P L D 1957 (W (PLP)

INAMULLAH, J.

This is an application under O. XXXIX, rules 1 and 2, Civil P. C., read with section 151, Civil P. C., praying that a temporary injunction may be issued restraining Mr. Riazuddin Ahmad. Registrar, Co-operative Societies, West Pakistan, Lahore, from implementing his notice dated 21st July 1956, against the Sind Provincial Co-operative Bank Limited, Karachi. The facts, shortly put, are these. The Registrar of Co operative Societies Lahore, claims to have jurisdiction over the Sind Provincial Co-operative Bank Limited. On the other hand, it is contended by the plaintiff that the said Registrar has no jurisdiction over this Bank. According to the plaintiff, it is the Registrar of Co-operative Societies, Karachi, who has jurisdiction over this Bank. Consequently, it is contended by the plaintiff that the notice by the Registrar of Co-operative Societies Lahore, dated 21st July 1956, calling upon the Sind Provincial Co-operative Bank Limited to show cause why its Board of Directors may not be suspended for a period of two years, is without jurisdiction and illegal. Mr. Brohi, the learned advocate who appeared for the defendant Mr. Riazuddin Ahmad, Registrar of Co-operative Societies, West Pakistan, Lahore, raised two-fold contentions before me. He contended that the suit was not maintainable in the absence of a notice under section 80 of the Civil P. C. In the second place he contended that no prima facie case had been made out, as it was the Registrar of Co-operative Societies, Lahore, alone who had jurisdiction to deal with the Sind Provincial Co-operative Bank Limited. Before 1 consider these two contentions raised by the learned advocate while contesting the injunction application, I wish to observe that in considering an application under O. XXXIX, rules 1 and 2, Civil P. C., what is necessary is not to determine the merits of the case one way or the other ; all that is required is to find out whether the applicant has made out a prima facie case. In this connection I would mention two cases. In the case of Bishambar Nath (A I R 1926 Lah. 589), it was held that a prima facie case does not mean that the Court should examine the merit of a case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed. It was further observed that to determine the merit of the case would mean to prejudge the case. "All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and which is not bound to fail by virtue of some apparent defects." In the case of Brajendra Nath Ghose (A I R 1946 Pat. 177), it was observed that in order to make out a prima facie case for granting an inter locutory injunction the plaintiff need not establish his title. It is enough if the plaintiff can show that he has a fair question to raise as to the existence of the right which he alleged. It was further observed that mere existence of doubt as to the title does not itself constitute a sufficient ground for refusing an injunction though it is always a circumstance which calls for the attention of the Court. It was necessary, in view of the contentions raised by Mr. Brohi as regards the notice under section 80, Civil P. C., and the jurisdiction of the Registrar of Co-operative Societies, West Pakistan, Lahore, to clarify that all that is necessary at this stage is to examine the contentions raised with a view to find out whether the stand taken by Mr. Sharifuddin requires serious consideration at the time of final hearing of the case. I have considered the reasons urged by Mr. Brohi in support of his two contentions. They are no doubt relevant, but do not demolish the argument of Mr. Sharifuddin so as to enable me to hold that the plaintiff has failed to make out a prima facie case. I had heard the learned advocates for the parties in Court, but as Mr. Brohi was going out of station he prayed for filing written arguments, which I allowed. Mr. Sharifuddin has also in reply filed written arguments. I do not think that I need consider the arguments of the learned advocates in detail. The substance of Mr. Brohi's argument as regards the necessity of section 80, Civil P. C., notice was that the provision did not affect Article 5 of the Constitution. So far as section 80, Civil P. C., is concerned, it can be divided into two portions :- (1) When a suit is sought to be filed against a Govern ment as such, and (2) When a suit is sought to be filed against a public officer. In the present case I am not concerned with the suit against the Government, as the present suit is only against a public Officer: The contention of Mr. Brohi can be summarised as under :- (a) Article 5 of the Constitution grants a certain right as between citizens. (b) At any rate, the differentiation is not unreasonable or arbitrary. (c) Section 80, Civil P. C., enacts only a procedure, to be followed in the case of suits against the Government and public Officers, and does not affect the substantive right to sue the Government or the public officer. There is force in these contentions that have been raised by Mr. Brohi, but on the other hand, the question whether section 80, Civil P. C., is not void under paragraph (2) of Article 4 of the Constitution requires serious consideration. Some of the points which require consideration in this con nection are (i) The officials, like private citizens, are to be governed by the same law. (ii) The provision is unreasonable inasmuch as it works out more hardship to the litigant public than the good that it confers on the Government or the public officers. (iii) There is no similar provision like section 80, Civil P. C., either in England or in America, which is suggestive of the fact that a provision like section 80, Civil P. C., is not democratic in its conception and is arbitrary. I may briefly state the contention of Mr. Sharifuddin on these points :- (i) Whether the State, in view of the fundamental right given under Article 5 of the Constitution, can make any distinction between the citizens and the officials or not, the comment of Professor Dicey in his "Law of the Constitution" (IX Edition) at page 202, is very relevant and reads as under :- " . . . . the equal subjection of all classes to the ordinary law of the land administered by the ordinary law Courts ; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals :" It is for consideration, in view of the above enunciation of law by Professor Dicey as regards equality before the Law, whether section 80 of the Code of Civil Procedure does not make a distinction between citizens and the officials. More over, it is also for serious consideration, in view of the Preamble of the Constitution, that the State was to be a democratic State based on Islamic principles of social justice. The provision of section 80, Civil P. C., offends against the rule of equality before the law. According to the 'Islamic principles of social justice' no distinction has to be drawn between a private citizen and a public officer. If the Court were to find that section 80, Civil P. C., militates against the Islamic principles of social justice, it would be tantamount to holding that it offends against the rule of equality before the law. (ii) It is in the experience of Courts that in number of cases the very object of the suit is frustrated by the requirement of section 80, Civil P. C. By the time the period of notice under section 80, Civil P. C., expires, the mischief is done. The question of reasonableness also would require consideration. (iii) A provision like section 80, Civil P. C., does not exist either in England or America. There is no direct authority available on section 80, Civil P. C., either for or against on the question raised by the learned advocates for the parties. So far as the merit of the case is concerned, the conten tion of Mr. Sharifuddin was that the registered office of Sind Provincial Co-operative Bank Limited being at Karachi, the Registrar of Co-operative Societies at Karachi had jurisdiction to deal with the Bank. On the other hand, Mr. Brohi contended that the Registrar of West Pakistan at Lahore had jurisdiction to deal with this Bank. The learned advocates for the parties are unable to show any direct provision of law as regards the question as to which Registrar has jurisdiction to deal with the Sind Provincial Co-operative Bank Limited. The learned advocates have taken me through various provisions of the Co-operative Societies Act, 1925, and have urged by inference as to which Registrar would have jurisdiction over the Sind Provincial Co-operative Bank Limited. In the absence of any definite provision in any enactment conferring jurisdiction either on the Registrar at Lahore or on the Registrar at Karachi, I am of the view that this question requires consideration, and the points urged by Mr. Sharifuddin are relevant to the issue. The question now before me is whether I should make the interim order absolute. I have given my best consideration to this question, and I have come to the conclusion that, in view of the report of the Chief Auditor, Co-operative Societies, West Pakistan, on the affairs of the Bank it would not be conducive to justice or in the interests of the public to make the interim order absolute without condition. The Chief Auditor of the Co-operative Societies has given a long and detailed report, covering some 50 typed pages, about the affairs of the Bank. If the report of the Chief Auditor is accepted, one would come to the conclusion that the affairs of the Bank are not properly managed and that a few individuals are able to take as much advantage as they can at the cost of the constituent of the Bank. The plaintiff, no doubt, has in general denied the facts made out in the report. I am, however of the view that the report, which is based on the facts and figures disclosed by the books of the Bank, cannot be lightly treated. To allow the Bank to carry on its affairs as before, may, in the event the suit was to fail, work out great hardship and injustice to the constituents of the Bank. Under these circumstances, I consider that it would be in the interests of justice to order that the Bank should carry on its business under the direct supervision of the Registrar of Co-operative Societies, at Karachi. The Registrar may appoint anyone under him to supervise the working of the Bank in order that the Bank does its business in accordance with the rules and regulations, and that the irregularities already committed are not repeated. This condition that I have put, in my opinion, can work out hardship to neither party. So far as the defendant is concerned, he is a public officer, and his only anxiety should be that the affairs of the Bank are managed properly in accordance with the rules and regulations. So far as the plaintiff is concerned, his own case is that the Registrar at Karachi has jurisdiction, and therefore, the Registrar by supervising the working of the Bank would only be doing his duty. I may mention that I have not heard the learned advocates for the parties on questions of fact, as the facts which they wanted to disclose are already contained in their long affidavits. I would for the reasons given above make the interim order absolute on condition that the Bank will run its business under the supervision of the Registrar of Co-operative Societies, Karachi or any person appointed by him, during the pendency of the suit. The office will send a copy of this order, along with a copy of the report of the Chief Auditor, Mr. Lala, filed by Mr. Brohi, to the Registrar of Co-operative Societies at Karachi. A.H. Application granted.