1998CLC61 (PLP)

‑‑‑‑O. XXXIX, Rr. 1, 2, 2A & 3‑‑‑Ex parte ad interim injunction granted in favour of plaintiffs‑‑‑Validity‑‑‑Court before granting injunction was required to give notice to opposite‑party‑‑‑Impugned order did not show any extreme urgency nor it was spelt out therefrom, whereby legal requirement of notice to opposite side necessarily had to be dispensed with‑‑‑Plaintiffs failed to give any explanation for the course adopted by Trial Court in exhibiting unholy haste in granting ad interim injunction of mandatory character‑‑‑‑Interim injunction was not issued even for any fixed period but was for indefinite duration‑‑ Interim injunction should not ordinarily exceed fifteen days if passed in absence of defendant‑‑‑Defendant should not have been condemned unheard‑‑‑Ex parte interim injunction was set aside and case was remanded to Trial Court with direction to decide afresh the same after hearing parties. Dilbaz Khan v. The State PLD 1959 Lah. 264; Yusuf Hussain Sherazi v. Lt.‑Col. Muhammad Alam Shaikh PLD 1966 Kar. 472 and Maulvi Abul Mozaffar and others v. Sasanka Shakhar Gupta PLD 1966 Dacca 468 rel. Ijaz Ahsan and Jawad S. Khwaja for Appellant. Mirza Mahmood Ahmad for Respondents Nos. and 2 This first appeal is directed against the order dated 27‑5‑1997 passed by the learned Civil Judge, Lahore, whereby an ex parte ad interim injunction was granted in favour of the respondents and against the present appellant.

2. The respondents brought a civil suit for declaration, permanent injunction and damages against the appellant before the learned Civil Court, Lahore. It was averred therein that the respondent No. l was a part of U.D.L. group of Companies and was one of the premier distribution Companies in Pakistan. By agreement dated 12‑4‑1994 the appellant appointed the respondent No. l as the distributor for distribution of hybrid seed, a bio‑technology of high yield seed. By notices dated 25‑2‑1997 and 14‑5‑1997 of the appellant the agreement dated 12‑1‑1994 was sought to be terminated, rescinded which led to the filing of the suit by the respondents.

3. The respondents also filed an application for grant of temporary injunction under Order XXXIX, Rules 1 and 2 read with inherent powers under section 151, C.P.C. By impugned order dated 27‑5‑1997 the learned Civil Judge issued the notice to the appellant for 2‑6‑1997 and suspended the operation of the notices dated 25‑2‑1997 and 14‑5‑1997 in the meantime. The appellant was restrained from appointing any distributor in the Province of Punjab or stopping the supply of its products to the respondents. On another application under Order 26, Rule 9, C.P.C. of the respondents a Local Commission was appointed with certain directions.

4. Learned counsel for the appellant, inter alia, contended that the impugned order prejudicial to the rights and interests of the appellant ought not to have been passed for an indefinite period in absence of the appellant. It was further argued that the impugned order was passed in utter disregard of the provisions of Rule 3 of Order XXXIX, C.P.C.

5. On the other hand, Mirza Mahmood Ahmad, Advocate, for the respondents argued that in the peculiar facts and circumstances of the case, no valid exception could be taken to the ex parte ad interim injunction granted by the learned Civil Judge. The learned counsel also raised objections against the maintainability of appeal. He further argued that the impugned order was an ad interim order of injunction and the provisions of Rule 3 of Order XLIII, C.P.C. had not been complied with. 6: The learned counsel for the parties also addressed their elaborate arguments on the merits of the main case and the application for temporary injunction. I refrain from expressing any opinion thereon lest it might prejudice the either side in the pending civil suit and the application for temporary injunction.

7. Firstly the objection by the learned counsel for the respondents as to the maintainability of this appeal has to be dealt with. By clause (i) of subsection (1) of section 104, C.P.C., it is provided that an appeal shall lie from an order made under rules from which an appeal is expressly allowed by rules. Rule 1 (r) of Order XLIII, C.P.C. expressly lays down that an appeal shall lie under the provisions of section 104 from an order under rules 1,2, 4 or Rule 10 of Order XXXIX. Therefore, any order of granting or refusing an injunction, ad interim or otherwise, would be covered by Rules 1 and 2 of Order XXXIX, C.P.C. and appealable. In taking this view I also find the support from the cases of Umer Gul v. Malik Abdul Manan and others (PLD 1992 Peshawar 76), H.M. Saya & Co. v. Wazir Ali Industries and another (PLD 1965 Karachi 603) affirmed in appeal by the Hon'ble Supreme Court in case of H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 SC 65); Returning Officer Karachi Municipal Corporation. v. Hafiz Muhammad Habibullah end others (PLD 1956 Karachi 429), Balaby Das v. Muhammad Ishaq (AIR 1933 Lahore 282), Zila Parishad Budaun and others v. Brahma Rishi Sharma (AIR 1970 Allahabad 376 Full Bench), Amolak Ram v. Sahib Singh (1885) ILR 7 All 550), Lachmi Narain v. Ram Charan Das (1913) ILR 55 All 425), Ganesh Prasad Sabu v. Dukh Haram Sahu (AIR 1922 Allahabad 441 (1), District Board of Farrakhabad v. Ikhlaque Hussain (AIR 1933 Allahabad 86) and Shayam Behari Singh v. Biseswar Dayal Singh (AIR 1924 Patna 713). As to the objection of violation of Rule 3 of Order XLIII, C.P.C. I find on the record that the appellant had given notices to the respondents by registered post acknowledgement due before filing this appeal. The procedural provisions of law had been substantially complied with. The intention of the legislature for ensuring the expeditious disposal of the appeal has also been duly carried out. Reliance can also be placed on the case of Sindh Industrial Trading Estate Ltd., and 3 others v. Noorani Enterprises (1996 CLC 570). Therefore, both the objections of the learned counsel are devoid of any substance and are overruled.

8. Now the main point involved in this appeal needs to be attended to Rule 3 of the Order XXXIX, C.P.C. requires that the Court shall in all cases, before granting an injunction direct notice of the application for the same to be given to the opposite party. The impugned order does not show any extreme urgency nor it was spelt out therefrom whereby the legal requirement of notice to the opposite side necessarily had to be dispensed with. No justification was indicated by the learned Civil Court that delay in granting the injunction would have defeated the object. The learned counsel for the respondents failed to offer any plausible explanation for the course adopted by the learned Civil Judge in exhibiting unholy haste in granting the ad interim injunction of mandatory, character. The interim injunction was not even for any fixed period but was clearly directed to ensure for indefinite duration as the word "meantime" would connote. The learned Civil Judge acted in disregard of provisions of Rule 2A of Order XXXIX, C.P.C. whereunder an interim injunction should not ordinarily exceed fifteen days if passed in absence of the defendant. In view of the contentious nature of the cause of action as set out by the plaintiff, it would have been proper for the learned Court below to have first directed a notice, might be even short one to the appellant before granting a mandatory injunction of ' indefinite duration in favour of the respondents. The appellant ought not to have been condemned unheard in the peculiar facts and circumstances. It was not an exceptional case of extreme urgency. See the cases of Dilbaz Khan v. The State (PLD 1959 Lahore 264), Yusuf Hussain Sherazi v. Lt. Col. Muhammad Alain Shaikh (PLD 1966 Karachi 472), Maulvi Abut Mozaffar and others v. Sasanka Shakhar Gupta (PLD 1966 Dacca 468) and Balabh Das Kothari's case (supra).

9. In this view of the matter, the appeal is accepted. The impugned order dated 27‑5‑1997 is set aside to the extent of ex parte ad interim injunction. The case is remanded to the learned trial Court with a direction to redecide, by 30‑9‑1997, the matter of temporary injunction after hearing the parties or their learned counsel, without being influenced, in any manner, by the observations made in this order. There shall be no order as to costs. A.A./P‑26/L Case remanded.