2002 PLP 1269 (SCMR)

QAZI MUHAMMAD FAROOQ, J.‑‑‑Tauseef Corporation (Pvt.) Limited, Lahore through its Director Asif Mahmood has sought leave to appeal against the order dated 12‑10‑2001 passed by a learned Judge in Chambers of the Lahore High Court in F.A.O. No.296 of 2001 whereby the petitioner's application for grant of interim relief under Order 39, rules 1 and 2 was dismissed.

2. The facts to be noted are that the offer made by the petitioner, a construction company, for construction of Parking Plaza at the area known as D‑Point situated in Rang Mehal, Shah Alam Market, Lahore was accepted by the L.D.A. on 30‑5‑1994. Thereafter, pursuant to a tripartite agreement dated 14‑9‑1995 the execution of the work was taken in hand by the petitioner. According to the agreement the petitioner was required to complete the construction with its own funds and in lieu thereof claim ownership of certain areas specified therein. The petitioner executed the work to the extent of 33% but on 20‑2‑1997 the contract was terminated by the Chief Engineer, TEPA. Feeling aggrieved the petitioner filed a writ petition in the Lahore High Court but it was dismissed on 18‑2‑1998 with the observations that the issue was too contentious to be decided in exercise of Constitutional jurisdiction and in presence of the alternative remedy it will be more appropriate if the jurisdiction of the arbitrators is invoked. The I.C.A. filed by the petitioner was also dismissed on 17‑7‑1998 on the same ground. The petitioner then filed a suit for specific performance of the contract but the plaint was rejected. Meanwhile the L.D.A. took possession of the project, demolished the structure raised by the petitioner and got the Parking Plaza constructed through a firm known as Habib & Sons. The petitioner filed. an application under section 20 of the Arbitration Act and alongwith the same moved an application for grant of temporary injunction. The learned Civil Judge seized of the case granted a temporary injunction on 18‑9‑2001 in the following terms:‑‑ "In the light of the foregoing discourse viewed from whatever angle all the three ingredients for issuance of interim prohibitory injunction do admittedly co‑exist. In virtue of clause 10(l),(iv) of the agreement no portion of the applicant company's right hold can legally be dealt with or based out prior to the settlement of the controversy about the rights, liabilities and duties of the applicant as second party to the agreement through Arbitration as envisaged under clause 28 thereof."

3. The L.D.A. filed F.A.O. No.296 of 2001 against the above order which was allowed by a learned Judge in Chambers of the Lahore High Court and the application for grant of temporary injunction was dismissed.

4. It was contended by the learned counsel for the petitioner with vehemence that the petitioner had completed 33 % work, which has been illegally demolished, and as such the L.D.A. was obliged to earmark a specific portion of the Parking Plaza in its favour. It was further contended that the petitioner had a fair prima facie case, the balance of convenience was also in its favour and it will suffer an irreparable loss if the L.D.A is not restrained from leasing out the Parking Plaza to a third party.

5. The learned counsel for the caveator, on the other hand, contended that the petitioner had failed to establish a prima facie case in as much as the writ petition and I.C.A. filed by the petitioner were dismissed and thereafter the petitioner had filed a suit for specific performance of the contract but the plaint was rejected in that case. The construction raised by the petitioner had been demolished and an altogether new Parking Plaza had been constructed. It was also contended that the balance of convenience was also not in favour of the petitioner and same was the case with regard to the element of irreparable loss.

6. Having considered the rival contentions we find that a case for grant of temporary injunction is not made out. Notwithstanding the fate of the writ petition, the I.C.A. and the suit for specific performance of contract filed by the petitioner the work was not completed by the petitioner and the construction raised by it has admittedly been demolished and a new Parking Plaza, designed by NESPAK, has been constructed at a heavy cost by the L. D. A. In view of the changed scenario it cannot be said that the petitioner has a prima facie case for the purpose of the interim relief prayed for. The balance of convenience also does not tilt in favour of the petitioner as possession of the constriction made by the petitioner and the site was taken by the L.D.A. long ago and the process of leasing out the newly‑constructed Parking Plaza has already commenced. As regards the ingredient of irreparable loss suffice it to say the loss allegedly suffered by the petitioner appears to be measurable in terms of money. For the foregoing reasons the petition is dismissed and leave refused. . Q.M.H./M.A.K./T‑27/S Petition dismissed.