' CHAUDHARY MUHAMMAD TAJ, J.---This appeal, by leave, is directed against the judgment and order passed by the High Court on 24-4-2003 whereby the appeal against the order of the District Judge, Bhimber was accepted and the requisite stay order was issued.
2. The facts are that the respondent, a contractor, filed a suit for declaration that he as a contractor on the shrine of Baba Shadi Shaheed for the year 1997-98 and 1998-99 has nothing to pay to the appellants herein, therefore, a notice for payment of Rs.16,49,679 is illegal and he is not bound to make payment, therefore, through a permanent injunction the appellants may be restrained. Along with the suit and application for issuance of a temporary injunction was also filed which was initially issued. However on the objections filed by the opposite side the same was recalled. This order was challenged through an appeal before the High Court which was accepted and the order passed by the District Judge, Bhimber was set aside and the requisite stay order was issued. This appeal challenges the aforesaid order.
3. Ch. Muhammad Reaz Alam, the learned counsel for the appellants, raised following points in support of the appeal:--
(i) That the respondent had no prima facie case and was also liable to pay to the appellants a sum of Rs.16,49,679 as contractor for the shrine of Baba Shadi Shaheed but he failed to make the payment and filed a suit for declaration that he has nothing to pay to the appellants. It was also added that the respondent has failed to substantiate his claim through any proof;
(ii) that through an order passed on 10-7-1998 the contract was awarded in favour of the respondent. According to the terms of the agreement the contractor had to make payment of Rs.3,85,000 in any case in every month along with other conditions accepted by both the parties.
After issuance of contract the said contractor, to avoid making payment to the appellants, filed a writ petition in the High Court and also granted a stay order restraining the appellants to recover the payment. This order continued till the period of contract was over when the writ petition was dismissed as infructuous as such the respondent did not make any payment;
(iii) that in the suit under discussion condition No.3 was challenged whereby the respondent had to make payment of Rs.3.85,000 in every month in all circumstances but this condition was not challenged rather accepted correct in the previous litigation where a writ was filed and stay order was secured;
(iv) that the writ was dismissed as held infructuous but the learned Judge in the High Court while disposing of the writ observed against this important condition that ,the appellants are not entitled to recover the amount under this condition. The aforesaid observation was set aside by the Supreme Court.
(v) that the learned Judge in the High Court while disposing of the appeal in respect of stay order practically disposed of the case against the appellants by making remarks in respect of pleadings that the claim of the respondent was accepted. The aforesaid remarks have not only prejudiced the case of the appellants but also against the accepted law that such matter should be decided uninfluenced; and
(vi) that the balance of convenience leans in favour of the appellants particularly when the trial Court has decided against the respondent there was no occasion to accept the appeal.
4. Mr. Abdul Majeed Mallick, who appeared on behalf of the respondent, while controverting the arguments addressed on behalf of the appellants, argued in the following maner:--
(i) That there was a prima facie case existing in favour of the appellants on the basis of which keeping in view the other conditions for issuance of a stay order the trial Court exercised discretion in favour of the respondent. However, subsequently the same was recalled;
(ii) that according to the original contract the condition of payment of Rs.3,85,000 in every month was not a part of the agreement which was subsequently added and the same did not apply to the contractor, therefore, the appellants could not demand any amount from the contractor on the basis of aforesaid condition;
(iii) that balance of convenience leans in favour of the respondent for the reasons that he has established a prima facie case and in case the matter is decided against him he will have to make payment but it would be little difficult for him to get refund from the Government Treasury in case it is decided in his favour, therefore, it leans in his favour that the matter of payment of Rs.16,49,679 may be suspended till the final decision of the case; and
(iv) that the contention of the learned counsel for the appellants that conditions No.3, referred to above, was not challenged in the earlier litigation i.e. The writ petition and the same was accepted, is not correct as those assertions have not been raised in the pleadings.
5. We have heard the learned counsel for the parties and also gone through the record. The respondent filed a declaratory suit along with the prayer of permanent injunction to the effect that he is not liable to make any payment in respect of contract awarded in his favour for the shrine of Baba Shadi Shaheed, therefore, demand of Rs.16,49,679 may be held illegal and a decree for permanent injunction restraining the appellants to recover the amount from him may also be passed. Along with the suit an application for issuance of a temporary stay order was also filed which was initially granted but subsequently recalled on the objections filed on behalf of the other party. The order was set aside by the High Court while accepting the appeal against the aforesaid order which is challenged through this appeal.
6. There are certain facts which are admitted between the parties that a contract was awarded for the relevant period in favour of the respondent. It is also admitted between the parties that the respondent challenged the order dated 10-7-1998 passed by the Government through a writ petition and a temporary injunction was also issued by the High Court restraining the appellants to make any recovery. The writ petition was held infructuous but the High Court made an observation against condition No.3 enlisted in the order dated 10-7-1998 whereby Rs.3,85,000 were to be paid by the respondent-contractor to the appellants in every month. The aforesaid observation was set aside by this Court.
7. While determining the question of granting a temporary injunction the Court has to consider the following factors:--
(i) That the prima facie existence of a right in the applicant and its infringement by the respondent or the existence of a prima facie case in favour of the applicant;
(ii) that irreparable damage or injury will accrue to the applicant if the injunction is not granted; and
(iii) that the inconvenience which the applicant will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it, or in other words the balance of convenience should be in favour of the applicant.
8. So far the question of prima facie case is concerned, the applicant has to prove the prima facie existence of, the right claimed in the suit and also its infringement. The Court need not closely examine the merits of the case nor is the applicant required to establish his legal title. It is sufficient if the applicant is able to establish an arguable case or show that the nature and difficulty of the question is such that an injunction should issue or in other words if the evidence was to remain as it is, the applicant should be able to show that he will get a decision in his favour and the case is not to fail on account of some apparent defect in it. The applicant should show that substantial questions are to be investigated or required to be resolved. It is also to be seen that the applicant will suffer more inconvenience by withholding of the injunction than that would be by granting it.
9. In the present case the trial Court after discussing the detailed merits in respect of prima facie existence of a case and other necessary conditions proceeded to cancel the order. The question as to whether the order passed by the High Court setting aside the order recorded by the trial Court is sustainable in the circumstances. We would like to avoid the detailed comments lest it may prejudice the case of either party but we have to judge whether the order passed by the High Court in the circumstances detailed above would be an order in law. The High Court in its order has discussed and drawn conclusion from the minute appreciation whereby it was concluded that in view of the written statements filed by the appellants the order passed by the trial Court was not maintainable. It is yet to be decided through evidence after framing issues that whether a suit shall succeed or not. We have also looked into the pleadings and we do not agree with the High Court that answer to any content of the plaint amounts to any admission. Though the answers are brief in relation to certain contents but we cannot hold that on the basis of those answers any decree could be passed, therefore, all those controversies are to be decided on the basis of evidence. The learned Judge in the High Court was mainly influenced by the pleadings and was also persuaded keeping in view the arguments addressed in respect of condition No.3 of the order dated 20-7- 1998. We are not inclined to make any observation in this regard but we cannot overlook the fact that the aforesaid condition which was observed by the High Court against law in writ petition was set aside by this Court particularly when the same does not appear to have been challenged in those proceedings. Therefore, we are of the view that the order passed by the High Court is not maintainable and the remarks given and observation made shall be deemed to be nonexistent for the trial Court which shall decide the matter uninfluenced by those remarks and observation. In view of above, the appeal is accepted and the order passed by the trial Court stands restored with no order as to costs.