1985 PLP 1657 (CLC)

In a suit for permanent injunction brought by the respondents, involving the controversy as to which of the two parties was the elected body forming the Islamabad Timber Merchants' Association, a temporary injunction was issued by the trial Court at the instance of the respondents, and was affirmed by the learned Additional District Judge, Rawalpindi on 5-11-1984, by dismissing the petitioners' appeal there against with the findings that the plaintiff-respondents had a prima facie case and even balance of inconvenience lay in their favour. While dealing with the petitioners' grievance that the order passed by the trial Court had not only touched upon the merits of the case but had virtually made a premature determination of the suit, and declaring upon the undesirability of adopting such an approach at that stage, learned Additional District Judge not only dispelled the apprehension of the petitioners with regard to the trial Court's order but himself also took care to clearly state in his judgment that the expression of his opinion therein should be regarded as confined only to the assessment of existence or otherwise of a prima facie case so as to enable it to be decided as to whether or not discretionary order may have been passed and that the same may not be equated with a determination on the merits of the suit itself. Defendant-petitioners have now come up to this. Court in revision thereagainst.

2. Learned counsel has, even before me, reiterated the same grievance by urging that the two Courts below have acted illegally in the exercise of their respective jurisdictions to bring under consideration the merits of the case and have pronounced thereabout in such a way as there was really not left anything more to be decided in the suit. In the same strain, learned counsel had also pointed out that the observation made by the learned Appellate Judge to the effect that one of the office-bearers of the Association had placed his signatures on the proceedings held on 2-3-1983, is incorrect and is actually contrary to the record.

3. I do not find any merit in the contentions of the learned counsel and as regards the first limb thereof, suffice it to say that the learned appellate Judge has abundantly clarified, beyond any doubt, the purpose and scope of his observations. I am quite satisfied therewith to conclude that the apprehension entertained by the learned counsel is only unreal. Since in such matters, in order to make an assessment about the existence or otherwise of a prima facie case, a pre-condition for the purposes of grant or refusal of temporary injunctions, the ex facie consideration of the substance and merits of the dispute raised in the suit becomes really unavoidable, therefore, I have no doubt that the expression thereabout made by either of the learned Judges below can be only tentative and that they will be able to approach the controversy with open minds at the appropriate stages when it comes up before them for determination in due course and, consequently, the first limb of the contention of the learned counsel is repelled. The other part of his contention is also liable to be rejected for the very same reasons and an additional reason for the purpose is that there has not been placed any material on this record to substantiate it and whereas there is nothing before me to conclude that the observation on the point, made by the learned Judge in the appeal below, may not be justified on the record before him; this Civil Revision being liable to be determined primarily on its own record under the Proviso to subsection (1) of section 115 of the C.P.C. contention of the learned counsel is repelled also as being unsubstantiated. He argued next that the opinion regarding the existence of prima facie case did not deserve to be reached upon a one-sided consideration of the matter and that the point of view of the defendants also should have been considered in order to determine the question of grant or otherwise of the injunction because according to them none of the plaintiffs was qualified to be even a member of the Association, which is not a registered body and has been created only for the purposes of dealing with the Capital Development Authority, with whom in actual fact, the defendant-petitioners are dealing. I do not see any merit in this contention which is only circutous because, if so may at all have been done by the Courts at this stage then the very same objection about pre-mature consideration would have got B attracted thereto as well. His contention appears to be based also upon some misassumption about the scope of the relevant inquiry and is liable to be repelled with reference to Sui Gas Transmission Company v. Sui Gas Employees' Union and others 1977 S C M R 220, wherein the rule of law was laid down as under:- "In dealing with an application for an interim injunction the foremost consideration is to determine whether the plaintiff has made out a prima facie case, A 'prima facie' case is spelt out if a serious question of fact or law is raised in the plaint on which the parties will go to trial. The learned Judge was, however, influenced by the consideration that the defendants had 'raised serious questions as to the maintainability of the suit' but without identifying why the suit was not maintainable. An objection of this nature will prevail only if the plaint, on its face, discloses a legal defect regarding maintainability of the suit. The learned Judge does not say that a defect of this nature appears on the face of the plaint. On the contrary. he has relied on the serious nature of the objection taken by ,the defendants to the maintainability of the suit. The proper criterion, however, was to determine firstly whether the plaintiff has made out a prima facie case, and on which side the balance of convenience and inconvenience lies if interim injunction is granted or refused and whether the plaintiff stands to suffer an irreparable injury if interim injunction is refused." Since a prima facie case stands clearly made out in the plaint, therefore, in my view, learned Additional District Judge has exercised his jurisdiction in accordance with law and has not acted illegally in leaving the defendants' pleas out of consideration at this stage.

4. Last contention of the learned counsel is that the impugned injunction has actually created a new situation in so far as the defendant-petitioners have been thereby prohibited from functioning and, instead, the plaintiffs get invested with an authority to function. In the same context, learned counsel also contended that a temporary injunction in a mandatory form is not open to be granted and more particularly so when the effect thereof is to restrain the office-bearers from holding meetings. Reference has been made to Ahmad Hussain Khan v. The Secretary to the Government of Pakistan, Ministry of Communication, Islamabad and 3 others P L D 1973 Kar. 718; Shahnawaz Ltd. v. Khwaja Auto Cars Ltd., Karachi and another P L D 1979 Kar. 38; Mrs. Ami Fakirji Cowasji v. E.A. Pearson and others A I R 1926 Sind 295; The Election Officer, Gujrat v. Abdul Ghani etc. A I R 1923 Lah. 47 and Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 S C M R

519. There can be on cavil with the propositions laid down in the precedent cases, which have not been shown to be applicable to the case in hand. For more than one reason, contention of the learned counsel cannot be given effect to in this case. Firstly, it is based on such assumptions made by him in favour of the petitioners and against the respondents as are not only not capable of being sustained on the present record but are also contrary to the material available herein. Secondly, the scope and effect of the order of injunction has also been misassumed by him. Contention of the learned counsel is repelled for all the foregoing reasons. The impugned orders have been passed in the exercise of only a discretionary jurisdiction vested in the Courts below and they are based on adequate reasons so that their jurisdictions do not appear to have been exercised either fancifully or arbitrarily within the rule of law in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139, to attract the exercise of revisional jurisdiction.

5. There is no force in this Civil Revision which is, therefore, dismissed in limine. A.A. Revision Petition dismissed.