KH. FAROOQ SAEED, J.- This is a Civil Revision under Section 115 of C.P.C, filed by the petitioners against the order of Addl. District Judge, Rawalpindi, whereby, he accepted the appeal of the respondent vide order dated 9-5- 2008.
2. The brief facts of the present case are that the petitioner was employed by respondent and as per Clause 19 of the employment agreement he was restrained to join any other organization of the same trade for a period of 11 months after leaving the said organization. The petitioner serves for five months and then resigned on 12-9-2007 stating that he wants to settle in Dubai, hence, the same was accepted on 15-9-2007. However, the respondent later came to know that he had joined petitioner No 2, which is the competitor organization of the respondent A case of specific performance was, therefore, filed on behalf of the respondent, which was rejected. The order was contested by the respondents before Additional District Judge.
3. The first appellate authority, which order is row being impugned, however, accepted the appeal and application of the respondent under Order 39, Rule 1 and 2 of CPC in the following terms;- "This appeal is hereby accepted and impugned order passed by learned Trial Court is hereby set aside. Resultantly, application filed by appellant under Order 39, Rules 1, 2, CPC stands accepted.
Parties are left to bear their own cost. File of this appeal be consigned to record room and; record of learned Trial Court be sent back along with copy of this order." lt is against this order that the petitioner is before this Court in the Civil Revision.
4. The case has exhaustively been argued, however, the main emphasis remained (i) that the order is against the provision of Section 27 of the Contract Act (ii) that the negative covenant provided in the contract in terms of clause 19 is illegal and against the fundamental rights provided under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 and that the respondent employee becomes functus officio after the employee ceases to remain in his employment, ln support of the above and other issues, learned counsel for the petitioner has referred various judgments, most of which have already been discussed by the learned Addl. District Judge.
5. Lt is contended that the restraining clause involve provision regarding livelihood of the petitioner, hence the same should have been read with caution and care. Any benefit arising out of such provision must be provided in favour of the parties, whose livelihood earning right is involved.
Reliance in favour of the above arguments has been placed on (P.L.D. 1997 Karachi 57) re. "Ms. Atiqa Odho v. R. Lintas (Pvt) Ltd and another".
6. Coming to the argument that a contract has to be lawful for its enforcement, he has referred (P.L.D 1964 Supreme Court 337) re: "S. Sibtain Fazli v. J1) Star Film Distributors and (2) Muhammad Ali Khan", ln this case the Hon'ble Supreme Court of Pakistan has held that the legal agreement accompanied by alternative illegal agreement, which was to come into existence only if performance of legal agreement failed, illegal agreement remain void and ineffective, without affecting legal agreement.
7. Talking about the freedom of trade the judgment referred is (1992 S.C.M.R 1152) in case of Khawaja Imran Ahmed v. Noor Ahmed and another' he said that the Court has disapproved restriction relating to freedom of trade, business or profession even if provided by law because the same would be hit by Article 18 of the Constitution subject to the provision contained in the proviso contained therein. Similar view has been expressed in. (P LD 1997 Supreme Court 342) re: "Shaukat Ali and others v. Government of Pakistan through Chairman Ministry of Railways land others".
8. His next line of argument was that there is no estoppel against the statute. The judgment in support of the said argument is reported as (P.L.D. 1963. Supreme. Court 564) re: "Ikram Bus Service and others v. Board of Revenue West Pakistan and 2 others". The relevant para Of the said judgment is at page 573 which speaks as follows:- "It was suggested that the appellants were precluded from challenging the order passed in appeal .By the learned Member of the Board of Revenue on the ground that it was passed with their consent. This does not appear to be correct. The legal objections to the procedure adopted by the R.T.A, were pressed before the learned Member and lt was only In the alternative that a suggestion was made that some of the permits of the limited company be cancelled and reserved for another company to be formed. There is nothing in the order of the Appellate Authority to indicate that the appellants had personally assented thereto. The suggestion seems to have emanated from learned counsel and was apparently seized upon as cutting the Gordian knot. However, there was certainly no estoppel against the statute and if the R.T.A's action was wholly beyond the purview of the Act it could not be sustained.
The arguments with regard thereto is that since. The provision referred in contract in terms of Clause 19 is against the statute 1'e Section-27 of the Contract Act as well as Article f8 of thy Constitution of the Islamic Republic of Pakistan, 1973, the same cannot stand in way of the petitioner being in contravention thereof, as there is no estoppel against the said provisions. The other judgment referred in support of the above argument is (1.980 S.C.M.R 469) re: "Shahul Hamid v. Tahir Ali" which says that neither any Court of law nor any agreement can stop a party to plead law such being inalienable. Right under Constitution. He also referred (1982 CLC 515) in case of "Alauddin Akhtar v. Government of the Punjab and another" for supporting the argument that since the statutes have provided a right, it cannot be withdrawn through an agreement.
9. Relying upon the arguments as above as well as the judgments, learned counsel for the petitioner reiterated that neither the said provision of the contract is enforceable nor the injunctive order in Constitution to the petition of specific performance's justified. He remarked that it had not only stopped the petitioner of his right to do the job but has directly infringed his bread and butter and he is almost near the starvation because of loss of livelihood earning apparatus. He remarked that such an embargo is unethical in addition to being inequitable.
10. The respondent, on the other hand, started his arguments from the basic circumstances in which a temporary injunction could be issued. He said that the basic criteria is that whether prima facie a case has been made out by the petitioner or balance of convenience or inconvenience lies in his favour and whether the plaintiffs stand to suffer irreparable injury . Thus, if prima facie a strong case exists on the basis of above criteria on the basis of facts of the respective case the Courts can and in fact may grant injunctive orders. His reliance in support of the above parameters is on (1977 SCM R 220) re: "Sui Gas Transmission Company v. Sui Gas Employees' Union and others".
Learned counsel for the respondent moving ahead with the other limb of his arguments said that there is no restriction in law with regard to a negative covenant in the agreement. The same also is equally enforceable as that of the positive covenant. The question actually involved in this case is whether the contract is that of an illegal responsibility or that the petitioner is asked to do something not lawful. He is only restrained to join a company which is in competition with this Company meaning thereby that he can join any company or organization, which is not doing similar trade, lt is not being disputed that the petitioner had not signed the contract or that he has mis-stated while resigning. The simple argument is that the clause under discussion is not lawful, hence not enforceable which is a factual incorrect interpretation of the said provision. His reliance is on (A.I.R 1964 Gujrat 115 (V 51 C 17) re: "Sunilchand. C. Mazumdar v. The Aryodaya Spg. And Wvg.
Mills Co. Lid, as well as (2003 M.L.I) 1947) rej "Al-Abid Silk .Mills Limited v. Syed Muhammad Mudassar Rizvi" (P.L.D 1981 Karachi 720) re: "Nooruddin Hussain and another v. Diamond Vacuum Bottle Manufacturing Co. Ltd, Karachi and another", as well as (1999 Y.L.R I634) re: "Al-Jamiaui Arabia Ahasanul Jouiia and Jamia Masjid and others v. Syed Sibte Hassan and others".
11. All the above judgments are basically direct on the issue and have held that while making a contract the parties bound themselves to its contents even if some of the same are in negative form and may infringe their future right. Since the findings in all the above judgments are relevant and direct on the issues, we would like to refer a para from one of the same which speaks as follows:- "ln India, however, the position is somewhat different, for, the law as to injunction in such cases has been codified in S. 57 of the Specific Relief Act and illustration (d) to that section clearly indicates that an injunction can be granted in suitable cases even where the services in question are part of any special or specialized nature. Agreements of service containing a. Negative covenant preventing an employees from working elsewhere during the term covered by the agreement- are enforceable. The existence of a negative covenant in such agreements does not make the agreement void under S. 27 of the Contract Act on the ground that they are in restraint of trade. The illustrations (c) and (d) to S. 57 of the Specific Relief Act, in terms recognize such contracts and the existence of a negative covenant therein. The question whether a particular covenant in a particular agreement is unreasonably wide has, however, to be decided on the nature of the agreement, the qualifications of the employee and the service be had to render, considered along with the places where the employee could get alternative services of the same nature."
12. The arguments heard, record perused.
13. Apparently reference to Section 27 by the petitioners is a misconception. Section 27 of the Contract Act deals with business, trade and profession only, lt does riot apply on the contract of employment. The respondent company employed this petitioner for a specialized work on a specific post. The company offered and the petitioners accepted a reasonable package, besides the embargo that he will not join any other company doing the. Similar business within 11 months after leaving. The embargo is not on his working with companies doing other business, lt is only on the business, which is of the same or similar kind. For example if the petitioners want to join some textile unit, steel industry, chemical industry, I.T. Related industry etc, (here is no embargo on him to join any service. This restriction is only if trade of the company, which he wants to join is the same and that also is only for eleven months. Thereafter, he can join even such companies. This is what the spirit of the order is and this is what he has himself consented through the agreement clause under discussion. The above-referred para of the judgment fully applies on the facts of this case and leaves no doubt that the present petitioner having agreed to the negative covenant. Specific Performance Act does come into operation if the said negative covenant is not subsequently followed. This Court is conscious of the fundamental rights of this petitioner, but he has by his own conduct surrendered a part of his right for some period which even otherwise appears to be reasonable keeping in view the nature, type and sensitivity of the service. The policy of the company cannot be changed immediately while the contracts signed by it in respect of sale, import, manufacturing or supply etc are not going to materialize in days or weeks. The petitioner having joined the organization became aware of its policy and had access to the contracts, clients and contacts, which the company had in performance of its business. If the same are divulged to a competitor immediately, the. Same obviously can damage its business. However, even if there is no factual objection, the fact remains that the contract is not unlawful or illegal. The agreement is not for doing something which can be commented to be as illegal, lt is a valid and legal contract and thus is enforceable not only to the extent of its other clauses, the fruit of which has been enjoyed by the petitioners for 5 months: but in respect of the negative covenant also which unfortunately had to be invoked even after such a small span of service. This Court docs have sympathy with the petitioner being a young man but considers itself legally obliged not to prejudice its order because of the said sympathy, The law being totally against him, this Court is unable to interfere in the order of the learned Addl. District Judge and the same is hereby confirmed.
14. Needless to mention that the resign, having been filed and accepted in the month of September, the petitioners' new job can start and be regularized from 16-8- 2008 as per said contract.
15 This revision petition is dismissed accordingly.