump)-Prima facie case existing in favour of plaintiff to indicate that his agency was coupled with interest-Plaintiff incurring expenses and putting in labour in establishing and running agency and creating a good-will among customers-Throwing plaintiffs out of agency without affording an opportunity to prove his case would be nothing but a hard blow on his established business and popularity in business-Defendants on other hand had been regularly receiving their share and charges from plaintiffs and did not show that irreparable injury would be caused to them if they were not put in possession of land forthwith and plaintiff allowed to remain there subject to regularly paying all commissions and Government dues Interim injunction confirmed in circumstances.

PLD1965SC 83; 1985 CLC 1522; 1985 CLC 2891;.PLD 1965 (W. P.) Kar. 202 and P L D 1973 Kar. 234 ref.

Egypt Air's case 1980 S C M R 588 rel.

Abbas Zia for Plaintiff.

Muhammad Anis for Defendants.

This application for interim injunction has been filed by plaintiff in a suit for declaration and injunction.

The plaintiff and defendants, by an agreement dated Nil Annexure "B" to the plaint agreed to run a petrol pump on a plot situated in Sajawal.

By this agreement the defendants have appointed plaintiff as their agent/dealer to sell petroleum, lubricants produced by the defendants, on the plot, plaintiff was also authorised to sell Batteries, tyres and automobile parts on the premi-ses. The plaintiff had also built an automobile service station and equipped it with machinery and other facilities for servicing motor vehicles. It is claimed in the plaint that with consent and authority of the defendants the plaintiff has constructed renovated building and structures, and built an underground tank, and bas built a Pucca drive away. It is further alleged in the plaint that in all this construction renovation and face lifting of the site the plaintiff has spent sums exceeding Rupees two lacs. These investments and efforts have been duly acknowledged by the defendants. The volume of business has increased and sale of the defendants' products have touched high peaks that these efforts have earned good will and profits for the defendant Company. Details of investments have been given in para.7 and para. 10 of the plaint and certificate of appreciation and acknowledgement by the Defendants Inspector have been filed as Annexures C' and 'D' to the plaint. The plaintiff has been running the business of petrol pump since 1982 fulfilling all the obligations and conditions of the agreement. It is complained that, the defendant without any reason or justification decided to abruptly terminate the dealership and asked the plaintiff to vacate and surrender the possession and the running business to the defendants or their nominee. This threatened injury, the learned counsel for the plaintiff calls an irreparable injury.

The plaintiff has prayed for several reliefs but the relief germane for purposes of disposal of this application under Order XXXIX, rules 1 and 2 of C. P. C. is as follows :-

"(17) That the plaintiff prays for the following reliefs :--.

(a) for a decree of declaration that the plaintiff has himself an interest in the subject-matter of Dealership agency of service filling station of Petrol Pump Station at Sujawal, District Thatta and the agreement of dealership cannot be terminated by the defendants to the prejudice of such interest."

Mr. Abbas Zia, learned counsel for the plaintiff has submitted that it is not a case of licence simplicitor which could be terminated leaving the injured party to claim damages and compensation. The learned counsel reads in the situation of this case an agency coupled with interest and a licence coupled with grant and vehemently argues that the relationship between the parties was a contract governed by section 202 of the Contract Act which is as follows :-

"202., Where the agent has himself an interest in the property which forms, the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."

The learned counsel for the defendant No. 1 Mr. Muhammad Anis disagrees with the contentions raised by the plaintiff's counsel. He has read the different clauses of the dealership agreement, particularly clause 12 (a) which provides for termination of the agreement by either side by giving one month's notice to the other. Learned counsel argues that after the termination of licence consequences provided in clause 13 would begin to flow and in the language of the agreement in this clause :-

"Upon termination of the licence for any cause whatsoever, Licensee shall cease to have any right, or interest whatsoever to enter or remain on the said premises, or to use the said facilities or to interfere in the management of Service Filling Station. Upon the termination of the licence the Licensee shall forthwith deliver the said premises and facilities to the company or to its duly authorized agent."

Mr, Abbas Zia, learned counsel for the plaintiff has argued that clause 13 cannot be torn out of its context. The learned counsel adds that the penal consequences visualised in clause 13 cannot be operative against the plaintiff until the obligations detailed in the preceding para. 12 (a) are violated by the plaintiff and until the plaintiff commits reach of any of the conditions of the agreement.

In the present case the record of the plaintiff has remained satisfactory. There is every thing in his favour and nothing against him. The certificates issued by the Inspector of the defendants and high mark of sale of defendants' products hit during the period of agency/dealership are the best testimony of performance by the plaintiff. In any case the threatened termination is not on account of any such breach. On the face of it is arbitrary and dishonest inspired by selfish and questionable motives. So, the learned counsel contended.

Both counsels have quoted earlier decisions and tried to apply them on the facts of the case on hand. Mr. Pishori had relied on P L D 1965 S C 83 ; 1985 C L C 1522 ; 1985 C L C 2891 ; P L D 1965 (W. P.) Kar. 202 and P L D 1973 Kar. 234.

There is no controversy on the proposition that there are certain situations in which Courts cannot decree performance. For instances no unwilling employer can be forced not to prematurely terminate the terms of employment of an employee whom he does not want. For unlawful termination, the employee would have his remedy in damages and not in an injunction for remaining in service. Similarly a contractor entering on premises to execute works with licence or permission of the owner cannot be provided a relief to hold on to the permissive possession if the: licence has been cancelled or permission withdrawn. No agent or attorney can be authorised to continue to represent and deal with third parties for and on behalf of the principal after the authority A has been withdrawn or power has been terminated by grantor. Had it no been so the results would have been disastrous. But there are cases which are exceptions to this general rule. In situations where the stakes of licensees and agents are higher and they have been allured to commit their capital on the assurances and guarantees of the licensor and principal then such a licensee or agent cannot be chucked off on the whims of their counterparts. These are cases of agency coupled with interest and licence coupled with grant. To appraise such issue in a case is always difficult and surely the crux of the matter. Until this crucial issue is investi gated after evidence from both sides any decision would be premature and may result in miscarriage of justice.