1. ' GHULAM DASTAGIR A. SHAHANI, J.---Through C.M.A. No. 8955 of 2007 and C.M.A. No. 8956 of 2007 moved by the learned counsel for the plaintiff under Order XXXIX Rule, 1 and 2 read with section 55 of Specific Relief Act, plaintiff has prayed to direct the defendants Nos. 1 and 2 to get the office of the plaintiff unlocked and hand over the same to the plaintiff and restrain the defendants directly or A indirectly from taking an adverse action against the plaintiff, and not to disturb the plaintiff in respect of performance of his duty in his office situated in the premises of Board, while C.M.A No. 9404 of 2007 prayed that legal action be taken against the contemnor namely Zeenat Ahmed C.E.O. Clifton Cantonment Board, Karachi for having committed contempt of Court due to disobedience/violation of the order passed on 14-11-2007. I would like to decide three C.M.As.
2. Together.
3. ' Brief facts of the suit as alleged in the memo. Of plaint are that, the plaintiff is serving as a civil nominated member of Clifton Cantonment Board, who has passed several orders in compliance of the Gazette Notification issued by the Government to serve the people with reference to their problems and sufferings, due to which letters of appreciation by different Organizations are evident to ascertain act and universal personality of the plaintiff. Further case of plaintiff is that after nomination person nominated can be removed if he is de-notified by the authority who nominated him, for which specific procedure is to be adopted and to prove certain allegations if level against nominated person. Competent authority bound to follow section 15-B read with section 34 of Cantonments Act, 1924. However on account of mismanagement and insincerity attitude of the management, as well as, its staff the rainy water entered into the houses of residents whereby furniture, carpet and other household articles were destroyed and damaged, as such aggrieved residents of the Board placed their problems before the management, for which meeting of the Board was held and was attended by defendants Nos. 2 and 3. However, in order to shift the burden asked the plaintiff to resign in order to replace defendant No.3.
4. ' However, on refusal to resign, the defendants locked the room of plaintiff without service of notice and providing any opportunity of hearing, as such he prayed for declaration to the extent that defendants Nos. 2 and 3 have no jurisdiction to disturb the working of the plaintiff or to take any adverse action against him without proving charge if any, as per Cantonment Act and requested for consequential relief and protection, so also for grant of mandatory injunction by directing the defendants Nos. 2 and 3 to unlock the office of the plaintiff and handover the same to the plaintiff.
5. After service of process, defendants Nos. 1, 3, 4 and 5 submitted their written statement. Counter affidavit was also filed by the defendant No.3 in respect of aforesaid C.M.As. So also.Rejoinder by the plaintiff respectively. Case of defendants is that plaintiff was serving as a nominated member of Government of Pakistan whereas vide Notification, dated 27-12-2007 he has been replaced/removed and de-notified the plaintiff and is no more member of Cantonment Board, Clifton and further that the plaintiff was only entitled to attend the meeting and discuss the agenda, to cast his vote and was not authorized to hear and solve the problems of the people, as Cantonment Board is constituted under the Act, 1924 and Cantonment Board is being run by Federal Government under the Act and Rules framed and notified by Federal Government from time to time. In comments they have further stated that plaintiff is already removed by competent authority and had no authority to interfere in affairs of the Cantonment Board. Since defendant C.E.O. Zeenat Ahmed has taken over the charge of Cantonment Board Clifton on 25-9-2007, she is not aware in respect of services if any rendered by the plaintiff and further that Cantonment Board is Government Organization and is run under the Federal law according to the policy and guideline of department and defendants Nos. 2 and 3 are legally so independent free to do anything without approval of the Cantonment authority. In comments it has been admitted that plaintiff was respectable member of the Cantonment Board of Clifton, but, presently, he has been removed by competent authority and he is dealing cases of divorce being nominated member. Actually he could deal such cases if he would have been nominated for such purpose by the Government of Pakistan. They have totally denied that any office/room was allotted to the plaintiff in the premises of Cantonment Board Clifton Karachi, therefore question of its locking and unlocking does not arise at all, and plaintiff is not entitled for relief as sought by him. He is already de-notified by competent authority, as per law as stated above and prayed for dismissal of the suit.
6. ' Heard Mr. Shafi Muhammad learned counsel for the plaintiff who states that nomination by Federal Government as member is not in dispute since last number of years including present term of four years without complaint from any corner, plaintiff has been removed by de notification, dated 27-12-2007, which is not based upon any reason, and without providing an opportunity of being heard and not in accordance with law, as such same is illegal, mala fide, unlawful and without any justification and against the Cantonment laws and rules, therefore, impugned order/de-notification is liable to be set aside. So far the C.M.A. No.9404 of 2007 is concerned, he states that violation of the order, dated 14-11-2007 is made deliberately mainly by contemnor as such legal action is required to be taken against him under Contempt of Court on the ground that, contemnor did not allow the plaintiff to perform his duty and functions in his office and removed official and personal record of the plaintiff. He relied upon case reported in 2006 PCr.LJ 1185 (Ghulam Hussain Baloch and others v. The Chairman NAB and others) 2005 YLR 3324 (S.M. Anwar Alvi and others v. Members, Board of Revenue J-II) Lahore and another), 2005 YLR 1160 (Hassan Din and 9 others v. Member (Judicial-I) Board of Revenue, Punjab and 75 others), 2005 YLR 1719 (Basit Ali v. Additional Chief Secretary and 3 others) respectively.
7. ' Mr. Ashraf Ali Butt learned counsel for defendants Nos. 1, 3, 4 and 5 states that removal order served on 14-11-2007 and one Abdul Aziz has been nominated as a new member of the Board. He further added that, there are certain allegations against the plaintiff in respect of his previous (9) years tenure and states that no violation is made nor particular allegations have been pointed out on the basis of which legal action requires to be taken and treated to be a disobedience of Court order, and prayed for dismissal of C.M.As.
8. ' Whereas Mr. Khalid Javed learned counsel for the defendant No.2 adopted same arguments as advanced by learned counsel for the defendants Nos. 1, 3, 4 and 5. He further added that plaintiff has no right to claim, after de-notification and nomination of another member by the competent authority. He states that suit is barred by law and Civil Court has no jurisdiction, in view of sections 272 and 273 of the Cantonment .Act 1924, and suit is not maintainable and prayed for dismissal of all C.M.As. He also referred the case i.e. 1998 CLC 374 (Royal Foreign Currency v. The Civil Aviation Authority and another), PLD 1993 Karachi 190 (Pakistan International Airlines Corporation v. Messrs Hazir (Pvt.) Limited and another), 2006 CLD 97 (Independent Media v. Ali Saleem and another), as well as 1995 MLD 384 (Messrs Universal Business Equipment (Pvt.) Ltd. v. Messrs Kokusai Commerce.
9. Inc. And others) respectively.
10. ' Heard learned counsel for the plaintiff, and learned counsel appearing for defendants Nos. 1, 3, 4 and 5, as well as to the learned counsel for the defendant No. 2, respectively and with their assistance gone through particular sections of Cantonment Act, 1924, as well as law referred by them and other material available on record. It is well-settled principle of law that every case is to be decided on its own merits and plaintiff has to prove his own case and he cannot be benefited on the weakness of other side if any. So far grant and refusal of injunction application is concerned, firstly it is to be seen whether plaintiff has prima facie good case, secondly whether balance of convenience lies in favour of injunction and thirdly whether plaintiff would suffer irreparable loss if injunction is refused, as issuance of injunction is, discretionary power of the Court. Whereas Order XXXIX, R.2, C.P.C, specifically provides for restraining the defendants, in any, suit from committing a breach of contract causing other injury of any kind and plaintiff may at any time, after commencement of suit apply to the Court for temporary injunction and said rule relates to grant of temporary injunction in a suit for injunction against the apprehended breach of contract or injury of any kind. It is well-settled principle that with equitable remedy by way of injunction mandatory or interlocutory in nature is discretionary and never granted as a matter of course as stated above.
11. The plaintiff must satisfy that there is a serious issue to be decided, and Court has to consider whether balance of convenience lies in favour of grant of injunction or not, but court cannot judge merits of the parties of respective cases, however any decision for justice will be taken at any stage of uncertainty about the parties.' rights. Even otherwise injunction is never granted to establish new state of things, and from the stage which existed at the date when proceedings were initiated, on such satisfaction the Court will consider, whether Plaintiff is to be succeeded would be adequately compensated by an award of damages for the loss, if defendants continued to do, and if damages recoverable in law is an adequate remedy, and defendant has a financial position to pay them, no interlocutory order should be formally granted. However, manner of exercise of discretion depends upon the precise nature of the particular rights. So far present case is concerned, admittedly denotification has been issued and one Abdul Aziz has been nominated as a member of the Board and plaintiff is not holding the office and has been dispossessed, even according to his own version, and in case of inconvenience he can be compensated in terms of money on proving his case on merits, for which, plaintiff has already claimed. Not only this, but plaintiff has also submitted an application for restoration to the extent that defendants Nos. 1 and 2 got office of plaintiff unlocked and hand over the same to him. Moreover application under order XXXIX Rule 2 sub-clause (3) read with section 151, C.P.C. For taking legal action against the contemnors namely Zeenat Ahmed CEO Clifton Cantonment Board Karachi is also submitted alleging that, violation and disobedience is made of the order, dated 14-12-2007. As such Reliance is placed on the case of Salahuddin Khan and 3 others v. Sultan-e-Rome and 10 others reported in (PLD 1973 Peshawar 95).
12. ' So far maintainability and jurisdiction of the Court is concerned, I have gone through section 272 of the Cantonments Act, 1924 by which protection has been awarded to the Board and no suit or prosecution can be entertained before any Court or any board or against any officer, "when action has been done is good faith", which is yet to be decided on merits after framing of issues and evidence, so far section 273 is C concerned, sub-clauses (3) and (4) of said section are very clear.
13. In the present matter multiple prayers are made, as such, in my view, section 273 of the Cantonments Act, 1924 is not applicable with the present matter. Even otherwise, it is well settled that Civil Court is a Court of ultimate jurisdiction even if jurisdiction is barred, even then Civil Court can see any illegality or mala fide done by any forum, tribunal or authority. Reliance is placed on the case (1974 SCMR 356) Hamid Hussain v. Government of West Pakistan and others) as well as (PLD 1970 SC 180), Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another) respectively. So far the law referred by learned counsel for the plaintiff is particularly to section 24-A of General Clauses Act that any authority or officer is empowered to make orders or give any direction, such power is required to be exercised reasonably, fairly, justly, and for the advancement of the purpose of enactment and giving reason for making such order and further that public functionaries have to decide controversy between parties with reasons. So far the law referred by the learned counsel appearing for defendant No.2 is concerned, is applicable to some extent have similar/identical facts. So far C.M.A. No.9404/2007 is concerned, in my view framing of issue and evidence is required in order to establish the case on merits. Allegations and denial in respect of complicated question, whether plaintiff holding any charge or office papers, as well as any office from which plaintiff is said to have been dispossessed, as at this stage plaintiff's word is not supported by a single document, which prima facie shows that he has been dispossessed or any violation' of disobedience is made, for which at the first instance, show cause is to be issued and charge may be framed and proceed separately in accordance with law, as plaintiff has to disclose full particulars and to show particular incident, with particular date and time, witnessed by some body else, as only on general allegations.
14. Nobody can be punished. So far order passed by the authority in respect of removal of the plaintiff and appointment of another citizen is legal, proper and in accordance with law. Whether order based upon some reasons and order passed after service of notice and providing of an opportunity of being heard or not, or there is any mala fide on the part of defendants, all are complicated questions and to be decided on merits and require framing of issues and evidence.
15. So far injunction is concerned at this stage plaintiff has no case nor balance of convenience arise in his favour nor would suffer a loss, which cannot be compensated in terms of money, as such C.M.As. Nos. 8955 of 2007 and 8956 of 2007 respectively are hereby dismissed, whereas C.M.A. No. 9404 of 2007 will remain pending and will be decided separately on its own merits.