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Civil Petition for Special Leave to Appeal No. 170 of 1969, decided on 9th June 1969.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 20th May 1969, in Civil Revision No. 385 of 1968).
O. XXXI, r. 1‑Temporary injunction‑Lower Court not found to have misused discretion in refusing injunction‑Order not interfered with by Supreme Court Suit for declaration that surcharge levied under Cement Surcharge Ordinance (XLVII of 1961), was illegal‑Temporary injunction restraining Government from recovery would be hit by provisions of S. 56(d), Speck Relief Act, 1877‑Specific Relief Act (I of 1877), S. 56(d)‑Cement (Surcharge) Ordinance (A VII of 1961).
Raza kazim, Advocate Supreme Court instructed by Masud Akhtar, Attorney for Petitioner.
Nemo for Respondent.
Date of hearing : 9th June 1969.
This petition for special leave to appeal arises out of a prayer for a temporary injunction in a civil suit which the petitioner‑company has filed in the Court of the Senior Civil Judge, Rawalpindi, for a declaration that the surcharge levied at the petitioner at Rs. 7 per ton for production of cement under the Cement (Surcharge) Ordinance (Ordinance No. XLVII of 1961), (hereinafter described as the Ordinance), was illegal. The amount of the surcharge which is now in demand by the Government from the company is to the tune of Rs. 54,34,000 for which a prayer for temporary injunction was made to restrain the Government from its recovery. The Courts below have refused this injunction and this petition is directed against that refusal.
In the beginning the company paid the disputed surcharge after it was included in the Schedule to the Ordinance by a notification dated the 14th of December 1965, thus making it liable for payment of the surcharge as a scheduled company under the Ordinance. Subsequently, the validity of the Ordinance and the levy of the surcharge were challenged by the petitioner company in a writ petition which, however, was withdrawn after it had been admitted to a full hearing. It is not necessary to examine the grounds on which the levy has been challenged as they are sub judice between the parties in the main suit.
The trial Judge has refused the temporary injunction on the ground that no irreparable loss would accrue to the company if the injunction is refused, because it would be entitled to claim refund of the surcharge in spite of its recovery if it is ultimately found to be illegal. In appeal, the learned District Judge has concurred in this view, although he has also said that the constitutionality of the impugned Ordinance is a moot point.
In revision, the learned Single Judge has come to the conclusion that the company has neither got a prima facie case nor is the balance of convenience on its side as it would not sustain an irreparable injury by failing to obtain an injunction.
The grant of a temporary injunction or its refusal is primarily a discretionary relief. It cannot be said in the present case that the three Courts below, all of which have 'refused to exercise the discretion in the petitioner's favour, have misused the discretion or acted in an arbitrary manner. It may be mentioned here that under section 56(d) of the Specific Relief Act, an injunction' cannot be granted to interfere with the public duties of any department of the Central or of the Provincial Government. The grant of a temporary injunction in this case would obviously have resulted in holding up the payment of public revenues which are being demanded by the Central Government from the petitioner. Again, the refusal of the injunction would not cause an irreparable injury to the petitioner‑company, which is an important consideration for the grant or refusal of temporary injunctions. If the suit of the petitioner succeeds and the levy is found to be without jurisdiction, it would be entitled to recover it from the Government even if it is made to pay it in the meanwhile.
The petition is dismissed.
Leave refused.
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