2012 PLP 1241 (YLR)

MEHMOOD MAQBOOL BAJWA, J.

Questions the legality of orders dated 5-1-2012 and 16-1-2012 respectively recorded by the learned Civil Judge, 1st Class and the learned Addl. District Judge, Lahore whereby the present petitioner being plaintiff was required to pay certain amount of questioned bill till the target date.

2. Necessary facts resulting in filing of present revision petition are that the present petitioner instituted a suit for declaration, mandatory as well as perpetual injunction questioning the genuineness of energy bill to the tune of 19,402,319 maintaining that the same is illegal, against record, and as such inoperative against the rights of present petitioner. Along with the suit an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 was made praying for issuance of temporary injunction. The learned trial Court while taking the petition vide order dated 5-1-2012 though suspended the encashment of bank guarantee but subject to deposit of half of the questioned amount in the Court under protest which order was assailed by the petitioner by preferring an appeal and learned First Appellate Court while making ad interim order modified the order but subject to deposit of half of the questioned amount in the learned trial Court.

3. Learned counsel for the petitioner maintained that since the petitioner assailed the genuineness of questioned bill, therefore, the learned trial Court vide order impugned was not justified to issue direction for deposit of half of the questioned amount in order to suspend the encashment of bank guarantee submitted at the instance of petitioner. Submitted that feeling aggrieved the petitioner preferred an appeal and though the learned First Appellate Court in the order dated 16-1-2012 maintained that the impugned order is varied and modified but undeniably the order of learned Additional District Judge, as well as learned Civil Court at Lahore are one and the same and no relief was granted to the petitioner. Learned counsel for respondents No.1 to 3 while making reference to the orders impugned before this Court and seeking help from the dictum laid down in "Lake Filling Station and C.N.G. Station through proprietor v. Divisional Manager, Messrs Pakistan State Oil Company Ltd. and 5 others" (2005 YLR 3033) maintained that the order of learned trial Court as well as learned first appellate Court making ad interim order are not amenable to the revisional jurisdiction of this Court and as such the revision petition being not maintainable is liable to be dismissed on this score alone.

3. Perusal of the facts of the Report relied upon suggests that the petitioner (in the Report) instituted suit for declaration with consequential relief and making an application for interim relief in which interim relief was granted by the learned trial Court which order was assailed by way of adversary and the appellate Court while admitting the appeal for hearing suspended the status quo order issued by the trial Court which order was assailed before this Court by filing revision petition.

4. Dealing with the proposition it was held at page 304 of the Report as follow:-- "it is settled principle of law that revision petition is not maintainable against such type of interim order as it is not qualified the parameters prescribed under section 115 of C.P.C. as a case decided. In arriving to this conclusion, I am fortified by the law laid down in "Muhammad Ahsan-ullah Khan v. Muhammad Sami ullah Khan" (PLD 1964 Lahore 101). The revision petition is maintainable against the final order or case decided, therefore, this revision petition is not maintainable, as per principle laid down in the following judgments:-- "Nawabzada Malik Habib-ullah v. The Pak. Cement Ind. Ltd. "(1969 SCMR 965), "Mian Zafar Iqbal and others v. Bashir Ahmad Khan and others" (PLD 1987 Lahore 650) and "National Security Ins. Co, Ltd. v. Messrs Hoechst Pak, Ltd. and others (1992 SCMR 718). Admittedly the petitioner sought relief of temporary injunction by making an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 in which ad interim temporary injunction was issued imposing certain conditions which when assailed in appeal was also maintained by imposing condition. Since the present petitioner has questioned the legality of ad interim order, therefore, it cannot be said to be a case decided within the meaning of section 115 of the Code of Civil Procedure 1908 as held in "Lake Filling Station and C.N.G. Station through proprietor v. Divisional Manager, Messrs Pakistan State Oil Company Ltd. and 5 others "(2005 YLR 3033). In view of the above state of facts and law the revision petition being not maintainable is dismissed.

4. However, in the interest of justice and fairplay the learned first appellate Court is directed to decide the appeal within 15 days from the date of receipt of the order of this Court. K.M.Z./P-7/L Revision dismissed.