1995 PLP 1860 (MLD)

Brief facts leading to this petition are that the petitioner/plaintiff was a contractor of a road leading Muzaffargarh to Punjnad. Its construction started under. the supervision of the Highway Division, Muzaffargarh, The aforesaid .road passed through the precincts of the Town Committee, Khangarh. The material for constructing the road had to be carried through the limits of respondent No.1, whereas respondent No.2 was its lease‑holder. Respondent No‑2 started levying octroi on the material detailed above. The petitioner/plaintiff filed a suit for declaration, wherein it was averred that respondent No.2 could not levy the octroi on the material meant for the construction of the road. An application for temporary injunction was also filed alongwith the suit. This application was accepted by the learned trial Court vide its order dated 18‑1‑1995: This order was impugned by fling an appeal in the Court of the learned Additional District Judge, Muzaffargarh. The learned appellate Court accepted the appeal vide its judgment dated 14‑2‑1995.

2. Learned counsel for the petitioner has referred to various notifications to prove that the contractors were not obliged to pay octroi for the road building material. Learned counsel for the respondents submitted that as per the Local Government Ordinance, 1979 and the rules thereunder, the respondents were legally authorised to levy octroi and the notifications referred to by learned counsel for the petitioner were no longer in the field.

3. I have heard both the learned counsel and perused the record.

4. While issuing or refusing the interim injunction, three ingredients, i.e. whether the plaintiff had a prima facie case, whether the balance of convenience was ‑in his favour and whether he was likely to suffer irreparable loss, were to be taken into consideration and should co‑exist in favour of the plaintiff to entitle him to grant of interim injunction. It may be observed that balance of convenience and irreparable injury belong to the same category and finding on the same can ordinarily settle the question of other requisites.

5. The principles governing the grant of temporary injunction pending disposal of the suit were elaborated in Qamar Ali Shah v. Waryam and 3.others (1976 SCMR 393), wherein it was observed: "In matters like this, the true criterion is to consider on which side the balance of inconvenience‑‑‑and not of convenience as the learned Judge in the High Court and District Judge seem to have thought‑‑ would lie in case interlocutory injunction is refused but the plaintiffs suit ultimately succeeded. It is important to point out that when the applicant for interlocutory injunction is able to show prima facie the existence of right and its infringement, injunction will issue only if the circumstances are such, that the objection really is to avoid the comparative inconvenience or mischief which is likely to result from refusing it."

6. Even if the suit of the plaintiff is decreed, the specified amount already paid by the petitioner could be refunded from the respondents but in case temporary injunction is granted the respondents will face hardship to recover the amount due from the petitioner. In other words, the inconvenience to the respondents will be greater than that it is likely to arise from refusing it. Under these circumstances, I am of the view that the plaintiff has failed to make out a case for grant of temporary injunction as prayed. This application is accordingly dismissed with no order as to costs. AA./Q‑50/L Application dismissed.