' MIAN FASIH-UL-MULK, J.--- By this judgment I propose to dispose of Civil Revisions Nos.998 and 1053 of 2011 as common questions of law and facts are involved therein.
2. Impugned herein is the judgment and order dated 3-6-2011 vide which the appeal preferred by respondent No,1 was accepted and order passed by learned Civil Judge-V, Peshawar dated 14-5- 2011 was set aside.
3. Briefly stated facts of the case are that respondent No,1 (Messrs Balana. Restaurant through its authorized partner Sajjad Hussain) filed a suit for declaration and permanent injunction in respect of catering contract to Gaggan Catering Service by official respondents of PIAC. Plaintiff also moved an application for temporary injunction seeking restraint order against the official respondents of PIAC from acting upon the contract of catering awarded to Messrs Gaggan Catering Service through its Chief Executive Abdul Muaqeet Tahir (petitioner in Civil Revision 998 of 2011). After hearing the parties by trial court, application for temporary injunction was dismissed vide order dated 14-5-2011. Aggrieved therefrom, respondent No,1 (Messrs Balana Restaurant) preferred appeal and the learned Additional District. Judge-XII, Peshawar after hearing the parties accepted the same, set aside the impugned order dated 14-5-2011 and granted injunction in favour of respondent No,1 to the extent that operation of the Letter of Intent issued by Pakistan International Airline Corporation (petitioner in Civil Revision No,1053 of 2011) in favour of Gaggan Catering Service was stayed vide judgment dated 3-6-2011, hence the instant revision petitions.
4. Learned counsel for petitioner contended that the learned appellate court has travelled beyond jurisdiction ignoring that Letter of Intent was converted into a agreement, which had not been impugned. It was further argued thavalidt it is a public contract and could not be stayed. Learned counsel while referring to the essential ingredients of temporary injunction submitted that respondent No,1/plaintiff could not make out a prima facie case, balance of convenience tilted in favour of petitioner and loss, if any, was measurable in terms of money. Learned counsel while concluding contended that by staying the operation of Letter of Intent the learned appellate court has virtually decided the suit and that too without recording pro and contra evidence.
5. Learned counsel for petitioner in Civil Revision No,1053 of 2011 supported the contention of petitioner's counsel and added that both Messrs Balana Restaurant and Messrs Gaggan Catering Service were pre-qualified contractors and if at all respondent No,1 was aggrieved of any action of Pakistan International Airline Corporation, it could have brought a suit for damages against the Corporation and not a restraint order staying public contract.
6. On the contrary, learned counsel for respondent No,1 while defending the impugned judgment submitted that Pakistan International Airline Corporation is a public entity and was bound by the Public Procurement Rules, 2004. The contract was supposed to be awarded after fulfilling all legal prerequisites by floating tenders on the Website and advertisement through electronic media.
Respondent No,1 was deprived of an opportunity of fair competition through tendering process and, therefore, had a prima facie case. In his view, balance of convenience was in favour of respondent No,1 and could suffer irreparable loss in case of refusal of interim relief.
7. Arguments heard and record perused with the able assistance of learned counsel for the parties.
8. The case of respondent No, 1/plaintiff is that Messrs Gaggan Catering Service and Messrs Balana Restaurant were prequalified contractors for upcoming contract. It was legal right of both the parties to have received tender forms enabling them to participate in the bidding process and compete for the contract. Pakistan International Airlines Corporation awarded the contract to Messrs Gaggan Catering Service without providing respondent No,1 bidding documents, thus, keeping respondent No,1 in dark in utter violation of provisions of Public Procurement Rules, 2004.
' As against that, the stance of petitioners is that respondent No,1 was duly informed about the bidding process through E-mails dated 22-7-2010 and 20-4-2011 and signatures of Sajjad Hussain, its authorized partner, were obtained on it, as a token of receipt. Respondent No,1 did not participate in the bidding process on its own whereas Messrs Gaggan Catering Service participated in the bidding process and because of comparative lower rates offered by Messrs Gaggan Catering Service the contract was awarded to the petitioner.
9. Whether respondent No,1 was informed of bidding process or not and whether Pakistan International Airlines Corporation violated the Public Procurement Rules, 2004 in grant of contract to Messrs Gaggan Catering Service or not are questions, which would be determined by trial court after recording pro and contra evidence at trial. Therefore, without touching merits of the case, I propose to decide the application for temporary injunction on the touchstone of three essential ingredients keeping in view the guidelines given by the superior courts from time to time.
10. In the case of Tauseef Corporation Private Limited v. Lahore Development Authority and others (2002 SCM R 1269) their lordships held that Supreme Court would decline to grant interim relief if loss is measurable in terms of money. Similarly, in another case titled Oil and Gas Development Corporation v. Lt.Col. Shujauddin Ahmad (PLD 1970 Karachi 332) it was observed that mere fact that plaintiff has prima facie case is not sufficient to claim interim injunction as a matter of right.
Court must satisfy itself whether effect of injunction would be to preserve or alter status quo during pendency of litigation and whether irreparable injury would otherwise be caused to plaintiff. Effect of injunction amounting to alteration of status quo during pendency of trial and no irreparable injury likely to be caused to plaintiff, temporary injunction would not be issued in circumstances. In the case of Shah Jehan v. Fazlur Rehman (2001 CLC 1695) it was held that grant of interim injunction was a discretionary relief but while passing such an order court was not expected to go by its whims and generally accepted principles, governing the exercise of such discretion had to be abided by, for, if it was not done miscarriage of justice would be occasioned.
11. Now adverting to the case in hand, the record reveals that respondent No,1 filed declaratory suit along with permanent injunction and application for temporary injunction on 27-4-2011. Prayer for interim relief was dismissed on 14-5-2011. On 12-5-2011, contract was executed between Messrs Gaggan atering Service and Pakistan International Airline Corporation which had to take effect on 17-5-2011. On 3-6-2011, the operation of Letter of Intent was stayed by the appellate court and not the agreement of the contract dated 12-5-2011. The order of appellate court amounts to grant of full relief as sought in the suit. Learned appellate court on having weighed and considered all attending facts and circumstances of the case had to pass rational, judicious and equitable order but total relief could not be granted in the garb of interim relief. Respondent No,1 could neither make out a prima facie case nor could satisfy the other essential ingredients for issuance of temporary injunction.
12. In the wake of what has been stated above, both the Revision Petitions bearing Nos.998 and 1053 of 2011 are accepted, the impugned judgment of learned appellate court dated 3-6-2011 is set aside and order of the trial court dated 14-5-2011 is restored with the direction that the main suit be decided within a period of six months.