P L D 1995 Lahore 117 (PLP)

The relevant facts for the decision of this revision are that the petitioner is a consumer of Sui gas. It was receiving monthly bills for consumption of gas, which according to the petitioner were incorrect and highly inflated. It moved for the correction of the same and in the meanwhile on 9-2-1992, the petitioner filed a suit for declaration and injunction as consequential relief. The suit was accompanied by an application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. for grant of temporary injunction. The respondent resisted the suit as well as application. The trial Court after hearing the arguments granted the application vide order dated 29-3-1994 but it was made subject to the petitioner paying amount of the disputed bill under protest. The petitioner assailed this order through an appeal before the lower appellate Court, which dismissed the appeal vide order dated 19-7-1994. Hence present revision petition, which was partially allowed vide short order dated 27-10-1994. This order would contain the reasons and would be read in continuation of the short order.

2. The learned counsel for the petitioner signed that there is no scope for imposing a condition while granting application under Order XXXIX, Rules 1 and 2, C.P.C., therefore, the impugned condition is illegal and to that extent the order is without jurisdiction. It is added that after holding that the petitioner is entitled to grant of temporary injunction, there was no justification to impose the condition especially when the amount claimed by the respondent was yet to be established. The arguments were summed up with the submission that in any case the condition was harsh. It is added that the Courts below have taken into consideration that withholding of payment would create financial complications for the respondents but failed to consider that it would create more complications for the petitioner while arranging for the payment of amount. The learned counsel in support of his arguments has referred to the cases of Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarachi Trading A.G. and 2 others (PLD 1990 Karachi 1), Central Textile Mills Ltd. v. Industrial Development Bank of Pakistan (1989 CLC 1194), Sahibzada Sharafuddin and 15 others v. Town Committee, Pindigheb through Chairman, Town Committee Pindingheb and 2 others (1984 CLC 1517) and East West Insurance Co. Ltd. v. Pakistan Insurance Corporation etc. (PLD 1988 Kar. 140).

3. On the other hand, the learned counsel for the respondents argued that the condition was imposed lawfully and in accordance with sub-rule (2) of Rule 2, Order XXXIX, C.P.C. In this behalf, he relied on the judgments of Hon'ble Supreme Court in the cases of Lt.-Col. Ch. Jan Muhammad v. Lt.-Col. MA. Sattar and 8 others (1980 SCMR 682), Hussain v. Rajab Ali (1981 CLC 1), Fateh Muhammad v. Muhammad Hanif and another (PLD 1990 Lahore 82) and Muhammad Nazir v. Yaqoob Khan and others (1994 CLC 12). It was added that the revision petition is not competent against imposition of condition, which was imposed keeping in view the conduct of the petitioner. In this behalf, reliance is placed on Karachi Flour Mills Union and 3 others v. Province of West Pakistan and 4 others (1968 SCMR 1253). It is maintained that the petitioner had also filed two more suits and got the payment of monthly bills stayed. It was added that the petitioner applied for the Sui gas connection"and its load was worked out at 4 MCF per hour but it proceeded to subsequently install more machinery, which increased its consumption of the gas to 14 MCF per hour. It is submitted that since the petitioner was consuming much more gas than the sanctioned load, therefore, the meter was not recording actual consumption. It was explained that the meter is installed in accordance with the sanctioned load. They have limited capacity. The result is that small meter cannot record the reading if the consumption is increased out of all proportions. The respondents in this background were compelled to issue the detection bill, challenged by the petitioner in the suit.

4. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of Order XXXIX, C.P.C. and precedent cases. The grant of temporary injunction is basically governed by Rules 1 and 2 of Order XXXIX, C.P.C., therefore, before proceeding any further it is worthwhile to refer to these rules. The same read as under:-- "

1. Cases in which temporary injunction may be granted.--Where in any suit it is proved by affidavit or otherwise-- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuance of breach.-- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of alike kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms, of to the duration of the injunction, keeping an account, giving security or otherwise. as the Court thinks fit. (3) .................................. (4) ......................................... " It is clear from the rule 1 that it deals with the property and covers following situations:-- (1) Property in dispute is in danger of being wasted, damaged or alienated; or (2) the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors. In such case, the Court may grant temporary injunction to restrain such acts; while rule 2 is general in nature and wider in scope. It provides for restraining the defendant from committing the breach of contract or other injury of any kind. The Court while exercising powers may grant injunction on such terms as to duration of injunction, keeping an account and giving security or otherwise as it thinks fit. It is clear from both the rules that in situations covered by rule 1, the Court is at liberty to make an order with or without conditions as deemed proper by it. But under rule 2 the Court has discretion to grant injunction unconditionally or subject to conditions as to duration etc.

5. It is evident from the perusal of the two provisions that the case of the petitioner was covered by rule

2. Therefore, the trial Court could pass a conditional order. However, there is no merit in the argument advanced on behalf of the petitioner that the trial Court has no jurisdiction to impose the condition. Reference in this behalf can be made to Karachi Flour Mills Union and others v. Province of West Pakistan and others (PLD 1968 Karachi 910). 6. ' Now coming to the condition. The sub-rule provides that injunction may be granted on such terms as to-- (i) duration; (ii) keeping an account; and (iii) giving security or otherwise as Court thinks fit.

7. The terms `security' and `otherwise' have not been defined either in the C.P.C. or in the General Clauses Act, therefore, they are to be given their ordinary dictionary meaning. The `otherwise' is composed of words `other' and `wise'. According to the Black's Law Dictionary, Fifth Edition, it means "In a different manner; in other way, or in other ways" while in The Shorter Oxford English Dictionary, Second Edition, Volume II, it means "in other manner, in another way, or in other ways, differently". While the word `security' has been assigned the meanings in the Black's Law Dictionary, Fifth Edition, as "Protection, assurance; indemnification". The term is usually applied to an obligation, pledge, mortgage, deposit, lien, etc., given by a debtor in order to assure the payment or performance of his debt, by furnishing the creditor with a resource to be used in case of failure in the principal obligation. Document that indicates evidence of indebtedness. The same is also sometimes given to one who becomes surety or guarantor for another".

8. The term `or otherwise' has been used in 'large number of statutes. The same came for interpretation in the cases of Chatterton v. Glanford Rural Council (1915) 3 K.B. 707), White & Collins v. Minister of Health (1939) 2 K.B. 838), Packwood v. Union-Castle Mail SC Co. Ltd. (1903) 20 TLR 59), blew 'Redhead Estate & Coal Co. v. Scottish Australian Mining Co. (No. 2j (1918), 18 SRNSW 390), Smt. Lila Vati Bai v. Bombay State (AIR 1957 SC 521), George De Costa v. Controller of Estate Duty, Mysore (AIR 1967 SC 849), Skinner & Co. v. Shew & Co. (1893) 1 Ch. 413 (K), Monek v. Hilton (46 LJ MC 167), Baij Nath Prasad v. The State of U.P. and others (AIR 1968 All. 288), M/s. Hardcodas Jagannath v. The State of Assam and others (AIR 1970 SC 724), Narayannan v. State of Kerala (AIR 1963 SC 1116), Manshanker Prabhashankar Dwivedi and another v. The State of Gujarat. (AIR 1970 Guj. 97), Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738) and Messrs Arif Cotton Ginners and 19 others v. Habib Bank Limited and 3 others (PLD 1994 Karachi 242). It is clear from the above precedents of various Courts of the various countries that the words `or otherwise' have been interpreted both following the principle of ejusdem generis and thereby restricting the meanings and also given extensive meaning so as to cover all possible ways and manners. '

9. The next question is whether the word `otherwise' should be construed ejusdem generis or not. It is clear from the reference to the abovenoted precedents that whether the principle of ejusdem generis would apply or not, largely depends on the nature of the statute and the context in which the word `otherwise' has been used. Now with reference to the sub-rule (2) of Order XXXIX, C.P.C. the word `otherwise' has been used after the word `security' and it will refer back to `such term' in the opening part of thissub-rule. This clearly shows that the words `or otherwise' have been used to cater for all sort of conditions similar to `security', therefore, the principle of ejusdem generis would be attracted in this case. The conditions could only be of the same genus as `security', therefore, the condition to deposit the amount is clearly against the scope of sub-rule (2). I am fortified in my view by the judgments in the cases of Chatterton, White & Collins, Packwood (supra). The other relevant judgment in the case of New Redhead Estate & Coal Co. (supra).

10. Now conversely speaking if the words 'or otherwise' are not read in continuation of security then it could mean any condition but, that would be violative of the language used by the legislature in the sub-rule. The conditions are restrictive and not general in nature. The position becomes further clear if reference is made to the condition for grant of leave to appear and defend a suit under Order XX.XVII, C.P.C. The same are contained in rule 3, sub-rule (2), which reads as under:-- "

3. Defendant showing defence on merits to have leave to appear.-- (1) . . .... .... .... ... ... ... ... ... ... ... ... .. ... ... ... ..... (2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit." This explains why there is a long chain of precedents where' leave to appear and defend was granted subject to deposit of suit amount but significantly the words `deposit of the amount' are missing in Order XXXIX, Rule 2; Sub-rule (2), C.P.C. It further strengthens the view that under Order XXXIX the defendant cannot be directed to deposit the amount in dispute.

11. I am mindful of the precedents, wherein a suit for specific performance the stay was granted to the plaintiff subject to the deposit of the sale price or substantial portion of it. Reference, in this behalf, can be made to Fateh Muhammad (supra), Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others 1988 CLC 448, Muhammad Silrwar etc. v. Fateh Muhammad etc. 1987 MLD 394, Muhammad Nazir (supra) and Waqar Avais v. Raja Muhammad Shah Janjua and others 1.992 CLC

8. But the temporary injunction in the specific performance suit would be governed by rule 1, therefore, there is no anomaly.

12. The condition of payment or deposit of the amount in Court of the disputed bill was, therefore, beyond the pale of sub-rule (2) of Rule 2 and liable to be corrected in revisional jurisdiction. The precedent case of Karachi Flour Mills Union and others (supra) is not relevant because in that case injunction was granted subject to the furnishing of a bank guarantee, which is specie of the security. It is only correct in respect of cases under Rule 2, Order XXXIX, C.P.C. This -is, however, made clear that the Courts are not powerless to impose the condition but that has to be done either under section 151 or 94, C.P.C. or the cases covered by rule 1, Order XXXIX, C.P.C., and for that matter- reference has to. clearly be made to the said provision. I am fortified in my view by the judgment in the cases of Balagamwala Oil Mills (Pvt.) Ltd. (supra) and Karachi Flour Mills Union and 3 others (supra).

13. This is not all. It is clear position that the petitioner has filed two more suits to challenge the correctness of the bills issued by the respondents, therefore, keeping in view its conduct the injunction was made subject to the condition of its furnishing bank guarantee in the sum of_Rs.6,85,000 from a scheduled bank within seven days.

14. The trial Court is'directed to decide all the suits expeditiously and in any case by 30-3-1995. This revision is partially allowed. There is no order. as to costs. AA./S-556/L Revision partly accepted