1987 PLP 1322 (CLC)

7. The respondent No. 1 through an application supported by an affidavit, moved alongwith the plaint, sought an injunction to refrain the appellants Nos. 1 and 2 to deliver the possession of the Mill to the appellant No. 3 and to stop the respondents Nos. 2 and 3 to extend financial aid to the appellant No. 3, till the disposal of the suit.

8. The learned District Judge, after hearing the parties, through an order, dated 14th of February, 1987, granted the prayer. He held that the bid filed by the respondent No. 1 was the highest and the Committee has made recommendation in his favour and as such he has a prima facie case and the balance of convenience is also on his side. Since the sale has not yet taken place and the other necessary formalities are required to be done, therefore, the appellant No. 3 shall not suffer any irreparable loss if the prayer to grant an injunction is allowed and this order of the District Judge is the subject‑matter of the present appeal.

9. The learned counsel for the appellants, to assail the impugned order, has stressed that the learned District Judge fell in error to hold that the respondent No. 1 has a prima facie case. The view of the learned District Judge that the balance of convenience is on the side of the respondent No. 1 and the appellant No. 3 shall not suffer any irreparable loss if the possession of the Mill is not transferred to him, is also misconceived.

10. To attend to the point as to whether the respondent No. 1 has a prima facie case, he stated that the case of the respondent No. 1 as disclosed in para. 6(i) of his plaint, is that he offered to purchase the Mill and the offer was accepted which constituted an agreement. This stand is not supported from the record so far placed on the file. Mere filing of the bid does not create any right to the bidder. The right accrues to him if the bid is accepted.

11. As far as the balance of convenience is concerned, the appellant No. 3 has deposited ten per cent. of the price of the Mill and no benefit will accrue to him if the Mill remains in the hands of the person other than the person appointed by him. Furthermore, if the machine is not properly attended to or it is handled by irresponsible person, there is every likelihood of its destruction and if it happens, the appellant No. 3 shall suffer an irreparable loss.

12. To take up the point of irreparable loss, he argued that the appellant No. 2 has secured an huge loan from the Banking Council of Pakistan and till the possession of the Mill is not transferred to the appellant No. 3, an huge amount (running into lacs) will have to be paid by the appellant No. 2 as an interest per month.

13. As against this, the respondent has no money at stake and he has no lien of whatever nature over the Mill and he will not suffer from any loss in any way, therefore, the opinion formed by the District Judge that the balance of convenience is in favour of the respondent No. 1 and the appellant No. 3 shall not suffer any irreparable loss, is incorrect. In support of his point of view, he cited the following authorities: ‑‑ A I R 1929 Lah. 111, P L D 1969 Lah. 823 and P L D 1972 Lah. 847.

14. The learned counsel for the respondent No. 1, to controvert the stand taken up by the learned counsel for the appellants, urged that the bid offered by the respondent No. 1 was the highest and the appellant No. 1 has made recommendation to the Government for acceptance of his bid, thus, it constitutes an agreement, therefore, it will be wrong to say that the respondent No. 1 has no prima facie case.

15. To attend to the point of balance of convenience, he argued that the respondent No. 1 offered the highest amount to purchase the Mill and there is no reason to believe that his bid will not be accepted, therefore, the balance of convenience is also on his side. As far as the question of irreparable loss is concerned, the appellant No. 3 made an offer before the appellant No. 1 to purchase the Mill on payment of Rs.75 millions, provided the project was declared to be new one and five years tax holiday was given and the registration charges were borne by the vendor, therefore, this offer will have to be considered while according the approval for acceptance of it. Any other offer, subsequently changed, cannot be taken into consideration and if the appellant No. 3 has deposited any amount, it is a result of underhand dealings and his complaint about any loss out of it, cannot be taken into consideration. An under‑bidder cannot claim lien over the Mill and if the possession is not transferred to him, he will not suffer any irreparable loss and in support of his contention he cited the following authorities: ‑‑ (i) 1973 S C M R 122, (ii) P L D 1956 (W.P.) Kar. 521, (iii) PL D 1973 Lah. 733, (iv) P L D 1976 Pesh. 1, (v) P L D 1979 Lah. 930, (vi) P L D 1983 Kar. 383, (vii) N L R 1984 A C 21, (viii) N L R 1984 Civil 323 and (ix) 1985 C L C 1457.

16. I have considered the arguments advanced by the learned counsel for the parties, have perused the record of the case carefully and have also studied the authorities cited at the bar.

17. To protect the rights of a weaker and to save the highhandedness of stronger, the Courts of law are established and the aggrieved persons are empowered to enforce their rights over the intruders through those Courts. While the Courts are equipped with the powers to administer justice, the rules are framed for their guidance to be applied to conduct the proceedings and to take decisions. As some time, shorter or longer is required for the trial of the cases, therefore, the powers to grant interim relief, such as appointments of receivers, issuance of stay orders and injunctions etc. are given to the Courts to be exercised to protect the subject of disputes from destruction and wastage during the pendency of the proceedings, as is manifest from the provisions of Orders XXXIX and XL, C.P.C.

18. To claim the relief of an interim injunction, it is required of a party to the suit to show that he has brought a genuine claim which requires serious thought and if status quo, with regard to the subject of dispute is not maintained, he will suffer an irreparable loss and the balance of convenience is also on his side. It is well‑settled by now that the co‑existence of all the three aforesaid conditions is essential to authorise the Courts to exercise the discretion and grant the relief of injunction. The existence of only one or two of them is not sufficient as has been held by the Patna High Court in a case reported in A I R 1961 Pat. 318 and the relevant observations are hereinafter reproduced:‑‑- "

the fact that a prima facie case has been made out by showing that there is a fair question for trial, does not necessarily mean that a temporary injunction must follow restraining the contracting defendant from dealing with the property, and whether an order of injunction should or should not issue will depend on the facts of the case, and the Court must also consider the questions of irreparable or serious injury and balance of convenience. 19. 7 he Lahore High Court, while considering the advisability to issue an injunction in a case reported in P L D 1981 Lah. 752, laid down the following rule:‑‑ . It has been very amptly 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 irreparability of loss, and balance of convenience must co‑exist before the temporary injunction could be allowed in a matter."

20. The Quetta High Court in a case reported in P L D 1983 Quetta 92, found that co‑existence of all the three requirements is necessary to empower the Courts to grant the relief. The relevant observations are hereinafter reproduced:‑‑ "It has been very amptly pointed out by Mr. Munawar Ahmed Mirza, the learned counsel for the respondent Abdul Waris that a mere presence of a prima facie case or arguability thereof as considered by the learned Senior Civil Judge will not by itself be a ground for issuing a temporary injunction. It is by now well settled that all the three conditions viz. the existence of a prima facie case, the irreparability of loss and balance of convenience must co‑exist before the temporary injunction would be allowed in the matter."

21. After having found that to empower the Courts to grant interim relief, all the three requirements mentioned in para. 18 above, should be available, the propriety of grant of injunction by the lower Court in the present case, is required to be examined. But before embarking upon to scrutinize the legality of the order impugned in this appeal, it is observed that the Courts, especially the Appellate Courts are not required to conduct deep probe into the case at the time of deciding the questions of issuance of an injunction, lest it may influence the trial Court to form an opinion about the point at issue at the time of pronouncement of final judgment.

22. To look into the question as to whether the respondent No. 1 has a prima facie case, the documents so far placed on the file, show that he submitted an offer to purchase the Mill on payment of Rs.86.70 millions, provided the area of land measuring 371 Kanals was also transferred to him alongwith the Mill when the appellant No. 3 was a under‑bidder, hence the Committee recommended his offer for acceptance but before the recommendation of the Committee reached the Government, the appellant No. 3, by use of under‑hand methods, as alleged by the respondent No. 1, enhanced his offer and secured its acceptance.

23. As the enhancement of the offer by the respondent No. 1 is a point of dispute and the trial Court will examine its worth, after the trial of the case, therefore, the claim of the respondent No. 1, assuming that the appellant No. 3 did not enhance his offer, has got to be looked into.

24. To constitute an agreement, it is necessary that there should be an unconditional offer and it is accepted by the competent authority and after the constitution of the agreement, the rights to the parties accrue. In the present case, the respondent No. 1, no doubt, made an offer to purchase the Mill, provided an area of the land measuring 371 Kanals was also given to him and the Committee, without accepting the conditions, recommended the offer. This recommendation, I believe, could not have been accepted because the tenderer offered to purchase the Mill, provided his condition was accepted but the recommending body i.e. the Committee did not approve of the condition, hence it was not possible for the Government to accept its recommendation, unless the tenderer was asked to forego the condition. Be as it may, as it transpires from the record, the offer has not been accepted, hence the agreement has not come into being, therefore, there accurse no right to the respondent No. 1 on the basis of his offer.

25. The question as to whether the tenderer, after filing the bid and before its acceptance, acquired the right over the subject of offer, was considered by the Lahore High Court in a case reported in A I R 1929 Lah. 114 and it was found that no right has accrued to the tenderer. The question of the like nature again cropped up for consideration before the same High Court in the cases reported in PLD 1969 Lah. 823 and P L D 1972 Lah. 847 and the conclusion arrived at in the former case was found to be correct.

26. In the cases cited by the learned counsel for the respondent No. 1 and reported in P L D 1956 (W.P.) Kar. 521, P L D 1983 Kar. 387, N L R 1984 AC 21 and N L R 1984 Civil 323, the claim of vendees based on contract of sale, where either the possession was transferred to the vendees on the basis of the contract or there was positive evidence and admission on the part of the vendors, to have received the consideration or part of it, required adjudication, therefore, the status quo was ordered to be maintained.

27. In the case reported in P L D 1973 Lah. 733 the acceptance of tender was challenged on legal grounds whereas in the case reported in P L D 1976 Pesh. 1, the lease given to a person who was an under‑bidder and who had increased his offer after the tender of the highest bidder was accepted by the Municipal Committee, was set at naught. In P L D 1979 Lah. 930, an appeal filed by a person who was an under‑bidder and who had increased his offer after the bid of highest bidder was accepted was considered.

28. In the case reported in 1973 S C M R 122, the action of the controlling authority, whereby lease was given to a person when his offer was not recommended by the Karachi Municipal Committee, was declared to be illegal and in the case reported in 1985 C L C 1457, whereby on a petition of a person who was given the charge of the octroi, after his tender was accepted and who had been collecting the tax for 13 days, the order, whereby his lease was cancelled, was set aside.

29. As found earlier, the respondent No. 1 was a bidder whose bid was not yet accepted when the appellant No. 3 increased his offer and succeeded to get acceptance of it and deposited a sum of Rs.86,70,000 i.e. the ten per cent. of the price of the Mill. The appellant No. 2 obtained huge loans from the respondent No. 2 at the time of installation of the Mill and lacs of rupees is its interest, thus he is spending about 12 lacs rupees per month in connection with the payment of interest and upkeep of the Mill and this liability will shift to the appellant No. 3 as and when the possession of the Mill is transferred. As against this, the respondent No. 1 has nothing at stake and in case, he succeeds to get a decree in his favour, he will seek retrieval of the Mill and can claim damages for the use of the machine. I, therefore, think that the respondent No. 1 shall not suffer an irreparable loss if the possession of the Mill is transferred by the appellants 1 and, 2 to the appellant No. 3 and the balance of convenience, as compared to the appellants, is not on his side also.

30. In the light of what has been discussed above, it is observed] that the impugned order, whereby the injunction was issued against, the appellants Nos. 1 and 2 to stop delivery of possession of the Mill to the appellant No. 3 and the respondents Nos. 2 and 3 were ordered to refrain from extending financial aid to the appellant No. 3 and the appellant No. 3 was restrained to take possession of the Mill and status quo was ordered to be maintained, is not warranted by law. I, therefore, hereby accept this appeal, with no orders as to costs, and vacate the, order impugned in this appeal. A.A./293/H.A. Appeal accepted