P L D 1969 Dacca 832 (PLP)

The defendant No. 1 obtained this Rule against the order passed by the learned Additional District Judge dated. 9‑9‑

68. The plaintiff‑opposite‑party No. 1 filed a suit on 3‑8‑68 alleging that there was an auction for labour handling contract for IWTA Terminal Building, Chandpur Port commonly known as Cooly contract for IWTA Launch Ghat Chandpur, and the auction was held on 13‑5‑68 and the present plaintiff opposite‑party No. 1 was one of the bidders in the said bid. The bid of opposite‑parties Nos. 2 and 3 were, however, accepted by the authority on the date of the bid, but they failed to deposit 5.1 % of the bid money on the spot as per terms of the Memo. No. PTD 51/4/9/595, dated 27th April 1968. The plaintiff thereafter lodged a protest with the present petitioner stating that since the opposite‑parties Nos. 2 and 3 have failed to deposit the amount within the time, the opposite‑party No. 1 may be accepted as a bidder who is ever ready to make payment of Rs. 10,000 on installments and will execute the work and run the above contract smoothly to the entire satisfaction of the petitioner. The petitioner then gave a reply on the 19th of June 1968, refusing the prayer and the plaintiff thereafter filed the suit for damage amounting to Rs. 1,000 or such higher sum as the Court may find proper and he further made a prayer for issuance of permanent injunction on the petitioner and opposite‑parties Nos. 2 and 3 restraining them from working on the labour handling contract of the I WTA Terminal Building at Chandpur Port. The course of action for the suit has been shown from the refusal of the protest by the petitioner and it is further stated in the plaint that injunction should be granted in the interest of public at large and the public organisation too and that proper action may be taken for stopping high‑handedness and whims of the officers of the defendant No. 1 who are playing in the hands of interested persons. The opposite‑parties Nos. 2 and 3 in the written objection in paragraph 10 stated as follows: ‑ "That these defendants are not aware of any such letter written to the plaintiff by the defendant No.

1. But it is respectfully submitted that the plaintiff has no cause of action whatsoever to file the suit or for filing the application for injunction. It is submitted that there has been no violation by the defendants of any right of the plaintiff and the plaintiff has no special interest in the matter. The bid was open and public and the defendants Nos. 2 and 3 were the successful bidders. After declaration of the defendants Nos. 2 and 3 as the highest bidder, the plaintiff does not have anything to do with it, and if he has anything to say on behalf of the public and for public interest, in that case to the suit has to be instituted as a public representative suit." On the very date of filing the suit, the opposite‑party No. 1 filed an application supported by an affidavit for issuance of temporary injunction upon the petitioner as well as opposite- parties Nos. 2 and

3. The learned Munsiff simply issued notice upon the opposite‑parties and directed to show cause within 5 days from the date thereof as to why they should not be restrained by an order of injunction from working on the labour handling contract. Thereafter the present petitioner who is defendant No. 1 appeared and prayed for time for filing objection and the plaintiff‑opposite‑party No. 1 filed a petition for granting ad interim injunction. The learned Munsiff passed the following order on 27‑8‑68 "Defendant's prayer for time is allowed. To 14‑9‑68 for filing w/o and hearing injunction matter Plaintiff's petition be kept with the record." As against this order, the plaintiff filed an appeal before the learned District Judge on 29‑8‑1968 and filed an application praying for ad interim injunction. The learned District Judge passed an ad interim order of injunction on the same date, that is, 29‑8‑

68. Thereafter the opposite‑parties Nos. 2 and 3 appeared and filed a written objection and a separate petition for expeditious hearing of the injunction matter when the, present petitioner also appeared and filed a written objection. The learned District Judge after hearing the parties on 3‑9‑68 modified his earlier order and directed that the Coolies will work under the direct supervision of the IWTA till the disposal of the appeal. Thereafter this appeal was transferred and the learned Additional District Judge after hearing the parties, dismissed the appeal on 9‑9‑68‑the ordering portion of which runs thus: ‑ "I think it will meet the ends of justice if the `Koolies' work under the direct supervision of the EPIWTA till disposal of the injunction matter by the learned Munsif. With the above modification the appeal fails." As against this order of the learned Additional District Judge that this Rule has been obtained. The learned Advocate appearing for the petitioner contended that the learned Judge acted illegally in passing an order directing the petitioner for supervising the coolies after dismis sing the appeal. In support of the contention the provisions of Order XLIII, rule 1(r) of the Code of Civil Procedure has been pleaded before me and contended that the orders passed by the learned Munsiff do not come under this provision and as such the appeal before the learned Judge was incompetent. Mr. Moinul Huq, the learned Advocate appearing for the opposite‑party No. l contended that in the petition filed before the learned Munsiff for passing an ad interim order of injunction having not been disposed of although the prayer was made, it would amount to rejection and would come within the purview of Order XLIII, rule 1(r) of the Code of Civil Procedure. The learned Munsiff instead of disposing of the application for granting ad interim injunction fixed 14‑9‑68 for hearing the injunction matter and kept the petition pending since the petition was not either rejected or accepted and the consideration thereof having been kept awaited till 14‑9‑68 fixed for hearing the matter, I do not consider it a final order within the ambit of Order XLIII rule 1(r), Civil Procedure Code. The learned Munsiff did not at all consider the petition on merits and in this view of the matter I do not consider it right to hold that the learned Munsiff finally disposed of this petition whereby the plaintiff can seek remedy by way of appeal before the learned District Judge. It appears from the judgment of the learned Additional District Judge that "the appeal fails" but at the same time he made some modification in the order. Now the whole question is if the appeal fails how he could pass an order either in the terms of modification or in any manner. The appeal, as I have B earlier held, is incompetent. The order of the learned Additional District Judge directing the present petitioner to deal with the Coolies Work under the direct supervision is without jurisdiction. The learned Additional District Judge ought not to have made such an order when he held that the appeal fails. Mr. Moinul Huq, the learned Advocate appearing for the plaintiff‑opposite‑party No. 1 contended that this order of the learned Additional District Judge is a consent order and in that view of the matter such an order cannot be challenged in revision. But at the same time he has been candid enough to agree that if the appeal is found to be incompetent for want of jurisdiction, then the learned Additional District Judge could not pass such an order. As I have already held the appeal before the lower appellate Court is without jurisdiction so the order passed by the learned Additional District Judge cannot be sustained in law, even if it is a consent order. Mr. M. H. Khondkar, the learned Advocate appearing for opposite‑parties Nos. 2 and 3 contended that if the suit itself is not maintainable and for that reason there could not be any order of injunction restraining the petitioner and the opposite‑parties Nos. 2 and 3, and he referred to the case of M. A. Naser v. The Chairman, P. E. Rly. Chittagong and others (P L D 1965 S C 83). The learned Advocate appearing for the opposite‑party No. 1 contended that the question of maintainability of the suit cannot be agitated in this revision and if any decision is given that will affect the entire suit. In view of the fact that the learned Munsiff did not dispose of the application filed by the plaintiff for temporary injunction and when the appeal filed before the lower appellate Court is found to be incompetent, the merits of the case need not be gone into at the moment. From the statement in the plaint, as stated earlier, it will appear that the relief sought for in the plaint is more or less in a way ventilating the cause of the public. Furthermore, it is doubtful to hold at this moment whether the plaintiff has got good cause of action for obtaining an order of injunction from the Court. The petitioner is a statutory body and it has got to run its own administration and if the petitioner is restrained by an order of injunction that will hamper their internal administra tion and in this view of the matter I consider that in such circumstances no injunction can be issued against such statutory body. The claim of the plaintiff is for damage and assessed tentatively at Rs. 1,

000. When it is apparent from the plaint itself that the damage, if any, can be compensated, then in that event, temporary injunction should not be issued creating a deadlock in the internal administration of the statutory body. Considering that the period for which the contract was given to the opposite‑parties Nos. 2 and 3 was for a year, I do not consider it necessary to send this matter back to the learned Munsiff for consideration of the matter of issuance of ad interim injunction and more so when the parties placed their respective cases before this Court and advanced the arguments accordingly. In my view, the suit should be disposed of as expeditiously as possible. In the result, the Rule is made absolute and the orders of the Courts below are set aside. But in the circumstances of the case, there will be no order as to costs. M. I/S. A. H. Rule made absolute.