1992 PLP 1515 (CLC)

In this application under Order 39, Rules 1 and 2, C.P.C. the plaintiff has prayed for an order restraining defendant No.2, his agents, servants subordinates and all personal acting through or under him from interfering with the working of the plaintiff .in handling the luggage and parcel contract at the Karachi city and further be pleased to restrain the defendant from awarding the contract to any other contractor in violation of the policy of the defendant regarding appointment of Coolie/Jamadar. In support of this application; it is stated by the plaintiff that he was awarded contract/licence in 1981 for the supply of licensed Coolies for purpose of carrying passengers luggage to and from the trains and handling of luggage and parcels with Pakistan Railways and the same was required to be renewed after every three years in the event of satisfaction of the defendants vide Exh. "D" to the plaint. The policy laid down by defendant No.2 for awarding such a contract was to publish an advertisement for the purposes of selection before three senior scaled officers nominated by the Divisional Superintendent of Pakistan Railways. It is stated that in terms of para. 2 of the agreement, the contract was renewable at the option of defendant No.2 for similar period. After the expiry of the contract on 28‑1‑_1991, the defendant No.2 asked the plaintiff as to whether they were willing to continue the said contract on the existing terms and conditions. Upon receipt of the letter, the plaintiff expressed their willingness to continue the contract vide Annexure "F" to the plaint. Although the plaintiff did not receive any confirmation. of renewal of the contract they continued to perform their functions and duties in accordance with the same terms and conditions. In the meanwhile the plaintiffs were pressing for payment of their running bills with the defendant No.

2. It is contended by the plaintiffs that they cannot be unilaterally deprived of the contract, which defendant No.2 is obliged to renew in terms of para. 2 of the agreement. It is further averred that the defendants cannot act in violation of their own policy and can only award contract to any other person after inviting through press advertisement in relations thereto in which the plaintiffs also has right to participate. On 5‑5‑1991, notice was issued to the defendants for 6‑5‑1991 on which date Mr. Akhlaq Ahmad Siddiqui, Advocate filed power on behalf of the defendants and sought time to obtain instructions from the defendants. By consent the matter was adjourned to today. The defendants have now filed their counter‑affidavit and the plaintiffs filed their rejoinder. It may be stated here that on 6‑5‑1991, the Court passed the, following order:‑ "Mr. Raja Qureshi, Advocate states that the defendants cannot award fresh contract to anyone unless press advertisement is given in the newspapers inviting tenders. 1f it is correct, the defendants may not award contract to anyone till the next date except by inviting tenders in the newspapers." The defendant No.2 in their counter‑affidavit have raised legal objection stating that the suit is hit by the provisions of section 56(d) & (f) and section 42 of Specific Relief Act and Court Fees Act. It is firstly urged that the contract is not enforceable under subsections (d) and (f) of section 56 of Specific Relief Act and will operate as bar to grant of injunction. Secondly, it is urged that the plaintiffs have no legal contract and thirdly that the plaintiffs have failed to evaluate the property in respect of reliefs sought for separately. With regard to the merits of the case it is alleged that the working of the plaintiff was highly unsatisfactory since 1987. With regard to the averments made by the plaintiff, it is contended by the defendants that the award of contract was in absolute discretion of the defendants and the plaintiff cannot force the defendants to renew contract in their favour. It is submitted by them that fresh contract was awarded on 2‑5‑1991 to one Wazir Ali after the termination of contract with the plaintiff and hence the application has become infructuous. It was pointed out by them that on 5‑5‑1091 at about 2/3 O'clock in the noon defendant No.2 received notice of the application and on 6‑5‑1991 when this application came up before the Court for hearing the said contract was already awarded to the said Wazir Ali, to whom the plaintiff had given charge and possession of the accommodation on 5‑5‑1991 in the presence of witnesses. In re‑joinder‑to‑affidavit filed by the plaintiff, the plaintiff has denied that he had handed over charge of accommodation to the said Wazir Ali or that a new contract was awarded to him. It is maintained by him that the defendant No.2 is bound to follow their own rules and they cannot be permitted to adopt a policy other than continued in their letter dated 17‑6 1960 being Annexure `C' to the rejoinder. The learned counsel for the plaintiff urged before me that the plaintiff has a legal right to participate after expiry of his contract and to bid after an advertisement is given by defendant No.2. Further it was stated that as the plaintiff was pressing for their pending bills, the defendant No.2 became hostile to them and they promised to take an action other than warranted under their own rules. It was specifically stressed by the learned counsel that the contract with the plaintiff has not been revoked and that they are still in possession of the accommodation and/or otherwise carrying out their obligations under the contract dated 14‑12‑1988. Mr. Akhlaque Ahmad Siddiqui, Advocate for defendant No.2, vehemently opposes this application stating that the plaintiff has no legal right, as evidently he is licensee and has no locus standi to press defendant No.2 to act in such a manner. According to him, defendant No.2 have full powers to cancel even a subsisting contract and award it to anyone they may wish. In the . present case the agreement had expired whereafter it was within the sole discretion of defendant No.2 to award the contract to anyone. Reliance is placed by learned counsel for the defendants in PLD 1965 SC 83; Civil Appeal No. 545/90 decided by the Supreme Court on 10‑4‑1991 and PLD 1961 SC

531. In view of the facts and circumstances, the plaintiffs have failed to make out a prima facie case for injunction. Burden of convenience is also on the side of defendants. The plaintiffs may sue for damages, if any loss has been caused to them due to breach of contract by a defendant No.2. Application stands disposed of. AA./M‑1455/K Application dismissed.