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-- O. XXXIX, rr. 1 & 2 and S. 151-Temporary injunction Balance of convenience-Contract for supply of water for poultry farm by District Council Authority - Disconnection of water supply on ground that water was being utilized for purpose of planting orchards-Contract not providing any condition that if plaintiff used water for any other purpose supply of water would be liable to be disconnected-- Report submitted by Engineer of District Council showing that 250 to 300 birds were kept in there when he inspected farm of plaintiff-Balance of convenience also in favour of plaintiff for if water supply was not restored it was he and he alone who would suffer inconvenience and also damages which would be difficult to measure for want of any proper standard and defendant shall not suffer any inconvenience or loss-Plaintiff, held, made out a prima facie case and his case was such in which interim mandatory injunction ought to be granted, for action of disconnecting water supply if reversed would not be such that it would require any special efforts or expenses-Grant of interim injunction had become all the more necessary for main case would ordinarily take 6 or 7 years for decision-Order for interim injunction in mandatory form was passed directing defendant to restore water supply of plaintiff with condition that plaintiff would not -use water for any purpose other than for which he had originally applied-Plaintiff if committed breach of such Condition, defendant would be entitled to apply for vacation of interim injunction.

Robinson v. Byron (Lord) 1 Bro. C. C. 589 ; Champsev Bhimji & Co. v. The Jamna Flour Mills Company Ltd. 28 I C 121 ; M. Kandaswami Chetty v. P. Subrampnia Chetty I L R 41 Mad 208 ; Rasul Karim v. Pirubhai Atnirhhai I L R 38 Born. 381 ; Shahzada Muhammad Umar Beg v. Sultan hfahmood Khan and another P L D 1970 S C 139 ; Province of West Pakistan through the Deputy Commissioner, Hyderabad and another v: Malik Asghar Khan 1971 S C M R 569 ; ATashkoor Khan and others v. Province of Sind and others 1971 S C M R 572 ; Aboo Noor Muhammad v. General Iron & Steel Works Ltd., Karachi P L D 1973 Kar. 234 and Salahuddin Khan and 3 others v. Sultan-e-Rome and 10 others P L D 1973 Pesh. 95 t ef.

(b) Civil Procedure Code (V of 1908

--0. XXXIX, rr. 1 & 2-Injunction in mandatory form could be granted at interim stage-Such grant was to be made rarely depend ing upon nature and special circumstances of each case-- Care has to be taken that if plaintiff ultimately fails in suit he does not get any advantage of permanent nature for mandatory injunction at interim stage, same as in case of prohibitory injunction, would be granted only when he makes out a prima facie case and also shows that balance of convenience was in his favour and he will suffer irreparable injury.

Robinson v. Byron (Lord) 1 Bro. C. C. ,589 ; Chhmpsey Bhimji & r6., v. The Jamna Flour Mills Company Ltd.' 28 1 C 121 ; M. Kandaswami Chetty v. P. Subramania Chetty I L R 41 Mad 208 ; Rasul Karim v. Pirubhai Amirbhai I L R 38 Bom. 381 ; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139 ; Province of West Pakistan through the Deputy Commissioner, Hyderabad and another v. Malik' Asghar Khan 1911 S C M R 569 ; Mashkoor Khan and others v. Province of Sind and others 1971 S C M R 572 ; Aboo Noor Muhammad v. General Iron & Steel Works Ltd., Karachi P L D 1973 Kar. 234 and Salahuddin Khan and 3 others v. Sultan-e-Rome arid 10 others P L D 1973 Pe4sh. 95 ref.

(c) Civil Procedure Code (V of 190d)-

-- O. XXXIX, rr. 1 & 2-Specific Relief Act (I of 1877), Ss. 53 & 56-Temporary injunction, grant of--Conditions mentioned in S. 56, Speci c Relief Act, 1877 have to be taken into consideration even at stage of granting injunction under S. ,53, Specific Relief Act, 1877 read With O. XXXIX, rr. I & 2, C. P. C.

Robinson v. Byron (Lord) 1 BKo. C. C. 589 ; Champsey Bhimji & Co. v. The Jan:na Flour Mills Company Ltd. 28 I C 121 ; M. Kdndaswami Chetty v. P. Subramania Chetty I L R 41 Mad. 208 ; Rasul Karim v. Pirubhai Amirbhai (1914) 1 L R 38 Bom. 381 ; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and ,another P L D 1970 S C 139 ; Province of West Pakistan through the Deputy Commissioner, Hyderabad and another v. Malik Asghar Khan 1971 S C M.R 569 ; Mashkoor Khan and others v. Province of Sind & others 1971 S C M R 572 ; Aboo Noor Muhammad v. General Iron and Steel Works Ltd., Karachi P L D 1973 Kar. 234 and Salahuddin Khan and 3 others v. Sultan-e-Rome and 10 others P L D 1973 Pesh. 95 ref. .

Saeeduz Zaman SfdAdiqui for Plaintiff.

Rehanul Hassan Faruqui for Defendant.

The plaintiff has brought this suit against the Chairman, District Council, Gulshan-e-Iqbal, Karachi praying for declaration that the disconnection .,of the water supply from the plaintiff's .poultry farm on - or about 24th April, 1979 by the defendant is illegal, mala fide and is, based on extraneous consideration and that the defendant has no right to discon nect the water supply so long the plaintiff was -paying the water charges and fulfilling all other conditions of the contract, and for permanent mandatory injunction directing the defendant to restore the water supply to the poultry farm of the plaintiff.

The plaintiff has also filed an application under Order XXXIX,

rules, 1 and 2, C. P. C. read with section 151, C. P. C. praying for direction to the defendant to restore the water supply on the poultry farm of the plaintiff.

The case of the plaintiff in brief is as follows :That he is the allotee of 50 acres of land bearing Survey No. 119-C, DehTor, Tappo Khonkar near Poultry Estate No. 1 Karachi District, and has converted about one acre out of the said land into a poultry farm and is running a regular poultry farm thereon. The rest of the area is being utilized by him for fruit plantation. He on or about 18th September, 1976 applied to the Commissioner, Karachi for J" diameter water line for the portion of the land where the plaintiff is running a poultry farm. Thereon correspondence ensued and ultimately on the second application dated 18th December, 1976, of the plaintiff, the Commissioner, Karachi sanctioned diameter water connection for the poultry farm subject to the condition that the plaintiff would deposit Rs. 15,000 with the Deputy Collector, East towards connection charges. The- sanction was communicated by the District Engineer, Peoples District Council, Karachi No. 12; vide his letter No. DEK/(75-76)/466-67, dated the 14th February, 197;', Annexure C' to the plaint. Accordingly he deposited the amount and laid the water pipeline at a cost of Rs. 1,00,000 from the water main to the poultry farm. Since the time water connection was provided he has been regularly depositing water charges. It is alleged that for the purposes of providing water to the rest of the land where he has planted large number of mango, dates and other fruit trees, he has provided one windmill and one well.

However, on or about 13th February, 1979, he received a letter from the District Engineer, District Council, Karachi alleging that he was not running any poultry farm on the plot of land and that water was being used for raising fruit plants. He denied the allegations. According to him this action was taken on the false complaint of some of the owners of the adjoining poultry farms. On receipt of the letter he sent a telegram to the Commissioner of Karachi requesting him to intervene and inspect the site to see if he was running a poultry farm or not. This telegram was followed by further correspondence, meetings and inspections carried on by the District Engineer.

The plaintiff's grievance is that he was not communicated with the result of the inspection and without giving any opportunity to him, the defendant on 24th April, 1979, illegally and without any justification disconnected the water supply to his poultry farm. He has therefore, challenged the action of the defendant in the present suit as being mala fide, illegal and is based on extraneous considerations.

Notice of the injunction application was issued to the defendant, M. M. Usmani, Commissioner of Karachi and Chairman, District Council, Karachi has filed a counter-affidavit wherein besides raising the legal pleas which I propose to deal with later, he has stated that no poultry farm on the plot in question was ever established by the "plaintiff at any material time and water supply was being used by the plaintiff for mainthining orchard. It is further stated that the plaintiff had tampered with the J" diameter of water supply line by replacing water pipe of about 1" diameter line with the result that 109 poultry farmers, spread over an area of 436 acres of land for whom the main water supply line was actually meant, suffered greatly and felt acute shortage of water supply to them. It is also stated therein that because of the illegal, and stealthily replacement of the water pipeline by the plaintiff, the water pipeline was disconnected on 1st November, 1977 after serving notice dated 12-9-1977 for which no satisfactory reply from the, plaintiff was received. However, the same was restored on 16th November, 1977, on the plaintiff agreeing to pay for the extra water received through I' diameter-, pipeline. It is also stated that alongwith notice dated 12th September, 1977 a draft agreement was gent which the plaintiff has not returned. It is further stated that on receipt, of complaints an Officer of the District Council, Karachi again visited the' plaintiff's farm on 1st February, 1979 and found even then no farm was in existence but an electric pump had actually been installed to suck the water from the main line to the detriment and prejudice of other poultry farmers. Consequently a show-cause notice was given to the plaintiff as to why water connection granted to him be not disconnected. It is further stated that thereafter, the plaintiff was asked to be present in a meeting with the defendant and other poultry farmers who were being adversely affected by the f diameter line of the water supply and installation of electric motor and it was reported and discussed in the said meeting that the plaintiff had no poultry farm, whatsoever. It was further indicated in the meeting that the alleged poultry farm of the plaintiff i. e. the area for which he wanted the water supply was not situated within the Poultry Farm Estate. It was, therefore, decided that the Engineer of the District Council should visit the state and submit his report which was done. From the report it was found that on 12th April, 1979, the plaintiff had brought 250 to 300 birds, and a shed to preserve them was still under construction and it was under these circumstances and on the persistent demand of the poultry farmers who were also present in the meeting that the disconnection of the water supply to the plaintiff was ordered and the disconnection was affected.

I have heard Mr. Saeeduz Zaman Siddiqui learned counsel for the plaintiff in support of the application and Mr. Rehanul Hassan Faruqui, Advocate for the defendant, to reply.

It was submit" by Mr. Saeeduz Zaman Siddiqui, Advocate that contract of supplying water through ,) diameter pipeline is not denied and that-there was no condition in the contract that water could not be used for the purposes other than poultry farm. In this connection Mr. Saeeduz Zaman Siddiqui,- Advocate relied on the letter dated 14th February, 1977 from the District Engineer, District Council, Karachi wherein the only condition imposed for grant of water connection was that the plaintiff would deposit Rs. 15,000 towards the connection charges and no other condition was llrtposed for giving water connection and, therefore, he argued, the water supply could not be disconnected even if the allegation that the water was being used for purposes other than for which it was granted was true though he vehemently denied the truth of the allegation that the water was being used for the purposes other than for which it was sanctioned. Accordingly, it was submitted by Mr. Saeeduz Zaman S-iddiqut, Advocate that the plaintiff had made out a prima facie case for grant of temporary -injunction in mandatory form. Mr. Saeeduz Zaman Siddiqul, Advocate submitted that mandatory injunction at ad interim stage could be granted. He referred to Robinson v. Byron Lord (1 Bro.589). In this case Lord Byron who had large pieces of water in his park, supplied by the stream which flowed to the mill, had at one time stopped the water, and at another time let in the water in such quantities as to endanger __the mill. It was shown that his object in these proceedings was to obtain money from the plaintiff. On these facts injunction was issued by Lord Chancellor to restrain Lord Byron from using dam, weirs, shuttles, flood-gates and other erections, otherwise than he had done before the action was brought.

Reference may also be bad to Champsey BhimJi & Co. v. The Jamna Flour Mills Company Ltd. (281 C 121) wherein a Division Bench of Bombay High Court while considering the provision of Order XXXIX, rule 2 had ruled that a Court has power under the said provision to remedy an injury for wrong by a mandatory injunction-an an interlocutory application. The facts of this case were that plaintiffs were the lessees of certain premises for the unexpired period of a term of ninety nine years from t(te, Ist of April, 1905 except the last eleven days thereof. The defendants/lessors had convenanted to make and construct within one month from the date of the lease, and at their, own expense keep and maintain, two pacca roads, each of the width of frty feet the one leading from Mount Road to the premises leased to the plaintiffs and the other from the Rose Cottage Lane as'shown in the plan annexed to the lease. The lessees were to have complete right of way and access thereon, for themselves and their agents and for carts, vehicles, etc., at all times and for all purposes. The lessors in May last blocked up the road leading from the gate in the plaintiffs' premises to Rose Cottage Lane, as shown in the photographs exhibited in the motion. Plaintiffs asked for grant of an injunction for removing any debris on the road and from raising the level thereof to. a greater height than before so as to prevent the plaintiffs from making use of it as before. It was quite clear from the affidavits, filed in that case that the defendants had then, in breach of their covenant prevented plaintiffs from having access to the road leading from the premises leased to the Rose Cottage Lane.

It was observed by Davar, Acting C. J., at page 121 of the report

"Having regard to the very clear wording of order XXXIX,' rule 2, and to the fact that this Court has always exercised the power of remedying an i%ry or wrong by a mandatory injunction on an interlocutory application, I have no doubt whatever that this Court has power to make a mandatory order on an interlocutory application. If the Court had no such power it would be in the power of party to cause insufferable inconvenience and grave injury to another during the whole time that would elapse between the commission of the wrongful act and the hearing of the suit filed to remedy the wrong and redress the injury."

Concurring with the learned Acting, C. J., Heaton, J. observed

"I only wish to add that whatever view may be taken of the general question of mandatory injunctions under Order XXXIX, rule 2, I think this injunction must be maintained. It is in form a restraining injunction and though in effect it may require the defendant' to undo some part of that which he has already done, I do not think its effect is such as to pass outside the kind of relief which, I believe, is intended to be given by rule 2 of Order XXXIX. I speak having regard to the particular facts of this particular case."

Mr. Saeeduz Zaman Siddiqui Advocat6 also relied on M. Kandaswami Chetty v. P. Subramania Chetty (ILR 41 Mad. 208) wherein a Division Bench of the Madras High Court held that the Court has power to grant interim mandatory injunction 'under Order XXXIX, rules 1 and 2, C. P. C. In this case an application was moved praying for removal of an obstruction which had been put up'by the defendant shortly before the suit which prevented the flow of light and air through a window in- the second compartment of plaintiff's house. Dissenting from the opinion expressed by Beaman, J. in Rasul Karim v. Pirubhai Amirbhai (I L R 38 Bom.381), it was observed :

On the other hand it was submitted by Mr. Rehanul Hassan Faruqui, Advocate that the plaintiff has not made out any prima facie case and that do mandatory injunction could be granted at interim stage and that if such an order is passed it would amount to interference with the working of the District Council, Karachi which is not permissible under section 56 (d) of the Specific Relief Act. He referred to Shahza4a Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 S C 139), Province of West Pakistan through the Deputy Commissioner, Hyderabad and another v. Malik Asghar. Khan (1971 S C M 569), Mashkoor Khan and others, v. Province of Sind and others (1971 S C M 572), Aboo Noor Muhammad v. General Iron )&c steel Works Ltd., Karachi (PLD 1973 Kar.234) a'nd' Salahuddin Khan trnd 3 others v. Sultan-e-Rome and 10 others (PLD 1973 Pesh.95), wherein. the principles of granting or refusal of temporary injunction are stated which are firstly, whether the plaintiff has a prima facie gdod case ; secondly, whether the balance of, convenience lies in favour. of granting an injunction ; and thirdly, whether the plaintiff would suffer irreparable loss if injunction is refused. Mr. Faruqui also relied on Shahzada Muhammad Umar Beg (supra) in support of his submission that the Courts are required to seriously consider whether it Would be right to issue injunction to public department and disturb thereby its working. He relied on the case of Salahuddin Khan and 3 others (supra) in sppport of his contention that ,where the act complained of has been done and completed no injunction could issue.

After having examined the facts for the purpose of interim relief and noticing tae respective submissions of the learned counsel for the parties, I am of the- opinion that the plaintiff has made out a prima facie case for firstly, the contract does not, provide any condition that if the, plaintiff use A water for any other purpose, he supply of water would be liable to be disconnected, secondly, the report submitted by the Engineer of the District Council shows that 250 to 300 birds were there when he inspected the farm of the plaintiff.

Further, when I examine the facts of the case in the light of the principles for granting temporary injunction I find that the .balance of convenience is also in favour of the plaintiff for if the water supply is not restored it is he and he alone who would suffer inconvenience and also damages which, I think would be difficult to measure for want of any proper standard and the defendant shall not suffer any inconvenience or loss for the water will be supplied as before, only to a limited extent through I" diameter pipeline and if supply is restored to the extent .sanctioned the other parties would also not suffer. However, in my view, it would be necessary, while granting the application that the plaintiff be put to terms which I propose to state at the conclusion of this order.

I may mention that the cases cited by, the learned counsel for the plaintiff do rule that in exception cases injunction in mandatory form could be granted at interim stage. No doubt such grant is to be made rarely depending upon the nature of the case anti special circumstances of each case. But care has to be taken that if plaintiff ultimately fails in the suit,' he does not get any advantage of premanent nature for mandatory injunction at interim stage-same as in case of prohibitory injunction-would bed granted only when he makes out a prima facie case and also shows that they balance of convenience is in his favour and he will suffer an irreparable injury and not otherwise.

The contention of the learned counsel for the defendant that the act complained of has been completed and, therefore, no injunction could be issued has no force in view of the cases referred to above and the present case is one of those in which interim mandatory injunction ought to be granted for the defendant has as- stated at the bar without any controversion, disconnected the supply of water by closing the valve and this action if reversed would not be such that it would require any special efforts or expenses and the grant of interim relief of the nature sought has become all the more necessary for the main case will ordinarily take-6 or 7 years for decision.

The contention of the learned counsel for the defendant that injunction if granted would have the effect of disturbing the working of the department also does not impress m . No doubt that conditions mentioned in section 56 of the Specific Relief Act have to be taken into consideration even at the stage of granting interim injunction under section 53 of the Specific Relief Act read with Order XXXIX, rules 1 and 2, C.P.C.,but I have not been able to appreciate the contention, so far as the facts of the case are concerned as to how if interim injunction is issued to restore the supply of water it would affect the working of the defendant for the supply of water would be made as was contemplated when water connection was originally provided t6 the farm of the plaintiff. Therefore, if the supply is restored through J" diameter pipe it; will not disturb the supply of others. Further, there Will be no interference with the public duties of the defendant or any, department of the Government.

For all these reasons I pass an order for interim injunction in mandator form directing the defendant to restore the water supply of the plaintiff but would impose the condition that the plaintiff would not use the same -for any purpose other than for which he had originally applied i. e. for using the water in his poultry farm. If the plaintiff commits breach of this condition, the defendant will be entitled to apply for -vacation of the interim injunction.