This order will dispose of Civil Revisions Nos. 886, 896 and 897 of 1972 as common three cases.
2. These revisions arise out of an order dated 15th November, 1971 passed by Mr. Abdus Saeed Sabir.
Additional District Judge, Lahore upholding the orders of the learned trial Court by which the petitioners' for temporary injunction were dismissed, All the petitioners in the three revision petitions were appointed as Assistants in the Office of the Chief Engineer B & R, West Pakistan on different dates. M. A. Hamid petitioner in Civil Revision No. 886 of 1.972 was appointed on 3rd July, 1957 while Jamil Ahmad petitioner in Civil Revision. No. 986 of 1972 and Abdul Majid petitioner in Civil Revision No. 897 of 1972 were appointed on 23 October, 1957 and 1st March, 1958 respectively. They were appointed in the scale of Rs. 150-10-250/15-370. On 28th April, 1962 the Chief Engineer's Office was amalgamated with Communication & Works Secretariat. There--after the West Pakistan Non- Gazetted Civil Servants (Pay Revision) Rules of 1963 were enforced. According to these Rules the revised pay scale of peti--tioners was Rs. 225-15-360/20-500. On 14th September, 1967 the Department of Director-General, Highways was brought into being and all the petitioners were confirmed as Assistants in that office in the ahove-mentioned revised pay scale. All the petitioners are said to have crossed the efficiency bar in 1968. At that time Mr. Hamid and Abdul Majid were, getting Rs. 36,000 each while Jamil Ahmad was drawing Rs. 380 per month as pay. On 4th October, 1969, however an order was passed for re-fixing the pay of the petitioners in the scale of Rs. 175- -10-195/15-360. The petitioners filed separate suits to challange this order inter alia on the ground that their terms and conditions regarding emoluments were protected by the Consti--tutions and the Government had no power or authoritv to interfere with these scales of pay. They also submitted separate applications for temporary injunction for restraining the respondent fromrd implementing the impugned order. These applications were, however, dismissed by the learned trial Court on the ground that no irreparable loss would accrue to the petitioners if the injunction is refused because they would be entitled to the refund of all their pay which may be illegally deducted. The petitioners filed appeals, which were dismissed by Mr. Abdus Saeed Sabir, Additional District Judge Lahore. It was held that the petitioners had a prima facie case as the terms and conditions in regard to their emoluments could not be changed by the Government to their disadvantages and the Government had no power to revoke or recall the order of fixation of pay once ,t had become effective. It was further held that balance of convenience was in favour of issuance of injunction. However, the appeal was dismissed only for the reason that no irreparable loss or injury was likely to accrue to the petitioners.
3. I enquired from the learned counsel for the respondents for the reason which prompted the Government to re-fix the pay scale but the only answer that he could give was that according to some audit objections the petitioners originally could not have been appointed on the Secretariat Pay Scale. It was, however, admitted that the revised pay scale in which they had been fixed corresponded to the earlier pay scale in which they were appointed. It is also not denied that the petitioners have throughout been getting that salary according to the revised pay scale since the revision came into force and before that according to the earlier corresponding pay ,scale. There can be hardly any doubt that the petitioners had a very good prima facie case and the balance of convenience is also in favour of issuance of temporary injunction. The only question is whether the petitioners would suffer an irreparable loss or injury if the injunction is refused. For this proposition the learned counsel for the respondent relied upon Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (1), Province of West Pakistan v. Malik Asghar Khan (2) and Province of Sind v. Malik Asghar Khan (3) and submitted that the revision petitions are not competent as the appeals were decided in accordance with the law laid down by their Lordships of the Supreme Court. The learned counsel for the petitioners on the other hand argued that all these cases are distinguishable and prima facie the order of the Government being arbitrary and contrary to the Constitutional safeguards, the petitioners, who had become accustomed to particular standard of living would be reduced to a state of penury by the implementa--tion of the order and may not be able to make two ends meet and it will hardly be any satisfaction to them if after suffering for a long time the 'respondent is eventually forced to pay the accumulated arrears of unpaid salary to the petitioners.
4. I agree with the learned counsel for the petitioners that all these cases are distinguishable. One important point of distinction is that in these cases the balance of convenience was also found not to be in favour of issuance of temporary injunction as the case for injunction was hit by the provisions of section 56 of the Specific Relief Act. The other distinguishing feature is that the right to salary in those suits was not directly involved. It flowed indirectly from the declaration claimed that the order of reversion was illegal. In Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another the suit was filed to challenge the reversion of the plaintiff --appellant from the post of District Excise & Texation Inspector to that of a Sub-Inspector on the ground that Sultan Mahmood Khan respondent could not be held to be senior to the plaintiff. The plaintiff had, prior to the filing of the suit, already challenged the new seniority list by a writ petition was dismissed by the High Court and an appeal against that order filed in the Supreme Court. The question whether the plaintiff had a prima facie case was answered against him on the ground that the seniority list obviously holds the field unless the plaintiff succeeds in showing in his suit that it is illegal having been prepared against the statutory rules governing the matter of seniority or that it is otherwise factually unmaintainable. On the question of balance of convenience it was observed that "in the circumstances, even on the second consideration it cannot be said that by withholding the Govern--ment's orders regarding his reversion and upsetting the administrative arrange--ment made by it in its routine duties the balance of convenience lies in setting those orders at naught. In this connection the learned Additional District Judge has also referred to clause (d) of section 56 of the Specific Relief Act which prohibits the grant of an injunction which interferes with the public duties of any Department of the Central Government or the Provincial Government." Regarding the third ground it was observed that "if the plaintiff. Respondent's suit succeeds ultimately the interim wrong done to him by his reversion will be set right for which he can also be adequately compensated and the wrong can also be monetarily compensated for". Much emphasis was laid in the judgment on the provisions of section 56 of the Specific Relief Act. In the case of Province of West Pakistan v. Malik Asghar Khan their Lordships refrained from making any observation on the question of prima facie case but held that the other two essentials for grant of temporary injunction were not satisfied. The question of irreparable loss or injury was considered after holding that issuance of temporary injunction in service matters is bound to disturb the working of the Government. However, the subsequent observation shows that their Lordships were laying down a principle which could admit of exceptions. It was observed that "they (the other two essentials) should not ordinarily be issued unless there are com--pelling reasons to do because balance of convenience ordinarily would not lie in disturbing the arrangement of a Department". The univer3ality of the rule was whittled down by qualifying the rule with the word `ordinarily'. In the case of Province of Sind v. Muhammad Hashim the plaintiff was reverted from the officiating position that he held to his substantive post, the High Court held that the plaintiff had not prima facie case so he had acquiesced in his officiating appointment. Reliance was then placed upon the case of Province of Yl'est Pakistan v. Malik Asghar Khan (in which the case of Shahzada Muhammad Urner Beg v. Sultan Mahmood Khan was referred to with approval) and the revision petition of the Government was accepted against the order of injunction already issued.
(1) PLD 1970 SC 139(2) 1971 SCMR 569
5. Order XXXIX, rules 1 and 2 of the Code of Civil Procedure provides that a temporary injunction can be granted where it is proved--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors, ; and
(c) where the defendant is likely to commit a breach of contract or other injury of any kind and the suit is for restraining the defendant from committing the breach of contract or other injury whether compensation is claimed in the suit or not.
Apart from the danger or threat to property or likelihood of commission of breach of contract or any other injury these provisions do not lay down any other ground which may be considered essential for determining whether temporary injunction should be allowed or refused. Section 56 of the Specific Relief Act provides a guidance for determining whether perpetual injunction in a given case should be issued or not. This section is as follows.
"An injunction cannot be granted---
(a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings ;
(b) to stay proceedings in a Court not subordinate to that from which injunction is sought .;
(c) to restrain persons from applying to any legislative body ;
(d) to interfere with the public duties of any department of. The Central Government, or any Provincial Government, or with the sovereign act of a Foreign Government ;
(e) to stay proceedings in any criminal matter ; (f ) to prevent the breach of contract the performance of which would not be specifically enforced ;
(g) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be nuisance ;
(h) to prevent a continuing breach in which the applicant has acquiesced ;
(i) when equally efficacious relief can certainly be obtained by and other usual mode of proceeding except in case of breach of trust ;
(j) when the conduct of the appellant or his agents has been such as to disentitles him to the assistance of the Court ;
(k) where the applicant has no personal interest in the matter.
The essentials of irreparable loss and injury and balance of convenience has been gathered from these provisions as held is M. K. Gandary v. D. P. Foulji & Co. Ltd. (1). Relying upon Malik Sohara Khan others v. Ahmad Khan others (2), Hamesh war Das v. Jai Narain (3), Chet Ram v. Hari Bakhsh (4), Kunj Behari Lal v. Mst. Mubarak Begum (5), N. W. Ry. Adminis--tration v. M. S. Ry. Union (6), Brajendra Nath v. Kushi Bai (7) and Begg Dunion & Co. v. Satish Chandra Chatterjee (8), it was observed by S. A. Rahman, J. That "the preponderance of authority therefore is in favour of the proposition that considerations applying to the issue of permanent injunction would be relevant when the propriety of issuing a temporary injunction is, in question". Temporary injunction will ordinarily not be granted where grant of perpetual injunction may be barred by section 56 of the Specific Relief Act, where however, perpetual injunction can be granted there appears to be no reason why a temporary injunction may be refused. In the petitioners file a suit for perpetual injunction restraining the defendant-respon--dent from implementing the impugned order and from paying them a lesser amount can it be said that such an injunction cannot be granted.
6. One of the objections of the provisions regarding perpetual injunction as given by section 54 of the Specific Relief Act is that such injunction may be granted where it is necessary to prevent a multiplicity of judicial proceed--ings. A recurring or continuing breach of obligation thus provides opportunity for filing suit every time the threat occurs and in such cases permanent injunction shall not ordinarily be refused. The petitioners in the present cases are threatened with continuing breach of obligations of safeguards of their Constitutional rights in regard to remuneration and once the breach is established the permanent injunction cannot be refused. These are not cases where the relief about right to remuneration is a consequence of the declaration claimed. Here the suits are based only on the claim of entitlement to a particular amount of salary. To say in such cases the perpetual injunction should not be granted as the plaintiff' can be monetarily compensated would amount to laying down the rule that the plaintiff should file suit for the salary itself whenever it falls due. This will be encouraging multiplicity of proceedings rather than preventing it. If the possibility of monetary compensation cannot stand in the way of issuance of perpetual injunction I fail to see how that possibility can bar the issuance of temporary injunction.
(1) PLD 1951 Lab. 263 (2) 7 P R 1899
(3) AIR 1920 Lah. 436 (4) AIR 1926 Lab. 435
(5) AIR 1927 Lab. 833(2) (6) AIR 1933 Lab. 203
(7) A 1 R 1946 Pat. 177(8) 1 L R 1946 Cal. 1001
7. Ordinarily the question of balance of convenience and irreparable loss or injury are to be considered together as conditions supplementing each other in the same manner as sections 54 & 56 of the Specific Relief Act are supplementary to one another. While considering the question of balance of convenience one has really to consider whether the inconvenience, in the event of withholding the relief of temporary injunction in all events, exceeds that of the defendant in case he is restrained. This expression was explained in Noor Hussain v. Muhammad Sultan (1) in the following manner :- "If an injunction is not granted and the suit is ultimately decided in favour of the plaintiff, the inconvenience caused to the plaintiff would be greater than would be caused to the defendants, if an injunction is granted, when the suit is ultimatly dismissed. Although it is called balance of convenience, it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them should be greater than that which may be caused to the defendants."
Should the inconvenience be equal, it is the plaintiff who suffer. The answer to the question whether in a given case the plaintiff would suffer irreparable loss or injury in a large measure depends upon the answer to the question of balance of convenience. The question of damages affording sufficient relief to the plaintiff' can generally be considered in a case where it would be inconvenient for the defendant if an injunction is issued, if the balance of convenience is in favour of issuance of injunction and oppression to plaintiff in case of refusal to issue injunction is great, mere adequacy of relief by monetary compensation cannot be a ground for refusing the temporary injunction. The general rule is that in the matter of interlocutory order where a breach of right of plaintiff is threatened the proper course for a Court is to maintain the status quo until the disposal of the suit except in the case where such an order may cause a heavy burden on the defendant or where the injunction cannot be issued in view of section 56 of the Specific Relief Act so where it may interfere with the public duties of any Government Department. In Fayyaz Ahmed and others v. Municipal Board Amroha and others (2), a suit was filed by the plaintiff for a declaration that they and other Shia Muslims of Amroha had a right to take out in procession during the Ashra-i-Moharram i.e. on the 10 Moharram Tazias up to 27th feet in height in the public street of Amroha by certain fixed routes and for a perpetual injunction ordering the defendants to raise the electric wire to such a height as not to cause interference or substruction in the exercise of that right. That suit was dismissed by the trial Judge, but was decreed in appeal by the High Court. It was suggested in argument that instead of a decree for injunction a decree for damages may be passed in favour of the plaintiffs. It was, however, held that--
(1) PLD 1956 Lab. 893(2) AIR 1939 All. 280 "Complete answer to this suggestion is furnished by the decision in Shelfar v. City of London Electric Lightening Co. (1895) 1 C h. D, 287. It was held in that it may be stated as a good working rule that damages may be given in substitution for an injunction in cases where there are found in combination the four following requirements, viz. Where the injury to the plaintiff's legal rights is (1) small, (2) capable of being estimated in money, (3) can be adequately com--pensated by a small money payment, and (4) where the case is one in which it would be oppressive to the defendant to grant an injunction. In my judgment none the above requirements are fulfilled in the present case.
The injury to the plaintiffs right is a recurring injury and is not capable of being estimated by `small money payment'. Further, defendant 4 cannot be heard to say that the granting of an injunction would be oppressive to it for the simple reason that defendant 4 with full knowledge of the plaintiffs rights deliberately infringed the same."
8. The above-mentioned quotation shows that damages may be given in substitution only where the case is one in which it would be oppressive to ~~ the defendant to grant an injunction.
9. In the present case the objection of the Audit Department on which the impugned order is based is not that the petitioner's salary according to the Blest Pakistan Non-Gazetted Civil Servants (Pay Revisions) Rules of 1963 was incorrectly fixed. The objection in fact was that the salary fixed at the time of appointment should not have been fixed in the scale of Rs. 150--10-250/15-370, although admittedly they were appointed on that pay. The Government has been paying the petitioners according to that scale of pay since 1957. The order of reducing their pay now is prima facie an arbitrary one and cannot be deemed to be an order passed in performance of a public duty. The issuance of injunction cannot therefore be oppressive for the Government although - is refusal would be oppressive for the peti--tioners. In fact, the balance of oppression to a party will furnish answer to the question of irreparable loss and injury also in the generality of cases. It is probably from this point of view that in Muhammad Latif v. Province of West Pakistan (1) it was observed that it is needless to mention that in a case where temporary injunction is claimed, the plaintiff has only to make out that he has a good prima facie case meaning thereby that a serious question is to be tried in the suit and that in the event of success if the injunction is not issued he will suffer irreparable injury. Apparently the essential condition of balance of convenience is merged by their Lordships in the essential condition of irreparable injury. This was a case where certain amount was being recovered from the plaintiff as arrears of land revenue without giving him an opportunity to show cause against the recovery or as against the amount being due. This was a case of specific amount of money, which could be returned by the Government if the suit was ultimately decided in favour of the plaintiff. But the Supreme Court held that it was a fit case for issuance of an ;injunction. The principle appears to be the where an order is prima facie ultra vires the refusal to issue injunction would' be oppressive in such case to the plaintiff and not oppressive to the defendant if the injunction is issued.
10. There are some cases in which the Courts have held that prima facie case and balance of convenience are the two grounds for injunction (See Province of West Pakistan v. Abdullah (2)
There are other cases in which prima facie case and irreparable injury has been considered to be the two grounds. (See Supreme Court's case in Afian Muhammad Latif v. Province of West Pakistan P LD 1976 SC 180,In other cases, however, it has been held that apart from prima facie case, balance of convenience and irreparable injury are the other two requisites. It would, therefore, appear that in the opinion of the Courts balance of convenience and irreparable injury along to the same category and the finding on the same can ordinarily settle the action of the other requisites.
(1) P I. D 1970 SC 180(2) PLD 1967 Kar. 696
11. The learned Additional District Judge has not considered the case from this point of view. The cases relied upon by the learned counsel for the respondents are clearly distinguishable and having come at the conclusion that the petitioners have. a prima facie case and balance of convenience is also in favour of issuance of injunction the refusal to issue injunction would be an arbitrary exercise of jurisdiction vested in the Courts. The learned appellate Court has therefore, acted illegally and with material irregularity in the exercise of its jurisdiction by refusing to issue the injunction prayed for. I therefore, set aside the orders of the learned Courts below and by issuance of a temporary injunction restrain the respondent ,from implementing the impugned order subject to the petitioner in each case furnishing security to the satisfaction of the trial Court for refunding the; amounts received by them under the injunction, in case their suits are decided against them, within a period to be fixed by the trial Court. The respondent will bear the r costs of the petitioners.