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Civil Revision No.222 of 1985, decided on 3rd April, 1986.

---O.XXXIX, Rr.1 & 2--Specific Relief Act (I of 1877), Ss.14 & 15--Temporary injunction--Specific performance of contract Contract to collect Octroi granted through auction--Contract for financial year 1985-86 expiring on 30-6-1986 and more than ten months out of stipulated period of. 12 months for which contract was to be valid having already passed, it was not possible to grant specific relief to applicant to perform contract for the whole period--Court could not reconstruct the contract and instead of stipulated period grant applicant a new contract for any other period--Applicant not ready and willing to relinquish all claims to further performance and to all his rights to compensation for loss or damages if any, suffered by him through default of respondent--Relief claimed by respondent by way of specific performance, held, could not be granted in circumstances of case.

Dalmia and Company v. Kalyanpur Lime Works Ltd. A I R 1952 Pat. 393 ref.

Abdul Hafeez Lakho for Petitioner.

Husain Adil Khatri for Respondents.

Date of hearing: 11th March, 1986.

The facts briefly stated are that at the auction held for grant of contract for recovery of Octroi for the financial year 1985-86 (ending 30th June 1986) the applicant gave a bid of Rs. 15,95,000/ which however was overtaken by a sudden and unexpected higher bid of Rs. 30,000.000/- by one Safdar Chattah who thus became the highest bidder. The said Safdar Chattah did not deposit the requisite balance amount within the stipulated time as a result of which on 27-5-1985 the respondent No. 1 Konkar Union Council at a special meeting held on 27-6-1985 forfeited the deposit of the said Safdar Chattah and further resolved to award the contract for the aforementioned period to the applicant who was called upon to deposit the balance and enter into an agreement. The applicant complied with the demand and deposited Rs. 50,000/- being balance of 10% of the security deposit and the agreement was executed. It however, appears that even before 1-7-1985 i.e. the date when the contract was to commence, the Secretary Local Government, Sind directed the Union Council/the respondent No. 1 not to award the contract to the applicant /plaintiff but to re-auction the contract by holding fresh public auction. It is the case of the applicant that though the Union Council supported his case still he was not put in possession due to directions given by the above-named Government Officer consequently he on 29th June 1985 filed Suit No. 2188/85 in the Court of IV Senior Civil Judge Karachi (East) along with which he also filed an application for grant of injunction. The said Court granted ad interim injunction as prayed restraining the respondents from re-auctioning the contract or interfering with the rights of the applicant /plaintiff to collect octroi with effect from 1st July 1985. According to the plaintiff/ applicant he thus started collecting the octroi duty. The said interim order granting injunction in his favour however was vacated by the learned Civil Judge on 9th July 1985 and consequently he was dispossessed and stopped from making recovery of any octroi duty.

2. The applicant thereafter filed an appeal being Civil Misc. Appeal No. 2/85 which was heard by the District Judge Karachi (East). The said learned lower appellate Court by order passed on 11-11-1985 dismissed the appeal and upheld the order of the Civil Judge refusing to grant injunction.

Being aggrieved by the above orders the applicant has preferred this revision petition under Section 115, C . P. C .

3. Both the learned counsel on behalf of their respective clients argued the case at length. Mr. Abdul Hafeez Lakho, the learned counsel for the applicant laid great emphasize on the ground that the applicant. has been rightly granted the contract and even the Union Council/the respondent No.1 itself had supported his case in correspondence with the Secretary Local Government, Sind but it was because of the uncalled for interference by the latter that his client has been deprived of the rights to carry out and enjoy the benefits under a valid contract subsisting in his favour. He also argued that the applicant has a good prima facie case in his favour and that irreparable loss and damage would result to him due to refusal of grant of injunction. He also argued that balance of conveniences is also in his favour. Mr. Hussain Adil Khatri, the learned counsel for respondent on the other hand argued that the applicant has not performed his obligation under the terms of the auction and thus is not entitled to claim performance of the contract on the part of the respondent.

4. Having considered the arguments advanced by both the learned counsel I however, find that no useful purpose would be served by granting injunction at this stage for the reason that the financial year 1985-1986 for which the contract to collect Octroi is to expire on 30th June, 1986. More than 10 months out of the stipulated period of 12 months for which the contract was to be valid have already passed and that it is not possible to grant specific relief to the applicant to perform the contract for the whole of the period as would appear from the provisions of Sections 13 to 14 of the Specific Relief Act. It is obvious that the Court cannot reconstruct the contract and instead of the stipulated period i.e. from 1-7-1985 to 30-6-1986, grant the applicant a new contract for a period other than what was contemplated under the terms of the auction. It is well-established law that the Court has no power to make out a new contract for the parties.

5. I may refer here to the case of Dalmia and Company v. Kalyanpur Lime Works Ltd. (A.I.R. 1952 Pat. 393) wherein repelling the contentions raised that the Court may reconstruct the contract so as to give the company the period originally contracted for or that period minus the period in which the Lime Company was in possession of the property, the learned Court held as follows:-

"The contract is for leases from the 15th April 1934 for a period of twenty years and specific performance if granted can be only for the portion of that period which remains. This is how Section 15 comes in. Government is unable to perform a portion of its part of the contract, and under Section 17 of the Act specific performance can be decreed only under one or other of the Section 14 to 16. Section 14 and 16 have no application. It has been urged that Section 15 also dons not apply. It refers, it is urged, to an inability to perform a portion of the contract at the time when the contract is entered into. Both the illustrations to the Sections relate to a deficiency in the area contracted to be transferred. In such event, the purchaser can enforce the sale in respect of the remaining area. I do not see why the section should be read as restricted to an incapacity in space and not to extend to an incapacity in time. It is possible that the incapacity in space may be conditioned by time. Thus in illustration (a), A may subsequently to the contract have acquired 25 bighas of the land from the stranger. In that case, he would have been liable under the Section to sell 75 bighas to B. A person who, having agreed to give a lease for 20 years, can do so only for 6 years is unable to perform the whole of his part of the contract, and the contract comes within the scope of section 15.

In order to get relief under section 16 however, the plaintiff must relinquish:

"all claim to further performance, and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant."

6. I had put a question to Mr. Abdul Hafeez Lakho, the learned counsel for the applicant, if his client is ready and willing to relinquish all the claims to further performance and to all his rights to compensation either financial or for the losses or damages (if any) suffered by him through the default of the respondent, he expressly stated that the applicant is not willing to do so.

7. For the above reasons it is obvious that the relief claimed by the applicant for grant of injunction by way, of specific performance cannot be granted. I have deliberately avoided to make any comments on the merits of the case to avoid prejudice to the case of the parties at the trial of the suit.

The upshot of the above discussion is that this application invoking the revisional jurisdiction of the Court is dismissed.

In the circumstances, however, the parties are left to bear their own costs:

S.Q./P.30/K Application dismissed.

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