1. ' GULZAR AHMED, J.---These are applications under Order XXXIX, Rules 1 and 2, C.P.C. Filed by the plaintiff. In C.M.A. No,6858 of 2005 the relief claimed is to restrain the defendant No,1 from inviting, entertaining, accepting any bid/tender for the sale of assets shares and right of management of defendant No,2 or to accept any bid or enter into any negotiations for the said purpose with any other person except the plaintiff till disposal of the suit. In C.M.A. No,7110 of 2005 the relief claimed is to restrain the defendant No,1 from inviting other bidders and holding the meeting of bidders schedules to be held on 14-9-2005 under the auspices of the defendant No,1 at Islamabad or any other place for the purpose of inviting bids for sale of the assets/shares/management of the defendant No,2 and further restrain the defendant No,1 from entertaining or inviting any bids in violation of the rights of the plaintiff as the highest bidder and/or may have the effect of creating third party interest to the prejudice of the plaintiffs right. Counter-affidavit and additional counter- affidavit are filed by the defendant No,
1. The defendant No,2 has also filed counter-affidavit.
2. Plaintiff has filed rejoinder affidavit as well as additional affidavit.
3. ' Mr. Aziz A. Munshi, learned counsel for the plaintiff and Mr. Munir A. Malik, learned counsel for the defendant No,1 have made their submissions at length. Mr. Aziz A. Munshi has placed on record a written note .Of facts and propositions and further two written notes of submissions. Mr. Shaikh Abdul Aziz, learned counsel for defendant No,2 and Mr. Mahmood Alam Rizvi, Standing Counsel for Federation of Pakistan, the defendant No,3 have adopted the submissions of Mr. Munir A. Malik. The facts relevant for the determination of the two applications are that the defendant No,1 namely Privatization Commission invited bids for the privatization of defendant No,2 namely Javedan Cement Limited. Plaintiff submitted highest bid but it was rejected by the defendant No,
1. The plaintiff ultimately filed a Constitution Petition No,984 of 1993 against defendants No,1 and 3 in this Court. This constitution petition was decided vide judgment dated 24-8-1994 delivered by a Division Bench, the operative part of it is as follows: "In view of the above, we allow the prayer (b) of the petitioners and direct the respondents not to put to any other auction the shares, assets and management of Javedan -Cement Limited and/or to open or accept any bids or enter into any negotiations for the said purpose with any other person except the petitioner. The petition is allowed to the above extent with no order as to costs."
4. ' The defendant No,1 challenged this judgment in the apex Court by Civil Petition No,282-K of 1994 which was dismissed vide order dated 12-2-1996. It is stated that the deal could not materialize because of pendency of another Civil Petition No,370-K of 1997 filed by Javedan Cement Mehntkash Union in the apex Court which was dismissed vide judgment dated 6-7-1998. It is pleaded that on 21-4-1999 and 3-5-1999 meetings took place between the plaintiff and defendant No,1 and ultimately vide letter dated 24-8-1999 the plaintiff agreed to the terms of defendant No, 1.
5. On 11-7-2002,the defendant No,1 published in daily Dawn inviting an Expression of Interest for acquisition of 85% shares of defendant No,2. Plaintiff filed a contempt application in C.P. No,D-984 of 1993 which was decided vide order dated 15-4-2005 by a Division Bench of this Court. Paras 13 and 14 of this Order are relevant and are reproduced as follows:-- "13.There can be no two views about the submission of Mr. Shahanshah Hussain that in view of the judgment of this Court dated 24-8-1994 passed in this petition, which attained finality on dismissal of C.P. No,282-K of 1994 filed by respondent No,2 by the Hon'ble Supreme Court vide judgment dated 12-2-1996, the respondent No,2 had no option but to hold negotiations with the petitioner/applicant in the terms as specified in the above judgment. However, in our opinion, prima facie, it appears that the petitioner/applicant misinterpreted the spirit of such judgment when they presumed that in view of the directions for negotiation with the petitioner contained in the judgment, the respondent No,2 were bound to finalize the deal of Javedan Cement Limited with the petitioner/applicant at their terms. There is no denial of the fact that the contents of the minutes of meeting dated 3-5-1999 are correct and show that during the negotiations with respondent No,2, the petitioner even did not stick to their earlier offer and they tried to dictate the Privatization Commission for the payment of the balance amount in the shape of furnishing bank guarantee after 60 days of the transfer of Unit to them, which condition was neither in consonance to the condition of sale as laid down in the instructions to Bidders nor acceptable to the Privatization Commission. The submission of Mr. Minir A. Malik with reference to the judgment in the case of Javedan Mehnat Kash (supra), relevant observations reproduced above, has much force that on the pretext of negotiations with the Petitioner/applicant the sale of Javedan Cement Limited could not be delayed by respondent No,2 for indefinite period as already more than ten years have passed, thus the action for inviting of fresh bids taken by respondent No,2 is fully justified.
14. For the foregoing reasons, we are of the view that the alleged contemners are not guilty of violation of judgment dated 24-8-1994 passed in this petition, rather the steps taken by respondent No,2 are backed with the observations of the Hon'ble Supreme Court of Pakistan in the case of Javedan Cement Mehnat Kash Union (supra) thus entail no penal consequences. Accordingly C.M.A. No,2424 of 2002 is dismissed. However, it may be observed that the offer/statement made by the learned counsel for the Privatization Commission will be honoured by them to show due respect to the judgment of this Court passed in this Petition."
6. ' The offer made by the defendant No,1 as mentioned in the last sentence is referred in para. 10 of the above order in these words: "To show good faith and bona fide of the Privatization Commission (respondent No,2) the learned counsel also extended before this Court that whenever sale of Javedan Cement Limited takes place, the petitioner will not only be at liberty to participate in such proceedings by offering their bid for purchase of Javedan Cement Ltd. But they will also be given option/right of first refusal to match the highest offer, to meet the spirit of the judgment delivered by this Court and also to show-respect to this Court."
7. 'On 21-5-2005, the plaintiff filed this suit for declaration, permanent injunction and specific performance. In para. 13 of the plaint it is pleaded that the cause of action for the suit has accrued to the plaintiff on 11-7-2002 when defendant No,1 invited fresh bid for sale of shares of defendant No,2. With the plaint of this suit, the plaintiff filed an application under Order XXXIX, Rules 1 and 2, C.P.C. The Plaintiff did not had this application fixed in Court. On 1-9-2005 C.M.A. No,6858 of 2005 was filed in which it was alleged that news item has appeared in Dawn dated 26-7-2005, 11-8-2005 and 31-8-2005 inviting intending bidders for clarifications. This application was placed in Court on 1-9-2005 and an order was passed on it of notice to the defendants for 15-9-2005 and in the meantime, defendant No,1 was restrained from finalizing any deal with any other party or person which may cause prejudice to the rights and interest of the plaintiff. On 10-9-2005, plaintiff filed C.M.A. No,7110 of 2005 pleading that despite service of process, defendant No,1 has issued press release in Dawn and Jang dated 6-9-2005 inviting bids for sale of defendant No,2 and fixed a meeting of bidders on 14-9-2005 at Islamabad. On the same day, order of notice for 13-9-2005 was passed. On this date the Court noted that in view of order dated 1-9-2005, no further interim order is required. On 15-9-2005 matter was adjourned to 28-9-2005 whereafter it was adjourned to 5-10- 2005. On 5-1-2005 while the matter was adjourned to 18-10-2005, a note has been made of the statement of the defendant No,1 counsel that if the plaintiff wants to exercise the right of first refusal as per the order dated 15-4-2005 passed on contempt application in C.P.No,984 of 1993, it may do so within a week's time on the terms and conditions prescribed in the bid documents pertaining to the present transaction. The reason for such statement apparently was that the counter-affidavit filed on 26-9-2005 has disclosed the fact that it has received highest offer of Rs,80 per share from M/s Haji Ghani Usman & Group on 14-9-2005.
8. ' Learned counsel for the plaintiff has first contended that the learned Division Bench of this Court has exceeded in its jurisdiction while passing order dated 15-4-2005 deciding the contempt application of plaintiff in C.P. No, D-984/1993 inasmuch as it has adjudicated the civil right of plaintiff which stood already decided by a Division Bench of this Court through judgment dated 24- 8-1994 and upheld by the apex Court vide its order dated 12-2-1996. He has contended that while hearing contempt application, Court's jurisdiction was only to see whether, there is contempt or no contempt and it was not the function of such Court to adjudicate upon and decide already decided civil right of the plaintiff up to apex Court. He stated that the order dated 15-4-2005 violates the Division Bench judgment dated 24-8-1994 of this Court and so also the order dated 12- 2-1996 of the apex Court. In support of his submission he has relied upon the case of Syed Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823, The State v. Khalid Masood PLD 1996 SC 42, State v.
9. Mujeeb-ur-Rehman Shami PLD 1973 Lah. 1, State v. Tariq Aziz 2000 SCMR 751, Om Prakash Jaiswa l v.
10. D.K. Mittal AIR 2000 SC 1136, Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 and Muhammad Ibrahim v. Syed Ahmed PLD 2000 SC 71.
11. ' I have considered this submission of the learned counsel and on its face find that the plaintiff through above submission is assailing the order dated 15-4-2005 passed by a Division Bench of this Court iri C.P. No,D-984 of 1993 on a contempt application filed therein by the plaintiff. Admitted fact of the matter is that the plaintiff has not challenged the order dated 15-4-2005 before the higher forum i,e, Hon'ble Supreme Court of Pakistan.
12. ' Learned counsel for the plaintiff has not cited any law on the basis of which a Single Judge sitting on the original side while hearing an application for injunction can examine the legality and proprietary of the order passed by Division Bench of this Court more particularly when the parties to the dispute and the subject matter of the dispute are substantially the same. Hierarchy of the judiciary functions in a disciplined and systematic manner in accordance with rules, practice, procedures and substantive law and I. Am not aware of any rule, practice, procedure or substantive law where a Single Judge can sit in judgment over a judgment/order passed by a Division Bench of this Court to determine its legality or propriety. The Division Bench by its order dated 15-4-2005 in its wisdom has not only found that no contempt of Court has been committed by the alleged contemners before it but has gone on to consider the fact of defendant No,1 inviting fresh bids for the sale of shares of defendant No,2 and found it to be fully justified. In reaching such decision, the learned Division Bench took into consideration the fact of plaintiff deviation from its earlier offer the judgment rendered by the apex Court in the case of Javedan Cement Mehnat Kash Union (1998 SCMR 2182). The ultimate effect of the order dated 15-4-2005 apparently seems that the plaintiff has lost the benefit of judgment dated 24-8-2004 passed in C.P. No,D-984 of 1993 which was maintained by the apex Court by its order dated 12-2-1996. In the case of Shaukat Khan v. Asstt. Political Agent Landi Kotal Khyber Agency, (PLD 2002 SC 526). It is observed as follows:-- "3. Besides above it is recognized principle of administration of justice that for setting aside an order or to challenge the proceedings remedy should be availed first of all within the hierarchy of the law under which the forum whose proceedings have been objected to is functioning instead of approaching different forum for the redressal of the grievances. Reference in this behalf may be made to the cases (I) Muhammad Ashfaq v. The State, (PLD 1973 S.C. 368) and (ii) Khudai Dad and others v. The State PLD 1997 Quetta 69)."
13. ' Consequently, the further submissions of the plaintiff counsel of distinction between exercise of contempt and civil jurisdiction, enforcement of order of apex Court has no bearing to the case where the Division Bench of this Court vide order dated 15-4-2005 has closed the chapter of plaintiffs earlier litigation and its outcome.
14. ' Learned counsel for the plaintiff next contended that there is concluded contract between the plaintiff and defendant No,1 and the defendant No,1 is liable to specifically perform the said contract. In this regard the counsel referred to the minutes of meeting dated 3-5-1999 annexure 'B' with the plaint, the plaintiff's letter dated 3-5-1999 and 24-8-1999 respectively annexures 'B-1' and 'C' with the plaint. In the minutes of meeting dated 3-5-1999 the decision is recorded in para.10 which provide that plaintiff will furnish its final offer which will be taken up with PC/Committee of PBP for their consideration and all contingent liabilities will be bidder's responsibility. In the letter dated 3-5-1999, plaintiff has made an offer in terms of the minutes of the same date. Yet again by letter dated 24-8-1999 the plaintiff has made an offer and requested that it may be accepted by the defendant No,
1. No acceptance of the plaintiff's offer came from the side of the defendant No,1 for almost two years and eleven months. Rather, the defendant No,1 through annexure 'D' to the plaint published in 'Dawn' dated 11-7-2002 invited expression of interest for the acquisition of minimum of 85% of shares of Javedan Cement Ltd. Admittedly, on this publication, the plaintiff filed contempt of Court Application in the said C.P. No, D-984 of 1993 which came to be decided by order dated 15-4-2005 which has already been referred to above. In its most simplest form, a contract comprises of an agreement which is enforceable in law. To establish the fact of existence of an agreement, a party has to show that there was a proposal by it to another party and that another party has accepted its proposal. As noted above, through order dated 15-4-2005 passed in C.P. No,D-984 of 1993, the plaintiff apparently seems to have lost the benefit of judgment dated 24-8-1994 passed in the same C.P. And maintained by the order dated 12-2-1996 of the apex Court.
15. Independently of the above circumstance, there are merely offer of the plaintiff through letter dated 3-5-1999 and 24-8-1999 to which there is no acceptance by the defendant No, 1 . Rather by placing the advertisement in 'Dawn' dated 11-7-2002, the defendant No,1 has expressed its nonacceptance or rejection of the plaintiffs offer contained in the said two letters. Thus prima facie, no contract between the plaintiff and the defendant No,1 came into existence which could be specifically enforced by this Court. Similar is the position With regard to the relief of declaration and injunction sought by the plaintiff as prima facie, plaintiff has not been able to establish through material that the defendant No,1 is under an obligation < to sell and transfer the shares, assets and management of the defendant No,2 to the plaintiff. The obligation as is sought to be enforced is said to have arisen out of the judgment dated 24-8-1984 passed in C.P. No,D-984 of 1993 and upheld by the order dated 12-2-1996 of the apex Court which as noted above through order dated 15-4-2005 has been brought to naught. Further the plaintiff has not been able to prima facie, establish a contract on the subject-matter with the defendant No, 1.
16. ' Mr. Munir A. Mailk, learned counsel for the defendant has taken an objection to the maintainability of the suit on the ground that it is barred by res judicata and in support has relied upon the cases of Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan, (1971 SCMR 447), Asif Jehan Siddiqui v. Government of Sindh, (PLD 1983 SC 46), Abdul Majeed v. Abdul Ghafoor Khan, (PLD 1982 SC 146) and Mehdi Hassan v. Zulfiqar Ali, (PLD 1960 (W.P) Lahore 751).
17. ' In this respect, learned counsel for the plaintiff has submitted that the question regarding maintainability of the suit on the principle of res judicata may be adverted to after a preliminary legal issue is framed. The defendant No,1 who is the relevant party has already filed its written statement. Consequently the following preliminary legal objection is framed:-- "Whether the suit herein is barred by the principle of res judicata?
18. ' Office is directed to fix this matter for hearing of arguments of the Advocates of the parties on the above preliminary legal objection.
19. ' By a short order passed on 10-4-2006 the listed-applications were dismissed. The above are the reasons for it.