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Suit No. 469 of 1987, decided on 7th July, 1987.

---O.XXXIX, R.2--Ad interim injunction, grant of--Written agreement between parties containing negative stipulation according to which defendant being employer of plaintiff undertook not to seek employment with another concern engaged in similar business as plaintiff-Company for one year sifter leaving plaintiff-Company--Validity of Plaintiff-Company, held, had prima facie case as plaintiff has established arguable case and serious question of law was to be adjudicated at trial, if injunction was not granted, a greater mischief, would be done to plaintiff than defendants--Ad interim injunction order was confirmed in circumstances.

P L D 1979 Kar. 668; P L D 1981 Kar. 720 and A I R 1921 Lah. 11 and 36 Cal. 354 ref.

Sayeed A. Shaikh for Plaintiff.

Usman Ghani Rashid for Defendant No. 1.

Abdul Inam for Defendant No. 2.

This application under Order XXXIX rule 2 and section 151 C . P. C. has been presented on behalf of the plaintiff in the suit filed by it for injunction and damages against the defendants Nos. 1 and 2. The plaintiffs case as set up in the plaint is that the defendant No. 1 was its permanent employee. It was on 22nd July, 1985 that he executed an agreement of service with plaintiff containing, inter alia, the following undertaking:--

"(3) The employee agrees that he shall not seek employment with another concern engaged in the same/similar business as the company for a period of one year after leaving the company or after having been relieved of the job by the company."

The defendant No. 1 on or about, 4-6-1987 abruptly left the plaintiff's service and in breach of the above-noted undertaking has joined service with the defendant No. 1, which is engaged in the same/similar business of air cargo business as that of the plaintiff. He has started soliciting business from the plaintiff's customers and thus diverting its business in defendant No. 2. The plaintiff informed the defendant No. 2 vide its letter dated 15-6-1987 of the contractual obligations of defendant No. 1 and calling upon it' to dispense with his services but the defendant No. 2 has failed to, comply with the said demand. Besides claiming a decree for damages as mentioned in the plaint, the plaintiff has prayed for the following permanent injunctions:

(a) A permanent injunction restraining defendant No. 1 from entering employment with defendant No, 2 or any other person. concern or company engaged in same/similar business as that of the plaintiff for a period of one year.

(b) A permanent injunction restraining defendant No. 2 from employing defendant No. 1."

The above application came up for consideration before Syed Haider Ali Pirzada, J. On 20-6-1987 when he issued the notice thereof to the defendants for 26^th June, 1987 and in the meanwhile granted the ad interim injunction as prayed: The parties have now filed counter-affidavit and rejoinder and hence it has come up today for final disposal.

2. I have heard the learned counsel for the parties at some length. Relying upon an authority of this court reported in P L D 1979 Karachi 668 the learned counsel for the defendant No. 1 vehemently urged that a negative agreement cannot be enforced. The grant of injunction in the instant case would result in the starvation of the, defendant No. 1 and his family inasmuch as he would have to remain out of job for one year. In his submission, the plaintiff can file a suit for damages against the defendant if .any loss is sustained on account of the defendant No. 1 having left-its service. In such cages, the counsel so urged, section 37 of the Specific Relief Act cannot be pressed into service. Relying upon Article 18 of the Constitution, the counsel submitted that it is the sacred right of the defendant No. 1 to enter upon any lawful occupation and the grant of injunction would tantamount to depriving him of his fundamental right. It is even otherwise against the public policy.

Mr. Abdul Inam, learned counsel for the defendant No. 2 adopted the arguments of Mr. Usman Ghani Rashid.

3. Mr. Sayeed A. Shaikh, the learned counsel for the plaintiff, on the other hand, vehemently urged that in the presence of the specific negative contract embodied in the agreement executed between the plaintiff and the defendant No. 1, the plaintiff is entitled to injunction prayed for in terms of section 37 of the Specific Relief Act, which clearly provides that not withstanding section 56, clause (f) where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied not to do a certain act, the circumstances that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. He also invited my attention to illustrations No. (c) and (d) of section 57 of the Specific Relief Act. In support of his contention he placed reliance upon a decision of this Court reported in P L D 1981 Karachi 720, wherein Saleem Akhtar, J. has held as under:-

"In cases where there is a negative covenant and particularly when there is a command of the Court in the form of a decree the Courts have hardly any discretion to exercise in the matter. A party who with open eyes and for valuable consideration has entered into a contract taking up on itself the burden to perform a negative covenant cannot possibly be lightly relieved from such covenant unless it brings the cast within the four corners of section 57 of the Specific Relief Act."

The counsel further urged that the plaintiff is entitled only to the relief of injunction as otherwise it will be put to irreparable loss inasmuch as defendant No. 1 has started diverting its business to defendant No. 2. The counsel also referred to two other decisions reported in AIR 1921 Lahore 11 and 36 Calcutta 354.

Having heard the arguments of the learned counsel for the parties as well as on perusal of the authorities cited at the Bar, I am of the opinion that in view of the written agreement between the parties containing a negative stipulation as stated above the plaintiff seems to have a good prima facie case. I do not consider it advisable at this stage to examine the merits of the case at any length inasmuch as, I am afraid it might cause prejudice to one or the other party. However, I am of the opinion that the plaintiff has established an arguable case and a serious question of law is to be adjudicated at the trial. I am further of the view that if the injunction is not granted a greater mischief will be done to the plaintiff than the defendants. The ad interim injunction order is, therefore, hereby confirmed. I further order that the suit should be fixed for regular hearing, after compliance of all due procedural formalities, as soon as possible.

H . B . T . / B-51/ K Order accordingly.

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