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High Court Appeal No. 3 of 1986, decided on 30th September, 1986.

‑‑‑0. XXXIX, Rr. 1 & 2‑‑Temporary injunction, appeal against‑‑Single Judge under original jurisdiction granting interim injunction, considering questions of prima facie case, irreparable loss and balance of convenience and deciding same in favour of respondent‑‑Interference declined.

S.M. Muslim Naqvi for Appellant.

Kh. Naveed Ahmed for Respondent.

Date of hearing: 30th September, 1986.

This High Court Appeal has been filed challenging the impugned order, dated 5‑8‑1985 of a learned Single Judge of this Court allowing an application for temporary injunction filed in a suit for specific performance instituted by the respondent against K.M.C. We have heard Mr. S.M. Muslim Naqvi, Advocate for the appellant and Mr. Khawaja Naveed Ahmed, Advocate for the respondent.

It has been urged by the learned counsel for the appellant that on the basis of the documentary material on record it had not been established prima facie that any contract had come into existence between the parties. It was further argued that in any case the respondent in her suit had calculated the damages that she had suffered and as such it was not a case of irreparable damages. It was, therefore, contended that no case for temporary injunction had been made out and the application (Civil Miscellaneous Application No. 871 of 1985), moved by the respondent in her suit was liable to be dismissed.

On the other hand, it was argued by the learned counsel for the respondent that it had been established prima facie that contract had come into existence and an alternate prayer for damages did not demolish the case of the respondent for specific performance and as such a temporary injunction could be asked for and has been rightly granted by the learned Single Judge:

We have perused the order, dated 25‑8‑1985 of the learned Single Judge. It is an admitted position that on the day of the auction, the highest bid had been made by the respondent, and, as required, under fall of the hammer one fourth of the bid amount had been deposited by the respondent. Balance amount had to be deposited within 30 days of the letter of acceptance but this amount was not deposited on account of certain clarifications sought by the respondent. In any case later on the Municipal Commissioner had directed the respondent to deposit the balance amount of 75% which was deposited by the respondent but then a decision was taken by the K. M. C . rejecting the appeal of the respondent. In these circumstances, the learned Single Judge observed that the question, which arose for consideration, was whether the Council of the Karachi Metropolitan Corporation was competent to annul a contract concluded by its Officers required examination in depth and at the interim stage if such an exercise was undertaken there would be nothing left for the parties to go for the trial or an opinion expressed at the interim stage was likely to cast its shadow on the decision, which was yet to come after hearing the parties at length. The question of irreparable loss and balance of inconvenience had also been considered by the learned Single Judge and deciding these points in favour of the respondent the temporary injunction application was granted.

In the circumstances of this case, we are of the view that no case has been made out for interference in this High Court Appeal by setting aside the impugned order of the learned Single Judge. However, there was one submission of the learned counsel for the appellant, B which impressed us and that was, that the balance amount of Rs.3,72,711.13 deposited by the respondent was later on withdrawn by the respondent from K . M . C . Learned counsel for the respondent pointed out that this amount was withdrawn under protest and without prejudice to the rights of the respondent. To place the respondent on terms, we consider it proper to direct the respondent to deposit the aforesaid sum in the Court. The respondent is directed to deposit a sum of Rs.3,72,711.13 with the Nazir of this Court within 15 days from today and as soon as the same is deposited, it would be invested by the Nazir in Khas Deposit Certificates and the fate of this amount together with its dividends /profits will be decided at the final hearing of the suit. Subject to the aforesaid deposit High Court Appeal No.3 of 1986 is dismissed but with no order as to costs.

It may be observed here that Mr. S.M. Muslim Naqvi, learned counsel for K . M . C . , had expressed his apprehension that the view taken by the learned Single Judge that a contract had come into existence is likely to affect the final decision of the case. It may be observed that the view taken by the learned Single Judge was only a tentative view taken at the time of deciding the application for temporary injunction.

M.Y.H./5157/K Appeal dismissed

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