2016 PLP 113 (YLRN)

MUHAMMAD YOUNIS THAHEEM, J.

Through the instant first appeal, the appellants have challenged the order dated 02.04.2015 passed by the learned Additional District Judge, Banda Daud Shah, District Karak, whereby on suspension of the impugned letter dated 28.02.2015 interim relief was granted and position of the parties prior to the impugned letter was restored.

2. Brief facts of the case are that respondent filed a suit for declaration, mandatory injunction along with an application for issuance of temporary injunction in order to suspend the order/letter No.MOL/3490/15 dated 28.02.2015 regarding cessation of contract No.350/13 issued by the respondents/MOL a Company in the Court of learned Civil Judge, Banda Daud Shah, Karak. Respondents/MOL filed written statement as well as replication. After hearing arguments, the learned trial court dismissed the application for the grant of temporary injunction under Order XXXIX, Rules 1 and 2, C.P.C. vide order dated 24.03.2015. The respondent feeling aggrieved assailed the same order through an appeal before the learned Additional District Judge, Banda Daud Shah, wherein the learned appellate Court passed the following impugned interim order dated 02.04.2015. "This court today once again directed the respondent No.6 that this Court in Order dated 27.03.2015 has suspended the operation of their impugned letter dated 28.02.2015 in continuation to Order dated 24.03.2015 of learned Civil Judge, Banda Daud Shah in the Civil Suit, which thereby means that the position of the parties prior to the 28.02.2015 and during the pendency of the Civil Suit in the Court of learned Civil Judge, Banda Daud Shah till the impugned order has been restored till the date fixed i.e. 7th of April 2015 in accordance with the application of the appellants/ applicants in the main appeal and the compliance of the same should be made. Therefore, today the respondent No.6 is once again directed in this Court that they should comply with the order dated 27.03.2015 of this Court till 7th April, 2015 subject to notice and any contrary Order by the Superior Courts. File to come up for remaining arguments and Order on the instant application along with main appeal on 07.04.2015.

3. Learned counsel for appellants argued that the appellants entered into contract for a term of six months vide contract dated 22.04.2013 which was extended from time to time and lastly stood expired on 28.02.2015 by efflux of time, as the service of appellant was no longer required; that the appellants in this respect issued a letter dated 28.02.2015 to respondent regarding cessation of contract; that when term of the contract expires the appellants will freshly advertise the tender wherein the respondent may take part, but instead had filed the present suit beside that there was an arbitration clause in the contract and if respondent had any grievance he should have referred the matter to arbitration; that the contract was expired by afflux of time and the impugned letter was issued for information in respect of cessation of contract and the learned appellate court by suspending the same letter actually had revived the expired contract and had passed an anti status quo order, which is not permissible under the law and had transgressed his jurisdiction in clear violation of law, as the Court cannot re-write the contract between private parties and cannot compel the parties to enter into a contract. Hence, the impugned order is nullity in law, void ab initio and liable to be set aside. Learned counsel for appellants relied on the following case laws 1973 SCMR 184; 1974 SCMR 519; 1995 MLD 390; 1995 MLD 384; 1997 SCMR 1508; 1998 CLC 61; 1998 CLC 374; 2002 SCMR 307; 2002 CLD 77; 2006 MLD 195; 2009 CLC 406 and 2010 CLC 1843.

4. Contrary to that; learned counsel for respondent contended that the appellants with mala fide intention has not extended the period of contract, despite the fact that before expiry of period and cessation letter, the appellants issued instruction to respondents to meet Health, Safety and Environment (HSE) standard, in the month of February, 2015, due to which the respondent incurred a huge amount by acting upon the said directives had established a training school, but despite that the period of contract was not extended which had caused a huge financial loss to the respondent. The respondent has earned so many recommendations/appreciation letters from the appellants on account of their efficiency. The respondent was entitled having all legitimate expectation due to his efficient performance and appreciation letters, for extension of period.

5. In the light of Joint Resolution No.644 of Khyber Pakhtunkhwa Provincial Assembly; that Locals of an area will be the beneficiaries of exploration activities and concession of petroleum local contractors will be given preference, but the appellants, despite it are not giving preference to local contractors by entering into sub-contracts and are intending to sign or accord contracts to non-local persons for the transportation of Crude Oil from Karak Oil fields to Refineries and in this way are ignoring experienced local contractor/ respondent rather intending to oust the local contractor/respondent that the appellants without advertising tender are intending to grant the same contract to their blue eyed persons/companies which are non-locals. Moreover, other company NLC's terms of contract was also to expire on 28.02.2015 but that company had not been issued any cessation letter like the respondent, rather NLC period of contract has been extended and respondent was expecting the same treatment as appellant had treated other business company namely NLC. The learned appellate court rightly granted temporary injunction and suspended the impugned letter dated 28.02.2015 in clear words according to law and put the position of the parties prior to 28.02.2015 and had rightly restored and revived the contract for which respondent is entitled and appellants are bound to comply with. Learned counsel for respondent relied on case laws 1996 SCMR 416; 2002 SCMR 777; 2006 CLC 787; 2009 YLR 1748; PLD 2014 SC 350.

6. I have heard the valuable arguments of learned counsel for the parties at great length and perused the available record appended with the appeal against the order and other record placed on file by the respondent through CM applications.

7. Both the parties vehemently contested the case and argued on each and every aspect of the case. However, if observations are given accordingly, it may prejudice the case of either side.

8. It is settled principle of law that there are three essential ingredients for grant of temporary injunction which must co-exist in favour of the party seeking it and in the instant case respondent/ plaintiff must show the prima facie case, balance of convenience in his favour and in case of non-grant of interim relief must prove irreparable loss. Thereafter, the court would require to see as to whether the respondent/plaintiff will suffer more inconvenience by withholding of the injunction as against the appellants/defendants. The court is required to weigh the mischief to either party i.e. to the respondent/plaintiff, if refused, and the appellant/defendant, if allowed, and will grant the injunction only if the balance is in favour of the respondent/plaintiff. Similarly, for getting injunction order, the respondent/plaintiff is bound to prove that in case of refusal of injunction he will suffer irreparable loss or injury. The term "Irreparable loss" does not refer to damage which cannot be physically repaired but to such material injury which cannot be adequately compensated. As the loss is ascertainable in terms of money, therefore, it is not a case of irreparable loss. As such where pecuniary compensation is an adequate relief, injunction will not be granted.

9. In view of the above settled law, the record of the instant case is searched from corner to end, which divulged that the appellants/MOL Pakistan entered into contract with respondent/plaintiff for transportation of liquid Hydrocarbons Crude Oil from Oil Field Karak, Khyber Pakhtunkhwa to Attock Refinary Limited located at Rawalpindi, Khaur Crude Decanting Facility located in Kaur and National Refinary Limited located at Karachi, for a term of six months on 22.04.2013, which contract was extended from time to time vide addendum-I dated 12.08.2013, Addendum-II 20.12.2013, Addendum-III 09.04.2014, Addendum-IV 08.08.2014, Addendum-V 10.11.2014 and lastly Addendum-IV on 30.12.2014 till 28.02.2015. The period of contract between the parties was not further extended and stood expired on 28.02.2015 by the efflux of time. The appellants issued a letter dated 28.02.2015 informing the respondent that agreement stands expired and the services of the respondents are no longer required w.e.f 01.03.2015. The contents of contract are as follows: "This contract shall remain valid for a period of six months (further extendable subject to additional requirement and mutual consent of both parties) or till the commissioning of new Khushal Garh bridge whichever is achieved earlier, however this contract can be terminated at any time in accordance with the Article 4 herein mentioned as Termination clause." The Article 4 Termination clause of the contract read as: "Company may at any time and from time to time, by written notice to contractor, suspend further performance of any portion of the work by Contractor, with or without notice to Contractor to demobilize. Said notice of suspension shall specify the date of suspension and the estimated duration of the suspension."

10. Perusal of above terms of contract and Article 4 pertaining to its termination indicates that the contract was for a fixed period and could be terminated at any time, hence, in view of such peculiar situation, no prima facie case exist against the appellants/ defendants, as the contract was expired legally on 28.02.2015.

11. When confronted with the contention of learned counsel for respondent/ plaintiff that the appellants/defendants are entering into contract with some other blue eyed persons, that too secretly and giving preference to non-local persons which is in violation of Joint Resolution No.644 of the Khyber Pakhtunkhwa Provincial Assembly and judgment of Hon'ble apex Court in case reported in PLD 2014 Supreme Court 350, to the effect that locals of an area will also be the beneficiaries of petroleum concession and local contractors will be given preference in contracts and sub-contracts. Learned counsel for appellants/ defendants candidly denied the same by saying that these are mere allegations without proof and further contended that they have no negotiation with other contractors, nor entering into any contract with any local or non local person or companies and will advertise the tender regarding transport of Crude Oil contract according to law as well as in light of judgment of hon'ble Supreme Court in case titled (PLD 2014 SC 350). They further submitted that tender form will be issued to all the interested ones, wherein the respondent/plaintiff may also apply and participate. He further submitted that due to this litigation whole process of further contract for further period is hampered/ halted, hence, the contention of learned counsel for respondent is baseless.

12. As the contract expired on 28.02.2015 in terms of Article 4 of the contract, (Termination clause) and proper cessation letter dated 28.02.2015 was issued, in such eventuality when there was no contract in existence then there is no question of irreparable loss in case of refusal of injunction as respondent/ plaintiff has no prima facie case in his favour. Wisdom is derived from the judgment of Hon'ble apex court in case titled "Muhammad Hashim and others v. Government of Sindh through Secretary, Local Government and Rural Development, Karachi and others", (2002 SCMR 307).

13. The contention that the respondent/plaintiff had incurred a huge amount on the direction of appellants/MOL, it will require evidence in proof thereof, which is not the case of respondent/plaintiff and in this respect plaintiff/respondent is at liberty to sue for damages separately. Besides that, if the application for grant of temporary injunction is allowed, it would amount to grant of main relief sought in the plaint. It is settled law that such like interim relief of temporary injunction cannot be granted, which amounts to grant of the final relief, or order passed creates altogether a different and new situation. Guidance can be taken from the case reported as "Islamic Republic of Pakistan through Secretary Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others" (1997 SCMR 1508), wherein it has been held that: "As regards the merits of the case, it may be pointed out that it is well settled proposition of law that the object of passing of an introductory order or status quo is to maintain the situation obtaining on the date when the party concerned approaches the Court and not to create a new situation. Another well-settled principle of legal jurisprudence is that generally a Court cannot grant an interlocutory relief of the nature which will amount to allowing the main case without trial/hearing of the same."

14. Further the letter dated 28.02.2015 whereby it was informed that the contract has been expired on 28.02.2015 and his services are no more required, has been challenged by the respondent and suspension of that letter does not revive the expired contract and the direction of learned appellate Court below of Additional District Judge, Banda Daud Shah Karak that the respondent be treated at the position prior to 28.02.2015, the same interim order is bad in law and is not sustainable as civil courts have not been empowered by any law to extend period of any contract, which amounts to forcibly dictate the terms of agreement upon the private parties, while granting interim relief in case of declaration.

15. It is worth noticeable that the instant suit is for seeking declaration and further extension of period of the contract No.350/13 dated 22.04.2013. The contract between the parties was for the period of six months and the period was extended time to time and at last extended time expired on 28.02.2014. So after expiry of period of the same contract is not enforceable under section 21(d) read with section 56(1) of the Specific Relief Act. Reliance is placed on case titled "Muhammad Hashim and others v. Government of Sindh throngh Secretary, Local Government and Rural Development, Karachi and others (2002 SCMR 307).

16. For what has been discussed above, the learned appellate Court has over looked the material aspects of the case and the law on the subject while deciding the applications of the respondent/plaintiff and reached to a wrong conclusion vide impugned order which is not sustainable.

17. In view of the above, I allow the instant appeal, set aside the impugned order dated 02.04.2015 passed by the learned Additional District Judge, Banda Daud Shah to decide the case on merits in accordance with law, as early as possible. ZC/138/P Appeal allowed.