P L D 2002 Karachi 141 (PLP)

3. The defendant No. 1. in her reply to the injunction application, stated that her album under the title "Roshni" was released on 18‑11‑1999 sand yet another cassette titled "Pervaz" has been released by Jugnoo Group but because of ad‑interim order passed by this Court she is likely to suffer irreparable loss and not the plaintiff. However, during the arguments reliance was placed on the pleas taken in the written statement filed by defendant No. 1 wherein, it has been pointed out that the plaintiffs failed to pay the first instalment by 1‑11‑1996 as agreed by them although the album was ready and that the defendant No. 1 left for U.K. on 17‑11‑1996. It was also averred in the written statement that a suit on the same‑cause of action is pending in the Court of Senior Civil Judge, Lahore where an order has been passed restraining the plaintiffs from claiming rights in respect of the cassettes. It was also pleaded that the contract being for personal services is not specifically enforceable.

4. Learned counsel for the plaintiffs contended that the defendant No. 1 was, in fact, discovered by the plaintiffs and huge amount was spent on her projection and promotion and admittedly two agreements were executed by her on 25th June, 1996 out of which only one was honoured and with regard to the second agreement it was the defendant No. 1 who demonstrated a conduct aimed at defeating all attempts made by the plaintiffs to contact her and make payments to her within the stipulated time. He emphasized that one of the impediments was her trip to U.K. during the crucial time. He referred to legal notice dated 22‑9‑1999 issued to defendant No. 1 on behalf of plaintiffs calling upon her to conclude the agreement as she had agreed to sell the second album to defendant No.2. He submitted that under the second agreement, second album of defendant No. 1 has become property of the plaintiffs and she could not release it through other channels including defendants Nos. 2 and 3 and as such the plaintiffs are entitled to interim injunction till decision of the suit. In support of his contentions he relied on M/s. World Wide Trading Co. v. Sanyo Electric Trading Co. Limited and another (PLD 1986 Karachi 234) and McDonald Layton &‑ Co. Ltd. v. Pakistan Services Limited and 2 others (1983 CLC 2252). Learned counsel for defendants Nos. l and 3 submitted that the plaintiffs have over‑estimated themselves by claiming to be the sponsors of defendant No. 1 and to have discovered her in 1995 and promoted her to such a higher level although, according to them, she was a raw talent. Learned counsel pointed out that the defendant No. 1 was a recognized singer and she displayed an excellent performance in the famous programme "Angan Angan Tarey" which was televised for a period of two years 1992 and onwards on PTV. He also asserted that in the feature film "Sargam" released in 1995 she had sung all the female songs and earned the coveted Nigar Award as playback singer. Besides, she had also received NTM Viewers Award and similar other awards. He argued that in this view of the circumstances the plaintiffs are not even entitled to damages on the basis of their claim of expenditure incurred on promotion of defendant No.1. Irrespective of this, he contended that the plaintiffs failed to perform their part of contract in making the first payment by 1‑11‑1996 although the defendant No. 1 was very much in Pakistan and had left for U.K. only on 17‑11‑1996. He referred to Annexure 'K' filed with written statement which shows her exit from Quaid‑e‑Azam International Airport, Karachi on 17‑11‑1996. He submitted that the suit of plaintiff is likely to fail and they are not entitled to injunction. He also contended that the specific identity of the album to be released cannot be spelt out from the plaint and although the defendant No.1 tray be having a number of such albums she cannot be restrained from releasing any album under the garb of forestalling the release of second album referred to in the agreement. Taking a legal plea, he stressed that the time was essence of contract within the meaning of section 55 of Contract Act and as such it was voidable and so also the agreement was hit by section 54 of the Contract Act, since performance thereof depended upon reciprocal promises. Referring to clauses (a) and (b) of section 21 of the Specific Relief Act, he strenuously contended that the performance of contract is depended upon and related to personal qualification of the defendant No.1 it, therefore, could not be specifically enforced and so also the specific performance would be hit for the reason that, compensation in money was an adequate relief in the instant case and such relief has also been sought, in the suit.

5. I have gone through the pleadings and the case‑law and, carefully examined the contentions raised on both sides. The case within the compass of the relief of temporary injunction, appears to be quite simple. Although, initially much stress was laid on behalf of the plaintiffs on the strength of the claim that the plaintiffs had promoted and projected defendant No. 1 but as discussed above the contention was fully controverted by pointing out that since 1992 the defendant No. 1 has surfaced as a famous star in the programme "Angan Angan Tarey" which was played by P.T.V. for a period of‑two years. She had also received Nigar Award for her performance as playback singer in the feature film "Sargam". These facts stand wirebutted. Regardless of the above, the learned counsel was wholly justified in convassing that if the losses suffered could be compensated in terms of money as adequate relief the Specific Performance of Contract was hit by clause (a) of section 21 of the Specific Relief Act. Besides, the performance of the instant agreement predominantly depended upon the personal qualification of defendant No. 1 as a singer, therefore, provisions of clause (b) of section 21 of the Specific Relief Act were also attracted. It is for the plaintiffs to extricate themselves these legal complexities at‑the trial but for the purpose of interim they have hardly an arguable case.

6. Similarly on examining the factual aspects it turns out to be a weak defence on the side of plaintiffs that their default in non‑payment of the first instalment within the stipulated time of 1‑11‑1996 was justified as they could not contact the defendant No. 1 for the purpose. Particularly, it is asserted by the plaintiffs that the defendant No. 1 proceeded to U.K. during the crucial time but the document Annexure 'K' to the written statement shows that the defendant No. 1 had been granted the visa for U.K. with effect from 17‑11‑1996 and the seal of Immigration Officer posted at Quaid‑e‑Azam International Airport, Karachi bears date of exit 17‑11‑1996. It is, thus, for the plaintiffs to explain at the trial of the suit how their efforts to establish contact with the defendant No. 1 failed during the period she was in Pakistan. Apparently, time was essence of contract it was therefore rightly argued by the learned counsel for the defendants that the contract had become voidable within the meaning of section 55 of the Contract Act. Since the plaintiffs failed to perform their promise within the time contemplated under the agreement, prima facie, the provisions of section 54 of the Contract Act are likely to come into play. Without pre‑empting the finding on all these mixed questions of law and fact to be rendered by the trial Court, at the conclusion of the suit it can safely be observed that the aforementioned circumstances pre‑eminently affect the claim of plaintiffs as far a prima facie case is concerned.

7. The leaned counsel relied on PLD 1986 Karachi 234 which enunciates the well‑settled principle for grant or refusal of interim injunctions and amongst those the first condition is that the plaintiff has to make out a prima facie case. The expression prima facie case has been elaborately 'discussed its the case Prof. Dr. Asghar Allawuddin v. Lahore Lyceum School, Multan (1999 CLC 66). To be precise the following portion would be sufficient to highlight the subject:‑‑ In Mrs. N. Shaukat Khan's case 1992 CLC 2540 observed as follows:‑ "Prima facie case would not imply an indefeasible case; but would signify only an arguable case, involving serious or substantial questions of fact and law, which on proceeding to trial was capable of and had a possibility of success." In M. Ahmad's case 1990 CLC 1756 the Court has observed as follows:‑‑ "The term prima facie case is not specifically defined in the Code of Civil Procedure. The Judge‑made law or the consensus is that in order to satisfy about the existence of prima facie case, the pleadings must contain facts constituting the existence of right of the plaintiff and its infringement at the hands of the opposite‑party. For, unless the plaintiff shows existence of some of his right and its infringement, it shall not be deemed that he has any prima facie case." Mr. Justice Amir Alain Khan has considered similar proposition in Mst. Hameed Begum's case PLD 1996 Lah. 442 and laid down following principle:‑‑ "The importance of the three ingredients as also the manner in which they are to be applied while‑issuing an injunction has been lime‑lighted and explained in the case reported as Syed Muhammad Khurshid Abbas Ghardezi and 5 others v. Province of Punjab and 2 others 1988 CLC

362. The question of the abovesaid judgment can be found at page 366 which is instructive on the subject, therefore, the same is being reproduced hereunder:‑‑ No finding of determinative nature is required to be made on controverted question of law and fact raised in the suit while considering application for grant of injunction. What. could possibly be dote at such an initial stage is to keep in the background the facts alleged and disputed in the case and to refer to broad principles of law likely to be applied in resolving them with a view to find out whether there exists prima facie case; whether balance of convenience was in favour of plaintiff and whether on refusal of interim order an irreparable injury would result to him'."

8. Applying, the above principles it may be concluded that in view of the facts and circumstances and the legal position discussed above, the plaintiffs have failed to establish a prima facie case for the purpose of an interim order of injunction within the meaning of rules 1 and 2 of Order XXXIX, C.P.C. Additionally, I am of the view that, as pointed out by learned counsel for defendants, the plaintiffs have yet to encounter an uphill task at the trial to identify the subject‑matter of the agreement with certainty as the defendant No. 1 is an artist and it is claimed that by this time a number of albums have been composed and it is yet to ascertain which one should be called the second album within the meaning of agreement dated 25‑6‑1996. Unless such implications are thrashed out at the trial the order of interim injunction at this stage would be meaningless. Further as far point of irreparable loss is concerned, the plaintiffs have already set up a claim in terms of money and it is for them to make out a case with regard to this relic', but it cannot be taken as a ground for the grant of temporary injunction. The authority 1983 CLC 2252 does not advance the case of plaintiffs as the plaintiffs had made out a prima facie case in that case but the position is otherwise in the instant matter. In the circumstances discussed above the balance of convenience also does not lie in favour of the plaintiffs.

9. For the foregoing reasons, I am convinced that no case for grant of temporary injunction is made out, consequently the application is dismissed and the interim order already granted is vacated. Q.MiH./M.AX/L‑19/K Application dismissed