2011 PLP 925 (MLD)

SYED SAJJAD HASSAN SHAH, J.

The instant revision petition is directed against the order dated 27-11-2010 passed by learned Additional District Judge-IV, D.I. Khan whereby he accepted the appeal of respondents and set aside the order dated 27-9-2010 passed by Civil Judge-I, D.I.Khan vide which the application of the petitioner for grant of temporary injunction was accepted.

2. Briefly stated facts of the case are that petitioner filed a suit against the respondents for declaration and permanent injunction. Along with the plaint, he filed an application for temporary injunction restraining the respondents to act upon the advertisement dated 5-8-2010. The suit as well as the application were contested by the respondents by filing written statement and the replication. The learned trial Court, after hearing arguments on the application, vide order dated 27-9-2010 allowed the application of petitioner and. restrained the respondents from acting upon the advertisement dated 5-8-2010 and inviting tenders only from those contractors who are registered with PA/APA F.R., D.I.Khan.

3. Aggrieved from the order dated 27-9-2010, respondents filed appeal which was accepted by learned Additional District Judge-I, D.I.Khan vide judgment dated 27-11-2010, the order of trial Court dated 27-9-2010 was set aside and the application of petitioner for temporary injunction was dismissed. Hence, the instant revision petition.

4. Learned counsel for the petitioner contended that petitioner is category-A contractor and he is being deprived of his valuable right to profession and tarrying on his business as he has been restrained from participating in the tender of public work.

5. As against that, learned Deputy Advocate-General appearing for the respondents argued that public money is involved and there is every likelihood of its lapse in case temporary injunction is granted to petitioner: He went on to argue that all the three ingredients lacking to issue temporary injunction in favour of the petitioner. Moreover, the petitioner can claim damages in case he would have succeeded in the case, however, it is a money matter, therefore, the petitioner is not entitled for the grant of temporary injunction.

6. Arguments of learned counsel for the parties considered. Record perused.

7. Viewing the record, it transpires that the respondents have invited tender for the developmental program to be started within the FATA territory. Perusal of the terms and conditions of tender notice reveals that at Serial No.3, it is mentioned that only those contractors can obtain the tender documents, who have been registered with PA/APA F.R, D.I.Khan or F.R Works and Services Department, D.I.Khan. The petitioner has not filed any such certificate on the record to fulfil the condition required for filing such documents. In absence of any such registration, the petitioner not qualified to participate in tender process. The petitioner being aggrieved of the condition laid down in tender invited for awarding the contract for execution of construction work, thus, seeking to declare the same as null and void. However, it is the prerogative of the respondents to lay down suitable terms and conditions for accomplishing the work for which tender was invited, as they are responsible for the completion of work within the specified period.

8. For issuing temporary injunction, all the three conventional ingredients must be fulfilled by the petitioner. Even if one of them is found missing, no injunction can be issued in favour of the petitioner. In the instant case, the petitioner has sought that the respondents are to be compelled to omit clause-3 of the tender notice so that he may be able to participate in the tender process. Issuing of such directory order would amount, passing the decree in favour of the petitioner, at premature stage of the case. The stance of the petitioner is not supported by any provision of law, thus, failed to make out the prima facie case in his favour. The petitioner, if not to have participated in tender process, at the most, would suffer the loss recoverable in terms of money, as such cannot be regarded as irreparable loss. As far as balance of convenience is concerned, same is not tilted in favour of the petitioner as in case of restraining the bidding process, the public developmental work would be stopped and loss would be suffered by the national exchequer on account of 'every day trend in price hike of the construction material. The people of area would also be deprived of the facility being provided to them by the respondents. The balance of convenience also does not lie in favour of petitioner. However, the respondents would suffer inconvenience.

9. As per provision of section 56(d) of Specific Relief Act, no injunction can be issued to hamper the public work being performed by the functionaries of the public department, as it amounts restraining the smooth running of its business. However, the petitioner has not shown any compelling reason seeking the issuance of injunction in his favour. Reliance placed upon,the case titled Shehzada Muhammad Umar Baig. v. Sultan Mehmood Khan and another (PLD 1970 SC 139) relevant para reproduced as under:-- "In the circumstances, even on the second condition it cannot be said that by withholding the Government's orders regarding his reversion and upsetting the administrative arrangements made by it in its routine duties, the balance of convenience lies in setting those orders at naught. In this connection, the learned Additional District Judge has also referred to clause (d) of section 56 of the. Specific Relief Act which prohibits the grant of injunction which interferes with the public duties of any department of the Central Government or the Provincial Government. Further consideration that very rightly weighed with the learned Additional District Judge was that the respondent has been reverted by an order dated 18 November, 1965 whereby a suit was instituted on 29th November, 1965 two days thereafter. The learned Single Judge in dealing with the bar under section 56(d) has relied on a decision of Kaikaus, J., as he then was in the case of Ahmad Din v. Faiz Ali and others (1954 Lahore 414), wherein it was held that the jurisdiction to issue a temporary injunction is referable to inherent power, it cannot be taken away by section 56 of Specific Relief Act. In all respect, even if it were to be accepted that section 56 does not limit the inherent power of a Court to- grant temporary injunction, it cannot be said that in the exercise of those inherent powers, it will not be a serious matter for Court's consideration whether it would be right to issue an injunction to public department which would obviously disturb its working and it would not do so unless compelling reasons demand that course." While deciding a matter like the present one, the Courts have to see that whether all the ingredients required for issuing the injunction are co-existing or not? In case anyone of them, as mentioned above found missing, there is no other way but to refuse the same. The wisdom behind section 56(d) of Specific Relief Act obviously leads to the conclusion that there is statutory bar contained in clause (d) of section 56 of Specific Relief Act, 1877 which prohibits the grant of injunction and interference with the public duties of Departments of Central or Provincial Government. It is a serious matter for the Court's consideration whether it would be right to issue injunction to a public department which would disturb its working and it could not do so unless compelling reasons demand that course. Reference made of the case titled Umar Gul v. Abdul Manan and others (PLD 1992 Peshawar 76). The petitioner has yet to prove his right and entitlement in the subject-matter of suit, therefore, he cannot claim the issuing of proposed injunction in his favour as it is equitable and discretionary remedy, the discretion always to be exercised in view of the norms of law and justice and in equitable manner.

10. In view of the above discussion, the petitioner not succeeded to make out the case for issuing temporary injunction, thus, the judgment/ order passed by learned Additional District Judge-IV, D.I.Khan is maintained being not suffering from any illegality or irregularity.

11. This petition is dismissed in limine as being without substance along with C.M. No.296 of 2010. H.B.T./127/P Petition dismissed.