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Civil Petition for Special Leave to Appeal No. K‑ 82 of 1968, decided on 11th June 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 3rd May 1968, in Letters Patent Appeal No. 48 of 1967).

O. XXXIX, r. 2‑Government issuing order under West Pakistan Government Dues Recovery Ordinance, 1962 for realisation of more than rupees six lacs from a Mill‑Mill filing declaratory suit and praying for injunction restraining Government from recovering said amount by summary procedure under the Ordinance‑Mill at same time praying for temporary injunction and High Court finding it a fit case' issuing "a conditional injunction on the plaintiff furnishing bank guarantee in the sum of Rs. 25 lass"‑‑No objection as regards imposition of condition being excessive raised by fail' at time of High Court passing order‑Grievance against condition subsequently by way of appeal, held, by Supreme Court, did not cull for any interference‑Condition imposed, held, did not impose "impossible terms" in circumstances of case.

A. K. Brohi, Sanior Advocate Supreme Court (Fakhar‑ud‑Dan, Advocate Supreme Court with him) instructed by Salauddin, Attorney for Petitioners.

Nemo for Respondents.

Date of hearing : 11th June 1968.

‑The only point raised in this petition for special leave to appeal is whether a learned Single Judge of the High Court was justified in passing a conditional order of injunction in the following circumstances :-

The Central Government used to sell wheat to the petitioners (hereinafter referred to ac the Mills) for supplying Atta to the ration depots. The Mills had to pay the price of the wheat after deducting their milling charges. After promulgation of the Constitution of 1962 the rights and liabilities of the Central Government, in respect of the above transactions stood transferred to the Provincial Government, and thereafter the latter continued to supply the wheat to the Mills as before. As the Mills disputed the claim of the Government that a sum of Rs. 63,76,588.24 was due on account of the wheat supplied to them, the Provincial Government issued an order under the West Pakistan Government Dues Recovery Ordinance, 1962, for realization of the aforesaid amount from the Mills as land revenue and forwarded it to the Revenue Authorities, Karachi, for taking necessary action.

The Mills then filed a suit in the High Court of West Pakistan at Karachi against the Province of West Pakistan and others, for a declaration that the order of the Provincial Govern ment was illegal and ultra vires, for an injunction restraining them from recovering the said amount under the summary procedure as laid down in the Ordinance of 1962, and for recovery of Rs. 35,79,938.29 alleged to be due to them from the Government on account of the milling charges. In the alternative, they prayed that accounts may be taken for the entire dealings between them and the Governments, both Central and Provincial.

Along with the plaint they filed a petition for issuance of temporary injunction restraining the Provincial Government from taking action under the West Pakistan Government Dues Recovery Ordinance, 1962, for the recovery of the amount alleged to be due to them.

The learned Single Judge, who heard the petition, expressed his conclusion thus :‑

"After hearing the learned counsel for the parties, I have come to the conclusion that the balance of convenience is in favour of the plaintiffs and this is a fit case for the issue of a temporary injunction against the defendants in respect of the amount of Rs. 63,76,588.24. At the same time, I am of the view that the interest of the defendant‑Government should be safeguarded during the pendency of the suit. I would, therefore, issue a conditional injunction on the plaintiffs furnishing bank guarantee in some suitable amount."

He, accordingly, passed the following order :‑

"I would issue a temporary injunction restraining the defendant‑Governments from recovering the amount in dispute during the pendency of the suit on condition of plaintiffs furnishing bank guarantee in the sum of Rs. 25 lacs within six weeks of the passing of this order towards the claim of the defendant No. 1 Government. This order, however, will not prevent the defendant No. 1 from recovering the bank guarantee of Rs. 35 lacs from Muslim Commercial Bank."

On appeal by the plaintiffs the Letters Patent Bench of the High Court came to the conclusion that as two letters of the plaintiffs‑appellants, dated the 8th June 1966, and the 29th June 1966 could be said to contain admissions as to the dues of the Government, the conditional order of injunction could not be said to be either illegal or improper. The learned Judges were also unable to accept the Mills as security because the Mills were admittedly encumbered and that their income was only sufficient to meet the expenditure. They, accordingly, upheld the order of the learned Single Judge and dismissed the appeal. The plaintiffs‑Mills now seek special leave to appeal against the above order.

Mr. Brohi, the learned counsel for the petitioners, has contended that the Courts having found that the plaintiffs had made out a good prima facie case for the issue of a temporary injunction. should not have passed a conditional order in this case.

He also asked us to enter into the merits of the claims of the parties. We, however, refuse to do so lest it might prejudice either of the parties at the hearing of the suit.

The Letters Patent Bench has virtually agreed with the learned Single Judge that there was a prima facie case for the grant of injunction. Hence the only question is whether they were justified in maintaining the conditional order of injunction that was passed by the learned Single Judge. Rule 2 of Order XXXIX of the Code of Civil Procedure empowers the Court to grant injunction on such terms as to security or other wise as it deems fit and proper, Mr. Brohi has contended that imposition of "such terms" must be reasonable and not such as to make it impossible for the plaintiffs to comply with the terms and thereby virtually deny them the right which they would otherwise be ordinarily entitled to.

From the order of the learned Single Judge it appears that the learned counsel for the petitioners was willing to give a bank guarantee in the sum of Rs. 15 lacs. The Court, however, raised the amount to Rs. 25 lacs. At that time they did not contend that they were not in a position to comply with the said terms. On the contrary, on their prayer the time for furnishing guarantee was extended on three occasions. The learned Judges of the Letters Patent Bench are, therefore, justified in observing that "the objections that have been raised appear to be after thoughts." In view of these facts we are unable to accept the contention that the learned Single Judge has imposed impossible terms in this case. We are, therefore, of the opinion that no case for interference has been made out and we, accordingly, dismiss this petition.

Leave refused.

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