2026 PLP 89 (MLD)

Raja Shakeel Ahmed, J.

The instant civil revision petition under Section 115, C.P.C. has been directed against the impugned order dated 09/01/20224 passed by vacation duty District Judge Gilgit in CFA No. 04/2023 whereby the learned District Judge has converted the revision petition into interlocutory appeal and accepted the same by setting aside the order dated 14-12-2023 passed by learned Trial Court in Civil Suit No. 36/2023.

2. Brief facts of the case narrated in the case/suit are that, petitioner/plaintiff had filed the Civil Suit for specific performance of contract agreement dated 07-08-2023 with the following prayers: a). The Defendants are liable to be restrained in the shape of permanent injunction from excavating mining transporting or otherwise interfering with the lawful possession of the plaintiff in violation of contract agreement dated 07/08/2023 as the plaintiff is ready to pay Rs. 2500/per ton as per agreement dated 07/08/2023. b). The plaintiff is entitled to recover Rs.540,000/- per day as cost and expenses amount for Haultage of labour and heavy Machinery Employed by the plaintiff as per list annexed with this plaint and transportation of Heavy Machinery to the Mine Site Rs. 500,000/ one time. c). Recovery of Rs.20,00,000/- as compensation for delay by the defendants in processing work order exploration license and route permit from concerned department. Along with the plaint the plaintiff/petitioner also filed an application under Order XXXIX Rules 1 and 2 read with section 151/94, C.P.C. for suspension of rout permit with serial Numbers, 1886, 1887, 1888, 1889, and 1890 and for restraining the defendants to execute the mine or transportation of any raw material from suit mine. The learned Trial Court after hearing the parties on application under Order XXXIX Rules 1 and 2, C.P.C. accepted the same vide judgment dated 14-12-2023. Feeling aggrieved by the said order dated 14-12-2023 passed by the learned Civil Judge Gilgit-II the respondent/defendant No.1 filed Civil Revision Petition before the District Judge Gilgit which was converted into civil first interlocutory appeal vide order dated 08/01/2024 and allowed the appeal by setting aside the order dated 14/12/2023 of learned trial court. Feeling aggrieved by the said judgment of vacation duty district judge Gilgit the petitioner/plaintiff filed the instant revision petition before this court.

3. The learned counsel for the petitioner/plaintiff argued that the case/suit is prima-facie, argueable and based on solid ground as the petitioner/plaintiff and defendant No. 01 entered into an agreement dated 07/08/2023, which is executed, signed and attested at Gilgit. As per the agreement between the plaintiff and defendant No. 01 the petitioner/plaintiff is entitled to carry on excavation and mining work for granite on the Gulmit bridge side near KKH district Nagar from 07/08/2023 to 07/08/2028 for which the respondent/defendant No. 01 is entitled to receive Rs.2500/- per ton which the petitioner/plaintiff is ready to pay as per contract agreement. He argued that the plaintiff in pursuance of the contract agreement dated 07/08/2023 employed extensive labors and heavy machinery on the side with heavy expenses and excavated about five hundred tons of raw material of worth rupees four million and about 190 tons of raw material were already loaded in 400 tons was ready for transportation by the plaintiff, which the plaintiff has already paid Rs. 76000/- as government royalty and Rs. 75000/- to the respondent/defendant No. 01 as community royalty in pursuance suance of the agreement. He further argued that the respondent/defendant No. 01 in total violation of contract agreement forcefully haunted the work in progress and stops the labour employed by plaintiff and heavy machinery of worth about Rs.4million. He further contended that the raw material excavated from the mine side is to be transported and soul by petitioner/plaintiff wherein the respondent/defendant No. 01 has no right of interference while the respondent/defendant No. 01 is illegally transporting the raw material by violating the contract agreement. He further argued that respondent/defendant No. 01 was bound to provide work order issued by the mines and minerals department immediately after the agreement which he fail to provide the same which is serious laps on the part of respondent/defendant No. 01 while the respondent/defendant No. 01 also fail to procure exploration license and rout permit in due time therefore, commencement of mining and excavation work is badly suffered due to negligence of respondent/defendant No. 01 he further contended that the raw material excavated by the petitioner/plaintiff is to be transported exclusively by the petitioner/plaintiff and the respondent/defendant No. 01 is entitled to receive only Rs.2500 per ton as such any attempt to transport the same by respondent/defendant No. 01 is illegal and unlawful while the petitioner/plaintiff had already paid the fee for rout permit under serial Nos. 1886, 1887,1888,1889 and 1890 and as per contract agreement the petitioner/plaintiff is entitled to transport the raw material under this rout permit. He argued that from the various sources it has been informed that respondent/defendant No. 01 has been involved in offenses like fraud and illegal activities of transportation of raw materials of explosive substance from various parts of GB on the pretext of marble mining and its transportation to different cities of Pakistan. The petitioner/plaintiff demanded the respondent/defendant No. 01 time and again for compliance of the contract agreement but he failed to do so. He prayed for setting the order of vacation duty District Judge Gilgit by maintaining the injunction order of trial court dated 14-12-2023 as the case of petitioner/plaintiff is prima-facie arguable, based on solid grounds, balance of convenience also lies in his favour and if the injunction is not granted against respondent/defendant No.01 the petitioner/plaintiff shall suffered badly.

4. On the other hand the learned DAG and learned counsel for the contesting respondent/defendant No. 01 vehemently opposed contention of the learned counsel for the petitioner/plaintiff with submission that no such agreement has been executed between petitioner/plaintiff and answering respondent/defendant No. 01, neither any such agreement is permissible under mining Rules/Laws. They further argued that the petitioner/plaintiff has also filed a civil suit of same subject matter which is pending before Civil Judge Mansehra just to blackmail and pressurize the respondent/defendant No.

01. The leaned DAG and Counsel for the respondents further argued that all formalities as well as work Order in respect of suit Mine has been issued in favor of answering respondent/defendant No. 01 by competent authority vide letter dated 17th October, 2023, hence plea of execution of agreement is itself contrary to the fact that prior to issuance of work order from the concern competent authority, how an agreement can be executed over a subject matter which was not existed at the time of alleged agreement. The respective counsel for the respondent No.1 and the learned DAG further argued that no mining activities been carried on the spot by the petitioner/plaintiff, nor he is legally authorized to carry any such activities in the suit mine under the law while case of the petitioner/plaintiff based on a fabricated story backed by no documentary evidence. During the course of arguments they also alleged that one of the witnesses of the alleged agreement referred by petitioner/plaintiff has denied his signature on the alleged agreement as witness and has already started criminal proceedings against the petitioner/plaintiff on the said act of fraud and misrepresentation. It is also contended by them that the answering respondent/defendant No. 01 is lawfully authorized for mining in the suit mine by holding valid license, agreement and work order issued by the competent authorities in his favor. Moreover all transportation permits have been issued by competent authorities in favor of answer respondent/defendant No. 01 as evident from the receipts (RAHDARIES). They also argued that, if the injunction order as prayed by petitioner/plaintiff is granted to restrain mining activities at mine and loaded vehicles at Mansehra causing heavy loss to the respondent/ defendant No. 01 which cannot be compensated while due to haultage of loaded trucks he shall bear loss of Rupees one Lac per day which the answering respondent/defendant No. 01 is entitled to receive from the petitioner/plaintiff at the time of conclusion of trial of instant suit. He further argued that the respondent/defendants have reserves his legal right to initiate legal proceedings against petitioner/plaintiff for recovery of said damages. It is also submitted by the learned DAG and leaned Counsel for the respondent No. 01 that the whole story of the petitioner/plaintiff averred in plaint is false, frivolous and fabricated with no legal footing, reason and wisdom, therefore, petitioner/plaintiff has no cause of action to institute instant petition/suit against the respondent/defendant No. 01 as the case is not arguable, based on weak stance, balance of convenience not lies in favor of petitioner/plaintiff while no irreparable loss shall occur to petitioner/plaintiff as well. Finally, the learned counsel for the respondent/defendant No. 01 and learned DAG requests for dismissal of instant petition as well as the suit of the petitioner/plaintiff with heavy cost throughout as the order of learned District Judge Gilgit is based on correct and proper appreciation the law and record of the case.

5. I have heard learned counsel for the parties at length with their able assistance and carefully perused the relevant record.

6. The plaintiffs have filed a suit for specific performance on the basis of an agreement allegedly executed between the plaintiff/petitioner and defendant/ respondent No. 1 on 8th August 2023. Perusal of record it reveals that, said document is not a registered document, moreover its authenticity become at stack as one of its marginal witness has initiated criminal proceedings by registering an FIR against one of its executants i.e. (plaintiff/petitioner) alleging therein that his signature on the alleged agreement are fake. It is also pertinent of mention hear that according to the lease agreement dated 06-07-2023 executed between the respondent No.1 and Mine and Minerals department GB as well as per Mining Rules/Laws any such further agreement is not permissible. It is also admitted by the plaintiff/petitioner that on the same subject matter the petitioner/plaintiff also filed another suit which is subjudice before Civil Court Mansehra. The Work Order in respect of "Suit Mine" has been issued in favor of answering respondent/defendant No. 01 by competent authority vide letter dated 17th October, 2023.

7. Injunction is form of equitable relief and is to be issued in aid of equity and justice but not in aid of injustice. For grant of such relief, it is mandatory for the person seeking injunction not only to establish that the petitioner has a prima facie case, but also that balance of convenience is on his side and that he will suffer irreparable injury/loss unless he is protected through an interim relief during the pendency of the suit. As such the touch stone of well-known principle for grant of interim relief set by law and in the judgments of superior Court are (i) prima facie case (ii) Balance of convenience (iii) irreparable loss. On the basis of above principles for issuance of temporary injunction claimed in the application I gone through the facts mentioned in the plaint, supported documents attached with the plaint and law relevant in the matter in the instant case; the prayer for specific performance of contract by the plaintiff/petitioner on the basis of above stated facts, become itself contrary to the fact that prior to issuance of work order from the concern competent authority, how an agreement can be executed over a subject matter not existent that too, in contravention of Law and rules which regulate the mining activities in the area. In the instant case in my humble opinion the respondent/defendant No. 01 who holds a valid lease of the Suit Mine in his name, executed a valid contract with Minerals and Mining Department GB for excavation of Suit Mine in accordance with the Rules/Laws regulating the mining activities in the area, and validly issued work order issued by the competent authorities in his name has a much better arguable case as compare to the plaintiff/petitioner. Furthermore all the impugned transportation permits have been issued by competent authorities in favor of answer respondent/defendant No. 01 and one another suit filed by the plaintiff/petitioner on the same subject matter is subjudice in Civil Court Mansehra, which makes the stance of the plaintiff doubtful. There is also no apprehension of irreparable loss exist. If the suit of petitioner/plaintiff is decreed as prayed for he may be compensated with the damages as claimed in the plaint; on the basis of which the plaintiffs/petitioner sought temporary injunction for Suit Mine.

8. On the basis of above discussion I hold that the plaintiffs/petitioner neither managed to establish a better case than the defendants/respondents, as his whole claim in the plaint is for payment of damages and his due share in the profit in the suit mine, hence there is no chance of irreparable loss to the plaintiff as he would be entitled in case of decree of his suit. In my humble opinion the balance of convenience is also not in favour of the plaintiff/respondents in the instant case, because in case of granting injunction the petitioners/defendant No.1 shall be deprived of is vested right of mining lease which cause mental agony to him which could not be compensated in value of money. It is settled law that, in order to be entitled for interim relief, the claimant must establish all the above discussed ingredients for grant of interim relief, in his favour. To my mind the respondents/plaintiffs had not been able to establish any one of the three ingredients for grant of interim relief. The learned vacation District Judge Gilgit had rightly accepted the appeal filed by the respondent/defendants and vide his judgment dated 09/01/2024 had set aside the order dated 14/12/2023 passed by the learned Judge Court II Gilgit in Civil Suit No. 36/2023 and rejected the application under Order XXXIX rules 1 and 2, C.P.C. filed by the Petitioner/plaintiff.

9. For what has been discussed above, the instant C.Rev. No. 07/2024 is dismissed being devoid of merit and Judgment/Order dated 09/01/2024 passed by Vacation Duty District Judge Gilgit is maintained. C.M. No. 42/2024 is also disposed of. Parties are left to bear their own costs. File. MQ/2/GB Revision dismissed.