P L D 1988 Lahore 511 (PLP)

MUNIR A. SHEIKH, J.‑‑ This judgment shall dispose of Civil Revisions Nos.1268, 1269, 920 and 921 of 1987, also.

2. In this revision petition, the petitioner has challenged Vie order dated 7‑5‑1987 passed by Additional District Judge, Faisalabad, dismissing his appeal against order dated 24‑1‑1987, passed by the trial Court rejecting his application for grant of temporary mandatory injunction during the pendency of his suit in which he challenged the action of the respondents of disconnection of electric connection.

3. The facts giving rise to this revision petition in brief are that the petitioner was provided electric connection by the WAPDA for his industrial concern. On the information of Taj Din, who was stated to be an accused person in a case, ' Inspector F. I .A. associated with officials of WAPDA conducted a raid on 28‑7‑1986 on the industrial premises of the petitioner and removed the meter on the charge that the petitioner was stealing electricity. The meter was taken into custody by F. I. A. The WAPDA authorities issued a notice on 21‑8‑1986 to the petitioner to collect a detection bill from Faizabad Sub‑Division Office of WAPDA for the payment of the amount of the said bill and that thereafter the electricity supply would be restored and in case of his failure to pay the said amount the WAPDA would not be responsible to restore the supply of energy. Similar are the facts of Civil Revision No. 1268 of 1987. In the cases subject‑matter of civil revisions No. 1269 of 1987, 920 of 1967 and 921 of 1987, the petitioners were also issued detection bills specifying therein the amounts which they were required to pay to the WAPDA as a condition precedent for restoration of electricity supply to their industrial premises. The petitioners filed the suits challenging the action of the WAPDA of disconnection of electric connection and legality of the demand of WAPDA for payment of amounts indicated in the detection bills. Alongwith the suit an application was moved under Order 39, Rules 1 and 2 read with section 151, C. P. C. for issuance of temporary mandatory injunction for restoration of electric connection during the pendency of the suit. This application was resisted by the respondents. The learned trial Court by order dated 24‑1‑1987, dismissed the said application of the petitioner mainly on the ground that in view of judgment reported as WAPDA through Chairman, WAPDA, Lahore and another v. Muhammad Yaqoob P L D 1973 Note 12 at P.20, the Court could not grant temporary mandatory injunction to' establish a new state of thing different from the state existing on the date when the suit was instituted. Similar is the order passed in the suit from which Civil Revision No. 1268 of 1987 has arisen. In the suit from which Civil Revision No.1269 of 1987 has arisen the trial Court passed an order on 21‑1‑1987 rejecting the application for temporary mandatory injunction, on the ground that temporary mandatory injunction could not be issued and that the petitioner would not suffer any loss if he deposited the amount of detection bill which could ' be adjusted in case the decision of the suit went in his favour. In the suits from which Civil Revisions Nos. 920 and 921 of 1987 have arisen, the learned trial Court rejected the application of the petitioners by order dated 19‑1‑1987 on the identical ground and in addition to that it was held that the application for temporary injunction was not maintainable in view of section 54‑C of Electricity Act because the petitioner had not deposited the disputed amount in the Court. The appeals filed by the petitioners before the lower appellate Court were taken up and decided together and rejected by order dated 7‑5‑1987. The view of the trial Court that temporary mandatory injunction could no t be issued was affirmed by the learned lower appellate Court. The lower appellate Court was also influenced by the fact that one of the appellants, in his suit had prayed for grant of damages at the rate of Rs. 500 per day till the restoration of electric supply therefore, it was taken to have been impliedly admitted that the compensation for losses could be assessed in terms of money in case the temporary mandatory injunction as prayed for was not granted. He further held that the petitioners might be having a prima facie case on the ground that no notices were issued to them before the electric supply was dis‑connected. All these orders have been challenged in these revision petitions by the plaintiffs. 4.Learned counsel for the petitioner argued on the strength of judgments reported as S. A. Abbasi V. Chairman, District, Council Gulshan‑e‑lqbal Karachi P L D 1985 Kar. 400 ; Pakistan Paper Corporation Limited, Peshawar v. National Trading Company Limited, Lahore 1983 C L C 1695 and Messrs Abdul Khaliq Ice Factory v. Karachi Electric Supply Corporation Ltd. 1984 C L C 2720 that the trial Court had the jurisdiction to issue temporary, mandatory injunction and the refusal by it to pass such an order is based on erroneous view of law which has resulted not only in grave injustice to the petitioners who have challenged the legality of the action of the respondents but also failure by the Court to exercise jurisdiction vested in it to press such an order under the law. Learned counsel for the petitioner maintained that under section 24 of the Electricity Act, 1910, it was the mandatory requirement that before the electricity supply could be cut off seven days clear notice in writing to the consumer was to be given. He also urged that according to section 26(6) of the same Act in case of any dispute arising between A licensee and a consumer as to whether any meter etc' was or was not correct, the matter has to be decided by Electric Inspector within a period of 90 days on the application of either of the parties who wanted to raise such a dispute and in the event of his failure to decide the questions of difference or dispute then the said party and in case he decides and either the licensee or the consumer declined to accept the same, the matter is required to be referred to the Provincial Government whose decision is to be final. According to the learned counsel this procedure having not been followed and the action of respondents of disconnection of supply of electricity was absolutely in negation of the law and void, therefore, the petitioners having raised substantial questions of law to be decided in the suit as such they had succeeded to make out a prima facie arguable case. Since the industrial concern of the petitioner has been deprived of the electricity supply, therefore, according to the learned counsel it was the petitioner who was to suffer irreparable loss in case temporary mandatory injunction was not passed and balance of convenience was also in favour of the petitioner.

5. On the other hand in the fore‑front of his argument, learned counsel for WAPDA submitted that the Court was not competent to grant an interlocutory mandatory injunction which would amount to decree the suit of the petitioner. He also maintained that the Court had no jurisdiction to pass an order in the form of temporary mandatory injunction to establish a new state of things different from the state existing on the date when the suit was instituted. In his view since the electric connection had already been cut off before filing the suit, therefore, by a temporary mandatory injunction the position prevailing prior to the filing 'of the suit could not be restored.

6. The question of law for determination in these cases is whether temporary mandatory injunction could be issued during the pendency of the suit. It is true that the Court should always be reluctant unless there are exceptional circumstances, to pass an interlocutory order in the nature of mandatory injunction but this will be as a matter of rule of propriety and not due to absence of jurisdiction in the Court to pass such an order. In determining whether to grant an interlocutory injunction the question for the Court was not whether the injunction sought was mandatory or prohibitory but whether the injustice that would be caused to the defendant if the plaintiff was granted an injunction and later failed at trial outweighed the injustice that would be caused to the plaintiff if an injunction was refused and he succeeded at trial. Where the injunction was indisputably 'mandatory' that the same test applied to determine whether the case was normal (in which case the Court was required, to feel a high degree of assurance that the plaintiff would succeed at trial )before an injunction would be granted) in that, cause withholding an injunction carried with it a greater risk of injustice than granting it, the injunction should be granted even though the Court did not feel a high degree of assurance that the plaintiff would succeed at trial. The principal dilemma about the grant of interlocutory injunction, whether prohibitory or mandatory, is that there is by definition a risk that the Court may make a wrong decision, in the sense of granting an injunction to a party who fails to establish his right at trial (or would fail if there was a trial) or alternatively in failing to grant any injunction to a party who succeeds (or would succeed at trial). A fundamental principle is, therefore, that the Court could take whichever course appears to have the lower risk of injustice if it should turn Gut, to have been 'wrong ' in the sense above described. The guidelines for. the grant of both kinds of interlocutory injunctions are derived from this principle. 6‑A. The petitioners in the suits have raised substantial questions of law regarding non‑observance of mandatory provisions of sections 24 and 26 of the Electricity Act, before disconnection of their electricity supply which are to be tried in the suit and they are entitled to adduce evidence to establish that the impugned action of the respondents was not permitted by law. Prima facie the petitioners' case gains support from judgments reported as Dr. Muhammad Rafiq Chaudhry v. Wapda etc. 1983 C L C 2397 and Firdaus Oil Mills v. Wapda and another 1983 C L C 3315. In the former reported case it has been held that section 54(c) of the Electricity Act barring jurisdiction of the Court to entertain suit and pass an order for restoration of supply of energy unless the plaintiff had deposited with the Court the amount assessed against him by the licensee was not applicable where the licensee had not been given notice as provided in subsection (1) of section 24 of 'the said Act and in the latter reported case, rule has been laid down that before disconnection of supply of energy a written notice was necessary to be given without which the very action of disconnection of supply of energy was unlawful. Learned counsel for the respondents vaguely argued that section 54(c) is applicable also where the supply of energy has been discontinued by the licensee even without issuance of notice under subsection (1) of section 24 basing his argument on the latter part of section 54(c) which reads as follows:‑ Section 54‑C. "BAR OF JURISDICTION.‑‑‑ (1) Where a licensee gives a notice referred to in subsection (1) of section 24 or discontinue supply of energy to a promises under the provisions of this Act, no Court shall make an order prohibiting the licensee from discontinuing supply of energy to the premises or requiring him to restore supply of energy to such premises, and any such order made before the commencement of the Electricity (Amendment) Ordinance, 1979, shall cease to have effect. According to him after the word Section 24 the Legislature has used the word 'or' which makes the following part of the section independent as such a case of mere disconnection of supply for energy would be covered by section 54(c) and a plaintiff is required to deposit the disputed amount before he could maintain the suit, ii, my view, argument has wrong angle. It has been specifically provided by the said provision of law referred to by the learned counsel that disconnection of supply of energy must be under the provisions of the Act and the main objection of the petitioners was that the electric connection has been cut off in violation of the mandatory requirements of the Act itself, therefore, the said reported judgment would be fully attracted to the case and can be pressed into service in order to establish existence of prima facie case in favour of the petitioner. It is a case where the supply of energy to the industrial premises of the petitioners has been discontinued which has resulted in bringing their business to a halt therefore, it could justifiably be maintained by them that balance of convenience was also in their favour and it was they were to buffer irreparable loss in case of refusal to pass temporary mandatory injunction as prayed for. it was the illegal act of respondent itself which has created a circumstances where the petitioners were put in such a situation that they could not file a suit before disconnection of supply of energy had taken place. Had the respondents acted as provided in section 240) and issued a notice, the petitioners would have approached the Court seeking a relief in the form of temporary injunction for maintenance of status quo before the actual disconnection of electricity had taken place. Since the respondent itself directly proceeded to discontinue the supply of energy without (applying with the provisions of law therefore the situation was created in which the petitioners could only approach for temporary mandatory injunction. While raising a plea that the Court was debarred from passing an order of temporary mandatory injunction, the respondent actually was trying to get premium over its own wrongful act. which was prima facie violative of the provisions, of law. A party to a litigation due to its illegal acts cannot be allowed to deprive, the Court of its jurisdiction to pass order to do justice when the matter is brought before it. Keeping in view the circumstances as noted above and applying the above mentioned principles regarding issuance of both kinds of temporary injunctions the case in hand is exceptional and, therefore, requires, special treatment. In these circumstances it can safely be concluded that exceptionally the case is one in which withholding a mandatory inter locutory injunction would in fact carry 4 greater risk of injustice (if the plaintiffs are wrong) than granting it. It is difficult to see how the restoration of supply of energy to the plaintiffs would cause uncompensatable loss to the respondents whereas failure to restore the electric connection at this stage would certainly cause loss to the petitioner which might be very difficult to quantify and shall have the consequence of not only closing down his industry but also, depriving him to earn livelihood as such in the circumstances of this case there is a much greater risk of injustice being caused to the petitioner if the injunction was wit held than if the injunction was granted and the petitioner did not succeed at trial, therefore, in my view it would in all circumstances be right to make such an order.

7. Learned counsel for the respondents also attempted to argue that no detection of slowness of meter so as to establish theft of energy could be made if before removal of the meter itself and disconnection of supply for energy was issued which would have given time to the petitioner to rectify the wrong to destroy the evidence, therefore, the extreme action of disconnection, of energy without issuance of notice was justifiable. I am afraid the contention, is highly misconceived. It was open to tie respondents to have removed! the meter which was alleged to be defective and refer the matter to the Electric Inspector as provided in section 26(6) of the Electricity, Act and continue the supply of energy after installing another meter temporarily till such time the dispute was settled which course was permissible even under the provisions of section 2'(7) of the same Act. There was no compulsion that with the removal of the allegedly defective meter the supply of energy was bound to be disconnected. Learned counsel for the petitioner lastly argued placing reliance upon judgment of Supreme Court passed in CPSLAs No. 423 and 424 of 1987, that no order of temporary mandatory injunction could be made during the pendency of the suit. I have gone through the said judgment. That was a case in which High Court during the pendency of these revision petitions passed an interlocutory order for restoration of supply of electric connection against which CPSLA was filed and the Supreme Court kept the said petitions pending with the following observations: ‑ "However, as the civil revisions are still pending in the High Court, we would not like to make any comment which might affect their final disposal. It could not be argued on the basis of this judgment that their Lordships of the Supreme Court have expressed q view that legally no order in the form of temporary mandatory 'Injunction could be passed even al the time of final disposal of the matter regarding thereto.

8. Coming to the arguments of 'the learned counsel for‑ the respondents That this Court in exercise of revisional jurisdiction could not interfere with the discretion exercised by both the Courts below in declining to pass temporary injunction as such it was not a case falling within ‑the three clauses of section 115, C. P. C. calling for interference by this Court. The submission has no force. Law is well established‑ by now that the revisional jurisdiction under section 115, ‑ P.C. primarily is intended for correcting errors made by subordinate Court In exercise of their Jurisdiction and discretionary orders of subordinate Courts can justifiably be interfered with if they are found fanciful and arbitrary. In the case in hand as discussed above, the petitioners succeeded in making out existence of prima facie case in their favour. Balance of convenience is also in their favour and they were to suffer irreparable loss in case order of temporary mandatory injunction was not passed, therefore, they had fulfilled all the three conditions necessary for issuance of temporary injunction a!~ required by law. The Courts below declined to exercise jurisdiction taking erroneous view of law firstly that no order in the form CS temporary mandatory, injunction could be passed in any circumstances arid that without the deposit of the amount of the detection bills the petitioner could not maintain the application for temporary injunction which view having been found to be legally incorrect, therefore, it is a case where the Courts below can safely be held to have refused to exercise jurisdiction vested in them under the law to issue temporary mandatory injunction taking erroneous view of law and the case falls within clauses (b) and (c) of section 115, of C. P. C. and interference can be made with such an order.

9. Learned counsel for the respondents maintained that the petitioners could make an application for having new electric connection, therefore, it is not a case in which they could suffer irreparable loss. The argument has not impressed me. To obtain new electric connection is not a vested right and apart from element of delay in getting it could also be refused, therefore, this is no ground for refusal to exercise jurisdiction in favour of the petitioner who L has fulfilled the necessary conditions for issuance of temporary mandatory injunction as pointed out above. Learned counsel for the respondents then, vainly argued that since one of the petitioners had claimed damages at Rs. 500 per day, therefore, it was impliedly admitted that damage was compensatable in the terms of money, therefore, temporary mandatory injunction could not be issued in his favour. In my view merely because a particular amount has been additionally claimed as damages, in the peculiar circumstances of its case could not detract from legal position that refusal to restore supply of energy to the industrial premises of the petitioners during the pendency of suit would cause irreparable loss to their business.

10. Learned counsel for the petitioner has placed on record the report of the Electric Inspector in which he has expressed the opinion that according to the present position, the results of meters had no authenticity and there was no justification to arrive qt conclusion whether the theft of electricity energy had been committed or not. Learned counsel for the respondents objected to the consideration of this report at the revisional stage ‑as according to him it was not produced before the Courts below. The proceedings in the suit are still at the initial stages of disposal of temporary injunction matters, therefore, this document can be taken into consideration in particular when it is a document of an Electric Inspector of respondent. I have noticed that on the basis of such a report this Court passed inter locutory order in Revision Petitions Nos. 920/87 and 921/87 for restoration of electric energy. This document further strengthens the case of the petitioners and the findings above that the petitioners had strong prima facie case is also fully supported by this document which can be taken into consideration by the Court even at this' stage.

11. For what has been discussed above, the revision petitions are accepted. The orders of both the Courts below are hereby set aside and the‑ applications of the petitioners for issuance of temporary mandatory injunction are hereby accepted and the respondents are directed to restore the electricity connection in the industrial premises of the petitioners within seven days till the disposal of suits by the trial Court. It may, however, be 'made clear that it shall be open to the respondents after restoration of electricity connection to proceed afresh in accordance with the provisions of the Electricity Act as noted above even during the pendency of the suit and make fresh order after compliance of the said provisions. The parties are left to bear their own costs.

12. Before parting with this judgment, it is necessary to clarify that the statements of facts or observations made, on the merits of the case in this judgment are only tentative and in the context of the points raised during the hearing and they shall not certainly influence the learned trial Court in‑deciding the suits on merits. A.A. /S‑249/L Revision accepted.