' This appeal is directed against the order of the learned Civil Judge, dated 12th August, 1979 rejecting the application for the grant of temporary injunction.
2. Briefly stated the facts of the case are that on 31st July, the appellants filed a suit for a declaration to the effect that the respondents were not entiteld to recover the amount of Rs, 1,30,7013.0 from the appellants in consequence of letter No, 6001/ 153-E. 6, dated 5th July, 1979. A decree for perpetual injunction was also prayed for by way of consequential relief restraining the respondents from acting on the said letter and from recovering the amount. The appellants are the approved Contractors of the Military Engineering Services a Department of the Government of Pakistan working under the Ministry of Defence. The appellants were assigned Contract No, CEA-1 of 1976 by accepting the tender issued in respect of the construction of M. E. S. Roads. Both the parties agreed that the work had been completed by 2nd June, 1979 and that the final payment had been made to the Contractors. After the work had been completed the respondents addressed a letter to the appellants for the recovery of the said amount on the plea that an excess payment had been made to the extent of Rs, 1,30,701.30 on account of items Nos. 36 and 38 of the schedule of rates having been amended by way of letter dated 6th February.
1974. The appellants asked for better further particulars vide their letter dated 8th January, 1979 and the details were given on 5th of March, 1979. The appellants feeling that the amount could not be realised after the work had been completed filed the present suit.
3. The learned counsel for the appellants argued that the letter by which the amendment had been made in items Nos. 36 and 38 was only an advance amendment liable to be published and unless the same bad been published in accordance with law items Nos. 36 and 38 of the schedule could not be said to have been amended and as such the question of excess payment did not arise. On the contrary the learned counsel for the respondents argued that the letter dated 6th Febuary, 1974 was by itself the amendment and there was no requirement that such a change ought to have been notified. In order to find out whether there was a prima facie case or not the extract of letter dated 6th February, 1974 I,v which the amendment had been made may be reproduced below : '
' Int Distr : E-3, E-10. TE & E-7- ' Rev. Sec : -This advance amendment is to be published in due course.
' Subject : Amendment to MES Schedule of Rates 1970.
A copy of advance amendment No, 6 dated 6th February, 1974 is forwarded herewith for information/necessary action. {{TABLE}} Amendment MES Schedule of Rates 1970 Amendment No, 6 Dated 6 Feb.
1974.
Page No, 39 Delete Insert Items Nos. 36 and 38 10.10 and 13.95 and under heading 9.40 13.25 "Material & Labour"
4. This amendment to items Nos. 36 and 38 were not pressed into service by the respondent during continuance of the work while making running payments nor at the time of payment of the final bills. The question whether in order to make the amendment effective a notification was necessary or not was a question to be determined during the trial. The learned counsel for the appellant has frankly conceded that the Department had the right to recover any short payment under Clause 67 of the Basic Contract read with Clause 63. He, however, submits that since the letter dated 6th February, 1974 quoted above did not have the effect of amending the schedule the question of re- imbursement of the excess payment did not arise.
5. The question raised in the suit was one of first impression. The work had already been completed.
The Department had not charged the appellants according to the revised schedule and it seems that even the revision in the items Nos. 36 and 38 was not in the knowledge of the Department. The question whether such an amendment was required under the law to be notified or by simply circulating the letter was sufficient to make the amendment effective. If it was required under the law to be notified, a publication was necessary and reliance in this behalf may be placed on a judgment of the learned Supreme Court Province of East Pakistan v. Hassan Askari (1). Since important questions were involve it could not be said that the prima facie case had not been made out. The conduct of the Department also supported the contention of the appeal
(1) PLD 1971 SC $2 ' lants. It would have been a breach of an obligation both contractual as well as legal in case the respondents would be permitted to recover this amount from the security or from other works and the stay order could be granted in the circumstances on any reasonable terms.
6. In view of the above discussion I accept this appeal, set aside the order of the learned Civil Judge, Lahore dated 12th August, 1979 and direct that the respondent shall not be entitled to recover the amount of Rs, 1,30,701.30 from the appellants from their security or from any other amount due to them pending the disposal of the suit on the appellants furnishing security for the realization of the amount of Rs, 1,30,701.30 to the satisfaction of the learned trial Court within one month.
7. Since a very short question is involved which is purely legal the learned trial Court shall try to dispose of the suit within six months, if possible. However, there will be no order as to costs.