1991 PLP 1889 (CLC)

(2) That a permanent injunction be issued restraining the defendant from calculating the age of the plaintiff on the basis of Matriculation Certificate and directing the defendant to calculate the age of the plaintiff on the basis of Birth Certificate i.e.1‑11‑1936. (3) Cost of this Suit and any other relief which this Hon'ble Court may deem proper under the circumstances of the case. The above suit was filed on 29‑10‑1990, and along with the plaint, an application under Order 39, Rules 1 and 2, C.P.C. was moved, on which notice was issued to the defendants/respondents for 31‑10‑1990. On 31‑10‑1990 the learned Senior Civil Judge was pleased to grant ad interim injunction as according to him, the respondent No.1 failed to appear and file objections in spite. of service of notice. The defendants/respondents being aggrieved with the above ad interim injunction, preferred an appeal before the learned District Judge, Karachi, (West), who was pleased to allow the same, and the impugned order passed by the learned Senior Civil Judge was set aside. The present Civil Revision is directed against the above judgment passed by the learned District Judge, Karachi (West). I have heard Mr: Usman Ghani Rashid, learned counsel appearing for the applicant, Mr. Abul Khair, learned counsel appearing for the respondents, and have gone through the record and proceedings of the case very carefully. It was contended by Mr. Usman Ghani Rashid, learned counsel appearing for the applicant that the question of date of birth of the applicant was a question of fact which is yet to be decided by the learned Senior Civil Judge and, therefore, the learned District Judge has erred in setting aside the ad interim order. It was further contended that the letter/reply dated 30‑10‑1990, sent by Lahore Metropolitan Corporation and produced before the learned District Judge as Annexure `B' was not produced before the learned Senior Civil Judge and, therefore, the same could not be considered by the learned District Judge. It was further contended that the applicant had a prima facie case and, therefore the learned Senior Civil Judge had rightly issued ad interim injunction. In support of his contention he has relied upon P L D 1981 Lah. 433 on the point of jurisdiction of Civil Court. Mr. Abul Khair, learned counsel appearing for the respondents has contended, that from the documents produced by the respondents before the Court it is clear that the applicant was born in the year 1930 and she had got appointment order by misrepresentation of facts and fraud. That the letter issued by Epidemic Control Officer, Metropolitan Corporation, Lahore, shows that the name of Mst. Akhtar Noorani daughter of Rahmat Ali was not entered in their office record, and the copy of certificate which was sent by them alongwith their letter was not issued from their office and appears to be bogus. It was further contended that since the applicant had already attained the age of 60 years, she has been retired and relieved. He has further contended that suit was barred by Article 212 of the Constitution inasmuch as if she was aggrieved with any order passed by respondents she could approach the Service Tribunal and the learned Senior Civil Judge had no jurisdiction to entertain the suit. It was further contended that the applicant had failed to show prime facie case, nor there was any question of balance of convenience in her favour; if she succeeded in the suit, she will get her arrears of pay from the respondents and, therefore, there was no question of irreparable loss. I have considered the contentions and have gone through the record and proceedings of the case very carefully. The application dated 171h January. 1957, moved by applicant Miss Akhtar Noorani for appointment as Lady Preventive Office shows that "She was a young girl of about 24 years of age". The attestec: copy of duplicate Matriculation Certificate issued by Deputy Registrar (Examination) University of Punjab shows that the date of birth of applicant Akhtar Noorani daughter of Rehmat Ali was 1st November, 1930; alongwith her representation the applicant had also produced a certificate about her age which is said to have been issued by Head Clerk. Health, Lahore Municipal Corporation, and on receipt of the same, the respondent sent the said certificate to the Authorities concerned for verification, and the reply received from the concerned officer was that the name of Akhtar Noorani is not entered in their office record and the copy enclosed with their letter was not issued from the concerned office and appears to be bogus. Adverting to the first Contention of Mr. Usman Ghani Rashid, learned counsel appearing for the applicant it was the duty of the plaintiff/applicant to make out a prime facie case and also to show that balance of convenience was in her favour and in case she in not granted ad interim injunction she will suffer irreparable loss. The application moved by Akhtar Noorani, present applicant for appointment as Lady Preventive Officer, the attested copy of duplicate Matriculation Certificate produced by her and the letter dated 30‑10‑1990 received by the respondents from Epidemic Control Officer, Metropolitan Corporation Lahore, clearly show that the applicant had failed to make out a prima facie case that she was born in the year 1936. The letter further states that the letter produced by the applicant appears to be bogus one. Therefore, I am clear in my mind that no prima facie case was made out for issue of ad interim injunction. No doubt, the view taken by me, is tentative, and it is still for the applicant to lead evidence before the learned Senior Civil Judge in order to show that she was born in the year 1936. Adverting to the second contention of Mr. Usman Ghani Rashid, learned counsel appearing for applicant, about production of letter dated 30‑10‑1990; before the learned District Judge, it will suffice to say that the learned Senior Civil Judge did not afford proper opportunity to the respondents to put up their case and to produce documents before him. The suit was filed on 29th and the notice was issued to the respondents for 31st, and thus the time was very short and it was impossible for the respondents even if served to appear and file their objections and documents. Moreover, the applicant has failed to produce any document in rebuttal before the learned District Judge as well as before this Court although she had ample time to do so and, therefore, the objection raised by Mr. Usman Ghani Rashid, is untenable. I have already observed that the applicant had no prima facie case and consequently, the balance of convenience was not in her favour. If the applicant is able to prove her contention, before the learned Senior Civil Judge, her suit will be decreed and she will be entitled to get all her arrears of pay for the period for which she remains out of service and therefore, there was no question of irreparable loss. In this connection reliance is placed on the case of Shahzada Mohammad Umer Baig v. Sultan Mehmood Khan and another (P L D 1970 SC 139); wherein the petitioner was reverted to his substantive post, he filed a suit before the learned Senior Civil Judge and obtained ad interim injunction. The respondent filed appeal before the learned District Judge, the ad interim order was vacated. He went before the High Court in Revision and the High Court was pleased to set aside the order of learned District Judge and the order passed by the learned Senior Civil Judge was restored. The petitioner/defendant filed Civil Appeal before this Hon'ble Supreme Court and their Lordships were pleased to observe that:‑

"The learned Additional District Judge has carefully considered all the relevant features of the case, in light of the well‑settled principles, for the grant or refusal of temporary injunction in accordance with law." It was further observed that:‑

"If the plaintiff succeeds ultimately, the interim wrong to him done by his reversion will be set right for which he can also be adequately compensated and the wrong can also be monetarily compensated for. Therefore, the third consideration for the grant of temporary injunction is also not satisfied in this case:' The appeal was allowed and the order passed by the High Court was set aside. It will be appropriate to mention here that it was admitted by Mr. Usman Ghani Rashid, learned counsel appearing for the applicant as well as by, the applicant that she has been relieved and is not being assigned any work. The learned District Judge has considered all the points raised by the learned counsel appearing for the parties and has given cogent reasons for setting aside the order passed by the learned Senior Civil Judge and the judgment does not suffer from any infirmity. The plaintiff/applicant has failed to make out any prima facie case nor balance of convenience is on her side, even there will be no question of I irreparable loss. Therefore, there is no merit in the Revision Application and the same is accordingly dismissed with no order as to costs. A.A/A‑1057/K Revision dismissed.