1998 PLP 2042 (SCMR)

ZIA MAHMOOD MIRZA, J.

Petitioner company seeks leave to appeal against an order of a learned single Judge of Lahore High Court, Rawalpindi Bench, dated 12-4-1995/7-5-1995 whereby the petitioners appeal (F.A.O. No.7 of 1995) filed against an order of the trial Court dated 28-11-1994 dismissing the petitioner's application for temporary injunction has been disposed of with the observation that in view of the orders passed by this Court in Civil Appeal No.96 of 1995, no proceedings even by way of interim relief could be taken/adjudicated without prior permission of this Court.

2. Facts giving rise to this petition briefly are that the petitioner filed a suit in the Court of Civil Judge, Islamabad who by his order dated 20-7-1994 passed on an application under Section 10, C.P.C. filed by the respondents herein adjourned the suit sine die in view of the previous suits pending between the parties. This order was challenged by the petitioner in revision (C.R. 526/94) which was dismissed by a learned Judge in the High Court vide order dated 16-10-1994 but the trial Court, it is stated, was directed to hear and decide the petitioner's application for temporary injunction. Still dissatisfied, the petitioner filed a petition for leave to appeal in this Court in which leave was 1 A granted to consider whether section 10, C.P.C. was attracted to the case so as to warrant stay of the suit. The appeal (C.A. 96 of 1995) was ultimately disposed of in the following terms:- "We may observe that the parties are at issue as to the persons entitled to manage the appellant company and even to file legal proceedings on its behalf, which question was kept open by this Court in the previous litigation for adjudication by the trial Court. Without going into the merits of the above contentions of the learned counsel for the parties and without prejudice to their right to raise whatever legal pleas are available to them at the appropriate state of the proceedings, we are of the view that it will be just and proper that the above two orders passed under section 10, C.P.C. are recalled and the present suit is also transferred to the learned District Judge, Islamabad, where it will remain pending till the disposal of above six suits which are being proceeded by the learned District Judge, Islamabad. After the disposal of the latter suits, if the appellant wish to proceed with the present suit, they may request the learned District Judge, Islamabad, who may start the proceedings without prejudice to the right of the parties to raise whatever legal pleas are available to them as stated above."

3. It appears that pursuant to the aforementioned direction of the High Court, the learned trial Judge took up the petitioner's application for temporary injunction and dismissed the same vide order dated 28-11-1994 holding that the suit of the plaintiff petitioner is based on a judgment of British High Court which was ex parte and not on merits and as such not conclusive. Petitioner, therefore, "has no prima facie arguable case." It was further observed that the plaintiff/petitioner concealed the previous litigation between the parties pending in Pakistani Courts and that in similar case, orders passed by the learned Senior Civil Judge, Rawalpindi, inter se the parties were holding the field.

4. Feeling aggrieved, petitioner brought the matter in the High Court in an appeal (F.A.O. No.7 of 1995) which, as stated above, has been disposed of by the learned Judge in Chambers with the observation that in view of the order of the Supreme Court transferring the suit to the learned District Judge, Islamabad where it was directed to remain pending till the disposal of six other suits, "no proceedings whatsoever can be either prayed for by the parties even by way of interim relief without prior permission of the Hon'ble Supreme Court or adjudicated upon by this Court as far as the present suit is concerned till the disposal of the other suits pending between the parties".

5. We have heard the learned counsel for the petitioner for quite some time and have also perused the impugned order. The learned Judge in the High Court has not dismissed the petitioner's appeal on merits but has stayed his hands by way of abundani caution in view of the observations made and the directions given by this Court in its order dated 4-4-1995 passed in Civil Appeal No.96 of 1995. We find that when the petitioner's appeal was disposed of by this Court on 4-4-1995, his appeal against the order of the trial Court dismissing his application for temporary injunction was pending in the High Court Petitioner, therefore, in its own interest ought to have obtained a clarification from this Court that notwithstanding its direction that the suit shall remain pending until the disposal of six other suits and shall be proceeded with only after the disposal of the said suits, the appeal in the matter of temporary injunction could proceed. Petitioner, if so advised, may even now seek the necessary clarification/permission. Learned counsel at this stage made a request that such a clarification may be made by us. We are not inclined to grant this request as in our view, propriety demands that such a request should be placed before a Benck of three learned Judges preferably presided over by our learned brother Ajmal Mian, as he was the senior member of three members Bench which passed the order dated 4-4-1995.

6. In the aforesaid view of the matter, we do not find it a fit case for interference with the impugned order of the High Court. This petition isle accordingly dismissed with the observations aforementioned. A.A./A-51/S Petition dismissed.