Temporary injunction

Petitioner/plaintiff sought grant of status quorestraining the respondents/ defendants from raising further construction over the suit land but same was denied, which order was maintained by the Appellate court

Plea of the respondent was that they had invested a huge amount and the construction was almost completed

Validity

Record (including the report of Commission) revealed that respondents had completed three stories construction work in the suit-land while infact he obtained the proprietary rights of the same under law (i.e. Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance 1974) in lieu of Rs.8,54,007/= and the petitioner aggrieved from the Proprietary Rights Transfer Order/ Sanction of the suit land in favour of respondents, had filed an appeal before the concerned Commissioner

Thus, until and unless, the fact of proprietary rights of suit -land obtained by respondent was not decided by the competent fora i.e. Commissioner and above, no contrary stance could be entertained qua granted land in favour of respondent

Prima facie case, irreparable loss and balance of convenience are three pre-requisites introduced by law qua adjudication of grant or refusal of stay order

All said three ingredient are to be judged in a manner that if these pre-requisites are simultaneously, fulfilled, stay order is granted while on other hand in absence of any one of the said qualified criterion stay order cannot be issued

Prima-facie case is ascertained on the strength of facts flowing from the pleadings which in ordinarily and cursory manner convinces a prudent mind in a way that if evidence and facts remain intact a decree can ultimately be passed, while the irreparable loss in short is a loss which cannot be calculated in terms of money and balance of convenience follows the tentative assessment of other two ingredients above

Rationally the prima-facie case requirement governs the other two ingredients

Phrase prima facie case in is true parlance denotes a triable case where some substantial questions are to be probed for that matter to be tried

Injunction cannot be granted unless all the three conditions for grant of injunction co-exist

Injunction is an equitable relief

An applicant at the eve of asking for interim injunction must come with clean hands and establish his case on the weighting operatus of said three ingredient in order to obtain equitable discretionary relief

Thus, in the present case, issuance of temporary injunction would definitely create a new situation contrary to the ground realities pertaining to possession based upon proprietary rights as three storied building had already been constructed on the suit-land by the respondent and ongoing construction was bearing completion, therefore, balance of convenience laid in favour of the respondent and ad interim injunction stopping the construction at this stage, could cause irreparable loss to him rather than the petitioner

Grant of proprietary rights by competent authority prima facie spoke for the respondent

No illegality or infirmity was noticed in the impugned orders disallowing the status quo

Revision petition, being devoid of force, was dismissed, in circumstances.

Existence of the right of the plaintiff is to be adjudicated on the first sight on comparative consideration of pleadings of the parties

Court has to form its opinion as to who has a better case after tentatively analyzing from the rival contention of the parties as contained in their pleadings

If the Court is satisfied that the case of plaintiff is on a better footing, and on conclusion of the trial relief may be granted to him in all likelihoods, then the Court can infer that the plaintiff has a prima facie case

To ascertain whether a plaintiff has a prime facie case, the Court tentatively examines not only the pleadings of the parties but their affidavits, counter-affidavits and the documents appended with the plaint and the written statement.

Temporary injunction, by its nature, is a preventive remedy with the object to maintain the status quo and prevent irreparable damage or preserve the subject-matter of the litigation until the trial is concluded

In order to succeed in obtaining temporary injunction in a case, a plaintiff has to establish co-existence of three conditions/ingredients i.e., (i) prima facie case; (ii) possibility of suffering irreparable loss if temporary injunction is declined; and (iii) the balance of convenience leans in his favour

Of the three conditions, existence of prima facie case is foundational and the other two conditions are considered once the plaintiff establishes a prima facie case in his favour.

Agreement to sell does not create any right in respect of the immovable property and its importance while deciding an application for grant of the interim injunction has to be measured up and weighed in by tentative examination of the attending circumstances.

No litigant can derive benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the petition is ultimately dismissed, the interim order stands nullified automatically

Party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court

Fact that petition is found ultimately devoid of any merit shows that a frivolous petition had been filed.

If a case or petition is finally dismissed; then a party cannot take shelter under the garb of an ad-interim order.

Interim order merges with the final order and if the final order is against the petitioner, it is deemed that the petitioner had no favourable order in his favour at any time.

Petitioner/plaintiff sought restraining order against the respondents/defendants contending that he was owner-in-possession of the suit-property after purchasing it from the previous owner

Respondents contended that the previous owner had occupied the area of rainy drain for which matter was referred to the concerned Tehsildar

Held, that injunction was not to be granted only on the basis that prima-facie case existed in favour of the plaintiff

Courts were required to take into consideration whether the question of balance of convenience or irreparable loss, to the party seeking such relief, co-existed or not

For grant or refusal of the injunction , pleading documents and supporting evidence was to be examined and the assessment was to be made tentatively , however, where complicated question about merit of the case required framing of issues and evidence was involved, then the injunction order was not to be issued

In the present case, report of the concerned Tehsildar (Revenue Officer) revealed that property-in-question was acquired by the Irrigation Department in the year 1991; award was passed and amount was also paid

Said property was not incorporated in the revenue record in the name of Provincial Government i.e. Irrigation Department

Petitioner/plaintiff had failed to make out a prima facie arguable case for grant of injunction in his favour and balance of convenience also did not lie in his favour

No illegality or infirmity was found in impugned orders passed by both the Courts below

Revision petition was dismissed, in circumstances.

Procuring Agency (Provincial Government) invited (foreign funded) tender in respect of carrying out social mobilization to achieve Open Defecation Free (ODF) villages in bidding district

Plaintiff/petitioner (lowest bidder) sought restraining order contending that the tender was awarded to the respondent (NGO) on favoritism, which was violation of the Sindh Public Procurement Rules, 2004

Provincial Government (procuring agency) contended that guidelines of the World Bank would override terms and conditions of the Sindh Public Procurement Rules, 2004

Held, for the bidder to qualify the award of contract, relevant clause of Invitation of Bids required minimum average of Rs.10 million per annum annual volume of services, experience of having completed at least two nutrition or WASH (water sanitation and hygiene) projects and documented evidence of having undertaken social mobilization in the bidding district in the last five years

Evaluation by the competent authority showed that the petitioner did not qualify technically and had failed to meet the minimum requirements provided in the bidding documents

Though plaintiff had referred to various documents to rebut/challenge the assertion of procuring agency, however, said documents requiring leading of evidence by the plaintiff, could not be considered at the injunctive stage

Project-in-question had been awarded much before filing of the suit

Plaintiff had failed to make out prima facie case , whereas balance of convenience also did not lie in its favour and no irreparable loss would be caused to it

High Court dismissed the application of the plaintiff seeking a restraining order against the respondent (successful bidder/NGO) qua commencement of any work/action in respect of awarded tender.

Temporary injunction can be granted only where plaintiff has a prima facie arguable case, where balance of convenience is also be in favour of the plaintiff, and there would be irreparable loss to plaintiff if temporary injunction is not granted

All said three ingredients should co-exist.

Court while granting temporary injunction had to see whether plaintiff had a prima facie case, balance of convenience and "irreparable loss"

Only tentative assessment had to be made while granting temporary injunction

Plaintiff, in the present case, had filed suit for declaration only and had not sought permanent or temporary injunction as consequential relief

Court, in circumstances, could not grant interim injunction in favour of plaintiff

Loss allegedly to be suffered by the plaintiff appeared to be measurable in terms of money which did not fall within the ambit of "irreparable loss" and balance of convenience did not lie in favour of plaintiff in the present case

Plaintiff had failed to make out a good prima facie case in his favour

Plaintiff was not entitled for grant of discretionary relief of temporary injunction, in circumstances

Revision was dismissed accordingly.

Interim order pursuant to O. XXXIX, Rr. 1 & 2, C.P.C. is intended to be a preventive or prophylactic remedy for the purposes of preserving the status quo or preserving the corpus of litigation pending final determination.

Ingredients for grant of temporary injunction were: Prima facie case, balance of convenience and irreparable loss.

Plaintiff, in the present case, moved application for temporary injunction along with plaint which was refused by the Trial Court and lower appellate court

Plaintiff, after recording of evidence in main case moved fresh application for temporary injunction on fresh grounds with emphasis on O. XXXIX R. 4-A, C.P.C.

Held that O. XXXIX R. 4-A, C.P.C. was of no help to a person who was lingering on case on one pretext or the other

Once the relief had been refused on the same footing and same record, it could not be re-agitated before any forum

Orders of both the lower courts were in consonance with law

Revision was dismissed accordingly.

Ingredients for grant of temporary injunction were prima facie case, balance of convenience and irreparable loss.

Plaintiff for grant of temporary injunction has to prove three ingredients: prima facie case; balance of convenience; and irreparable loss

If any of the ingredient(s) is/are missing, courts will refuse to grant temporary injunction.

Trial Court directed the bailiff to put plaintiff back in possession of suit property from which she had been dispossessed

Contention of defendants was that injunctive relief granted by the Court could operate only for a period of six months

Validity

Injunctive relief was confirmed after an inter-parte hearing

Plaintiff was dispossessed from the suit property during the currency of injunctive order passed by the Trial Court

Trial Court did not commit any jurisdictional error by directing that plaintiff be handed over possession of the portion of suit property from which she was dispossessed

Injunctive order passed by the Trial Court had till date not been set aside

Alleged dispossession was within a period of six months of the confirmation of injunctive order

Trial Court was bound to restore the status quo ante by putting plaintiff back in possession of suit property

Act of dispossession would amount to over-reaching the process of law

Trial Court was bound to protect the rights of the parties as they existed on the date of filing of the suit and the grant of injunction

Section 151, C.P.C. could also be invoked to effectuate an order validly made by a Court of competent jurisdiction

When unlawful means were adopted by a party, it was responsibility of the Court to invoke S.151, C.P.C. to secure the ends of justice or to prevent abuse of process of Court

Defendants could not take shelter behind their own wrong which had been further accentuated by the creation of a tenancy

Jurisdiction to make restitution was inherent in the Court and could be exercised whenever the justice demanded

Revision was dismissed in limine.

Plaintiff filed suit for damages against defendants, foreign companies, and the other defendants, who were franchise holder of said companies, for loss caused due to violation of Letter of Intent

Trial Court, while declining applications of plaintiff for grant of temporary injunction and attachment of franchise fee, deleted names of defendants, franchise holders, from the suit; revisional court maintained the order of Trial Court

Plaintiff contended that defendants, foreign companies, were doing business abroad and were not maintaining assets in Pakistan, except the franchise fee payable by defendants (franchise holders) which, be attached till pendency of the suit to make recovery of damages possible in case decree was passed

Validity

Names of defendants, franchise holder, had already been deleted from array of defendants; thus, case of plaintiff to the extent of attachment of franchise fee before judgment could not proceed

Plaintiff had claimed damages only against defendants, foreign companies

Plaintiff, in case a decree was passed, might file application for execution of decree

Suit having not been decreed restraining order could not be passed on probability

Appeal against order was dismissed in circumstances.

Plaintiff filed suit for damages against defendants, foreign companies, and the other defendants, who were franchise holder of said companies, for loss caused due to violation of Letter of Intent

Trial Court, while declining applications of plaintiff for grant of temporary injunction and attachment of franchise fee, deleted names of defendants, franchise holders, from the suit; revisional court maintained the order of Trial Court

Plaintiff contended that defendants, foreign companies, were doing business abroad and were not maintaining assets in Pakistan, except the franchise fee payable by defendants (franchise holders) which be attached till pendency of the suit to make recovery of damages possible in case decree was passed

Validity

Names of defendants, franchise holders, had already been deleted from array of defendants; thus, case of plaintiff to the extent of attachment of franchise fee before judgment could not proceed

Plaintiff had claimed damages only against defendants, foreign companies

Plaintiff, in case a decree was passed, might file application for execution of decree for attachment or execution of decree against the franchise fee

Restraining order, as the suit had not been decreed so far, could also not be passed on probability

Appeal against order was dismissed in circumstances.

Trial Court had restrained the defendant from using its trade mark 'Health Shield', holding the same identical and deceptively similar with the plaintiff's trade mark 'Shield' products

Plaintiff's mark 'Shield' was functioning as a trade mark; whereas, the defendant's mark 'Health Shield' was not being used as a trade mark

Actual damage or loss to the plaintiff on account of the defendant's use of impugned trade mark could not be imagined, as products of both parties were very much different in nature, sold to different customer needs and usually kept at different locations in shops

Plaintiff, in support of his 'dilution' claim, had to prove the highest degree of fame of his trade mark required under S. 86 of Trade Marks Ordinance, 2001

Once a trade mark had been (honestly) adopted by a trade, the mark would not always remain the property of the said trader, and he would remain the owner of the mark, as long as, he was using the mark in course of trade, and, having abandoned the use of the trade mark, he would eventually lose all rights to the mark

Trade mark registration certificate was, therefore, not a licence to stop other trade indiscriminately

Plaintiff had the reputation and goodwill in its trade mark, however, the same was only limited to the goods falling in Classes 3, 21 and 10, which were toothbrushes, toothpastes, baby feeders, etc. and the plaintiff did not manufacture or sell goods falling in Class 29, which was banaspati ghee, oils, etc. under its trade mark

Defendant had made no attempt to misrepresent or disguise itself as the plaintiff or to sail close to it

Court applying the test 'Moron in a Hurry' found that even a moron in a hurry would not pick a bottle of Dalda Cooking Oil instead of Shield toothpaste

Actual damage or loss to the plaintiff on account of the defendant's use of impugned trade mark could not be imagined, as products of both parties were very much different in nature, sold to different customer needs and usually kept at different locations in shops

Classic Trinity test was, therefore, passed in favour of the defendant

Plaintiff's trade mark could not be construed to have been misused in any way by the non-trademarked type use of the impugned mark by the defendant

High Court, finding all allegations as to infringement of the plaintiff's trade mark as baseless, vacated the injunction

Principles.

Party seeking interim injunction must show that a prima facie case exists in his favour, the court is to be satisfied that if the injunction is not issued, irreparable damage or injury would be caused to the party, and the balance of convenience is in favour of the grant of injunction.

Findings and observations made by a court including appellate court given while disposing of an application for interim injunction, cannot have any bearing on the court while deciding the main suit; such observations are tentative in nature and cannot be termed as conclusive.

Appellant Gas Company was directed to restore the gas supply of plaintiff and issue regular monthly bill without surcharge

Validity

Plaintiff had failed to show any irreparable loss in case of refusal of injunction rather there seemed strong apprehension of damage/injury to the defendants in case of non-deposit of the outstanding amount, therefore balance of convenience tilted in favour of the defendant

Interim relief of temporary injunction could not be granted which amount to grant of final relief, prayed in the suit.

Term "Irreparable loss" does not refer to damage which cannot be physically repaired but to such material injury as cannot adequately compensated

Where the loss was ascertainable in terms of money, case could not be that of irreparable loss

Where pecuniary compensation was an adequate relief, injunction would not be granted

Damages as an alternate relief were relevant only where the granting of injunction would be oppressive to the other side.

Plaintiff had to make out a good prima facie case and in the event of success if injunction was not granted then he would suffer an irreparable injury.

Plaintiffs filed suit for declaration and permanent injunction wherein they moved application for grant of temporary injunction restraining the defendant from raising construction on the disputed Khasra number

Suit was dismissed by the Trial court; however, the said application was allowed by the Appellate Court

Plaintiffs-petitioners submitted application against the defendant-respondent for initiating contempt of court proceedings on the ground that he had violated the status quo order of the Appellate Court but the same was dismissed

Validity

Non-compliance of order/failure to comply with order of the court could be remedied/penalized under the relevant provisions of Civil Procedure Code

Nothing was on record to show that defendant-respondent had violated the order of the Appellate Court because report of the bailiff regarding continuation of the construction on the suit Khasra number by the defendant-respondent had been turned down by the court who issued temporary injunction on the ground that in the said report no Khasra number had been mentioned over which the construction had been made

Defendant-respondent in his application stated that he was raising construction on another Khasra number which had been purchased by him through mutation and he had stopped the construction over the suit-land in compliance of the order of the court

Application for initiating contempt proceedings against the defendant-respondent had rightly been rejected

Revision was dismissed.