PLJ 1987 Lahore 596
Present : raja afrasiab khan, J
KARTAR MASIH-Petitioner
versus
MUNICIPAL COMMITTEE, Okara through its Chairman—Respondent
Civil Revision No. 1158 of 1987, accepted on 16-8-1987
Civil Procedure Code, 1908 (V of 1908)-
------ O. XXXIX, Rr. 1 & 2, O. XLIII, R 1 (rj & S. 115—Temporary injunction—Grant of—Appeal against—Order on — Challenge to— Petitioner in possession of building raised by him by spending considerable money for carrying on business of collection of dead-bodies of animals and their disposal under lease—Such lease pertaining to disposal of corpuses of dead animals allowed to petitioner for another term of three years—Held : Good amount of Rs. 25,000 having been invested by petitioner in providing covered place to dispose of dead-bodies of animals, whole investment to be ruined and irreparable loss to be suffered by petitioner in case of his being deprived of contract— Held further : Interim order having been passed by tria.i court on some strong reasons, order passed by appellate court to be set aside in revision. [Pp. 597 & 598JA & B
Mr. Muhammad Hanif Niazi, Advocate for Petitioner. Mr. Jahangir A. Jhojha, Advocate for Respondent. Dates of hearing : 8, 10 & 11-8-1987.
judgment
The petitioner Kartar Masih has moved this revision petition under section 115 CPC against the order passed by the learned appellate Court dated 13-7-1987, whereby the oraer of the trial Court dated 24-6-1987 was set aside.
2. The brief facts of tiie ^ie are that the petitioner filed a suit for declaration which is to the eifsct that he was a contractor of the Municipal Committee Okara and that according u the contract from July 1986 to June 1989 he was competent to carry on his business of the collection of the corpuses of. dead animals found within the limits of Municipal Committee Okara for their onward disposal. This declaratory suit filed by the petitioner is still pending adjudication before the Civil Judge, Okara. The petitioner also filed an application for interim stay under Order 39, rules 1 and 2 CPC with the prayer that the respondent may be restrained from interfering in his work under th; contract. The learned trial Court vide his order date,d. 24-6-1987, after considering the pros and cons of the case, came to the conclusion that the petitioner is entitled to an interim relief as prayed for. The respondent Municipal Committee challenged the aforesaid order dated 24-6-1987, before the learned District Judge, Okara, by filicg an appeal before him. The learned appellate Court vide his judgment dated 13-7-1987, set aside the interim order passed by the learned trial Court on the ground that the petitioner-plaintiff has the right to sue for damages and of course he cannot sue for injunction. The learned appellate Court further observed that at the most it could be said that a breach of contract between the parties has taken place and this cannot give any cause of action to the petitioner to file a suit for injunction. The petitioner has come in revision as observed ealier feeling aggrieved of the appellate order,
3. The learned counsel for the petitioner har. forcefully argued before me that the petitioner has successfully made out a prima facie good arguable case in his favour inasmuch as the learned trial Court after considering the pleadings of the parties and the facts and circumstances of the instant case, came to the conclusion that the petitioner-plaintiff was allowed a lease for a period of three years with the condition that the petitioner shall pay more lease money at the rate of 10% of the total money. It was observed that the petitioner bad a good prima facie case and there is every likelihood that the same case may be decreed. The Court observed that the balance of convenience is also in favour of the petitioner-plaintiff. The learned trial Court observed that the petitioner has raised construction at the spot and has built a four-wall by spending considerable money. The learned counsel submitted that the petitioner is continuing his business without any interruption even today. The learned appellate Court has not adverted to this aspect of the case. The learned Court was only swayed with the form of suit filed by the present petitioner. This was not enough. The learned counsel for the respondent submitted that the suit of the petitioner i> on the face of it incompetent. He urged that the appellate order i> well based in law and facts of the case and in the exercise of revisionai jurisdiction no interference is called for.
4. I have heard learned counsel for the parties at considerable length. I am of the prima facie view that the petitioner has an arguable case inas much as under the lease he has built some rooms bounded by a four-wall- The land underneath the construction is undoubtedly owned by the Municipal Committee but the fact remains that under the permission of the said Committee, the petitioner has raised construction thereby spending more than Rs 25.000/-. Additionally, there is a resolution according to which the petitioner was allowed the lease for another period of three years provided he pays the lease money at the enhanced rate of 10 per cent of the total amount. Learned counsel for the respondent has raised an objection that so far the Municipal Committee has not passed a regular resolution allowing permission to the petitioner-plaintiff to carry on his business in hand. The learned counsel stated that the resolution produced and relied upon by the petitioner-plaintiff is in the nature of a recommen dation and the fact remains that there is no final resolution having been adopted by the Municipal Committee as yet. Be that as it may, 1 am of the view that the petitioner is in possession of a building which has been raised by him by spending considerable money wherein he is carrying on the business of collection of the dead-bodies of the animals and their isposal under the lease. The lease pertaining to the disposal of corpuses of the dead animals was allowed to the petitioner for another term of three years. This is a circumstance which has not been considered by the learned appellate Court. The Court has to see whether the petitioner-plaintiff has made out aprimafacie case or not. The fact remains that lease was given to the petitioner initially and later on the lease period was extended for another period of three years which will prima facie show that he has got a good arguable case. It appears that the petitioner is a petty contractor and has invested good amount of Rs. 25.000/- in providing a covered place to dispose of the dead-bodies of the animals. In case,he is deprived of the contract, he will definitely suffer an irreparable loss and hi* whole investment shall be ruined. Thus, the balance of convenience also lies on the side of the petitioner-plaintiff.
5. I have considered the respective arguments of learned counsel for the parties and I am of the view that the interim order passed by the learn ed trial Court is based on some strong reasons and as such, I set aside the order passed by the appellate Court dated 13-7-19b7 and restore the order passed by the learned trial Court dated 24-6-1987. Resultantly, this petition is accepted, with no order as to the costs.
6. The learned trial Court is directed to dispose of the main caie within three weeks positively and he will send the intimation thereof to the Registrar of this Court.
(M1Q) Petition accepted.
Present : raja afrasiab khan, J
KARTAR MASIH-Petitioner
versus
MUNICIPAL COMMITTEE, Okara through its Chairman—Respondent
Civil Revision No. 1158 of 1987, accepted on 16-8-1987
Civil Procedure Code, 1908 (V of 1908)-
------ O. XXXIX, Rr. 1 & 2, O. XLIII, R 1 (rj & S. 115—Temporary injunction—Grant of—Appeal against—Order on — Challenge to— Petitioner in possession of building raised by him by spending considerable money for carrying on business of collection of dead-bodies of animals and their disposal under lease—Such lease pertaining to disposal of corpuses of dead animals allowed to petitioner for another term of three years—Held : Good amount of Rs. 25,000 having been invested by petitioner in providing covered place to dispose of dead-bodies of animals, whole investment to be ruined and irreparable loss to be suffered by petitioner in case of his being deprived of contract— Held further : Interim order having been passed by tria.i court on some strong reasons, order passed by appellate court to be set aside in revision. [Pp. 597 & 598JA & B
Mr. Muhammad Hanif Niazi, Advocate for Petitioner. Mr. Jahangir A. Jhojha, Advocate for Respondent. Dates of hearing : 8, 10 & 11-8-1987.
judgment
The petitioner Kartar Masih has moved this revision petition under section 115 CPC against the order passed by the learned appellate Court dated 13-7-1987, whereby the oraer of the trial Court dated 24-6-1987 was set aside.
2. The brief facts of tiie ^ie are that the petitioner filed a suit for declaration which is to the eifsct that he was a contractor of the Municipal Committee Okara and that according u the contract from July 1986 to June 1989 he was competent to carry on his business of the collection of the corpuses of. dead animals found within the limits of Municipal Committee Okara for their onward disposal. This declaratory suit filed by the petitioner is still pending adjudication before the Civil Judge, Okara. The petitioner also filed an application for interim stay under Order 39, rules 1 and 2 CPC with the prayer that the respondent may be restrained from interfering in his work under th; contract. The learned trial Court vide his order date,d. 24-6-1987, after considering the pros and cons of the case, came to the conclusion that the petitioner is entitled to an interim relief as prayed for. The respondent Municipal Committee challenged the aforesaid order dated 24-6-1987, before the learned District Judge, Okara, by filicg an appeal before him. The learned appellate Court vide his judgment dated 13-7-1987, set aside the interim order passed by the learned trial Court on the ground that the petitioner-plaintiff has the right to sue for damages and of course he cannot sue for injunction. The learned appellate Court further observed that at the most it could be said that a breach of contract between the parties has taken place and this cannot give any cause of action to the petitioner to file a suit for injunction. The petitioner has come in revision as observed ealier feeling aggrieved of the appellate order,
3. The learned counsel for the petitioner har. forcefully argued before me that the petitioner has successfully made out a prima facie good arguable case in his favour inasmuch as the learned trial Court after considering the pleadings of the parties and the facts and circumstances of the instant case, came to the conclusion that the petitioner-plaintiff was allowed a lease for a period of three years with the condition that the petitioner shall pay more lease money at the rate of 10% of the total money. It was observed that the petitioner bad a good prima facie case and there is every likelihood that the same case may be decreed. The Court observed that the balance of convenience is also in favour of the petitioner-plaintiff. The learned trial Court observed that the petitioner has raised construction at the spot and has built a four-wall by spending considerable money. The learned counsel submitted that the petitioner is continuing his business without any interruption even today. The learned appellate Court has not adverted to this aspect of the case. The learned Court was only swayed with the form of suit filed by the present petitioner. This was not enough. The learned counsel for the respondent submitted that the suit of the petitioner i> on the face of it incompetent. He urged that the appellate order i> well based in law and facts of the case and in the exercise of revisionai jurisdiction no interference is called for.
4. I have heard learned counsel for the parties at considerable length. I am of the prima facie view that the petitioner has an arguable case inas much as under the lease he has built some rooms bounded by a four-wall- The land underneath the construction is undoubtedly owned by the Municipal Committee but the fact remains that under the permission of the said Committee, the petitioner has raised construction thereby spending more than Rs 25.000/-. Additionally, there is a resolution according to which the petitioner was allowed the lease for another period of three years provided he pays the lease money at the enhanced rate of 10 per cent of the total amount. Learned counsel for the respondent has raised an objection that so far the Municipal Committee has not passed a regular resolution allowing permission to the petitioner-plaintiff to carry on his business in hand. The learned counsel stated that the resolution produced and relied upon by the petitioner-plaintiff is in the nature of a recommen dation and the fact remains that there is no final resolution having been adopted by the Municipal Committee as yet. Be that as it may, 1 am of the view that the petitioner is in possession of a building which has been raised by him by spending considerable money wherein he is carrying on the business of collection of the dead-bodies of the animals and their isposal under the lease. The lease pertaining to the disposal of corpuses of the dead animals was allowed to the petitioner for another term of three years. This is a circumstance which has not been considered by the learned appellate Court. The Court has to see whether the petitioner-plaintiff has made out aprimafacie case or not. The fact remains that lease was given to the petitioner initially and later on the lease period was extended for another period of three years which will prima facie show that he has got a good arguable case. It appears that the petitioner is a petty contractor and has invested good amount of Rs. 25.000/- in providing a covered place to dispose of the dead-bodies of the animals. In case,he is deprived of the contract, he will definitely suffer an irreparable loss and hi* whole investment shall be ruined. Thus, the balance of convenience also lies on the side of the petitioner-plaintiff.
5. I have considered the respective arguments of learned counsel for the parties and I am of the view that the interim order passed by the learn ed trial Court is based on some strong reasons and as such, I set aside the order passed by the appellate Court dated 13-7-19b7 and restore the order passed by the learned trial Court dated 24-6-1987. Resultantly, this petition is accepted, with no order as to the costs.
6. The learned trial Court is directed to dispose of the main caie within three weeks positively and he will send the intimation thereof to the Registrar of this Court.
(M1Q) Petition accepted.
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