P L D 1964 (W (PLP)

(ii) For issuing coal/soft coke and hard coke into railway wagons or trucks . . . Rs. 0.25 paisa per ton. 3. (i) Stocks.‑The coal coke imported from abroad and placed in the stockists charge, shall remain the absolute property of the Government of Pakistan. The stockists shall take all necessary precautions for its safe custody and shall also pay all expenses incidental to care and custody for so long as the stocks may remain on hand even after the expiration of the period mentioned in clause (1) above. (ii) The stockist shall at all times exercise the same care in safeguarding Government stock from pilfrage, damage, or losses as is required of a bailee under section 151 of the Con tract Act, 1872 (IX of 1872). He shall be responsible for extinguishing any fire at his own expense that may break out in the dump either as a result of spontaneous heating of coal or due to any other reason. (iii) Government stocks with stockist shall at all times, be open to inspection by the Coal Commissioner, R. C. C., Lahore and Inspectors of the Coal organization or his any authorised representative. (iv) No indication or guarantee can be given to the quantity and the duration for which the stocks may have to be kept by the stockists without any turn‑over. The stockist must have a plot of land with a minimum stocking capacity of 50,000 tons in an easily accessible locality served by road and rail. (v) Supply of coal/coke to the dump will be made according to the requirements also will be at the absolute direction of Coal Commissioner.

11. Failure.‑The Government of Pakistan may at any time, by a notice in writing terminate this contract without compensation to the stockists in any of the following events. (a) In case it is found that the performance of the stockists is unsatisfactory. (b) In case the stockists be adjudged insolvent. (c) For any other reason determined by the Coal Commissioner." On the 30th/31st of August 1963, the Coal Commissioner sent a notice to the petitioner to show cause as to why the contract be not terminated in accordance with clause (11) of the agreement for the alleged unsatisfactory manner of working. The petitioner sent a reply and there were further exchanges of letters between the parties, however, on the 10th of November 1963 the petitioner filed an application under section 20 of the Arbitration Act, 1940 praying that the dispute between the parties be referred to arbitration. He also put in an application praying for an ad interim injunction restraining the Republic of Pakistan from giving effect to its contemplated decision of terminating the contract. The learned Civil Judge dismissed this application. The petitioner filed a revision petition in this Court and obtained a status qua order on the 11th of November 1963. Thus the petitioner has continued to work under the contract up‑till- now.

2. The learned counsel for the petitioner contended that the petitioner had a prima facie case and that the powers of the Government to terminate the contract in accordance with clause (11) of the contract, were liable to be determined by the arbitrator. That unless the arbitrator found that there was valid reason for Government to exercise that power the Government could not terminate the contract. The burden of the argument of the learned counsel for the petitioner is that the arbitration clause would be applicable even as regards the powers of the Government to terminate the contract. The learned counsel has cited Foster and Dicksee v. Mayor Alderman and Burgesses of the'" Borough of Hastings (87 L T 736) and Union of India v. Shri Nath Bihari Sharma and another (A I R 1957 Pat. 697) in support of his contention. Although the learned Civil Judge has, in his order, expressed his views on this point but I consider that this is not the stage for expressing any views on this point. This matter will finally be decided when the main petition is decided on merits, undoubtedly the petitioner has an arguable case to be determined by the Court, but the point for determination in the present proceedings is whether it was proper to issue an interim injunction restraining the Govern ment from exercising its power under clause (11) of the agreement. As is clear from clause (11) reproduced above, the discretion is there with the Government to terminate the contract in the three contingencies mentioned in para.

11. Para. (c) especially gives very vast powers to the Coal Commissioner as it says "for any other reasons determined by the Coal Commis sioner". The parties are at issue on this point whether the power of the Government under para. 11 can be questioned by the arbitrator or not. Up‑till‑now the Government has not yet exercised its power under para.

11. May be if the petitioner is able to satisfy the Government that his performance was not unsatisfactory the Government does not exercise its powers under this para. In any case these are matters which have to be determined by the Court at the proper stage. It is contended by the learned counsel for the petitioner that the arbitrator has the power to investigate even before the Government exercises its power under para.

11. This point again is to be determined by the Court at the proper stage whether the arbitrator has the power to investigate into the grounds upon which the Govern ment intends to take action against the petitioner or whether the arbitrator can only decide after the power has been exercised as to whether it had been exercised in a proper manner or not, In this case the coal belongs to the Government, the petitioner is only a stockist and he delivers the coal to person who obtained permission from the Government to receive it, The petitioner is only entitled to receive his commission in connection with the stockings and issuance of the coal. In cases like the present two contingencies can arise. A stockists may be a dishonest person and the Government after being satisfied that his performance was not satisfactory take action under para. 11 of the contract. The stockists may be a perfectly honest man and a dishonest officer in the Government for ulterior motives might threaten to cancel the contract. If it is ultimately found that the contract was cancelled for ulterior motives the Courts will have ample powers to award damages to the stockists, but in case the Government's powers to cancel the contract are restrained by an injunction till the arbitrator decides whether there is a valid cause for the cancellation or not tile clause will stand vacated during that period because it will not be possible for the arbitrator to decide such a dispute within a short period and the period of contract will in the meantime have expired. In the present case by virtue of the stay order granted by this Court the petitioner has con tinued to work almost for over half the period of his contract and if the arbitrator is asked to d‑tide whether there was reason able cause for the Government to cancel the contract and in the meantime the Government is stopped by means of an injunction to exercise its powers which it claims to possess without being controlled by the arbitrator the result would be a complete negation of the powers as contained in clause (11). This matter undoubtedly will have to be determined by the Court whether the powers are exercisable without the previous decision by an arbitrator or not. In the circumstances of the present case I am clearly of the view that it is not a case in which an injunction should be issued against the Government stopping it to exercise its powers under clause (11). At this stage it is only a fear of the petitioner that the Government is likely to cancel his contract, but the Government may or may not.

3. The petitioner has filed this matter as a revision petition. However, the learned counsel for the petitioner urged that this was an order passed under Order XXXIX, rule 1 and was appealable under the provisions of C. P. C. The learned counsel for the respondent contended that section 141 of the C. P. C. provided for the application of the procedure to suits only and therefore an appeal against an order passed in proceedings under section 20 of the Arbitration Act was not competent unless the Arbitration Act specifically provided for an appeal against such an order. There as some diversity of opinion on this paint but as I am clear in my mind that these proceedings whether it be a revision or an appeal do not call for issuing an interim injunction, I do not give any final pronouncement on this point. The revision petition is dismissed with no order as to costs. K. B. A. Petition dismissed.