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Miscellaneous Appeal No. 17 of 1950, decided on 5th October, 1950.

O. XXXIX, r. 2 "Any suit for restraining the defendant"‑Expression does not cover suits other than those in which injunction is one of the reliefs prayed for‑‑Prayer in. plaint asking for an injunction against Province of Sind restraining it from calling upon a certain constituency to elect a member to the Sind Legislative Assembly‑Prayer not sustainable by reason of S. 56 clause (d), Specific Relief Act (I of 1877)‑Suit not one for restraining defendant‑O. XXXIX, r. 2 inapplicable‑Statutory bar against permanent injunction, whether necessarily a bar to issue of temporary injunction.

It is quite impossible to construe the words "any suit for restraining the defendant" as covering suits other than those in which an injunction is one of the reliefs prayed for.

In order to bring his application for temporary injunction under Order XXXIX, Rule 2, the plaintiff relied on the prayer in plaint in which an injunction upon the defendant No. 1, the Province of Sind, was sought restraining the defendant from calling upon the Muhammadan Rural South Dadu Constitu ency to elect a member to the Sind Legislative Assembly. But this prayer was not sustainable by reason. of clause (d) of section 56 of the Specific Relief Act, which forbids the granting of any injunction which would "interfere with the public duties of any department of the Government of Pakistan or the Local Government...:"

The prayer therefore could not be taken into consideration for determining the nature of the suit as one for an injunction.

It was, however, not possible to agree with the view that no interim injunction could be granted against the Province of Sind merely because the perpetual injunction, prayed for as one of the reliefs, could not be ordered at the end of the suit. The considerations upon which a Court may grant or refuse to grant an interim injunction, pending the disposal of the suit, may be, and often must be, entirely different from the consi derations upon which a Court may grant or refuse to grant a perpetual injunction at the end of the suit. As laid down in section 53 of the Specific Relief Act, temporary injunctions are regulated by the Code of Civil Procedure.

Rijhumal Bhavnani, for Appellant.

Inamullah, for G. M. Sayed.

Fatehchand Assudomal, A. G. of Sind, for the Province of Sind.

‑We have heard Mr. Fatehchand for the Province of Sind and Mr. Bhavnani for the plaintiff appellant, Kazi Muhammad Akbar, at a very great length. We have also heard Mr. Inamullah on behalf of Mr. G. M. Sayed.

It is clear that the appellant has a very arguable prima facie case. Before, however, the appellant can succeed in showing that he is entitled to a temporary injunction, he must show that either Rule 1 or Rule 2 of Order 39 Civil P. C. applies here. Mr. Bhavnani has indeed made an attempt, a somewhat faint attempt, at arguing that Rule 1 applied, but it is quite clear that it does not. His main argument was that Rule 2 applied, and it became necessary for Mr. Bhavnani to contend that the appellant's suit was "a suit for restraining the defendant." For this purpose, Mr. Bhavnani relied on prayer (b) in the plaint in the suit, in which an injunction upon the defendant No. 1, the Province of Sind, was sought restraining the defendant from calling upon the Muhammadan Rural South Dadu Constituency to elect a member to the Sind Legislative Assembly. But this prayer, it is clear, is not sus tainable by reason of clause (d) of section 56 of the Specific Relief Act, which forbids the granting of any injunction which would "interfere with the public duties of any department of the Government of Pakistan or the Local Government . . . ." This prayer cannot therefore be taken into consideration.

Mr. Bhavnani argued that even if that prayer be regarded as struck off, the suit ought still to be considered as a suit for restraining the defendant. He argued that even if the appellant succeeds in obtaining a declaration that the Tribunal, challenged in the suit, was not properly constituted and was, therefore, incompetent, the effect of the declaration substan tially would be to prevent the defendants from causing injuries which are otherwise likely to be caused to the appellant. We find it quite impossible to construe the words "any suit for restraining the defendant" as covering suits other than those in which an injunction is one of the reliefs prayed for. It follows therefore that Rule 2 also does not apply here. The plaintiff's application must therefore necessarily be rejected.

Mr. Inamullah pointed out that the interim injunction sought against Mr. G. M. Sayed, restraining him from seeking to be elected at the election which it is proposed to hold, would be a wholly unjustifiable interference with his rights, and Mr. Bhavnani has not even attempted to meet that objection.

A very large number of other questions arising in the suit were discussed before us. It appears to us to be quite un necessary to refer to them here. We may, however, mention, that we are not in agreement with the view that no interim, injunction could be granted against defendant 1, merely, because the perpetual injunction, prayed for as one of the reliefs, could not be ordered at the end of the suit against defendant 1. It appears to us to be clear that the considerations upon which a Court may grant or refuse to grant an interim injunction, pending the disposal of the suit, may be, and often must be, entirely different from the consideration upon which a Court may grant or refuse to grant a perpetual injunction at the end of the suit. As is clearly laid down in section 53 of the Specific Relief Act, temporary injunctions are regulated by the Code of Civil Procedure.

For the reasons stated above, we dismiss this application with costs and discharge the rules which have issued.

A. H.

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