' These are two revision applications arising out of a common order passed by the District Judge, Badin, on 9th September 1980, in two Civil Miscellaneous Appeals Nos. 20/80 and 22/80, in the following circumstances :- ' That at public auction held by the Director of Fisheries on 3rd June 1980, for the fishing rights in respect of fishing rights of Nareeri Dhand and Guni Phuleli Outfall Drain. Ibrahim and Punhoon plaintiffs/ respondents gave the highest bid of Rs, 5,500 and 12,500 respectively. The auction was held under the terms and conditions laid down by the Directorate of Fisheries Government of Sind, which were accepted at the time of auction by Ibrahim as well as Punhoon and in token thereof both had signed the same. These persons deposited the bid amounts on the same day. It however appears that the petitioner Paryal made representation and the bids given by these respondents were not approved. It is the case of the Government, represented by the learned Additional Advocate-General that such letters of 12th June 1980, rejecting their offers were duly served upon the said respondents informing them that the bids given by them were not confirmed and that the respondent were called upon to participate in the fresh auction which were going to be held.
Separately notices dated 25th June 1980, were also served upon the respondents notifying that the reduction of the fishing rights would take place on 28th June 1980, and the respondents were again asked to participate in the auction failing which the auction would proceed and no objection would be heard in that behalf. The reduction took place on 28th June 1980, at which the petitioner Paryal gave highest bid of Rs, 11,00 in respect of Dhand of Nareeri and Rs, 18,000 in respect of Guni Phuleli Out-fall Drain. The petitioner states that the bid amounts were paid in full and Ijazatnamas in respect of the both were issued to him on 8th July 1980, and that he has been put in possession.
The period of these leases/rights is from 1st July 1980 to 30th June 1981. The respondents feeling aggrieved by the reduction and confirmation of sale of auction in favour of the petitioner filed separate suits for declaration and permanent injunction in the Court of Senior Civil Judge, Badin.
Alongwith the aforesaid suits the respondents/plaintiffs made applications under Order XXXIX, rules 1 and 2, C. P. C. Praying for interim injunction restraining the defendant No, 2 to 4 i,e, Director of Fisheries and Deputy Director of Fisheries as well as Paryal from interfering with the "fishery rights and netting of fish" by them. The parties filed affidavits and counter-affidavits.
2. The learned Senior Civil Judge, on 20th July 1980, rejected both the applications in both the suits.
Punhoon and Ibrahim filed Miscellaneous Civil Appeal No, 20/80 and No, 22/80 respectively in the Court of the District Judge, Badin. The learned District Judge by order passed on 9th September 1980, accepted the appeals and granted injunction against Paryal, the present petitioner.
Aggrieved by the aforesaid order of the learned Appellate Court the petitioner has preferred these two Revision Applications No, 263/80 and 264/80. The cases were admitted by this Court on 24th September 1980, when it was ordered that the main petitions as well as the applications would be heard together. The cases however for final hearing came up before me on 2nd November 1980, when they were partly heard. The learned Additional Advocate-General had stated that the record of the Department was called by the learned District Judge and accordingly 1 adjourned the cases to 5th November 1980, to enable the learned Additional Advocate-General to produce the original record. The original record of the Department pursuant to the aforesaid direction was produced and inspected by the parties as well. Photocopies of the letters dated 12th June 1980, mentioned above rejecting the offers made by the two plaintiffs at the auction sale held on 3rd June 1980, were supplied to the learned , Advocates for respondents/plaintiffs and placed on the record. The 'case D' -after hearing the parties was reserved for judgment to be announced on 17th November 1980, but the parties were directed to file any-affidavit or document in rebuttal/reply of the letter/notices dated 12th June'1980, which was placed on record on 5-11-1980 by the learned Additional Advocate-General. On 10th November, and 15th November 1980, Ibrahim and Punhoon filed reply affidavits. On 17th November 1980, one Ali Murad, Extra Assistant Director of Fisheries, Hyderabad, also filed his affidavit in which he has expressly stated that the notices dated 12th June 1980, were served upon the respondent Ibrahim and Punhoon in his office and they had put their thumb impression/signatures in his office before him on 12th June 1980. Copy of this affidavit is stated to have been supplied to the learned Advocates for the two respondents/plaintiffs.
3. I have, gone through the record and in view of the additional affidavits filed high the parties, I heard their further arguments, and after giving them full opportunity of being heard, I am of the opinion that learned lower appellate Court while deciding these appeals has not kept in view the principles which govern the grant or refusal of temporary injunction under Order XXXIX, rules 1 and 2, C. P. C.
4. In order to determine the question whether impugned order passed by the learned Appellate Court could be maintained, it would be necessary to find if the two plaintiffs/respondents established the following three basic requirements laid down in the case of Muhammad Umar Beg v. Sultan Mahmood Khan (1), on the fulfilment of which alone injunction could be granted under Order XXXIX, rules 1 and 2, C. P. C. The Hon'ble Supreme Court in the aforesaid case held that the well-settled principles for the grant or refusal of temporary injunctions in accordance with, law are :- "Firstly, whether the plaintiff has a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of the injunction and, thirdly, whether the plaintiff would suffer an irreparable loss if the injunction, is refused."
5. In the present two cases, the submissions of the learned counsel for the two plaintiffs are correct to, the extent that Ibrahim, the plaintiff in Suit No, 90/80 and Punhoon the plaintiff in Suit No, 91/80 had given the highest bids at the public auction held on 3-6-1980. However these highest bids/offers by themselves created neither any legal rights in favour of the plaintiffs nor resulted in binding contracts between them and the authorities. Admittedly Clause No, 4 of the terms and conditions subject to which ,the auctions were held provided that :- "All auctions of contracts are subject to the approval of the Director, and Director, Fisheries has power to grant or 'eject approval of any contract without assigning any reason therefor. The approval of contract once given by the Director shall become final."
6. It would thus be seen that not only the auction of lease/contracts or bids made were subject to approval of the authorities but the power to grant or reject approval of any contract/bid without assigning any reason, was expressly reserved. In the two cases under-consideration according to the record, prima facie, there is sufficient material to justify the conclusion that the bids given by the two plaintiffs were not approved/ confirmed, and that the same were in fact expressly rejected.
The plaintiffs/respondents by letters of 25-6-1980 were notified that reduction of the Dandh Nareeri and Guni Phuleli Drain shall take place on 28-6-1980 in the District Council Hall, Badin, and they were called upon to participate in the auction, failing which auction would proceed and no objection would be heard on their/his behalf. The copies of these letters are placed on record, bear the signatures/thumb impression of the plaintiffs respondents showing that they were delivered to them on 26-6-1980.
7. Mr. Abdul Satter Shaikh, the learned Additional Advocate-General stated at the bar that the record of the Department was called by the learned District Judge, and in order to further satisfy myself as to the rejection/cancellation of the offers of, the plaintiffs, I directed him to produce the original record in the interest of justice. In compliance to the said direction the learned Additional Advocate-General produced the original record, which contained copies of the aforementioned letters dated 12-6-1980. Photocopies of these letters were supplied to the learned Advocates for the plaintiffs on 5-11-1980 and copies were also placed on record. The cases were then adjourned to enable the parties to make (1) PLD 1970 SC 139 further submissions (if any) in answer to the same and for announcement of orders. The parties however in the meantime filed additional affidavits and accordingly they were further heard.
8. It is not necessary to go in the merits of the cases in these proceedings but prima facie, it is clear that the bids of the plaintiffs were not accepted and no binding contracts were formed between the parties. This would be so even if we do not take into consideration the letters dated 12-6-1980 which have been produced before this Court. Punhoon and Ibrahim gave the highest bids of Rs, 12,500 and Rs, 5,500 respectively for Phuleli Outfall Drain and Narreri Dandh but under the powers reserved by the authorities under clause 4 of the terms and conditions of the auction sale, the authorities expressly reserved the right to reject or approve any of the bids without assigning any reason. The said clause also provided that only on the approval of the bid the contract would become final. This approval/confirmation of the bids never took place. Paryal, the petitioner, in his counter affidavits filed in the trial Court in para. 3 expressly stated that the bids given on 3rd June 1980, by the two plaintiffs were not confirmed. This statement has gone unchallenged as no affidavit-in-rejoinder was filed by any of the plaintiffs. On the other hand Mr. Ali Murad, Extra Assistant Director of Fisheries filed affidavits before the learned trial Court in both the suits stating that the authorities put the fishing rights at Guni Phuleli and Dandh Narreri on 28-6-1980 in open auction and disposed of the same in favour of Paryal who gave the highest bids. He further stated on oath that the Ijazatnamas have already been issued in favour of the petitioner, Paryal on 8th July 1980, and that he has been put in possession. The respondents/the plaintiffs have not produced any document and in fact that they did not make even any averment in the plaint or affidavit in the trial Court that the bids given by them were ever accepted.
9. In the light of above discussions prima facie the highest bid given, having not been accepted did not mature into any subsisting and binding contract and the plaintiffs/respondents acquired no legal right. I am c fortified in reaching the above conclusions by the following observations of the Hon'ble Supreme Court of Pakistan in the case of Pervaiz Qureshi v. Settlement Commissioner (1) : "A mere bid at an auction if the bid is subject to confirmation, does not create any contractual right until the bid is confirmed. It is in the discretion of the auctioneer to confirm or not to confirm it. In the present case, the bid could not be confirmed, because the respondents 2 and 3 claimed that the auction was illegal as the property concerned had already been transferred. The Departmental Authorities found as a fact that it had so 'been transferred to the said respondents and cancelled the auction. The petitioner who was a successful bidder at the auction cannot claim to be a person aggrieved by this order of cancellation of the auction vide Civil Review Petition No, 22 of 1966 Abdul Hamid Khan v. The Settlement Commissioner, Lahore decided on the 17th June 1966, by this Court and Muhammad Sharif v. Sharifuddin which is a decision in an appeal."
10. The other contention of both the learned Advocates for the respondents/plaintiffs that they have no knowledge of the non-approval or rejection of their bids is not substantiated or supported by the record before the learned lower Courts. The bids given by the two plaintiffs were {{FOOT NOTE}}
(1) 1974 S CMR 339 {{FOOT NOTE}} ' not accepted or approved is evident from the record. Further in my opinion the letters dated 25th June 1980, addressed to these persons are sufficient notices that the bids (which were subject to confirmation) had not been accepted and that reauction would take place in which the plaintiffs were called upon to participate. It is nowhere provided that the plaintiffs should be communicated of the acceptance or rejection of their bids in any prescribed or specified form. Further in my opinion before holding the second auction there was no necessity to give a notice of cancellation of the bids given at the previously held auction. The learned High Court of Lahore in the case of Muhammad Hussain v. Ehsanuddin (1), has held that :- "The position of law is clear that a contract of sale may be made either by a private agreement between the parties or by public auction, but however made, it must contain the ordinary essentials of a contract, namely, an offer by one party to the other, and an acceptance of that offer by the party to whom it was made. The acceptance may be subject to an approval by some person on the execution of a formal contract in which case there is no binding agreement until the approval is given or a formal contract is executed."
' And further after discussing the facts and conditions governing the aforesaid case the learned High Court held :- "It is nowhere provided that there is to be any specific order passed before rejection of an offer.
Conditions 9 and 10 are couched in unmistakable terms that the bid is subject to approval of the Additional Settlement Commissioner and it is only on its acceptance that intimation is to be given to the successful bidder."
11. Thus from the discussions made above it is clear that the plaintiffs/ respondents Punhoon and Ibrahim in the two petitions acquired no lease/ contracts and that they have failed to prove that they have a prima facie case. It may also be observed here that neither the balance of convenience is in favour of the plaintiffs/respondents nor they would suffer any irreparable loss or injury if injunction is not granted. In the face of the affidavits filed by the authorities supported by the Ijazatnamas issued in favour of the petitioner it is evident that possession has already been delivered to him which does not call for interference at this stage. It would however be open to the plaintiffs/respondents to claim damages if they ultimately succeed in their suits and they may also apply for suitable amendments in the present suit if so advised.
12. I may mention here that at this stage, the learned counsel for the respondents have raised some new contentions but for the disposal of these revisions petitions it is neither necessary nor justified to go into all of them. I may however deal with the legal question raised to the effect that though under West Pakistan Fisheries Ordinance No, XXX of 1961, Rules were framed (See PLD 1966 W. P.
Statutes Part 73), but on repeal of the said Ordinance and re-enactment of Sind Fisheries Ordinance No, III of 1980, the said rules ceased to be applicable in the absence of any saving clause. The contention is that in the absence of the rules the terms and conditions under which the auctions were held are not binding and cannot be relied upon by the Government. This submission of the learned counsel however is obviously not correct as by virtue of section 24 of General Clauses Act the Rules framed under the repealed Act, so far as the same {{FOOT NOTE}}
(1) PLD 1973 Lah. 345 {{FOOT NOTE}} ' are not inconsistent with the provisions re-enacted continue in force and are deemed to have been made or issued under the provisions so-re-enacted. No inconsistency has been pointed out by the learned counsel. Moreover the respondents/plaintiffs had participated in the auction on 3- 6-1980 on the terms and conditions published by the concerned Department, and the same were signed by these persons in token of their acceptance and agreed to be bound by the same. They are now estopped from resiling from the same and contending that the said terms and conditions are not binding upon them.
13. In the result these revision applications are accepted and the orders of injunction granted by the learned lower appellate Court are set aside, as the same cannot be sustained in view of the law laid down by the Hon'ble Supreme Court. It may be clarified that these revision applications have arisen out of interlocutory proceedings and the suits are still pending for disposal, and as such any observations made above are tentative in nature and shall not be binding on the Courts at the time of the trial of the said suits.