1980 PLP 1571 (CLC)

This order will dispose of Civil Revision No. 1119 of 1979 an& Civil Revision No. 1118 of 1979 as they raise common questions of law and facts.

2. Civil Revision No. 1119/79 relates to the village Gohadpur while Civil Revision No. 1118/79 relates to village Gujral. The respon dents in the two revisions were authorisation holders for their respective villages and running depots since 1967, and filed two suits for the declar ation that the order of suspension of their authorisation was illegal, ultra vires and void. Along with the suit there was an application for the grant of temporary injunction till the final disposal of the suit that the f1peration of the order of suspension and an injunction restraining the authorities from issuing the ration quota to anybody other than the res pondent. The learned trial Court after a detail examination of the case of the respondent came to the conclusion that the respondent in both the cases was ostensibly at fault and as such no prima facie case had been made oat. It was further observed that any grant of temporary injunction in the circumstances of the case would have the effect of interfering in the internal working of the Food Department. The application for the grant of temporary injunction was, therefore, dismissed by the order of the Civil Judge, dated the 19th March, 1979. The respondent filed an appeal against the said order of the learned Civil Judge and the District Judge, Sialkot vide his order dated the 14th May, 1979 accepted the appeal and granted the temporary injunction prayed for, pending the disposal of the suit. This order has been challenged in the present revision.

2. The learned counsel for the petitioners has argued that none of the ingredients for the grant of temporary i6junction had been made out, the learned District Judge, Sialkot was not justified in accepting the appeal and granting the temporary injunction as prayed for by the respondent. It is further argued that the jurisdiction of the Civil Court was barred and that the temporary injunction granted by the learned District Judge amounted to the grant of authorisation and, the depot was being run

3. The authorisation is issued under clause 4 of the West Pakistan Wheat, Wheat-Atta, Maize, Rice and Sugar Distribution Order, 1967 (hereinafter caned the Order). Sub-clause (1) of clause 6 of the Order authorises the Director, the District Magistrate, the Deputy Director or the District Food Controller for reasons to recorded in writing, to pass an order suspending or canceling an authorization. Sub-clause (2) provides a remedy against an order passed under sub-clause (1) and an aggrieved person can file an appeal to the Commissioner or to the Deputy Director if the order is passed by the Deputy Food Controller or Rationing Controller and there is a further provision of a- revision before the Government which is heard by the Secretary under sub-clause (3). Sub clause (4) provides that the Government, Commissioner, Director, Deputy Director, District Magistrate or District Food Controller may, after giving notice to the parties concerned review its or his own order to correct errors or omissions which are apparent upon the face of the record. Subject to the provisions of sub-clause (2) of clause (5), sub-clause (2) of clause (6) and sub-clauses (3) and (4) any order passed by any of such authorities as are enumerated above shall be final. It would be pertinent] to point that the respondent did not avail of any of the remedies provided,! under the Order and straightaway filed a suit. Since the authorization, had been suspended by the order of a competent Authority, the District judge had no power to- grant a temporary injunction restraining the defendant from allowing any other person to lift the quota (other than the respondent) and thereby allow running a depot on the strength of a temporary injunction. The Order of 1967 had been promulgated in exercise of the powers conferred by S. 3 of the West Pakistan Food-! Stuffs Control Act 20 of 1958 which is the Principal Act. Section 7B provides that no order' made in exercise of any power conferred by of under this Act shall be called in question in any Court. 1n Malik Gull Hassan and 2 others v. Malik Haji Ismatullah and 6 others (P L D 1978 Quetta 164) there was a dispute over the supply of water which had been discontinued. The trial Judge having granted a temporary injunction created a new irretrievable situation. The District Judge having vacated the order of the trial Court the High Court dismissed the revision and in it was observed as follows :- "Indeed Courts have jurisdiction to issue prohibitory as well mandatory injunction on the facts of a particular case. An injunc tion is a form of equitable relief, and it is to be issued in aid of equity and justice. But not to aid injustice. A prohibitory injunction is issued to restrain such act or make such other order for the purpose of staying and protecting the wasting, damaging, alienation, sale, redemption or disposition of the property in dispute or apprehended breach of contract or any other injury of such kind. Whereas a mandatory injunction is issued to restore the status quo and the state of things that existed at the date of the institution of suit. Reliance may also be placed on Muhammad 1dris v. The Collector of Customs, Karachi and another (P L D 1971 Kar, 736) where the goods of the plaintiff had been confiscated by the Customs Authorities for contravention of Import Trade Regulations. The plaintiff's prayer for an interlocutory injunction against the Customs Authorities for delivery of goods was pressed on the plea that no wilful contravention of the Regulation had been committed and the plaintiff further offered adequate bank guarantee. 1n this connection the High Court had observed :- "The effect of any order directing the defendants to hand over the betel nuts to the plaintiff would be to finally undo at the inter locutory stage an adjudication and confiscation order passed by the Collector of Customs. 1n other words there would be no retrieving from the position after the goods, which were subject-matter of the confiscation order, have been taken away from the custody of the authorities and handed over to the plaintiffs. Although the powers of the Court to pass a man datory injunction in appropriate cases even at interlocutory stage cannot be doubted but as held in a case reported in A I R 1956 Cal. 428 such orders are rare and granted only to restore the status quo and not to create a new situation which may be irretrievable or to establish a new state of things different from those which existed at the time the relief was sought." Even in a case reported as Pakistan Transport Company Ltd. Jhang v. Shorkot Transport Company (Regd.) (P L D 1961 Lah. 326), it was observed that where a route permit of the Company had been cancelled the buses could not be plied, on the strength of temporary injunction. It would be useful to quote the' relevant portion of the judgment dealing with the question in hand :- "

11. The trial Court stated that the plaintiff company had not alleged contravention of any provision of the Motor Vehicles Act by the Regional Transport Authority the learned Ad ditional District Judge entirely ignored this aspect of the case and did not consider whether the plaintiff-Company had made out a prima facie case for issue of a temporary permit. It is not to be forgotten in this context that the issue of route permit is governed by the provisions of the Motor Vehicles Act, which provides the necessary machinery for obtaining relief by a per son who is aggrieved by an order of the Regional Transport Authority. Civil Courts should not encourage parties seeking route permits to rush to them for relief without availing themselves of the remedy provided by the statute. In this connection reference may be made to the observations of the Supreme Court of Pakistan in the Tariq Transport Company Lahore v. The Sargodha-Bhera Bus Service, Sargodha (P L D 1958 S C (Pak.) 439), a case under the Motor Vehicles Act, to the effect that it should be borne in mind that where a statute creates a right and also provides a machinery for the enforcement of that right, the. party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such .... a breach."

4. Even the contention of the respondent of merits has no force. It was urged that the respondent had been depositing the amount for lifting the ration quota through one I Abdul Kabir Humayun who was introduced by the Food Inspector: Sialkot. One fails to understand as to why the petitioner has been depositing the amount through the aforesaid Abdul Kabir Humayun. If he had defrauded the respondent by not depositing the money in the Bank, the respondent has failed to perform his primary duty. The learned trial Court has, therefore, rightly observed that the Government Department should not suffer by the omission or mistake of a depot holder. 5. 1n view of the above reasons both the revisions are accepted and the order of the learned District Judge, Sialkot dated 14th May 1979 is set aside and the application for the grant of temporary injunction is hereby ordered to be dismissed. The respondents shall also pay the costs of the revisions. K, A. M. Revisions accepted.