SH. AZMAT SAEED, J. --- This appeal is directed against the order dated 31.7.2008 granting temporary injunction to the respondent.
2. Relevant facts necessary for the adjudication of the /is at hand are that respondent was granted a mining lease by the appellant through a public auction held on 18.1.2003 for a period of five years.
The consideration payable, by the respondent was Rs. 18,00,000/- and the .Lease granted to the respondent was expired on 17.3.2008 in terms of agreement inter se the parties. It appears that some dispute arose between the parties with reference to the availability of the site in respect whereof the mining lease had been granted. Respondent in this behalf moved an application seeking extension of the lease as allegedly the site was not made available to him earlier. Said application was dismissed by the appellant No. 3 vide order dated 3.11.2007 and the respondent being aggrieved whereof, filed a revision before respondent No. 2 which was disposed of vide the order dated 8.3.2008, the respondent was not found entitled to any further period by way of extension, however, he was in terms of the said order held entitled to the refund 45% of the consideration paid by him. The respondent filed a civil suit challenging the order dated 30.11.2007 and 8.3.2007 claiming to be entitled to the possession of the site of the lease till 30.9.2012. In the alternate prayer for the recovery of Rs. 1,15,53,000/- as damages was also made. Alongwith the plaint, an application for the grant of temporary injunction was also filed and it was prayed that the appellants be restrained from interfering in the business of the respondent over the site in question.
Suit and the application was contested. Written statement was filed and the reply to the application filed and the learned Judge seized of the matter after hearing the parties accepted the application for the grant of temporary injunction as prayed for vide order the order impugned dated 31.7.2008.
3. It is contended on behalf of .The appellants as the respondent himself sought damages, hence, the claim of the respondent was measurable in pecuniary terms, therefore, there was no occasion for the grant of temporary injunction. In support of his contentions he relies on PLD .2004 SC 860 Bolan Beverages Pvt. Ltd. v. Pepsico Inc. And 4 others and 2004 SCM R 1092 Puri Terminal Ltd. v., Government of Pakistan through Secretary Ministry of Communication and Railways, Islamabad and 2 others. Adds that the grant of temporary injunction offends against Rules 222 and 232 of the Punjab Mining Concession Rules, 2002 which are applicable to the lis at hand and the Civil Court had no jurisdiction to adjudicate upon the matter.
4. The learned counsel for the respondent controverts the contentions raised on' behalf of the appellants and has raised a preliminary objection as to the maintainability of this appeal. It is contended by the learned counsel for the respondent that no notice as contemplated by Order 43, Rule 3, C.P.C. Was served by the appellants, hence, this appeal is not maintainable and liable to be dismissed on this ground. In support of this learned counsel relies on PLD 1983 SC 693 Mrs. Dino Manekji Chinoy and 8 others v.
Muhammad Matin, 1991 M LD 941 Attaullah Khan and others v. Sarni. Ullah Khan and others, 1993 CLC 361 Elite D. Silva v. Dilawar Husain, 1997 M LD 2003, 1999. CLC 790 M/s. Heavy Electrical Complex v.
Sarhad Development Authority. He further contends that lease was granted for a period of five years and the respondent was unable to take full advantage of the mining concession for the said period, a fact it is, contended, is apparent from the orders of appellants Nos. 2 and 3, therefore, the respondent should be allowed to exercise his right of the full period of five years. In this regard, learned counsel has referred to an order dated 13.4.2004 passed by this Court in Writ Petition 5228/2004.
5'. In rebuttal, the learned A.A.G. Contends that in the facts & circumstances of this case, the appeal was maintainable, as no prejudice has been caused to the opposite side. To substantiate his contention, he relies on 1997 SCM R 414 Salah-ud-Din v. Syed Mansoor All Shah and others and 2004 CLD 1609' United Bank Ltd. v. Messrs. Khawaja Radio House. He further contends that site in question, the appellants have received an offer for Rs 1,25,00,000/- out of which C.D.R. For Rs. 25,00,000/- has already been deposited and it is proposed to auction the said mining lease with a base/reserve price of Rs. 1,25,00,000/- In these circumstances, the interim relief would cause huge loss to the public exchequer.
6. Heard. Record perused. I would first advert as to the preliminary objection being raised by the learned for the respondent as to the maintainability of the appeal. In this regard, it stands borne out from record that to begin with the instant appeal was filed before the District Judge, Sargodha and was put up for hearing before an Additional District. Judge for the first time on 29.8.2008 and on the very first date prior to the admission of the appeal, two counsels appeared on behalf of the respondent and raised objection to the effect that in view of its valuation, the appeal could not have been filed before that Court and instead ought to have been filed before this Court. Counsels for the parties were heard on the same date and the objection raised on behalf of the respondent was sustained with the result that memo. Of appeal was returned for 'filing it before the Court of appropriate jurisdiction and the instant appeal was filed before this Court. Furthermore, the provision of Order 43, Rule 3, C.P.C. And the dictum of law laid down by the apex Court in the celebrated judgment reported as PLD 1983 SC 693 Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin has been interpreted by the Division Bench of this Court in the case reported as 1990 M LD 986 Ch. Bashir Ahmed and 4 others v. Province of the Punjab through Collector, Sargodha and 4 others held as under:- "The utility of giving of previous notice of filing the appeal is meant to be restricted to the stage of preliminary hearing of the appeal and is not to have any further effect once the appeal has crossed that stage and has been admitted for regular hearing; thereafter the appeal. Is to be heard and decided on merits."
7. And in the case reported as 1990 Lahore 82 Fateh Muhammad v. Muhammad Hanif and another dilating upon the afore-said provisions of law and in the light of the judgment of the apex Court supra held that an appeal without notice under Order 43, Rule 3, C.P.C. Could only be held to be not maintainable where respondents showed that they suffered material prejudice.
8. Similar view was taken by a Division Bench of this Court in the case reported as 2004 CLC 1609 United Bank Ltd. v. Messrs Khawaja Radio House through Proprietor and 2 others. In the instant case, in view of the fact that the respondent appeared at the limine stage before the District Judge where the instant appeal was initially erroneously filed would make it clear & obvious that respondent had the full knowledge of the intention of the appellants to file an appeal against the order impugned and also the grounds of appeal, hence, the provision of Order 43, Rule 3, C.P.C.
Stood substantially complied with. Furthermore, this appeal was admitted for regular hearing on 17.10.2008, hence, in view of the consistent law laid down by the apex Court as well as by this Court, the objection is no longer relevant. The learned counsel for the respondent has been unable to show any prejudice caused to the respondent by non-service of notice of the filing of the captioned appeal. In view of above, this Court is not persuaded to dismiss this appeal as not maintainable and the same must necessarily be decided on merit.
9. The relationship inter se the parties is not based on a contract simpliciter to be governed only by the general law i.e., the Contract Act and the Specific Relief Act. It is a peculiar type of agreement, a mining concession lease terms & conditions whereof are determined not only by the agreement between the parties but also by a special law applicable thereto viz. The Punjab Mining Concession Rules, 2002. Grievance of the respondent is that after grant of the lease, the site in issue was not made available to him in its entirety for the duration of the lease period. Such an eventuality is specifically governed by Rule 22'2 of the Rules ibid which reads as under:- "222. Refund of proportionate bid money. In case lessee fails to assume possession of the area or work therein due to circumstances beyond his control and informs within a period of fifteen days from the date he first faced the hindrance in this respect and proves it to the satisfaction of the Licensing Authority, it may refund the proportionate bid money to that extent: Provided that no relief under this rule shall be admissible due to rains or floods in the rivers, streams or of dangerous quarry operations."
10. A bare reading of the said provision of law would make it, clear and obvious that in such an eventuality the respondent is entitled to refund of the proportion of the consideration paid to the appellants. The alleged failure-of the appellants in the instant case has been measured in pecuniary terms through the alternative relief of damages in the suit. Thus, in the instant case monetary compensation is the obvious remedy available to the respondent and he was not entitled for any injunction permanent or temporary.
11. Upshot of the above resume of facts and- discussion would be that it is a fit case for interference and invalidation of the orders impugned. Therefore, by accepting this appeal the order impugned is set aside holding the same as illegal and in violation of the law.
12. In the terms indicated ibid leaving the parties to bear their on costs. .