2003 PLP 1337 (MLD)

Respondent No. 1 is represented by his learned counsel whereas Shell Pakistan Limited, are not represented. Their non-presence is understandable by the fact that the order passed by the Appellate Court has not been challenged by them.

2. The learned counsel for the parties have argued that matter at some length.

3. In view of the main controversy between the parties being still pending, I have avoided and refrained from making any detailed reference to contentious stance of the parties and the documents on the record, the authenticity and credibility whereof is yet to be proved and examined before the trial Court. Any observation in this regard may prejudice the case of either party or may tilt the approach of the Court blow. The admitted position on the record and also before me is that there is a petrol pump installed, established and being run, according to the plaintiff, by him. The trial Court had refused the temporary injunction to respondent No. 1 for the reason that respondent No.1 had no dealership in his name. The learned Appellate Court, however, by doing into somewhat detailed examination of the matter had granted the temporary injunction in the form, reproduced above. Whether the petitioner had been gifted the land/site where the petrol pump has been established or he was Benamidar and the real beneficiary was the respondent/plaintiff or that it was only the petitioner who was granted the dealership and necessary permission, are all substantial issues to be decided by the Court in due course of time, on appreciation and scrutiny of the evidence that may be produced by the parties. Any view expressed at this interlocutory stage could prejudice the case of either party. I am, therefore, inclined to follow the course that was adopted by the Hon'ble Supreme Court of Pakistan in Muhammad Aref Effendi v. Egypt Air (1980 SCMR 588). That was a case relating to a sales agency, in which the temporary injunction was declined by the High Court of Sindh exercising original jurisdiction in a suit. After hearing the matter their Lordships of the Supreme Court converted the petition into appeal and proceeded to grant temporary injunction on terms to meet the ends of justice and maintain the interests of both sides. From the precedent case, it is discernible that temporary injunction can be granted by the Court to regulate the conduct and dealings of the parties for securing their interests. The petition was disposed on terms stated in the order. The controversy between the same parties again reached before the Hon'ble Supreme Court of Pakistan i.e. Muhammad Aref Effendi v. Egypt Air (1983 SCMR 238), when again a restraint order, was passed on terms. Keeping in view the power of the Court spelt out from the above precedents and provisions of section 94, C.P.C. I am inclined to modify the order passed by the learned Appellate Court and pass a regulatory order for the interim period as under: (1) The petrol pump will continue to be operated/run by respondent No.1 who is already in physical control of the same. He will, however, maintain proper accounts to be supervised and authenticated by a nominee of the Shell Pakistan Limited and will furnish security to the satisfaction of the trial Court to recompense the petitioner, in case he (respondent No. 1) loses the litigation; (2) For the security deposit, made by the petitioner, respondent No.1 will furnish a bank guarantee in the sum of Rs.6,50,000 before the trial Court. (3) In order to assess the cost of construction incurred in setting up of the petrol pump the learned trial Court will depute a commission and then will direct the plaintiff/respondent No. 1 to furnish security for the same, that will be, however, subject to final determination as to who had incurred the said cost and expenditure. (4) Compliance of Items Nos. 1 and 2 above will be made within a fortnight, whereas of Item No.3 within one month. (5) The learned counsel for the parties are agreeable for the expeditious disposal of the suit. The learned trial Court will thus explore all possibility to conclude and decide the suit before the commencement of winter vacation of this year. It may be observed that the perusal of the order of the trial Court and in particular of the Appellate Court leaves an impression as if they have expressed the view qua the merits of the respective pleas of the parties. It need to be clarified that any view expressed or observation made in any of the order will be construed as of tentative nature concerning with in an interlocutory matter only, and the learned trial Court will be absolutely uninfluenced by the same in deciding the suit on its merits. The petition is disposed 6f in the above terms. H.B.T./S-503/L Order accordingly.