1. ' MAQBOOL BAQAR, J.---Through this application, under Order XXXIX Rules 1 and 2 read with section 151, C.P.C., the plaintiff has prayed for an order restraining the defendants from removing the plaintiff from the project and from awarding the contract to any other party without due course of law.
2. ' Notices of this application (C.M.A. No, 5746/2009), as per record, were served on defendants Nos. 2 and 3 on 8-6-2009 for 3-8-2009. However, the diary sheet reveals that on 29-6-2009, the plaintiff filed an application for urgent hearing of the present application i.e, C.M.A. No, 5746 of 2009. The application was fixed before the Court for orders, however, since none appeared for the plaintiff before the Court on that date and a slip was left with the Reader of the Court requesting for keeping aside the matter, the case was adjourned to a date in office. Another application for urgent hearing was filed by the plaintiff, being C.M.A. No, 6544 of 2009, on 1-7-2009 and the same was fixed for orders on 3-7-2009 when Mr. Zakir Hussain Khaskheli, the learned counsel for the plaintiff submitted before the Court that since despite notice neither have the defendants filed any counter-affidavit to the injunction application nor has any one appeared on their behalf, the defendants may be restrained from creating any third party interest in the suit property, whereupon a learned single Judge of this Court restrained the defendants from creating any third party interest in the suit property till the next date of hearing and adjourned the case to 16-7-2009.
3. On 16-7-2009, the hearing of the case was adjourned to a date in office as Mr. Khashkheli was reported to be unwell and the aforesaid interim order was extended till the next date of hearing. On 21-7-2009, the defendants filed two separate applications; one under Order VII, Rule 11, C.P.C. (C.M.A.
4. No, 6998 of 2009) and the other for urgent hearing of injunction application on 23-7-2009. It was submitted in the applications that since ad interim order has been obtained by the plaintiff through misrepresentation and by concealing the true facts and despite the knowledge that the subject contract for the remaining work has been awarded to another contractor on 21-5-2009, who has started the work immediately, the injunction application may be fixed on 23-7-2009. By order, dated 23-7-2009, the Court, taking note of the fact that the injunction application is already fixed on 3-8-2009, ordered that the defendants' application under Order VII, Rule 11, C.P.C. May also be fixed on the said date. However, on 3-8-2009 though the counsel for the defendants Nos. 2 and 3 appeared before the Court but none appeared for the plaintiff and the case was adjourned to 11- 8-2009, on which date, again Mr. Khaskheli did not appear before the Court and instead left a chit with the Reader of the Court for an adjournment, the case was thus adjourned to 13-8-2009. On 13- 8-2009, the case was adjourned to 25-8-2009, to be taken up at 11-00 a.m. On 25-8-2009 again on account of Mr. Khaskheli the case was adjourned to 27-8-2009 and was ordered to be taken at 8- 30 a.m., with a caution that there shall absolutely be no adjournment in the case and in case Mr. Khashkheli is not available, the plaintiff shall make some alternate arrangement. On 27-8-2009, Chaudhary Khalid Arain, Advocate filed his power of attorney for the plaintiff and requested for a short adjournment and the case was thus adjourned to 28-8-2009, to be taken up at 8-30 a.m.
5. ' Today, Chaudhary Khalid Rahim Arain submits that he has not been able to go through the case file and requests for adjournment. However, the request is vehemently opposed by Chaudhary M.
6. Iqbal, Advocate for defendants Nos. 2 and 3 and the learned Standing Counsel, who is appearing for defendant No,1, the Federation of Pakistan. They submit that the plaintiff has obtained the ad interim order in this case by concealing the fact that the defendant No,2 had terminated the subject contract on 20-5-2009 and has awarded the remaining work to another contractor, namely Messrs Sunny Builders on 21-5-2009 i.e, nine days before the present suit was filed. They further submit that in fact the order has been obtained by the plaintiff through fraudulent machination as notice on the injunction application as ordered by the Court on 4-6-2009 was issued for 3-8-2009. However, since the plaintiff has failed to obtain any interim order on 4-6-2009, he filed an urgent hearing application on 1-7-2009 (C.M.A. No, 6544/2009), which was fixed before the Court on 3-7-2009. The counsel for the plaintiff, suppressing the fact that no notice for the said date was ordered and/or issued to the defendants, and by misleading the Court into believing that despite service of notice the defendants have avoided to appear before the- Court and that although, it was only an urgent hearing-application that was fixed before the Court on that-day,- obtained an ex parte ad interim order, restraining the defendants from creating any third party interest in the suit property till the next date of hearing.
7. ' As the learned counsel for the plaintiff is unable to render any assistance to the Court and is not able even to narrate the facts of the case, the Court asked the learned counsel for defendants Nos.
8. 2 and 3 to place before the Court the relevant facts of the case, who submitted that the subject contracts i.e, Civil Works of Shell Space (OT Complex, CATH LABS and Angiography Suites) and for Civil Works of Shell Space (CT Scan Room) at NIVCD, Karachi, were awarded to the plaintiff vide letters, dated 31-12-2007 (Annexure A & B to the plaint), which works- were, in terms of clause 2.3 of the said letters were to be completed within three months, whereas, clause 10 of the General Rules and Directions for the guidance of Contractors contained in the document titled 'Instruction to Tenderers' provided that under no circumstances shall any contractor be entitled to claim enhanced rates for any items in the contract (Annexure D-2 to the counter affidavit). The learned counsel then referred to the contract agreement, dated 22-1-2008 (Annexure D-45 and D-7 to the counter affidavit) and submitted that in terms of clause 2 thereof the foregoing document formed, and are to be read and construed, as part of the agreements. Mr. Iqbal submitted that though the work was commenced by the plaintiff within the stipulated time but since electricity wiring work was to be carried out in the project, the period for completion of work was, at the request of the plaintiff extended from time to time and up to 31-5-2009. However, on the one hand, the pace of the plaintiff's work was extremely slow and unsatisfactorily and on the other, the plaintiff started demanding revision of rates. The defendant No,3 vide letter, dated 21-4-2009 whilst complaining about the slow progress, and relying on clause 10 of the general rules and direction as noted above, declined the plaintiff's request for revision of rates and requested the plaintiff's to complete the subject works within afore prescribed time. It was also noted in the letter that same be treated as the first notice under castles (c) of the tender documents (Annexure D-11 to the counter affidavit). However, the plaintiff instead of speeding up, completely stopped the work. The defendant No,3 was thus constrained to send a second notice to the plaintiff requesting him to resume the work, with a caution that since the subject project is a health care project, the same cannot be delayed any further and that in the event the plaintiff failed to resume and conclude the work within the stipulated time action will be taken against the plaintiff at his own risk and costs.
9. The plaintiff still remained unmoved and, therefore, vide third and the final notice, dated 15-5-2009, plaintiff was warned that in case he still fails to resume the work within the three days of the receipt of the notice, the contract will be terminated. However, instead of resuming the work, the plaintiff vide letter, dated 17-5-2009 informed the defendant No,3 that he is planning to start the remaining work but still failed to resume the work and thus defendant No,3 by letter, dated 20-5-2009 whilst noting that since in the circumstances, as noted above, it. Is evident that the plaintiff has no intention to complete the work within the stipulated time i.e, 31-5-2009 and that the defendant No,3, in the circumstances, was left with no option, but to cancel the contract, terminated the contract. The learned counsel further submitted that since the project was being constructed for operation, Cath Labs, Angiography and for CT Scan Room for cardio patients and the equipment's worth millions of rupees imported from abroad was awaiting installation and since there is a great dearth of the said facilities in the city, the defendant No,3 after seeking advice from the consultant of the project, awarded the work abandoned by the plaintiff to Messrs Sunny Builders on 21-5-2009.
10. ' Learned counsel for the defendants further submits that in fact no cause of action was available to the plaintiff for an injunctive relief as sought through the suit and the instant application, as the contract granted to the plaintiff had been terminated on 20-5-2009 i.e, ten days before the filing of the suit and had in fact granted the contract to another contractor on 21-5-2009. He further submits that the plaintiff by suppressing the above fact and the notice on the injunction application as ordered by this Court on 4-6-2009 was issued for 3-8-2009, which notice was not even served on the defendants by 3-7-2009 obtained, on that date, an ad interim injunction order and thus the plaintiff on this ground also has disentitled himself to any ad interim/equitable relief.
11. He further submits that in any event since the plaintiff can well be compensated for termination of the subject contract in terms of money they are even otherwise and entitled to the injunctive relief as sought by them.
12. The contract, as noted above, was terminated and was in fact awarded to another party before filing of the suit, who according to the defendants started work immediately. The ad interim order has been obtained by the plaintiff not only by suppressing the above but also by misleading the Court into believing that the defendants have been served with the notice of the injunction application and have avoided to appear before the Court. The project is of a crucial public importance and in view of the indolent behaviour of the plaintiff, the defendant were left with no choice but to terminate the contract and award it to another party, who according to the plaintiff started the work immediately. The plaintiff have failed to make out a prima facie case in their favour, the balance of inconvenience is also not in their favour, they can very well be compensated for the termination of the contract in terms of money and have in fact also sought damages through the present suit. The application, in the circumstances, is dismissed. The ad interim order, passed earlier, stands vacated.