1998 PLP 134 (CLC)

4. Mr. Kamal Azfar, learned counsel for the applicants, has contended that the Application is competent before the Revisional Court and the order could be impugned before this Court as the learned Senior Civil Judge has committed grave illegality in granting the interim stay without hearing the applicants. He has also contended that because the applicant is neither a Corporation nor a Government Institution as such, the principles of master and servant very well apply in the case and as per terms of contract the respondent No. l could be terminated any time, on payment of one month's salary; in lieu of any notice. It has been further contended that the personal contracts of service are not chforceable by the Court. He has placed reliance on PLD 1967 SC 531 (Malik & Haq v. Muhammad Shamsul Islam Choudhry); PLD 1962 (W.P.) Kar. 899 (Gulf Steamship Co. Ltd. v. Darwesh Baloch); PLD 1969 Kar. 349 (Art Councils .of' Pakistan v. Riazuddin Pirzada); PLD 197() Kar. 332 (OGDC v. Lt. Col. Shujauddin Ahmed); 1974 SCMR 519 (Marghoob Siddiqui v. Hameed Ahmed Khan and others): PLD 1976 Kar. 1121 (Muhammad Afzal v. House Building Finance Corporation); and PLD 1992 SC 531 (H. Riazuddin v: PIAC). It has been contended, by the learned counsel, that in view of these authorities the respondent had no right to seek injunction by means of which his services would be imposed upon an unwilling private sector concern and that the contract of personal service cannot be specifically enforce under section 21 (a) and (b) of the Specific Relief Act and, therefore, no injunction could be granted under section 56 (1) of the Specific Relief Act. It is also contended that, no doubt, the respondent No. l was an old employee of the applicants but his services were terminated on serious charges of defalcation of Rs.500,000 and as such an F. I. R. was lodged on 3‑6‑1997 against the respondent No. 1.

5. After going through the authorities it appears that the learned counsel for the applicants has perhaps lost sight of the fact that all these authorities pertain to the cases filed before the amendment of 1994 where the revisional powers vested with this Court have been given to the District Courts which could not invoke the powers under section 115, C.P.C. These powers have been vested on the District Courts by Act XIV of 1994, reads as under:‑

115. Revision (1) The High Court may ................................. (a) ............................................................... (b) ............................................................... (c) ............................................................... (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject‑matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3)

(4)

6. The above provision would clearly show that the District Court will exercise power in respect of any case decided by a Court sub-ordinate to such District Court in which no appeal lies. The instant case is not of that type where the impugned order is not appealable. The applicants could get this order set aside by the trial Court. It appears that they are contesting the matter there and in case they do not succeed, they can approach the District Court. Both these remedies are available to the applicants. The objection raised by the counsel for` the applicants that the learned Senior Civil Judge had exceeded his jurisdiction in granting ad interim order without hearing the applicants. This objection of the applicants' counsel does not seem to be substantial. Section 94 of C.P.C. empowers the Court to pass any interlocutory order to prevent the ends of justice from being defeated.,

7. For convenience sake the provision of section 94 C.P.C are reproduced as under:, "

94. Supplemental proceedings. ‑‑In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,

(b)

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold: (d)

(e) made such other interlocutory orders as may appear to the Court to be just and convenient." This section confers judicial powers upon a Court to issue interlocutory orders. Whereas the rules prescribe the procedure to be followed in the exercise of such powers. The making of interim order is a part of the working of the judicial, system and no separate or specific provision is necessary to empower a Court as a necessary to the power to grant main relief. Thus, there is nothing wrong if the trial Court passed interlocutory order when mala fides were alleged in the plaint which was verified on oath and the Court felt it just, proper and convenient.

8. The petitioner, being dissatisfied with this order as already mentioned, has filed his objection to the injunction application which is subjudice before the Senior Civil Judge and in case of its failure the applicants could file an appeal before the District Court.

9. Admittedly, the allegations against the respondent No. l are of defalcation and misappropriation, the termination from service is not simplicitor, therefore, the respondent should have been given an opportunity to explain his position. When the report lodged, to that effect, was disposed of in cancelled class. The fact that there were no statutory service rules in the petitioners' firm and its relationship with its employees is that of the Master and Servant will not negate the Maxim audi alteram partem. This is in consonance with the principles of natural justice and Islamic Injunctions and in fact will apply to judicial as well as to non judicial proceedings. It in fact is read and understood as a part of every statute if the right of hearing has not been expressly provided thereto. The respondent No. l as such was entitled to be heard.

10. Reverting‑back to the objections that this revision is incompetent before this Court as the principle embodied in section 15, C.P.C. are applicable in this case which provides that the suit should be instituted in the Court of lowest grade, competent to try the same. In case where the High Court and District Court had concurrent jurisdiction to entertain Revision Application, the same should be filed in the District Court and not the High Court on the principles embodied in section 15, C.P.C.. This revision is, therefore, not competent before this Court. Reference can be made to 1992 CLC (Kar.) 1904.

11. It is to be considered whether the provisions of section 115, C.P.C. are attracted in the instant case; whether the lower Court had exercised jurisdiction not vested in it by law, or that it had failed to exercise the jurisdiction. so vested in it; and whether the jurisdiction vested in, the trial Court was exercised illegally or with material irregularity. There is nothing to show that the impugned order suffers from such defects. It is neither illegal nor irregular on the part of the Senior Civil Judge to have passed such an order keeping in view the provisions of subsection (E) of section 94, C.P.C., as already mentioned above in para.

7. Reliance can be placed on the case Muhammad Zakaria and 4 others v. Muhammad Yakoob and 3 others reported in 1997 CLC (Kar.) 1243 wherein Revision Application was filed before the High Court against the order of the trial Court framing issues on the application for rejection of the plaint holding that the points raised in the application under Order VII, rule 11, C.P.C. required adjudication by way of evidence. It has been held that it was a fair exercise of jurisdiction by the Court and there was nothing wrong with the order.

12. For the foregoing reasons I am clear in my mind that there is no force in the revision application and merits no consideration, hence liable to be dismissed. It is, accordingly dismissed.

13. The order suspending the operation of the impugned order is recalled and the position which existed on 26‑5‑1997 shall be maintained. The petitioner is at liberty to seek his remedy from the Courts below. A.A/H.35/K Revision Dismissed.