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[Lahore]

Civil Revision No. 41 of-1983 . decided on 27th Fehruarv_ 1984

Civil Procedure Code (V of 1908)--

---S. 115 & O. XXXIX, rr. 1 & 2--Temporary injunction--Contention of respondent that contract to supply air-conditioners to petitioner/Government had become frustrated as due to ban on import of air conditioners from abroad it had become impossible for him to import same--Due to non-availability of air-conditioners in local market

respondent could not supply same--None of conditions of contract stipulated that respondent was to supply air-conditioners after importing same from abroad or that Government would afford facilities for such import--Air-conditioners were to be supplied' ex-stock; petitioner/Government was in no way concerned with source of supply Contention of respondent was repelled--Respondent had no prima facie case warranting issuance of temporary injunction pendente lite--Orders of Courts below issuing temporary injunction, held, suffered from patent illegality.

Nemo for Petitioner.

S.M. Masood for Respondent.

Date of hearing: 27th February, 1984.

The facts relevant for the purposes of disposal of this petition seeking revision of the order of the learned Civil Judge, Lahore, dated the 9th April, 1981, injuncting the petitioner from recovering the amount of Rs.1,62,225 from the respondent till the decision of the suit instituted by the latter and of the learned Additional District Judge, Lahore, dated the 10th May, 1982, affirming in appeal the decision of the learned trial Court are these. Messrs Electrogas, the respondent, entered into contract with the Province of the Punjab, the petitioner, to supply to the latter 63 air-conditioners of 1i tons capacity either of National brand Japan made or of Philco brand U.S.A. made for Rs.12,500 each. As the respondent failed to honour its commitment, the petitioner, according to the terms of the contract, made purchases of air-conditioners at the former's risk and cost and called upon it, after giving show-cause notice, to pay Rs.1,62,225 which expense the petitioner had to incur over and above the contract price. The petitioner intimated the respondent: that if it failed to pay the amount the case would be referred to the Collector for recovery of the same as arrears of land revenue. Thereupon the respondent initiated suit seeking declaration that the petitioner's demand was illegal and prayed for issuance of permanent injunction restraining the petitioner from recovering the amount.

2. The respondent built up its case on the premises that the Government had banned the import of air-conditioners from abroad and, therefore, it could not import them and as there were no air-conditioners available in the local market it could not supply them and thus the contract stood frustrated. The learned trial and the appellate Courts below seem to have been influenced by the process of reasoning adopted by the respondent. However, none of the conditions of the contract stipulated that the respondent was to supply the air-conditioners after importing them from abroad or that the Government was in any way to afford it facility for the import of the air-conditioners. It was to supply the air-conditioners ex-stock; the petitioner was not in any way concerned with the source of supply. In these circumstances the thinking of the learned Courts below that the contract stood frustrated as it had become impossible for the respondent to import the air-conditioners is not legally tenable. The respondent had no prima facie case warranting issuance of temporary injunction pendente lite. The impugned orders of the learned Courts suffer from patent illegality. Therefore, the petition is accepted, the impugned orders are set aside and the respondent's application for grant of temporary injunction is dismissed. The petitions will get costs of this petition from the respondent.

H . B . T .

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