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Civil Petition for Special Leave to Appeal No. 290 of 1973, decided on 22nd November 1973.

(On appeal from an order of the Lahore High Court, made on the 2nd of April 1971, in Civil Revision No. 216 of 1971).

(a) Civil Procedure Code (V of 1908)‑

---O. XXXIII, rr. 2 & 8 read with O. XXXIX, rr. 1 & 2‑Pauper suit‑Application to sue in forma pauperis‑--To be treated as a plaint only after grant of necessary permission‑Provisions of O. XXXIX Cannot be invoked for grant of temporary injunction at such stage.

The application to sue in forma pauperis is to be treated as a plaint under rule 8 of Order XXXIII, only after the necessary permission has been granted. Before the grant of such permission, there is no plaint before the civil Court, and therefore, the provisions of Order XXXIX could not be invoked for the grant of a temporary injunction at this stage.

(b) Civil Procedure Code (V of 1908)‑

---O. XXXIX, rr. 1 & 2‑Injunction‑No demand certificate executed by Managing Director of plaintiff Company prima facie evidencing full payment of plaintiff's claim by defendants‑Plaintiff cannot be said to have prima facie case for issue of temporary injunction against defendant unless presumption of genuineness attaching to such ‑r documents dislodged.

Mohammad Asghar Khadim, Advocate instructed by Abdul Karim, Advocate‑on‑Record for Petitioner.

Khalilur Rehman Khan, Advocate instructed by Maqbool Ahmad Qadri. Advocate‑ on‑Record for Respondent No. 1.

Muhammad Hussain Choudhary, Advocate instructed by Masood Akhtar, Advocate‑ on‑Record for Respondent No. 2.

Date of hearing : 22nd November 1973.

ANWARUL HAQ, J.‑

The petitioner‑Company, acting through its Managing Partner, Capt. Zaheeruddin Macci, filed an application in the Court of a Civil Judge of the 1st Class at Lahore for permission to sue the respondents in forma pauperis for the recovery of Rs.7,60,200 plus interest on account of the sums due to it as a sub‑contractor under respondent No. 1 for the construction of certain buildings connected with the Chashma Barrage. Along with this application, an application under Order XXXIX, rules 1 and 2 and section 151 of the Code of Civil procedure was also presented for a temporary injunction against respondent No. 2, i.e., the Water and Power Development Authority, not to finalize the bills payable to respondent No. 1 till the final disposal of this case.

It was alleged by the petitioner that the respondent No. I was a foreign‑firm and was likely to leave Pakistan after winding up its affairs owing to the impending completion of the Chashma Barrage.

The application was resisted by the respondents on the ground that unless permission was granted to the petitioner to sue in forma pauperis, there was no suit pending in the civil Court and accordingly no temporary injunction could issue; that even otherwise the petitioner had no case for the reason that on the 30th of December 1967 the Managing Partner, Capt. Zaheeruddin Macci and one Mr. R. A. Malik had received from respondent No. 1 a sum of Rs. 75,000, in full and final settlement of their bills, and had signed a no‑demand certificate. The question of the jurisdiction of the civil Court at Lahore was also raised on the ground that according to the agreement between the parties, the dispute was triable only by the Courts at Mianwali.

The trial Court refused to grant the temporary injunction prayed for and dismissed the application. Thereupon, the petitioner filed a revision petition in the High Court which was dismissed by a learned Single Judge by his order dated 2‑4‑1971.

Leave to appeal is sought on the ground that the Courts below have not given due weight to the circumstances narrated by the petitioner under which he was compelled to sign a receipt for Rs. 75,000, as well as the no‑demand certificate, viz., that the Managing Partner of the firm was subjected to criminal force. It is next submitted that respondent No. 1 is in fact in the final stages of winding up his business in Pakistan and that once it leaves the country, it would become impossible for the petitioner to recover his dues from this respondent. It is finally contended that the learned Judge in the High Court was in error in observing that the petitioner did not have a prima facie case, as this observation was likely to prejudice the petitioner's case in the trial Court.

The learned counsel, who have entered a caveat on behalf of the respondents, submit that the necessary payment was received by the Managing Partner of the petitioner as long ago as the 30th of December 1967, that a suit filed in 1968 was withdrawn, and that the present suit was not instituted until the 20th of October 1970, that is nearly three years after the alleged use of criminal force for obtaining the no‑demand certificate etc. It is also submitted that until such time as permission is granted to the petitioner to sue in forma pauperis it cannot be said that any suit is pending and, therefore no temporary injunction could issue.

After hearing the learned counsel for the parties, we are satisfied that the Courts below were right in refusing to grant a temporary injunction. It will be seen that the application to sue in forma pauperis is to be treated as a plaint under rule 8 of Order XXXIII, only after the necessary permission has been granted. Before the grant of such permission, there is no plaint before the civil Court, and therefore, the provisions of Order XXXIX could not be invoked for the grant of a temporary injunction at this stage.

Even otherwise, we find that on merits the temporary injunction was rightly refused. The receipt and the no‑demand certificate executed by the Managing Partner of the petitioner. Company on the 30th of December 1967 s are prima facie evidence that nothing is due to the petitioner. Until such time as the presumption of genuineness attaching to these documents is dislodged by the petitioner, it is difficult to hold that he has a prima facie case in his favour.

For these reasons, no justification is made out for our interference in the matter. The petition is therefore hereby dismissed with costs to the caveators.

Petition dismissed.

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