P 1, D 1981 Lahore 752 (PLP)

This revision is directed against order dated 19th March, 1978 passed by the learned Additional District Judge-II, Sheikhupura.

2. The facts necessary for the purposes of this revision, briefly stated, are that on 25th February, 1978, the petitioner instituted a suit against the respondents in the Court of the Senior Civil Judge, Sheikhupura, for 'a declaration to the effect that the plaintiff was a regularly appointed Sub--?Engineer (Mechanical) in the Irrigation Department and that Notice No. 1211 dated 21st January, 1978 issued by respondent No. 2 terminating his services was illegal, void and without jurisdiction, with the consequential relief by way of permanent injunction restraining the respondents from terminating the services of the petitioner. Along with the plaint, the petitioner made an application for temporary injunction, which was resisted by the respondents. The learned Senior Civil Judge, Sheikhupura, by his order dated 7th March, 1978, dismissed the application of the petitioner for grant of temporary injunction.

3. Aggrieved by the aforementioned order of the learned trial Court, the petitioner went up in appeal to the learned Additional District Judge-II Sheikhupura, who concurred in the findings of the learned trial Court and dismissed the appeal by his judgment dated 19th March, 1978. The petitioner has therefore come up in revision to this Court.

4. The main contention raised on behalf of the petitioner was that since the learned Senior Civil Judge, Sheikhupura had held that the petitioner had an arguable case, it was incumbent upon him to have issued the sought for temporary injunction. It was further argued that the balance of convenience lay in favour of the petitioner inasmuch as he was continuing to hold office and if the impugned order dated 21st January, 1978 war allowed to be im?plemented, he would be thrown out of service resulting in irreparable loss to him. The learned counsel relied on Jamil Ahmad Office Assistant v. Provincial Government of West Pakistan and four others P L J 1978 Lab.

513. The learned counsel for the petitioner next contended that the petitioner is ready to furnish security that in case his suit is dismissed he shall make good the loss that the respondents would suffer by continuing the petitioner against the present post.

5. On tie other hand, the learned counsel for the respondents argued;-- Firstly.-That the mere presence of a prima facie case is not sufficient to issue a temporary injunction, . especially against the functioning of a Government Department. He in this regard referred to Shahzada Muhammad Umer Beg v. Sultan Mahmud Khan P L D 1970 S C 139, Marghoob Siddiqui v. Hamid Ahmad Khan and 2 others 1974 S C M R 519 and Mashkoor Khan and others v. Province of Sind and others 1971 S C M R 572 ; Secondly.-That being not qualified for the post, it is not safe to allow the petitioner to continue against a technical assignment as it may result in irreparable loss to the Government Department concerned and as such the balance of convenience lies in favour of the respondents and against the issue of temporary injunction ; Thirdly.-That the petitioner had been appointed only on ad hoc basis and could be removed without any notice even as per the terms of his appointment. Reliance was placed on Abdul Karim v. W. P. Province PLD1956SC298; fourthly.-That no irreparable loss will be caused to the petitioner in that his services are not being terminated vide the impugned order but he has been reverted to his original post of Store Keeper and in case he ultimately succeeds in the suit he can reclaim all the benefits as to salary etc. which he would have drawn if he had remained posted to the assignment of Sub-Engineer. Reference was made to Muhammad Asad Ullah Khan Niazi, Sub-Divisional Officer, Bahawalpur v. Province of Punjab through the Collector, Bahawalpur 1972 S C M R 204 and Messrs Usman Textile Mills Ltd., Karachi and another v. Board of Directors, Usman Textile Mills Lid. and 6 others P L D 1976 Kar. 10. fifthly.-That the petitioner having given out at the time of securing the post in question that he possessed the requisite qualification which was subsequently found to be a misrepresentation cannot be afforded the concession of the grant of temporary injunction ; sixthly.-That the petitioner has no prima facie case either as the suit itself is not maintainable inasmuch as the services of the petitioner even if those be assumed to have been terminated could be so done as provided by para. 10 (3) of the Civil Servants Act, 1974, by giving one month's notice, and if the impugned order is treated as order of reversion to a lower post the same could also be passed as provided by para 11 ibid and that in both the events the remedy of an appeal being available under the Punjab Service Tribunals Act, 1974, no suit would be competent against the impugned order. It was also submitted that as a matter of fact also the petitioner availed of the remedy of appeal before the Services Tribunal against the impugned order and having failed therein filed the present suit. The learned counsel for the respondents further argued that this aspect of the matter has not been disclosed by the petitioner which also disentitles him from seeking the temporary injunction, and;- lastly.

That in the revisional jurisdiction this Court should not interfere in the exercise of discretion by the Courts below, especially when it is concurrent. Reliance in this regard has been placed on Muhammad Afzal and 6 others v. Mst. Rahmat Bai P L D 1975 Kar. 694 and Administrator. Municipal Committee, Jhelum v. Syed Zulfiqar Ali P L D 1979 Note 29 at p. 18.

6. In reply, the learned counsel for the petitioner only submitted that he has not been able to find the authority cited by the learned counsel for the respondents as P L D 1979 Note 29 at p. 18 and that P L D 1970 S C 139 and 1971 S C M R 572 cited on behalf of the respondents were distinguishable on facts of the case in hand as those respectively relate to a case of seniority and reversion of an ad hoc employee.

7. Having given consideration to the controversy involved I am of the view that no case is made out by the petitioner for interference by this Court in the orders of the Courts below in exercise of the revisional jurisdiction. It has been very aptly pointed out by the learned counsel for the respondents that the mere presence of a prima facie case or arguability thereof will not by itself be a ground for issuing a temporary injunction. It is by now well settled that the three conditions viz. the existence of a prima facie case, the irrepar?ability of loss, and balance of convenience must co-exist before the temporary injunction could be allowed in a matter.

8. It may also be observed that the issue of a temporary injunction] whereby the functioning of a Government Department is likely to be hampered has also to be considered very seriously before the injunction is issued. This aspect has been duly discussed in a number of authorities, some of which have been cited by the learned counsel for the respondent and I am in respectful agreement with the principle laid down in this respect.

9. Yet another aspect of the matter is that in the case in hand, the controversy boils down to the proposition as to whether the petitioner was duly appointed against the post which he is claiming and as to whether he was qualified to be the holder thereof. This is a matter which can only be deter?mined on the basis of evidence which may be led by the parties. Before the evidence is produced and it is duly established that the petitioner was qualified to be appointed against the post in question, which is of technical nature, it would not be safe to continue him against the assignment. The balance of convenience therefore obviously lies in favour of not issuing the temporary injunction.

10. The Courts below have concurrently found that no irreparable loss will be caused to the petitioner as he can be compensated for the loss that he may sustain by non-issuing of the temporary injunction if he ultimately succeeds in the suit. Nothing worth consideration has been urged on behalf of the petitioner to show that the above conclusion arrived at by the two Courts below is in any manner arbitrary or fanciful. The petitioner has also not been able to show before me as to what irreparable loss would be caused to him in case the temporary injunction is not granted. It is the admitted position that vide the impugned order the petitioner has been reverted to the post which he held before he was appointed against the disputed post. That being so, if he succeeds in the suit, he can easily be compensated monetarily for the loss that he may have sustained by reversion as it would be measurable in terms of money. There can be no cavil with the principle that the loss which is measurable in terms of money cannot be called irreparable. The exercise of discretion by the Courts below in not issuing the temporary injunction being manifestly in consonance with the principles laid down governing the con?troversy cannot therefore be interfered with in the exercise of revisional jurisdiction of this Court.

11. It may also be observed that the revisional jurisdiction of this Court under section 115, C. P. C. is intended to rectify the illegalities or material irregularities that may have been committed by the Courts subordinate to the High Court in proceedings before them or, for that matter, to ensure against the exercise of excessive jurisdiction or non-exercise thereof by the said subordinate Courts. This provision can in no manner be enlarged so as to interfere in the orders passed by the Courts below in proper exercise of their jurisdiction. The exercise of discretion in the matter of grant or refusal of an injunction if not fanciful, arbitrary or conjectural would thus be not amen?able to the revisional jurisdiction of this Court. In view of the foregoing discussion, I find no merit in this revision which is accordingly dismissed. There will, however, be no order as to costs. S.Q.?????????????????????????????????????????????????????????????????????????????? Petition dismissed.