1980 PLP 433 (CLC)

Pahloomal Motiram v. Abdul Quddus Behari P L D 1971 Kar. 250 ref. Rafiq Ahead Bajwa for Appellant. Major Ishaque Muhammad Khan for Respondent No.

1. The facts germane to the point calling for decision in this petition in revision directed against the judgment on appeal of learned Additional District Judge, Lahore are set out below :-

2. Messrs W. Z. Studios a limited company duly registered under the relevant Act to be mentioned as the respondent-Company in the sequel lodged this suit through its Managing Director Mr. W. Z. Ahmad for the following two fold relief (i) A permanent injunction be granted prohibiting defendants (1 and 2) from making over film "Roti Kapra Aur Insan" to defendant No. 3 for printing and also prohibiting defendant No. 3 from printing the said film ; (ii) A direction be issued to defendants 1 and 2 to make over to the plaintiff the said film for the purpose of printing. Incidental relief of costs in the case was also claimed.

3. The facts forming the basis for the claim to the above relief as disclosed in the plaint are that M/s. Shahnoor Studios Ltd. to be referred to as petitioner Company hereinafter for facility of reference entered into contract with the respondent company for processing and printing films produced in various Studios situated within the precincts of petitioner company at the laboratories of the respondent company. Photostat . of the agreement between the respondent company and the petitioner company which the latter admits can be seen at page 1 of the file of learned Trial Judge. The salient features of the contract in para. 1 of the document have also been reproduced in para. 2 of the plaint Which are as below :- "We have agreed to process at our colour film laboratories all the colour films as desired by the various studios situated in the property known as Shahnoor Studios Ltd. at the rate of Rs. 230 per 1,000 ft. The prints will also be made on positive raw film supplied by you or, by the Producers working at the above studios at the same rate, f. e. Rs. 250 per 1,000 ft." Besides, the parties were also to be governed by the trade practice prevalent in the Industry. The respondent-Company had processed about 45 negatives of the Films supplied by the petitioner-Company. M/s. Kaifi Movietone respondent (2) had produced the above-said film at the Studios of the petitioner company and negative print of the film in dispute was also processed at the colour laboratories of the respondent company. The petitioner company had made over the said film to M/s. Sinai Studios defendant/respondent (3) for printing which constituted contravention of agreement with the respondent company. The consequences entailing the conduct of the defendants-respondents in having acted in viola tion of the said contract to which the two companies alone were a party have been listed in para. 6 of the plaint to which reference will be made at a later stage as and when necessary. Simultaneous with institution of the plaint, the respondent company also preferred an appli cation for grant of temporary injunction under Order XXXIX, rule 1/2, C. P. C. restraining defendant-respondents (1-2) from making over the disputed film to defendant-respondent (3) and preventing the, latter from printing the film. It is, however, noteworthy that learned counsel for the respondent company had made statement before learned trial Judge on the day the plaint was filed that the film in question had been handed over to the defendant-respondent (3) ester-evening for printing which had however, not been completed so far. The petitioner company as well as the remaining two defendants-respondents, the producer of the films and M/s. Sinai Studios to whom the film in question was handed over by the petitioner company either directly or through the producer defendant-res pondent (No. 2) for printing, both of whom are however no longer interest ed in this contest now confined to the two companies had filed separate written statements, concisely, the defendant contended inter alla that the suit was not competent under section 56 of the Specific Relief Act read with section 21, performance of the contract involved technical knowledge, and experience and was, therefore, incapable of specific performance, branch of contract could be atoned adequately by damages and that the petitioner company could not compel the persons who were alien to the contract between the two companies to take out their films at the colour laboratories of the respondent company for initial processing of negative prints and also for further printing etc. The petitioner company also maintained that the contract had thin rescinded by means of letter dated 6ih of August 1977. The suit was mala fide and aimed at blackmail of the petitioner company. For the purposes of this order, it would be idle to refer to the further averments made in the written statements. Before proceeding further it may be stated here that learned counsel for the respondent rompeay says that he had instructions to deny receipt of letter dated 6th of August 1977 from petitioner company notifying to the respondent company that henceforth facility of processing and printing of films at the laboratories of the respondent company will not be utilized as the petitioner company had set up their own laboratory.

4. Learned trial Judge rejected the application of the respondent company for grant of injunction on good grounds as I may say so. He wins of the view that the prayer for temporary injunction restraining defendants-respondents (1/2) for handing over the film in question to defendant-respondent (3) for printing etc. had become infructuous as the film had already been made over to the last mentioned defendant. The further prayer that the said defendant-respondent should also not proceed to process the film had become partly infructuous as processing had already been undertaken. The contract between the petitioner com pany and the respondent company was not binding on the remaining two defendants-respondents as they were not party to the contract. The respondent company could have filed suit for specific performance of contract or a suit for recovery of damages. The suit was not competent under section 56 of the Specific Relief Act and finally, that the respondent company wilt not suffer irreparable injury if injunction is refused as the loss entailing refusal in granting injunction can be compensated. Con sequently, the application was turned down and the suit was also dismissed as incompetent to law. Aggrieved by oiler of learned trial Judge, the respondent company well in appeal before learned District Judge, Lahore which came up for hearing before an Additional District Judge, During hearing of the appeal, M/s. Kaifi studios, producer of the film defendant-respondent (2) withdrew from the contest and handed over the film to the respondent company evidently without knowledge or consent of the petitioner company. Th suit grad thus fructified leaving no live issue for decision by learned lower appellate Court. As stated in para. 8 of the impugned judgment, the con testing parties, viz. the two companies had insisted on decision of the appeal on merits as judgment of learned trial. Court will affect the question of printing etc, of the films under production at the studios of the petitioner company. Learned Additional District Judge thus proceeded t dispose of the appeal on merits. He was of the view that the case had n too received a befitting treatment at the hands of learned trial Judge and the order passed by him was not justified. Accordingly, the appeal was allowed and the order of learned trial Judge was set aside. However, the case was not remitted to trial Court for the reason that the suit had already borne fruit during the pendency of the appeal.

5. The impugned judgment is spread over 13 pages, practically more than half of the judgment is devote to narration of facts of the case which are fairly short, parties in their pleadings and respective arguments of the contesting parties for and against the order of learned trial Judge Discussion. on merits of the order in appeal can be seen in para. 11 of the impugned judgment and onward. As I see on a close study of judgment of learned Additional District Judge, he had miscomprehended the case. He had devoted his whole attention to the question of propriety or otherwise of grant of temporary injunction which the respondent company was refused by learned trial Judge as is evident from the conclusion stated in para. 11 of the impugned judgment. Learned Additional District Judge had observed that "in any case, the upshot of the above discussion is that the appellant-respondent company had indeed a good prima facie case and that "he had also fulfilled the remaining principles required for issuance of temporary injunction". This impression is further fortified by the fact that the precedent cases from Karachi Seat of former High Court of West Pakistan Parveen Begum v. Muhammad Sarwar Khan (P L D 1956 Kar. 521) ; Muhammud Yasin v. Riuzuddin Ahmad (P L D 1957 Kar. 241) and State v. Victor Henry (P L D 1573 Kar. 273) ; Quotations from treatise, and the authorities from foreign jurisdiction which were cited emulously as I may say so related to the decisions on the question f grant of temporary injunction. It was not realised that the propriety or otherwise of grant of temporary injunction was no longer alive issue an Court are expected to deal with hypothetical issues or issues of merely academic interest. No relief was claimed by the respondent company to avert possible further recurrent of breach of contract by the petitioner company. The question of future dealings between the parties was therefore beyond the scope of the suit a laid. There is not one word in the judgment on the contentions raise on the side of the petitioner company which can be seen in para. 10 of the judgment. The arguments on behalf of the petitioner company as well as the authorities cited in support thereof were merely ignored with the remark that it will be inexpedient to dwell on merits of the case inasmuch as a number of controversial matters involving questions of law and facts existed therein. These questions cannot be answered on a bare perusal of the pleadings of the parties in a slip shod manner, without allowing the parties due opportunity to follow the statutory procedure laid down for the purpose meaning thereby, that the parties shall have to be put to a regular enquiry on the points in controversy between them.

6. Learned counsel for the petitioner company contended that specific performance of contract set up in the plaint could not be enforced under clause (b) of section 21 of Specific Relief Act. Injunction claimed in the plaint could not therefore, be granted under section 56 (f). The respon dent. company did not thus have a good prima facie case in their favour. The question if the suit was barred in law is not a question of merits. No enquiry was needed to determine if the relief claimed in the plaint could be allowed in law. These contentions individually are indefeasible in law. Prerequisites for exercise of injunction jurisdiction are well determined and are a matter of common knowledge. The party asking for temporary injunction must show that it had a prima facie case in support of the night Claimed, an actual or threatened violation of the right : productive o irreparable loss or at least serious damage ; and there must be greater convenience in granting than refusing the injunction. It may be added that injunction will be refused even if the above requirements are satisfied when the party asking for injunction has equally efcacious relief by any other usual mode or proceedings A good prima facie case is the first and fundamental requirement for grant of injunction. The term "go prima facie case" although not defined statutorily means that the plaintiff had a fair question to raise at the trial and the suit was not likely to fat on a technical ground. Both these constituents that the person applying for injunction has a case which needs consideration and the suit is no bound to fail by virtue of some apparent defects, are equally important and must coexist. Reference be made to the judgment of this Court in Bishambar Nath Jaithy v Municipal Committee, Delhi (A I R 1926 Lah. 589); which was follow ed in Muhammad Yasin v. Riaz.ud-Diri Ahmad (P L D 1957 Kar. 241) ; which learned Additional District Judge had relied on in para 12 of the judgment. Learned Additional District Judge should not have, therefore ignored the contention of the respondent that the suit was not competent in law, viz. the suit was bound to fail by virtue of an apparent defect. In none of the cases cited in the judgment under revision, the question that the relief claimed in the suit was not permissible in law was involved. All these cases were, therefore, not in point.

7. Learned Additional District Judge had fallen into error in saying that the legal objection raised by the petitioner company could not be answered by a bare perusal of the pleadings of the parties. It is a settled rule of law that the question if the plaint discloses cause of action of the suit was barred should be determined with reference to the allegations in the plaint and nothing else should be looked into. The grounds of defence to the suit are irrelevant at this stage. The defendant for the sake of arguments must be taken to admit the allegations of the plaintiff as true in manner and form. The plaint should be rejected if the Court comes to the conclusion that even if the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief. Reference be made to M. Moosa v. Muhammad and others (P L D 1954 Sindh 70) and pahdoomal Moti Ram v. Abdul Qaddus (P L D 1971 Kar. 250), if authorities were needed at all for this elementary proposition. The question whether or not the plaintiff will prove the allegations made in the plaint was, therefore, irrelevant. The provisions in Order VII, rule l l are mandatory and cast a duty on the court to examine the plaint at the earliest for the purpose of determining whether the plaint should be rejected under any of the four clauses of rule

11. It was so held in Burma Eastern Ltd. v. Employees' Union (P L D 1967 Dacca 190) that it appears from the language of rule 11, Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collpase as not being permitted by law. A suit may be specifically barred by law and in such an event, the matter would come under the express terms of clauses (a) and (d) of rule 11, O. VII. C. P. C. Similar view was held in Pakistan through Secretary, Ministry of Refugees and Rehabilitation and Chief Settlement and Rehabilitation Commissioner v. Deva Chand Muljimal and another (P L D 1968 Kar. 107) that it is incumbent on the court to reject the plaint if any of the four Learned counsel for the respondent company was of the view that the question if the suit was barred and all other questions on which the parties were at variance should have been put to issues. Normal procedure of holding inquiry could not be short-circuited as was done by learned trial Court. The judgment in Miss Surraya Baro v. Government of Pakistan (P L D 1977 Kar. 747) does not advance this contention. It was held in that case that proper course should have been to frame the issues on which the parties are at variance and then to proceed under Order XV if the occasion so warrants. However, it was also made clear that the plaint could be rejected under Order VI1, rule 11, C. P. C. although the suit could not be dismissed without framing an issue. The question of raising an issue does not arise in this case. I have already held that for the decision if the suit was barred under law, attention has to be confined only to the averments in-the plaint alone and no enquiry was needed. With respect., reference to the judgment in the case of Manager Jammu & Kashmir State Property in Pakistan v. Khuda Yar ( P L D 1975 S C 378) was quite inapt.

8. Learned Additional District Judge was, therefore, obliged to scan the plaint to ascertain correctness or otherwise of decision of learned trial Judge that the suit was not competent under section 21 (b), Specific Relief Act read with section

56. This duty could not have been avoided by generalized remarks that merits of the case could not be foreclosed at this stage. There can be no dispute with the principle that for grant of injunction it is not necessary that court should find a case which entitles the plaintiff to success at all events. But the plaintiff has to show that the case does not suffer from legal defects. The question whether or not suit was barred in law should have been determined at least provisionally to find out whether the respondent company had a good prima facie case in their favour.

9. The contract on which the suit is founded involves personal service by the respondent company and was, therefore, barred under clause (b), of section

21. The reason for this is obvious because in such a case, it would be practically impossible for the court to enforce its own decree. The terms of clause (b) section 21 are very wide and the number of illustrations thereunder show how varied are the circumstances which render it practically impossible for the court to specifically enforce such contract. The following illustration to clause (b) appositely applies to this case. "A contracts with B that in consideration of Rs. 1,000 to be paid to him by B, he will paint a picture for B". Illustrations appended to and act of the legislature are part of the enactment. They can therefore , legitimately used and are of value in construction of the sections. Per formance of the contract could not, therefore, be enforced in law. According to clause (f) of section 56 injunction cannot be granted to prevent the breach of contract the performance of which could not be specifically enforced. The view of learned trial Judge that the suit was not competent is, therefore unexceptionable in law.

10. The matter does not end here. The persons engaged in producing filets at the Studios of petitioner Company could not be compelled to take out their films to the laboratories of the respondent company as they were not party to the contract. Contract as a rule affects the parties only and it can create no right or liability in a person. who is not a party to it. This rule may be subject to certain exceptions on considerations of equity, but the case of contract of personal service where the rights and liabilities are always confined to the parties to the contract will certainly not be a exception to that rule. This important aspect of the case had altogether escaped notice of learned Additional District Judge. Learned Additional District Judge had not considered with any care if the remaining require ments for grant of injunction were satisfied. He felt contented with a passing remark that "the plaintiff had also fulfilled the remaining principles required for issuance of injunction". How it could be said with any reasonableness that refusal to grant the injunction will be productive of loss which could not be remedied by damages, and balance of convenience will tilt in favour of the view that a person who is not party to contract must be forced to the performance of the contract. There is no escape from the contention that learned Additional District Judge had passed a queer order. The order of learned trial Judge reject ing the application for grant of injunction and dismissing the suit was set aside. The case had, therefore, been reopened for decision and had to be remanded for final disposal.

10. However, the contention on the side of the respondent company that suit could not have been dismissed under Order V11, rule 11, C. P. C.' moat be conceded as only order of rejection of plaint could be passed under Order VII, rule 11, C. P. C. Order rejecting the plaint and order for dismissal of the suit have different connotations and it makes a bi difference with respect to the consequences that follow. Fahloomal Maxir4m v. Abdul Quddus Behan (1).

11. It is not a case of mere erroneous decision which does not lay foundation for interference in exercise of limited jurisdiction in revision. Learned Additional District Judge had acted illegally in the exercise of his jurisdiction in reversing order of learned trial Judge. Consequently, the revisional application is accepted, order of learned Additional District Judge is set aside and that of learned trial Judge is restored with the modification that the plaint stands rejected under Order VII, rule 11, C. P. C. In view of peculiar circumstances of the case, the parties are left to bear their own costs. K. M. A. Application accepted.