P L D 1970 Karachi 332 (PLP)

Ghulam Farid Khan v. East Pakistan Industrial Development Corporation (E. P. L D. C.) P L D 1968 Dacca

347. Prima facie there appears to be a good deal of force in the con tention of the learned counsel for the petitioner. Mr. Wajihuddin the learned counsel for the respondent has on the other hand contended that the respondent's services were terminated in violation of the principles of natural justice inasmuch as he was condemned unheard and no opportunity was given to him to show cause against the" action proposed to be taken against him. According to the learned counsel the termination of the respondent's services was mala fide and the binding instructions given by the Central Government were deliberately disregarded thereby creating a right in favour of the respondent to challenge the orders of his removal in a Court of law. To substantiate his contention the learned counsel relied on the following cases: (1) Ghulam Sarwar v. Pakistan P L D 1962 S C 142; (2) High Commissioner for India and another v. L M. Lail A I R. 1948 P C 121; (3) Province of the Punjab v. Ch. Nazir Hussain P L D 1956. Lah. 556; (4) M. Abdul Majid v. The West Pakistan Province P L D' 1956 Lah.615; (5) Hadi Ali v. Government of West Pakistan P L D 1956 Lah.' 824; (6) Abdul Ghafur v. The Thai Development Authority P L D 1958 Lah: 169; (7) Mahbub Ali v. Corporation of the City of Lahore P L D 1958 Lah.370; (8) Ghulam Mohiuddin v. Board of Trustees, Karachi Port' Trust P L D 1957 Kar. 482; (9) Rasul Bakhsh v. Larkana Municipality and others P L.D 1957 Kar. 489; (10) District Board, Lahore v. Agha Muhammad Khan P L D 1957 Lah.780; (11) Muhammad Din v. Corporation of the City of Lahore P L D 1960 Lah. 242; (12) Imtiaz Muhammad Khan v. Govt. of West Pakistan P L D 1960 Lah. 422 ; and (13) Manni v. Karachi Cantonment Board P L D 1969 Kar.

304. I would refrain from expressing any opinion on these points at this stage as that is the principal issue involved in the suit filed by the respondent which is now pending before the Civil Judge. This is necessary as any expression of opinion by this Court on this crucial point is likely to influence the decision of the Civil Judge and may thereby prejudice the case of one party or the other.

5. Mr. Wajihuddin, the learned counsel for the respon dent next contended that this Court should not interfere with the exercise, of discretion within the bounds of jurisdiction by an Appellate Court, even though while doing so the learned District Judge reversed the order of the trial Court. The principles of non‑interference with the normal exercise of the judicial discretion is well recognized; but the relevant consideration has always been whether that discretion has been exercised on judicial principles or in an arbitrary manner. In this case the learned District Judge has set aside a dis cretionary order passed by the trial Court without even con sidering the law laid down by the Supreme Court which is binding on all Courts in Pakistan. Mr. Wajihuddin, the learned counsel for the respondent, who had also appeared before the learned District Judge, informed me that all the cases which were referred to by Mr. Fakhruddin before me were also cited before the learned District Judge. Be that as it may, the fact remains that in the entire order of the learned District Judge running into 15 pages, there is no reference at all to any authority of the Supreme Court or even a Division Bench decision of the High Court. The learned Judge has also expressed his opinion on all the issues involved in the suit in such strong terms that he has virtually decided the whole suit himself while purporting to hear an appeal against an interlocutory order. In doing so, the learned District Judge has obviously over‑stepped the limits of B his jurisdiction and the case calls for interference by this Court under section 115, Civil Procedure Code. I am fortified in this view by a decision from Indian Jurisdiction reported as Firm Ram Kishun Shaha Etwari Sahu v. Jamuna Prasad and others (A I R 1951 Pat. 469), wherein a Division Bench of the Patna High Court consisting of Ramaswami and Sinba, JJ. observed as follows :‑ "In my opinion, there is a fair and substantial question to be decided as to the rights of the parties in the present suit. It is not necessary for our present purposes nor is it right that we should further examine the question in dispute or anticipate the decision of the question in the suit itself. What the Court has at this stage to determine is whether there is a bona fide contest between the parties or, as observed by Turner L. J. in Walker v. Jones (1865) L. R. I. P. C. 50 at p.61‑35 L J PC30. 'The real point is not how these questions ought to be decided at the hearing of the cause, but whether the nature and difficulty of the question is such that it was proper that the injunction should be granted until the time for deciding them should arrive. It is quite sufficient if the Court find a case which shows that there is substantial question to be investigated and that matters should be preserved in status quo until that question can be finally disposed of. Reference may be made to Israil v. Shamser Rahman 41 Cal. 436, A I. R 1914 Cal. 362 which is an authority in support of this view. Applying this principle to the present case, I hold that the petitioners are entitled to be granted a temporary injunction restraining the opposite party from executing the order of eviction passed by the House Controller until the disposal of the suit in the Court of the Munsif. On behalf of the opposite‑party, the argument was stressed that it was in the discretion of the lower Courts to grant or not to grant an order of temporary injunction, and the High Court ought not to interfere in such a case. But I am of the opinion that the lower Courts have not exercised their discretion according to well‑settled judicial principles but, on the contrary, have acted in an arbitrary manner. Instead of finding whether a prima facie case has been made out, the lower appellate Court has indeed decided the whole suit by finding that 'There was no lack of jurisdiction on the part of the House Rent Controller in passing the eviction order and the title suit filed is merely a contrivance to extend the period of stay of the appellants to the house as long as possible. It is manifest that the lower Courts have in this case failed to exercise a jurisdiction vested in them by law and the High Court ought to interfere in revision for the ends of justice." Reference in this connection may also be invited to the Election Officer, Gujrat v. Abdul Ghani etc. (A I R 1923 Lah. 47), where it was observed that to restrain the respondent from contesting the election at an interlocutory stage would be tantamount to granting the plaintiff' the relief sought in his suit which might thereby deprive the defendant of a right to which be was really entitled.

6. There is also ample authority for the proposition that if a subordinate Court fails to notice or ignores or refuses to follow a decision of the High Court to which it is subordinate, it acts illegally or with material irregularity within the meaning of section 115, Civil Procedure Code. Reference maybe made in this connection to the following cases: (1) Surajman Prasad Misra v. Sadanand Misra and others A I R 1932 Pat. 346 ; (2) Gupteswar Chandra Deo v. T. Y. Y. Narsimham and others A I R 1945 Pat. 132 ; (3) Kolipakam Penchelu Varadappa Rao v. Chittor Mahadevish and another A I R 1933 Mad. 94 ; and (4) UPo Hlaing and another v. Dow Ngwe A I R 1941 Rang.

22. The position would be worse in this respect if a decision of the Supreme Court is not considered.

7. The provisions of section 115, Civil Procedure Code were construed by a Full Bench of this Court in Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149) and the conclusions were summarized by their Lordships in paragraph 19 of this judgment which reads as follows:‑ " The position with reference to section 115 may thus be summarized in the following proposition (1) The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to High Court has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving the decision, (a) has exercised or assumed a jurisdiction not vested in it by law, or (b) has failed to exercise or declined to assume a jurisdiction vested in it by law, or (c) while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of law to be taken, or (d) while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of the law, or to a general principle of law, and which in the final result has given to one party an advantage over the other which it would not have got but for the fact that that step was taken."

8. Applying these principles to the facts of the present case, I find that the learned District Judge has interfered with a valid and proper order of a Court of competent jurisdiction without any reference to the law laid down by the Supreme Court. Not only this but in doing so the learned Judge over stepped the limits of his jurisdiction and went on to decide all the issues involved in the suit. There can be no doubt that the learned Judge thus acted in exercise of his jurisdiction illegally or in any case with material irregularity. The learned District Judge was bound to exercise the discretion after due regard to the discretionary order of the Civil Judge and to proceed according to the settled principles of law' which govern the provisions of Order XXXIX, rules I and 2, C. P. C.; but he has failed to do so. His order dated 18th October 1969, has accordingly, to be set aside.

9. The question would then arise whether I should remand the case to the learned District Judge or consider the merits of the case myself. It would serve no purpose if the case is sent back to the same District Judge who has already expressed his opinion on merits in such strong terms. Moreover, it would also cause unnecessary delay. I would, therefore, consider whether the discretionary order dated 7-2‑1969 of the Civil Judge is such as to call for interference by a superior Court.

10. It is settled law that the principles which should guide a Court in issuing an ad interim injunction are as follows: (1) There should at least be a prima facie case in favour of the party asking for the injunction. (2) The Court should be satisfied that if the injunction is not issued, irreparable damage or injury would be caused to the party's interests in the property involved. (3) The balance of convenience is an important factor to be considered. As regards prima facie case, I have already shown that the contentions of the petitioners are prima facie supported by several cases decided by the Supreme Court which have been enumerated in paragraph 4 above. Mr. Wajihuddin contends that all these cases are distinguishable. I do not wish to express any opinion on this point as he shall have full opportunity to distinguish these authorities in the trial Court. However under the terms of his employment as embodied in the contract of his service, the service of the respondent could at any time be terminated by three months' notice or in lieu thereof three months' pay without assigning any reason.

10. Oil the question of balance of convenience and irrepar able injury the learned District Judge expressed himself thus :‑ The contention of Mr. Samad Khan that the appellant is not likely to suffer irreparable loss in this case does not appeal to me. If an employee, who has certain guarantees in the shape of the instructions issued by the Government, is removed in the manner in which the appellant has been removed he falls in the eyes of his colleagues and monetary compensation can never compensate him for the damage that he has suffered. Balance of convenience also in this case requires that the appellant be allowed to continue to serve on the same terms and conditions. He was holding the post of the Chief Stores Officer in addition to his own duties as Officer on Special Duty and even if the respondents have employed another person as Chief Stores Officer they can conveniently allow the appellant to continue as Officer on Special Duty till the matter is finally adjudicated upon by the Court. It is difficult to appreciate as to how the learned District Judge arrived at the conclusion that the balance of convenience lay in forcing a servant on an unwilling master. As mentioned in the revision application, the respondent had left the service of the petitioners after his services were terminated and his name was removed from the Rolls of the Corporation. Mr. Wajihuddin has, vehemently controverted this position. The fact, however, remains that in the plaint itself the respondent had prayed that he should be "restored to his post". Even if the reasoning of the learned District Judge that the respondent "had fallen in the eyes of his colleagues" on this account were to be accepted, this had already happened. As observed by their Lordships of the Supreme Court in M/s. Malik & Haq and others v. Muhammad Shamsullslam Chowdhury, personal service is the duty of the servant under the contract and not his legal right. If at all the respondent's suit succeeds he would be entitled to all his emoluments and he may also claim damages for any breach of contract etc.

11. An interlocutory injunction of a mandatory character can only be granted if the Court is satisfied that the matter is an emergent one and immediate assistance is needed to prevent irreparable injury being done to the legal or equitable rights of the claimant. The leading principle which ought, generally speaking, to be the guide of Court and to limit its discretion in granting injunctions is that only such restrain should be imposed as may suffice to stop the mischief complained of and to keep things in status quo during the pendency of the litigation. Even the fact that the plaintiffs may have made out a prima facie case does not necessarily mean that a temporary injunction can be claimed by him as a matter of right. Before issuing such an injunction the Court must consider and satisfy itself whether the effect of the injunction would be to preserve or alter the status quo during the pendency of the litigation and whether irreparable injury would be caused to the plaintiff if‑ the injunction is not issued. If the effect of the injunction would be to alter the status quo during the pendency of the trial and no irreparable injury is likely to be caused to the plaintiff it is not a fit case issuing a temporary injunction which is a remedy which should be sparingly resorted to since it would often result in giving to the plaintiff the remedy he seeks in the suit, even before the contention of the contending parties are properly tried. Both the Courts below have omitted to consider these essential aspects and have considered mainly the question of P prima facie case. This case, therefore, clearly falls under clause (c) of section 115, C.P.C. and attracts the revisional jurisdiction of the High Court on this ground as well.

12. In view of what has been stated above, I consider that no irreparable injury is likely to be caused to the respondent and the learned Civil Judge rightly refused his prayer for an ad interim injunction. The balance of convenience also requires that the respondent should not be forced upon an unwilling master. Last but not the least the respondent does not appear to have a strong prima facie case.

13. For the reasons given above I allow this revision application, set aside the order dated 18th October 1969, of the learned District Judge and restore that of the learned Civil Judge. In the circumstances of this case, however, there shall be no order as to costs. Before I conclude, I should like to make it clear that the trial Court shall not be influenced by any expression of opinion in this order while deciding the suit on its merits. A. B./S. A. H. Revision allowed.