1988 PLP 1734 (MLD)

This judgment shall dispose of Civil Revisions Nos. 472/1)1 of 1988 and 473/1) of 1988 as common questions of law and facts are involved therein. It shall however, remain on the file of Civil Revision No. 472/1) of 1988.

2. The dispute relates to recovery of certain amount which is being enforced against the petitioner on the ground that the petitioner was over paid. The petitioner filed .a suit challenging the legality of order of the recovery of the disputed amount front him. Alongwith the suit an application for temporary injunction staying the recovery of the disputed amount during the pendency of the suit was also made. This application was contested and the same was dismissed by the learned trial Court by order dated 12‑7‑1987. The petitioner feeling aggrieved filed an appeal against the said order before the learned lower appellate Court which has also been dismissed through order dated 27‑2‑1988.

3. Learned counsel for the petitioner argued that there was sufficient material on the record from which it was evident that in the year 1981 the case of alleged over payment was closed by the Deputy Director, Audit and Accounts, Works Punjab, Lahore, holding that there was no over‑payment to the petitioner. He has drawn my attention to a document placed on the record which is an extract from Para No.72 of the Special Project Report in which it has been stated that the case of over payment be treated as settled. Apart from this there is also a letter dated 22‑5‑1935 by the Executive Engineer, Highway Division, Gujranwala which is the concerned department, written to the Director‑General, Audit and Accounts. Works, Lahore, in which the said officer categorically held that no overpayment is involved in this case. The grievance of the petitioner is treat merely on the move of some other department the Finance Department has asked the Highway Division, Gujranwala, to make the recovery from the petitioner as alleged over payment on which the Deputy Director has re‑opened the case stating that previous office memo stating that the case of over payment to be treated as settled stood revived. It has been contended that in these circumstances the petitioner was successful in establishing that he had prima facie case and no amount was due from the petitioner which could be recovered. He relies upon judgment reported as Muhammad Latif v. Province of West Pakistan P L D 1970 S C

180. His contention is that once the petitioner had succeeded in making out prima facie case that such amount was not recoverable, it was the petitioner who was to suffer irreparable loss in case the recovery of the said amount is allowed to be made during the pendency of the suit as the petitioner being a business‑man would be deprived of his considerable amount which will adversely affect his business.

4. Mr. S.M. Zubair, the learned Additional Advocate‑General submits that since a specified amount is involved, therefore, the petitioner cannot be held to suffer irreparable loss if the amount is allowed to be recovered as ultimately if he succeeds in the suit the same can be paid back to him.

5. The arguments of the learned counsel for the petitioner have considerable force. The department concerned i.e. Highway Division itself took the stand at one stage that there was no overpayment. Even the objection regarding over‑payment was stated to have been settled by the Deputy Director in the year 1981. Now on the objection of the Finance Department the recovery is being, made. The petitioner has been able to make out existence of prima facie case in his favour. It is he who shall certainly suffer and be deprived of they amount in dispute, The Courts below while passing the impugned orders acted with material irregularity and illegality in not keeping in view these circumstances and the well‑settled law that the plaintiff is only to make out a prima facie case i.e. the case in which fair question of law is to be argued. The petitioner was not required to make out a case that in all circumstances he was to succeed. The three necessary ingredients i.e. existence of prima facie case, irreparable loss and balance of convenience having been established, the discretionary jurisdiction in favour of granting temporary injunction could not have been refused.

6. The revision petition is accepted, orders of both the Courts below are set aside, the application of the petitioner for issuance of temporary injunction is accepted. The defendants/respondents are hereby restrained from recovering the amount in dispute from the petitioner till the disposal of the suit by the learned trial Court subject to his furnishing security to the satisfaction of the learned trial Court within one month for the payment of the disputed amount in case the petitioner fails in the suit. The petitioner has already furnished security in pursuance to the orders of this Court. That security stands discharged, the fresh security as directed by this judgment shall be furnished. There will be, however, no order as to costs. H.B.T./C‑26/L Revision accepted.