2009 PLP 185 (YLR)

SYED HAMID ALI SHAH, J.--The petitioner was awarded contract for construction of Ghazi Brotha Hydro Power Project to bulldoze and render into prescribed specifications of the project, the earth and other deposits naturally lodged in the project site. The petitioners started the work on the project on 18-8-1997 and during the excavation, notice, dated 11-3-1998 was issued by the respondents for unauthorized excavation of minor minerals. The petitioners challenged notice, dated 11-3-1998 through a civil suit and applied for relief of ad interim injunction. The injunctive relief was granted to the petitioners on 4-2-1999, which was challenged by the respondents in revision petition before learned Additional District Judge, the revision petition was accepted vide order, dated 3-6-1999. The appeal filed by the petitioners was allowed and application for temporary injunction was dismissed. The order was again assailed before this Court in Civil Revision No.263 of 1999 and 264 of 1999. The revision petition was disposed of through order, was dated 18-4-2000, whereby the petitioners were allowed to deposit the price of the minor minerals along with future price of the excavated minor minerals in the Court, for disbursement to the party who w2g to ultimately succeed in litigation. The petitioner could not deposit the amount in the manner as agreed by this Court which resulted into dismissal of his suit by learned trial Court. The petitioners through instant revision petition, has assailed order dated 3-6-2002 passed by learned trial Court.

2. Learned counsel for the petitioners has contended that the matter before this Court in Civil Revisions Nos.263 and 264 of 1999, was relief of injunction and non-payment of the amount can entail penal consequences to that extent only. The lis pending before this Court, was relief of ad interim injunction and non-payment of amount can only result into dismissal of application for grant of interim relief. The suit was not liable to be dismissed for non-compliance of order of High Court. Learned counsel has supported his contentions by referring to the case of "Muhammad Amjad v. Muhammad Anwar and 10 others" 2003 MLD 57.

3. Learned Law Officer on the other hand has fully supported the impugned order of learned trial Court and has submitted that the petitioners have excavated minor minerals from an area outside the leased property. He has further submitted that the petitioners have not come to the Court with clean hands and as such their petition is liable to be dismissed on this score alone. Learned Law Officer has relied on the case of "Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others" 2006 SCMR 619.

4. Heard learned counsel for the petitioner and learned Law Officer and record perused.

5. There is no cavil with the proposition that the direction for deposit of the price of the excavated minor minerals was made in the matter regarding grant or otherwise of the injunctive order. The violation of the undertaking or non-compliance of the direction is fatal to the matter which was pending before the Court. In the case in hand, the matter pending before the Court was issuance of the relief of temporary injunction. The petitioners' failure to deposit the price of the excavated minor mineral, can result into dismissal of the relief of injunction. The Court has exercised it's jurisdiction in excess while dismissing the suit for non-compliance of the direction. The order of learned trial Court is erroneous. It suffers from wrong assumption of law and as such the same is not sustainable.

6. For the foregoing, this petition is allowed and the order impugned is set aside, resultantly, suit of the plaintiff is deemed to be pending before the Court. Learned trial Court will decide the suit on it's merits and if the Court considers that suit is incompetent or the Court lacks jurisdiction to entertain it, preliminary issue can be framed and decided. H.B.T./D-4/L Petition allowed.