1994CLC606 (PLP)

(c) Declaration that the action of the Defendant No.l to avoid/refuse issuing route permits within the city of Karachi to the 15 seater air conditioned mini coaches is illegal, unlawful and based on inconsistency with reference to the issue of route permits for other districts except Karachi; . (d) Mandatory injunction directing the defendant No.l to plan, chalk out and announce a specific and distinct policy for allowing the 15 seater air‑conditioned mini coaches to ply in the city of Karachi on inter district basis as is the existing policy for districts other than Karachi; (e) Permanent injunction, restraining the defendants Nos.l and 2, jointly and/or severally, their men, agents, servants, representatives, and all other person(s) working under them or on their behalf from interfering into or disturbing the plying of air‑conditioned mini coaches (15 seaters) supplied under the Prime Minister's Transport Policy within the city of Karachi till such time when a final policy in terms of the above prayer is adopted or announced by the Defendant No.l." Alongwith the plaint, Respondents Nos.l to 4 also filed an application under Order 39, Rules 1 & 2 read with section 151, C.P.C. for grant of temporary injunction restraining PTA and DIG Police (Traffic) Karachi from interfering into or disturbing in any manner whatsoever the plying of 15 seater air‑conditioned mini coaches within the city of Karachi till final disposal of the suit. The notice of this application was issued to the defendants and on 26‑7‑1993 the learned I‑Senior Civil Judge (West) Karachi passed an order, the operative part of which is reproduced herein below:‑‑ On behalf of defendant No.2 DSP Traffic Police is present and has moved an adjournment application to file the counter‑affidavit and has requested for 15 days time at least. Both the applications have been allowed and parties are agreed for next date i.e. 11‑8‑1993. Since the defendants have not filed any counter‑affidavit today, learned counsel for plaintiffs pressed that the prayer in the injunction application may be allowed till next date of hearing. As the defendants have. not filed any counter‑affidavit today, the request of learned counsel for plaintiffs is allowed and defendants are restrained from interfering into or disturbing the plying of fifteen‑seaters Air Conditioned Mini Coaches within the city of Karachi till next date of hearing i.e., 11‑8‑1993." This order of interim injunction was, subsequently, being extended. The applicants were not party to the suit and because they were being effected directly by the order of interim injunction passed by the learned I‑Senior Civil Judge (West) Karachi, have filed this revision application with prayer that the said order be set aside on consideration of the grounds in the revision application.

4. I have heard the learned counsel for the parties and perused the R&P of the learned Senior Civil Judge. It has been argued by Mr. Raja Haq Nawaz Khan, learned Advocate for the applicants, that the respondents have themselves admitted that they were granted oral permission by the officials of Provisional Transport Authority for plying their coaches within the city of Karachi, when, in fact, the route permits issued to some of the respondents indicate. that these permits are for destinations outside Karachi via National Highway and Super Highway and not within the city of Karachi. It is also argued that because respondents were plying their coaches within the city of Karachi illegally and on the route other than for which the route permits were granted to them, the applicants protested against the respondents before the Commissioner Karachi who is also Chairman of the RTA. It was as a result of such protests that the respondents were restrained by the officials from plying their coaches within the city of Karachi. It is further contended that although respondents were plying their coaches in various areas of Karachi City they chose District West Karachi and filed the suit before the learned I‑Senior Civil Judge (West) Karachi and obtained interim injunction which, in effect, amounts to regularising illegal acts of respondents, as under law they could not ply their buses in Karachi City. It is next argued that the learned I‑Senior Civil Judge (West) Karachi, without verifying the factual controversy, passed the, impugned order which amounts to giving legal cover to the illegal acts of the respondents. It is further argued that no one who has not applied to RTA for a particular route permit, and who is not granted such permit can be allowed to ply his vehicle on such route. Mr. Raja Haq Nawaz was asked to show if he could file revision against the order of interim injunction without filing an appeal, as, such an objection was raised by respondents' learned counsel at the very outset. To meet this objection, the learned Advocate referred to the case of M/s.. United Bank Limited v. Yousuf Haji Noor Muhammad (1988 SCMR 82) and argued that a revision before this Court under section 115, C.P.C. without filing appeal is maintainable. In support of his various contention' applicant's learned Advocate, referred to the following judgments:‑‑ (a) Pakistan Transport Company Limited Jhang v. Shorkot Transport Co. (Regd) Shorkot and others (PLD 1961(W.P.) Lahore 326); (b) Al‑Kisan Transport Company Limited v. Regional Transport Authority Lahore and another (PLD 1961 (W.P.) Lahore 723); (c) The Tariq Transport Company Lahore v. Sargodha‑Bhera Bus Service and another (PLD 1958 SC (Pak.) 437).

5. Mr. Muhammad Amin Lakhani, learned counsel for respondents Nos.l to 4 has contended that the applicants were not party, before the trial Court and they cannot invoke revisional jurisdiction of this Court, that the applicants should have approached the trial Court for setting aside the impugned order as provided under Order 39, Rule 4 of C.P.C., that the revision application is not maintainable because against said order an appeal lies and not a revision, that since a Constitutional petition has been filed by some of the applicants and have sought similar relief as in this revision application, the result of the said Constitution petition may be awaited and the decision on this revision application may be deferred, that the respondents are actually plying their coaches on the routes for which they are given route permits and only pass through some areas of Karachi, which would not mean that respondents have contravened the terms and conditions of the route permits for which threatened legal action was proposed to be taken, necessitating the filing of the suit and lastly that the learned trial Court committed no error while passing the order, of interim injunction, nor it calls for interference by this Court in its revisional jurisdiction under section 115 of C.P.C. In support of these contentions learned Advocate referred to:‑‑ (a) Piran Ditta v. Haji Habib Ashraf and 3 others (PLD 1982 Lahore 234) (b) Ali Muhammad v. Hussain Bakhsh and others (PLD 1976 SC 37). 6. 1 have gone through the entire record of the case and perused the impugned order. The respondents/plaintiffs deliberately omitted to file the route permits issued in their favour by the RTA. However, such route permits have been filed by applicants before this Court which are Annexures B' to `H'. The perusal of these documents shows that these route permits are for "Karachi to Larkana via Super Highway‑Hyderabad‑Sehwan Sharif‑Dadu Mehar‑Kamber" for "Karachi to Sanghar via Super Highway‑Hyderabad‑Tando Adam‑Shahdadpur‑Shahpur Chakkar" and "Karachi to Sukkur via Hyderabad Super Highway." These route permits did not authorise the respondents to ply their coaches within the city of Karachi nor the contention of respondents that while heading towards their destination outside Karachi they passed through various areas of Karachi, has any force. In violation of the terms of the route permits granted in favour of the respondents they were plying their vehicles within the city of Karachi and the authorities were within their rights to warn the respondents that if they did not stop plying their vehicles within the city of Karachi action under law would be taken against them. Such proposed action by the authorities against the respondents gave no right to them to seek a declaration of the nature in the suit and also injunction to stop the authorities from taking action against them under law. Nor the learned Judge of the trial Court was competent to issue an order of restraint against the authorities from taking action under law against delinquents. The respondents/plaintiffs have been authorised under the impugned order to do what they were not lawfully authorised to do.

7. In the case of Pakistan Transport Company Limited Jhang (PLD 1961 (W.P.) Lahore 326), it was held by a learned Judge of the Lahore High Court that the use of motor vehicle in public place was allowed only in accordance with the conditions of a route permit issued by Regional or Provisional Transport Authority and the Civil Courts were not entitled to grant temporary route permit in garb of temporary injurction. In the, case of Al‑Kisan Transport Company Limited (PLD 1961 (W.P.) Lahore 723), it was held that where the route permits were cancelled by Appellate Authority and the RTA consequently refused to renew permits, .Civil Court was not competent to reinstate effect of permits by grant of temporary injunction under C.P.C. In the case of The Tariq Transport Company Lahore (PLD 1958 SC (Pak.) 437), it was held by the Hon'ble Supreme Court that omission or error in procedure was not‑sufficient ground for reversing decision of transport authority unless omission or error results in failure of justice or prejudice to party. In the case of M/s. United Bank Limited 1988 SCMR 82), the Hon'ble Supreme Court held that High Court could entertain revision application and set aside the impugned order where the party filed revision without availing remedy of appeal.

8. I would also .like to advert to the case‑law referred by respondents' learned Advocate. In the case of Piran Ditta (PLD 1982 Lahore 234) a learned Judge ‑of the Lahore High Court held that the order granting or refusing interim injunction could be appealed against by party unhappy with that order. In the case of Ali Muhammad (PLD 1976 SC 37) the Hon'ble Supreme Court observed hat the failure of a party adversely affected to go in appeal against ‑"such order within prescribed time does not preclude such party from challenging its legality in the High Court. Both these authorities referred by respondents' learned Advocate are not applicable to the facts of the instant case and are totally distinguishable. Mr. Habibullah, DSP Traffic, who has appeared for respondent No.5 is also heard and he has stated that if there is any violation of the route permit, the route permit‑holders are challaned under law and any action intended to be taken against the respondents would be strictly in accordance with law and not otherwise. .

9. The necessary requirements for grant of temporary injunction are that the plaintiffs must show that they have a prima facie case, the balance of convenience is in their favour and that they would suffer irreparable loss if such injunction is not granted. Merely because some of the defendants had not filed objections to injunction application and had sought time, that would not mean that the plaintiffs had made out a case for grant of injunction. By passing the impugned order, and subsequently extending it to various dates would mean that although respondents/plaintiffs were not authorised to ply their coaches within the city of Karachi, they were permitted through the impugned order to do ; ‑) The revisional jurisdiction could be exercised by this Court where it is shown that the subordinate Court appears to have exercised a jurisdiction not vested in it by law or to have failed to exercise jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. In the given case the learned trial Judge while passing the impugned order exercised jurisdiction illegally and with material irregularity. In such circumstances this Court can exercise the revisional jurisdiction and pass such orders as are deemed fit and proper. No case for grant of interim injunction was made out by respondents. The order impugned adversely affected applicants, .who are transporters plying their vehicles within the City of Karachi under valid route permits. Although applicants were not party before the Civil Court, they could approach this Court without filing appeal or without approaching the Court which passed the impugned order. The only ground for invoking revisional jurisdiction of this Court would be to show that the order impugned is covered by subsection (1)(a), (b) or (c) of section 115, C.P.C. It has been earlier observed that the learned trial Judge has while passing the impugned order exercised jurisdiction illegally and with material irregularity.

10. As a result of above discussion, this revision application is allowed and e the impugned order is set aside. There shall be no order as to costs. No order is required to be passed on CMA No. 789/93. AA./K‑340/K Revision accepted.