2010 PLP 800 (MLD)

SH. AZMAT SAEED, J.

This order shall dispose of Civil Revisions Nos.2605 and 2893 of 2009.

2. Brief facts necessary for the adjudication of the lis at hand are; that apparently the petitioners awarded a contract, dated 3-5-1997 to the respondents, a firm of professional Architect, for the designing and supervision of construction of a building proposed to be raised and constructed by the petitioners. Apparently, some dispute arose between the parties, whereupon, the respondents invoked the Arbitration clause in the said Agreement, dated 3-5-1997. An application under section 20 of the Arbitration Act, 1940 was filed whereupon Arbitrator (s) was appointed and proceedings apparently commenced. The petitioners are stated to have challenged the said order for Arbitration before this Court. Subsequently, a supplementary agreement, dated 11-10-2001 was executed inter se the parties whereby, inter alia, the consideration to be paid by the petitioners to the respondents was modified. However, the primary terms and conditions of the original agreement, dated 3-5-1997 remained unchanged. While it is the case of the petitioners that as a consequence of supplementary agreement, dated 11-10-2001 the Arbitration proceedings terminated. On the other hand, it is the case of the respondents that such proceedings are still pending. Be that as it may, vide notice/letter, dated 22-8-2007 the petitioners purported to terminate the said agreement, dated 3-5-1997. The respondents filed a civil suit for declaration and permanent injunction challenging the said letter, dated 22-8-2007. By way of A consequential relief it was prayed that the petitioners be restrained from acting upon the said letter or engaging another Architect. Along with the plaint an application for grant of temporary injunction was also filed. The petitioners resisted and contested both the suit as well as the application for grant of temporary injunction. 'The trial Court seized of the matter vide order, dated 25-5-2009 dismissed the application for grant of temporary injunction. Aggrieved, the respondents filed an appeal which was accepted vide judgment impugned, dated 13-11-2009 whereby, inter alia, the petitioners were restrained from appointing any architect, engineers or employees for planning or supervision of the work in question. A mandatory injunction was granted by way of observation that works, if any, would be executed through the respondents. The sanctity of the agreement was directed to be maintained and further directions were issued to the Civil Judge before whom allegedly the application under section 20 of the Arbitration Act was stated to be pending to ensure expeditious conclusion of the Arbitration proceedings. Both these revision petitions are directed against the aforesaid impugned appellate judgment, dated 13-11-2009.

3. Civil Revision No.2605 of 2009 called into question the grant of injunction while Civil Revision No.2893 of 2009 has been filed to call into question observations and directions issued pertaining to the alleged Arbitration proceedings.

4. Counsel for the parties have been heard and record appended with these petitions perused. It is an admitted fact on record that the original agreement executed inter se the parties pertained to the hiring of the services of the respondents as Architects for designing and supervision of proposed constructions. There was a settled consideration payable to the respondents under the said agreement, dated 3-5-1997 which was modified vide the supplementary agreement, dated 11-10-2001 on the face of it such an agreement was not specifically enforceable as the only entitlement of the respondents qua consideration was mentioned, thus, stood measured in pecuniary terms. The agreement pertained to and was dependent upon the personal professional qualification of the respondents and ran into minute and numerous details qua designing and planning, which could never be over seen by any Court of law. Such elemental principle in this behalf is enunciated in section 21 of the Specific Relief Act, 1877 and, therefore, in view of section 56(f) of the Specific Relief Act no injunction could be granted to restrain the breach thereof. It has been noticed with great dismay that the impugned judgment has been passed in violation of the clear unequivocal, ancient and settled elemental principle of law. In this view of the matter the impugned judgment for grant of injunction is not sustainable in law.

5. With regard to the directions qua Arbitration, suffice it to say, the same were not the subject-matter of the suit before the trial Court nor of the application for grant of temporary injunction, therefore, no order in this behalf could have been passed. There is a serious dispute inter se the parties as to very existence and the pendency of the Arbitration proceedings, which have not been adverted to. Even otherwise, the application under section 20 of the Arbitration Act was not even pending in the Court against the order whereof the appeal has been filed which has been adjudicated upon by way of the impugned judgment. It is clear and obvious that the appellate Court has arrogated unto itself powers which did not vested in it and the directions are not only illegal but also without jurisdiction.

6. In view of the above, the Civil Revisions are accepted. The impugned judgment, dated 13-11-2009 is not sustainable in law and is set aside with costs. A.R.K./L-8/L Petition accepted.