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Civil Appeal No. 21 of 1968, decided on 1st December 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 15th July 1966, in Civil Revision No. 37 of 1966).

O. XXXIX, r. 1 and Specific Relief Act (I of 1877), S. 56(d)‑Injunction, grant or refusal of‑Government servant‑Seniority‑Suit by Government servant challenging new seniority list and seeking declaration that he could not be reverted to his former post‑Prayer for temporary injunction to stay hands of Government from reverting him during pendency of suit‑Factors to be borne in mind in granting or refusing such injunction‑Court to seriously consider whether it would be right to issue injunction to public department and disturbing thereby its working.

The Board of Revenue determined the seniority of the Excise and Taxation Sub‑Inspectors under rule 11 of the former N. W. F. P. Excise Subordinate Service Rules. Thereafter one S, an Inspector, Excise and Taxation, was served with a show cause notice and reverted to his substantive post of Excise and Taxation Sub‑Inspector and in his place one U was appointed as Inspector, Excise and Taxation. S thereupon, filed a declaratory suit and meanwhile prayed for a temporary injunc tion praying to stay the hands of the Government from reverting him during pendency of the suit. The Senior Civil Judge granted the injunction but on appeal the District Judge vacated the same. The High Court in revision, however, reversed the order of the District Judge and restored that of the first Court.

Held, the Additional District Judge has in a very compre hensive and carefully written order, considered all the relevant features of this case, in the light of the well‑settled principles for the grant or refusal of temporary injunctions in accordance with law, which are, firstly, whether the plaintiff has a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of the injunction, and thirdly, whether the plaintiff would suffer an irreparable loss if the injunction is refused. On the point whether the respondent had a prima facie good case, the Additional District Judge has very relevantly referred to the fact that a challenge to the new seniority list which was impugned in the declaratory suit, as well as to the formula on which it is based, has failed in the writ petition filed in the High Court as also in the appeal preferred in. this Court This list obviously holds the field, unless the plaintiff succeeds in showing in his suit that it is illegal having been prepared against the statutory rules governing the matter of seniority, or that it is otherwise factually unmaintain able. If the plaintiff‑respondent's suit succeeds ultimately, the interim wrong done to him by his reversion will be set right for which he can also be adequately compensated and the wrong can also be monetarily compensated for. Therefore, the third consideration for the grant of a temporary injunction to him is also not satisfied in his case. In the circumstances, even on the second consideration it cannot be said that by with holding the Government's orders regarding his reversion and upsetting the administrative arrangements made by it in its routine duties, the balance of convenience lies in setting those orders at naught. In this connection, the Additional District Judge has also referred to clause (d) of section 56 of the Specific Relief Act which prohibits the grant of an injunc tion which interferes with the public duties of any Department of the Central Government or the Provincial Government. A further consideration that very rightly weighed with the Additional District Judge was that the respondent had been reverted by an order dated the 18th of November 1965, whereas his suit was instituted on the 20th of November 1965, two days thereafter. Under Order XXXIX, rule 1 of the Civil Procedure Code, status quo can be maintained between the parties in accord ance with the situation as it obtains at the time of the institution of the suit and not to a point of time prior thereto. It is not correct to say, as ‑remarked by the Single Judge in, the High Court, that the bar under section 56(d) of the Specific Relief Act was the main consideration which had weighed with the Additional District Judge to vacate the temporary injunction. The Single Judge in dealing with the bar under section 56(d) has relied on a decision of Kaikaus, J., as he then was, in the case of Ahmad Din and others v. Faiz All and others P L D 1954 Lah. 414, wherein it was held that if the jurisdiction to issue a temporary injunction is referable to inherent power, it cannot be taken away by section 56 of the Specific Relief Act. With all respect, even if it were to be accepted that section 56 does not limit the inherent power of a Court to grant temporary injunction, it cannot be said that in the exercise of those inherent powers it will not be a serious matter for the Court's consideration whether it would be right to issue an injunction to a public department which would obviously disturb its working and it would not do so unless compelling reasons demand that course.

Ahmad Din and otherv v. Falz Ali and others P L D 1954 Lah. 414 considered.

O. XXXIX, r. 1 ---Temporary injunction‑Principles for grant or refusal of.

The well‑settled principle for the grant or refusal of tempo rary injunctions are, firstly, whether the plaintiff had a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of injunction and thirdly, whether the plaintiff would suffer irreparable loss if the injunction is refused.

S. 115 & O. XXXIX, r. 1‑Revisional powers under S. 115 primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction‑Discretionary orders of subordinate Courts cannot be interfered with unless found fanciful and arbitrary.

Ghulam Mujaddid Mirza, Senior Advocate Supreme Court instructed by Khalil‑ur‑Rahman, Advocate‑on‑Record for Appel lant.

Muhammad Shafi Sheikh, Senior Advocate Supreme Court instructed by Muhammad Nazar Khan, Senior Attorney for Respondent No. 1.

Raja Said Akbar, Advocate‑General West Pakistan (Ihsan‑ul Haq, Advocate Supreme Court with him) instructed by Ijaz Alt Attorney for Respondent No. 2.

Date of hearing : 1st December 1969.

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