1991 PLP 1044 (MLD)

S. 54

Civil Procedure Code (V of 1908), OXXXIX, Rr.1, 2 Ss. 151, 107 & 115

Suit for mandatory injunction for restoration of electricity supply-- Plaintiff's application for temporary injunction for immediate supply of electricity during pendency of suit was also granted by Trial Court

Appellate Court while observing that temporary mandatory injunction could not be ordered while disposing of application for temporary injunction, nevertheless, ordered restoration of electricity supply in view of fact that plaintiff had paid last bill and if order of restoration was not granted plaintiff would suffer hardship in business

Appellate Court, however, made such order conditional on deposit of specified amount by plaintiffs and furnishing of security in the specific amount-- Validity of

Interim relief granted by Appellate Court in peculiar circumstances of case, was in all fairness to parties

Appellate Court under provisions of OXXXIX, R.(2), Ss.151 & 107, Civil Procedure Code, was quite competent to grant the interim relief and its order appeared to be just and proper

Appellate Court's order did not suffer from any illegality, material irregularity or jurisdictional defect, so as to justify interference in revisional jurisdiction. Hafiz Muhammad Abdul Qayum for Petitioners. Malik Rab Nawaz for Respondents. Date of hearing: 12th November, 1990. On 12-9-1989, Malik Siddiq Ahmad respondent and five others filed a suit for permanent mandatory injunction for direction to WAPDA and two others, petitioners, to provide transformer and restore electricity supply in their Cotton and Ginning Pressing Factory situate .in Uch Sharif. Alongwith the suit, the plaintiffs/respondents filed an application for temporary injunction for immediate supply of the electricity during the pendency of the suit. The application was resisted. The learned trial Court accepted the application and directed the defendants/petitioners to restore the electricity energy. Feeling aggrieved thereby, WAPDA and two others, petitioners, filed an appeal which was entrusted to the learned Addl. District Judge, Bahawalpur, who while observing that the "learned trial Court did not appreciate that temporary mandatory injunction could not be ordered while disposing of the application for temporary injunction, as it amounts to pre-judging the merits and putting cart before the horse", accepted the appeal. But in view of the fact that the respondents/plaintiffs had paid the last bill in August 1989 and their Industrial concern was about to function within few weeks and in case, the electricity was not restored, they may suffer hardship in business, he deemed it equitable that electricity supply be restored to the Industrial concern of the plaintiffs subject to the condition that they shall deposit a sum of Rs.40,000 in Court within two weeks of the order and furnish surety in the sum of Rs.1,00,000 towards the estimated cost in the above context to the satisfaction of the trial Court. Feeling dissatisfied by the interim relief granted by the learned Addl. District Judge, Bahawalpur. WAPDA and two others/defendants have filed this revision.

2. The learned counsel for the petitioners was of the view that after having observed that temporary injunction could not be ordered by the trial Court in this case, there was no justification to grant the interim relief, as stated above. The learned Counsel for the respondents have supported the order of the learned Addl. District Judge, Bahawalpur.

3. I have considered the matter carefully, I find that, in the peculiar circumstances of the case, the interim relief granted by the appellate Court was in all fairness to the parties. Under Order 39, Rule 2(2), section 151 read with section 107 of the C.P.C., the learned Addl. District Judge, while sitting in appeal over the order of the trial Court, passed in an application under Order 39, rules 1 and 2 of the C.P.C. was quite competent to grant the impugned relief, which in the circumstances of the case, appears to be just and proper. The impugned judgment dated 27-11-1989 of the learned Addl. District Judge does not suffer from any illegality, material irregularity or jurisdictional defect.

4. Pursuant to the above discussion, I do not see any justification to interfere in exercise of revisional powers of this Court, with a fair and just order passed by the learned Appellate Court. The revision petition is dismissed leaving the parties to bear their own costs. AA./W-101/L Revision dismissed.