P L D 1954 Peshawar 72 (PLP)

MUHAMMAD SHAFI, J.‑Sayed Faqir Shah Assistant Political Officer and Additional District Magistrate by his order dated 11th of March, 1953, directed that a certain dispute which existed between Khawaja Muhammad Sharif, a Merchant of Peshawar City on one side , and four persons, namely, Sahibzada Abdul Baqi, Sahibzada Abdul Jalil, Sahib zada Abdul Ghaffar, and Samand Khan, belonging to Tribal Area, on the other, should be referred to a joint Jirga in con sultation with the Deputy Commissioner Peshawar. Although the order does not mention it specifically yet it appears that its was passed under section 8 F. C. R. (III of 1901). Khwaja Muhammad Sharif went up in revision against this order, but it was dismissed by Mr. Abdur Rashid Khan, Commissioner F. C. R. by his order dated 19th July 1953. On the 19th of August 1953, Khwaja Muhammad Sharif instituted a suit against the four persons mentioned above, as well as against the Assistant Political Officer Khyber Agency, for a declaration that the transaction between him and defendants Nos. 1‑4 was commercial, and, therefore, it could not be referred to the Jirga under the F. C. R., and for a permanent injunction that the defendants should be prevented from taking any action against the plaintiff under section 8 F. C. R., for the recovery of Rs. 3,90000. This suit was heard by the learned Senior Sub‑Judge Peshawar, who by his order dated 7th January 1954, dismissed it as incompetent. An appeal against this decree has been preferred to this Court, which has been admitted to full hearing and shall come up before the Bench in due course. The plaintiff, however, has made an application under O. 39, R. 2 C. P. C. for issuing a temporary injunction against the respondents to the effect that pending the decision of the appeal the proceedings in connection with the claim of respondents Nos. 1‑4 against the petitioner be stayed. I issued a notice to the other side on this application and in the meanwhile passed 'an interim order on 12th February 1954. The respondents have appeared before me, and the case by the learned counsel for the parties has been argued at a considerable length and most exhaustively. So far as the order under Order 39 rule 2, C. P. C. against the Assistant Political Officer is concerned. I think that legally cannot be passed at all. An injunction can only be issued against a named person. Equity acts in personam, and if an injunction has got to be addressed to any person, then' it has to be addressed to that person by name. The Assistant Political Officer is not an individual. It is merely a conve nient nomenclature to describe the person, who is one of the officers, who manages the affairs of an Agency on behalf of the Agent to the Governor‑General and is directly respon sible for the administration of that Agency. He has no legal existence at all. The absurdity of the proposition, that an injunction can be issued to a certain officer in the capacity of his holding a certain post, is clear from this fact alone that supposing if any injunction is issued and received by him but later on he is succeeded by another person appointed to that office, who disobeys the injunction, then neither of the two officers could be asked for obvious reasons to purge the contempt. I am consequently of the opinion that no interim or temporary injunction can be granted against the Assistant Political Officer. The application of the plaintiff as against the A. P. O. is hereby dismissed with costs. So far as the granting of the temporary injunction against respondents Nos. 1‑4 is concerned, it is agreed by the learned counsel appearing for the parties, that it would meet the ends of justice if‑ such an injunction is granted in favour of the petitioner but subject to his furnishing a security for the due performance of such decree or order as may be passed under the F. C. R., in case of the dismissal of the appeal in this Court, which may ultimately be binding upon him Respondents Nos. 1‑4, however, do not agree with their own counsel and want the proceedings under the F. C. R. to continue. Their attitude in my view is most unreasonable and inequitable. If the proceedings under the F. C. R. are not stayed and a decree is granted in favour of defendants Nos. 1‑4, who succeed in realising the same from the plaintiff, then it would well nigh be impossible for him, in case his appeal is accepted by this Court, to recover the amount back from respondents Nos. 1‑4, who according to their own saying are the permanent residents of the Tribal Area. Before the learned counsel for respondents Nos. 1‑4 agreed to the above order, he submitted that since his clients resided outside the jurisdiction of this Court, therefore, no injunction could be granted against them. In support of his argument he quoted Maharaj Bahadur Singh and others v. Seth Hukam Chand and others, a case decided by the Patna High Court, and reported as

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11. This case, however, is an authority for the view that if the defendants, although they reside outside the jurisdiction of the Court, have appeared in the suit and submitted personally to the jurisdiction of the Court, the Court has jurisdiction to make such an order. This is exactly what has happened in this case. The defend ants appeared ‑before the learned trial Court, and then in this Court, arid subjected themselves to the jurisdiction of this Court, which consequently has the jurisdiction to pass the order prayed for. I, therefore, accept the application of the plaintiff, and order that defendants Nos. 1‑4 shall not take any proceed ings cinder the F. C. R. in respect of the subject‑matter of the suit, out of which appeal No. 17/7 of 1954, is pending in this Court, until the decision of the appeal, subject to plaintiffs giving a security to the satisfaction of the Registrar of this Court for the due performance of such order or decree passed under the F. C. R. in case of the dismissal of the appeal in this Court, which may ultimately be binding upon him. There shall be no order as to costs. Orders announced. A. H. Application accepted