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Civil Procedure Code (V of 1908)‑

‑‑‑0. XXXIX,

Rr. 1 & 2‑‑Declaratory suit for injunction praying that plaintiff (a contractor of Municipal Committee) was competent to carry on business of collection of dead animals for their onward disposal‑‑Application for interim injunction restraining Municipal Committee from interfering with his work, granted by Trial Court‑ District Judge in appeal vacating stay on ground that it was a case of breach of contract and no suit for injunction was competent‑‑Held: Court has to see whether a prima facie good case made out; since plaintiff had raised at considerable cost a four‑wall enclosure for collection of dead bodies and his contract had been renewed for a further period of three years, he had an arguable case and he was likely to suffer irreparable loss if interim injunction was not granted‑ Appellate order set aside and that of Trial Court restored‑‑High Court, however, directed Court to dispose of main case within three weeks and send intimation to Registrar, High Court.

Muhammad Hanif Niazi for Petitioner. Jahangir A. Jhojha for Respondent. Dates of hearing: 8th, 10th and 11th August, 1987.

The petitioner Kartar Masih has moved this revision petition under section 115, C.P.C. against the order passed by the learned appellate Court dated 13‑7‑1987, whereby the order of the trial Court dated 24‑6‑1987 was set aside.

2. The brief facts of the case are that the petitioner filed a suit for declaration which is to the effect that he was a contractor of the Municipal Committee Okara and that according to the contract from July 1986 to June 1989 he was competent to carry on his business of the collection of the corpses of dead animals found within the limits of Municipal Committee Okara for their onward disposal. This declaratory suit filed by the petitioner is still pending adjudication before the Civil Judge, Okara. The petitioner also filed an application for interim stay under Order XXXIX, rules 1 and 2, C.P.C. with the prayer that the respondent may be restrained from interfering in his work under the contract. The learned trial Court vide his order dated 24‑6‑1987, after considering the pros and cons of the case, came to the conclusion that the petitioner is entitled to an interim relief as prayed for. The respondent Municipal Committee challenged the aforesaid order dated 24‑6‑1987, before the learned District Judge, Okara, by filing an appeal before him. The learned appellate Court vide his judgment dated 13‑7‑1987, set aside the interim order passed by the learned trial Court on the ground that the petitioner‑plaintiff has the right to sue for damages and of course he cannot sue for injunction. The learned appellate Court further observed that at the most it could be said that a breach of contract between the parties has taken place and this cannot give any cause of action to the petitioner to file a suit for injunction. The petitioner has come in revision as observed earlier feeling aggrieved of the appellate order.

3. The learned counsel for the petitioner has forcefully argued before me that the petitioner has successfully made out a prima facie good arguable case in his favour inasmuch as the learned trial Court after considering the pleadings of the parties and the facts and circumstances of the instant case, came to the conclusion that the petitioner‑plaintiff was allowed a lease for a period of three years with the condition that the petitioner shall pay more lease money at the rate of 10 of the total money. It was observed that the petitioner had a good prima facie case and there is every likelihood that the same case may be decreed. The Court observed that the balance of convenience is also in favour of the petitioner‑plaintiff. The learned trial Court observed that the petitioner has raised construction at the spot and has built a four‑wall by spending considerable money. The learned counsel submitted that the petitioner is continuing his business without any interruption even today. The learned appellate Court has not adverted to this aspect of the case. The learned Court was only swayed with the form of suit filed by the present petitioner. This was not enough. The learned counsel for the respondent submitted that the suit of the petitioner is on the face of it incompetent. He urged that the appellate order is well based in law and facts of the case and in the exercise of revisional jurisdiction no interference is called for.

4. I have heard the learned counsel for the parties at considerable length. I am of the prima facie view that the petitioner has an arguable case inasmuch as under the lease he has built some rooms bounded by a four‑wall. The land underneath the construction is undoubtedly owned by the Municipal Committee but the fact remains that under the permission of the said Committee, the petitioner has raised construction thereby spending more than Rs.25,000. Additionally, there is a resolution according to which the petitioner was allowed the lease for another period of three years provided he pays the lease money at the enhanced rate of 10 per cent of the total amount. Learned counsel for the respondent has raised an objection that so far the Municipal Committee has not passed a regular resolution allowing permission to the petitioner‑plaintiff to carry on his business in hand. The learned counsel stated that the resolution produced and relied upon by the petitioner‑plaintiff is in the nature of a recommendation and the fact remains that there is no final resolution having been adopted by the Municipal Committee as yet. Be that as it may, I am of the view that the petitioner is in possession of a building which has been raised by him by spending considerable money wherein he is carrying on the business of collection of the dead bodies of the animals and their disposal under the lease. The lease pertaining to the disposal of corpses of the dead animals was allowed to the petitioner for another term of three years. This is a circumstance which has not been considered by the learned appellate Court. The Court has to see whether the petitioner‑plaintiff has made out a prima facie case or not. The fact remains that lease was given to the petitioner initially and later on the lease period was extended for another period of three years which will prima facie show that he has got a good arguable case. It appears that the petitioner is a petty contractor and has invested good amount of Rs.25,000 in providing a covered place to dispose of the dead bodies of the animals. In case he is deprived of the contract, he will definitely suffer an irreparable loss and his whole investment shall be ruined. Thus, the balance of convenience also lies on the side of the petitioner‑plaintiff.

5. I have considered the respective arguments of learned counsel for the parties and I am of the view that the interim order passed by the learned trial Court is based on some strong reasons and as

such, I set aside the order passed by the appellate Court dated 13‑7‑1987 and restore the order passed by the learned trial Court dated 24‑6‑1987. Resultantly, this petition is accepted, with no order as to the costs.

6. The learned trial Court is directed to dispose of the main case within three weeks positively and he will send the intimation thereof to the Registrar of this Court.

K . B . A . / K‑36 /L Petition accepted.

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