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Suit No. 190 of 1970, decided on 28th May 1970.

D. XXXIX, r. 2--‑Injunc tion‑--Mandatory injunction at interlocutory stage‑--Granted rarely and only to restore status quo and not to create a new irretrievable situation.

The goods of the plaintiff had been confiscated by the custom authorities for contravention of import Trade Regula tions. The plaintiff's prayer for an interlocutory manda tory injunction against the customs authorities for delivery of goods was pressed on the plea that no wilful contravention of the Regulations had been committed and the plaintiff further offered adequate bank guarantee. The prayer was rejected by the High Court observing that the effect of any order directing the customs authorities to hand over the goods to the plaintiff would be to finally undo at the interlocutory stage an adjudi cation and confiscation order passed by the authorities and there would be no retrieving from the position after the goods, which were subject‑matter of confiscation order, are taken away from the custody of the customs authorities and handed over to the plaintiff.

Held : Although the powers of the Court to pass a manda tory injunction in appropriate cases even at interlocutory stage cannot be doubted but such orders are rare and granted only to restore the status quo and not to create a new situation which may be irretrievable or to establish a new state of things different from those which existed at the time the relief was sought.

A I R 1956 Cal. 428 rel.

Nasim Faruqui for Plaintiff.

Naimuddin for Defendants.

Pursuant to the import Schedule published in the Gazette Extraordinary under the house scheme on the 30th of June 1969 the plaintiff obtained an import licence for import of commodities categorised in item 49 of the said import schedule. This item covers medicines, herbs and crude drugs. Column 3 of the Schedule lists the new ITC classification of the items of import appearing therein. In relation to medicines, herbs and crude drugs the new ITC classification is clarified to be items 9/5, 12/7, 13/3(ii). Item 12/7 mentioned hereinabove is described to be plants and parts including seeds and fruits of trees, bushes, shrubs or other plants, being goods of a kind used primarily in perfumery, pharmacy or in insecticidal fungicidal or similar purposes, fresh or dried, whole, cut, crushed, ground or powdered. It has been contended that prior to the 30th of June 1969,' betelnuts used to be imported on a licence granted in relation to the aforesaid item 12/7 of the new ITC Schedule. This was so because item No. 12.07 of the Pakistan Customs Tariff mentions betelnuts under the heading identical with 12/7 of the ITC Schedule.

Pursuant to the aforesaid licence the plaintiff in this case claim to have imported betelnuts. The consignment so imported has been held by the learned Collector of Customs to have been unlawfully imported since the licence of the plaintiff did not cover betelnuts. The defendant's contention is that betelnuts are specifically provided in item 14/5 of the ITC Schedule. Afrer a show‑cause notice issued to the petitioner the learned Collector of Customs on the 16th of February 1970 held the licence not to cover the consignment of betelnuts and ordered confiscation of the consignments. It may be mentioned here that the case of the plaintiff is that no such order of the adjudication and/or confiscation has been served or intimated to them. This order although passed on the 16th of February 1970 purports to have been despatched to the plaintiffs on the 16th of April 1970. There seems to be no reason why the order in question had been withheld for this inordinate length of time, particularly when it sought to deprive the plaintiff of property which otherwise he would have been entitled to.

Be that as it may, the plaintiff's contention is that the proceedings against them notified by the Collector of Customs as well as all orders passed therein are void. Two main reasons have been advanced in support of this contention. The first argument is that it was not a case of wilful default and deliberate contravention of the licence and of the import trade regulations. This argument has been explained by saying that betelnuts have, in the past, been imported under item 12/C of the ITC Schedule, and have been allowed to be cleared by the Customs. It has further been urged that the inclusion of betelnuts in item 12.07 of the Pakistan Customs Tariff along with item 12/7 of the import trade schedule lends support to the case of the plaintiff. Furthermore, this contention is corroborated by the fact that on the 1st of January 1970 when the new import schedule was announced, item 49 relating to medicine and herbs and crude drugs carried a remark in column 5 which explained that betelnuts were specifically classified under new ITC No. 14/5 and that this item did not fall under ITC 12/7. One can hardly understand the necessity or the significance of this remark unless it was designed to remove a possible impression in the minds of the importers that betelnuts were included in a licence under item 49 of the import schedule. It was precisely this aspect which I myself had in mind when in Suit No. 473/69 I had passed an order on the 24th of December 1969 that the goods may be released to the importer subject to his furnishing adequate bank guarantee. This order proceeded on a view that there was scope for legitimate confusion in the minds of the ordinary importer that betelnuts could be imported under item 49 of the import schedule read with item 12/7 of the ITC Schedule, The remarks appearing in column 5 of the import schedule of 1‑1‑1970 also proceed on the understanding that there was room for such confusion. It is. however, unfortunate that in cases of this nature and in the face of an observation of the High Court made in a different case as early back . as 24th of December 1969 the learned Collector of Customs thought it fit to pass a final order not only holding the import to be in contravention of the licence but also confiscating the goods. In this context of the defendant's conduct, Mr. Nasim Faruqui's contention that the orders in question have been passed on instructions issued by the C. B. R. gains significance ; otherwise it is difficult to believe that the Collector of Customs would have pursuaded himself to adjudicate finally on the issue when the same did not appear even to the High Court to be free from difficulty.

This aspect of the case will not, however, help the plaintiff's case. Rightly or wrongfully the adjudication has been made and the confiscation order passed. The relief now sought from me is of a mandatory order directing the defendants to deliver the confiscated betelnuts to the plaintiffs. My decision dated 24th of December 1969, in Suit No. 473/63, has been relied upon as a precedent. 1, however, feel that this cannot properly be a precedent for the simple reason that in that case neither the adjudication had been made nor a confiscation order passed. The facts here are totally different. The effect of any order directing the defendants to hand over the betelnuts to the plaintiff would be to finally undo at the interlocutory stage an adjudication and confiscation order passed by the Collector of A Customs. In other words there would be no retrieving from the position after the goods, which were subject‑matter of the confiscation order, have been taken away from the custody of the authorities and hand over to the plaintiffs. Although the powers of the Court to pass a mandatory injunction in appropriate cases even at interlocutory stage cannot be doubted but as held in a case reported in A I R 1956 Cal. 428 such orders are rare and granted only to restore the satus quo and not to create a new situation which may be irretrievable or to establish a new state of things different from those which existed at the time the relief was sought. Mr. Nasim Faruqui, the learned counsel for the plaintiff, however, signified his client's willingness to tender adequate bank guarantee. This offer will not, to my mind, alter the complexion of the case for the reason that a bank guarantee may be of use in effecting recovery of any penalty that may be imposed upon the plaintiff. It can, however, be of no effect in retrieving or restoring the: confiscated goods to the Customs. The action that may be taken against a contravention of the import trade regulations is not merely an imposition of a penalty but also confiscation of goods. Thus the provision of a bank guarantee is not an answer to the problem which besets this case.

For the reasons discussed above, I am of the view that this is not an appropriate case for issuing a mandatory injunction of the nature prayed for. However, there is an earlier order passed by my learned brother, Dorab F. Patel, J. that no further action will be taken in respect of the goods in question. This order will continue to have effect. The suit of the plaintiff revolves merely round an interpretation of the Import Trade Regulation. It is possible that the plaintiff may succeed in the case. The ends of justice would be served by directing that the present suit along with the other suits connected therewith and involving the same point should be disposed of in the month of September 1970. All steps necessary for the final disposal of the suits should be taken by the parties before the date.

A. E. Order accordingly.

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