1. AJMAL MIAN, J.-(a) These two appeals are inter-connected as they are directed against a common order dated 24th November, 1980 passed by our 1 earned brother Saidzaman Siddiqui, J.
2. In Suit No. 688/80, we intend to dispose of the same by this common judgment.
3. The brief facts leading to the filing of the above two appeals are that the respondent in Appeal No. 80180 and appellant in Appeal No. 24/81 (hereinafter referred to as the plaintiff) filed aforesaid. Suit namely, Suit No. 688/80, in which the plaintiff had prayed for the following reliefs :------ '(1) Direct the defendants to specifically perform the contract dated 1st January, 1980 in terms of sanction dated 13th April, 1980 by bringing in Pakistan Foreign Exchange equivalent to Pakistan Rs.4, 90,000 and start the joint venture with the plaintiffs in terms of the agreement,
(2) Accounts for the period 15th October, 1979 to 26th July, 1980 and decree in the sum of money found due and payable by the defendants to the plaintiffs.
(3) Decree damages for a period of 10 years with effect from 27th July, 1980 at the rate of 15% on the profits ascertained by way of profit loss.
(4) Re-imbursement of the expenses incurred by the plaintiffs.
(5) Issue permanent injunction against the defendants restraining them, their agents, servants, representatives from entering into any arrangement for Courier Services in Pakistan with any other person, organisation, company or corporate body or carrying on the said business on their own to the exclusion of the plaintiff contrary to the terms of the agreement dated 1st January, 1980 and sanction .Dated 13th April, 1980.
(6) Cost of the suit be borne by the defendants.
(7) Any other relief/reliefs that this Hon'ble Court may deem fit proper in the circumstances of the case be also granted."
(b) Alongwith the above suit the plaintiff had filed two applications and also filed a third application after about 3 weeks from the filing of the above suit, namely (1) C. M. A. 4120/80 under Q. XXXIX, Rr. 1 and 2 read with section 151, C. P. C. For restraining the defendant in the suit from carrying on the business of Courier Services in relation to business document or allied services in Pakistan and from entering into any agreement of agency, association or collaboration with any person or organisation in relation to the said Courier Services (2) C. M. A. 4119/80 under O. XL, R. 1 read with section 151, C. P. C. For appointment of a Receiver with full powers to take over the account books, documents relating to the business carried on by the plaintiffs from 15th October, 1979 to date lying in the office and in occupation of the defendant, (3) C. M. A. 2996/80 under O.
4. XXXVIII, R. 5, C. P. C. Read with section 151, C. P. C. For attachment before judgment in respect of the items mentioned therein, namely, furniture etc. Lying at the office of the defendant and/or at the residence of its attorney Mr. George Brooks i, e. At the house bearing No. D-259, K. D. A. Scheme No. 1 Kara, hi, two vehicles mentioned therein and bank accounts. It may be observed that the above application was filed on 17th August, 1980, whereas the other two applications were filed alongwith the filing of the suit on 27th July, 1980. The above applications were resisted by the defendant/appellant in H. C. A. No. 80/80 and respondent in H. C. A. 24/81 (hereinafter referred to as the defendant). The learned Single Judge through the order under appeal partly allowed the above applications in the following terms :----------- "Keeping in view all the above factors and in order to safeguard the interest of the parties while disposing of the three applications I direct that the undertaking given by the defendant on 19th August. 1980 in the suit is made absolute and valid until decision of the suit subject to the condition that if defendant within one month from today furnishes a bank guarantee to the satisfaction of the Nazir of the Court in the sum of Rs.5 lacs, the above undertaking shall stand discharged. The defendant is further directed to file copies of accounts every three months till the disposal of the suit. The first account will be filed on 1st January, 1981 "
5. Both the parties being aggrieved by the above order have filed the present two appeals i.e. The defendant in the suit has filed H. C. A. No. 80180, whereas the plaintiff in the suit has filed H. C. A. No..
6. 24/1981.
2. In support of H. C. A. No. 80180 Mr. Iqbal Hyder learned counsel for the appellant has made the following submissions : ---------- "(i) That the order of making rule of the Court undertaking not to dispose of the articles listed during the pendency of the above three applications and the direction to file quarterly accounts of the business was not warranted by law as no case was made out either under 0. XXXIX, C. P. C. Or under O. XL, C. P. C.
(ii) That the direction to file quarterly accounts is in fact causing prejudice to the appellant inasmuch as the business secrets are revealed to an adversary, who is very hostile, which was not warranted by law.
7. On the other hand Mr. Liaquat Merchant has urged as follows :----
(i) That in view of the admitted position that the defendant was winding up its business in Pakistan and was exporting the articles mentioned in the list, the order of restrain was in accordance with law.
(ii) That since the respondent/plaintiff has sought accounts in the suit in respect of the business carried on by the defendant in Pakistan the direction to file quarterly accounts is in accordance with law, as the same will be relevant for determining amount of damages.
3. (a) Reverting to the first contention of Mr. Iqbal Hyder, it may be pertinent to observe that the plaintiff had filed certain documents to indicate that there was a concluded agreement between the plaintiff and the defendant, whereby the plaintiff was appointed as the defendant's agent for establishing a Courier Service to Karachi. In this regard, it may be pertinent to refer to the said annexures namely, `A', which is a photostat copy of a Power of Attorney executed by the appellant/defendant in favour of Mr. George Brooks to finalise the agreement with the respondent/plaintiff, annexure `B' which is a Photo-- stat copy of a letter on the letter head of the defendant dated 15 October, 1979 signed by the aforesaid attorney George Brooks containing the terms of appointment, annexure `C' a photostat of the agreement dated 1st January, 1980 executed between the plaintiff and the defendant's, attorney Mr. George Brooks, Annexure `D' a photostat copy of an application `B' for the registration of the Firms having joint collaboration between Foreign and Pakistan Firm, Annexure 'E' a photostat copy of a letter dated 13th April, 1980 issued-by Director (F. T. P.) for Director. General, Investment Promotion Bureau containing the approval for the 10 above collaboration.
8. It may be advantageous to reproduce hereinbelow the contents of the above Annexures 'B' and `C' which read as follows :--------- Annexure "B"; "Dear Sirs, The following are the terms upon which we are prepared to commence business in association with your Company with a view to establish--ing a Courier Service to Karachi,
(1) You will act as our associates and representatives in Karachi to promote and establish a Courier System as is already established to other parts of the world, subject to the terms of this Letter of Intent.
(2) All operations connected with such Courier service shall be in the name of D. H. L. International Limited.
(3) You will carry out all collection delivery despatch and clearing operation on our behalf in Karachi.
(4) For each collection and for each delivery within Karachi we shall pay to you a fee of US$ 2 (Two United- States Dollars) `Actual expenses for Customs clearance, transportation to and from the Karachi Airport, telephone and telex bills and such other expenses incurred in the course of business, shall be reimbursed and paid to National Transport Consultancy Limited by us.
(5) These arrangements shall commence with immediate effect and shall continue for a period of six (6) calendar months.
(6) Notwithstanding the provisions of paragraph 5 of this letter the terms of this letter of Intent will be mutually reviewed after three (3) calendar months.
(7) It is the intention of ourselves and yourselves to form a closer association (either by way of a Joint Venture or of a limited liability company) in due course subject to the arrangements contemplated by this letter of Intent being fulfilled to mutual satisfaction of both parties who shall work towards establishing the association referred to above.
(8) Nothing in this letter of Intent shall be interpreted as creating a partnership between ourselves and yourselves.
9. This letter of Intent shall be governed by English Law.
10. Kindly sign at the place indicated in token of your agreement and acceptance."
11. Annexure 'C'
12. "AGREEMENT This Agreement made this day of 1st January, 1980 between MessRs.D. H. L. International Ltd., a Limited Company with its Registered Office at 12/F, Overseas Trust Bank Building, 160 Cloucester Road, Hongkong B. C. Through their lawful Attorney Mr George Brooks, vide Power of Attorney dated the 5th of October, 1979, drawn out by Managing Director at Hongkong and verified by Vice Consul, Consulate General of Pakistan, Hongkong and duly registered in Consulate vide Serial No. 1464th dated 10th October, 1979 (copy enclosed) who has been authorised by the Company to enter into joint venture agreement with National Transport Consultancy Ltd., (known as N. T. C. Ltd.), (herein-- after to be referred to as D. H. L.) and MRs.N. Latif, Muslim, adult, Director of N. T. C. Limited, (hereinafter to be referred to as N. T. C.). It is now mutually agreed that M/S D. H. L. Whose experience in handling precious documents to and from any part of the world as backed by world were branches in over 130 cities, is desirous of coming into collabora--tion with N. T. C. For establishing office in Pakistan. N. T. C. Is respon--sible for conducting the business on behalf of D. H.
13. L. Throughout the territory of Pakistan for such services rendered by D. H. L., N. T. C. Is allowed to recover service charges in local currency as per rules and regulations, of D. H. L.
14. D. H. L. Will place at the disposal of N. T. C. Their expertise to co--ordinate the D. H. L. Services to Pakistan. For this N. T. C. Will provide full facilities of Board and lodging and miscellaneous expenses in local currency as per mutual agreement between D. H. L. And N. T. C.
15. IN WITNESS WHEREOF BOTH PARTIES HEREBY AFFIX THEIR SIGNATURES AS ACKNOWLEDGEMENT OF ACCEP--TANCE OF THE TERMS AND CONDITIONS ENUNCIATED IN THE ABOVE AGREEMENT.
16. FOR AND ON BEHALF OF D. H. L. LTD.FOR AND ON BEHALF OF (GEORGE BROOKS)N. T. C. LTD.
17. General Manager(N. LATIF) Director"
(b) It may also be pertinent to notice that Annexure `D' which is an application form `B' as Mentioned earlier contains the name of the appellant for the registration as M/S D. H. L--N. T. C. Ltd.
18. It also contains the names of the plaintiff and defendant, whereas in para. 6 under the Caption "Terms of Agreement" the words "Collaboration for five years in the first instance" have been written.
19. It may also be pertinent to state that it is the case of the plaintiff in the suit that the defendant has committed the breach of the agreement which was concluded and contained inter alia in the above annexures. On the other hand it is the case of the defendant that the breach was on the part of the plaintiff. It may also be noticed that the defendant has also made a counter claim in the suit in question for a sum of Rs.12 lacs on account of the alleged breach on the part of the plaintiff.
20. It cannot be denied that there was an agreement between the plaintiff and the defendant, whereby the plaintiff was appointed as an agent. However there is a controversy between the parties as to the period. According to the averment of the plaintiff the period of the agreement was five years in the first instance as mentioned in Annexure 'D', whereas it has been urged by the defendant that Annexure ' D' is merely an application form and the name given in the application was MIS D. H. L.-N. T. C. Ltd., which was never floated in terms of para. 7 of the Annexure 'B' quoted herein--above and therefore, the period of 5 years cannot be read into the Annexures `B' and 'C'. Be that as it may since this will be an issue at the trial of the suit, it will not be appropriate for us to comment upon the above contentions of the learned counsel for the parties. However, the question for consideration before us is, as to whether the order under appeal in the terms quoted hereinabove is to be sustained or to be modified.
(c) In support of his contention that in order to justify an order under O. XXXVIII, r. 5, C. P. C. The requirements contained therein are to be fulfilled. Mr. Iqbal Hyder has referred to the case of Mohomed Yousuf v. Agha Mir Mohomed (PLD 1976 Kar. 926), and the case of M/S H. Nizam Din and : Sons Ltd. Karachi v. M. V. Groomee and others (PLD 1977 Kar. 722) and Associated Driller Ltd. v. M/s. Dirk Verstoop B. V. Karachi (PLD 1979 Kar. 734). Whereas Mr. Liaquzi Merchant learned counsel for the respondent has referred to the provisions of O. XXXVIII, r. 5, C. P. C.
(i) Reverting to PLD 1976 Kar. 926, it may be observed that in the above case Zafar Husain Mirza, J.
21. (as he then was) while construing the provisions of O. XXXVIII, r. 5, C. P. C. Held that the power contained in the above provision is of extraordinary nature and is to be exercised sparingly and strictly in accordance with the procedure prescrib--ed by the code and that the Court should be satisfied that the defendant is about to dispose of whole or part of his property with the intent to obstruct or delay execution of any decree which may be passed against him.
(ii) With reference to PLD 1977 Kar. 722, it may be stated that in the above case also Zaffar Husain Mirza, J. (as he then was) reitera--ted his earlier view contained in the above cited Karachi case of 1976 and observed that it is axiomatic that attachment order under O. XXXVIII, r. 5, C. P. C. Cannot be ordered as a matter of course only on the ground that the plaintiff has good case at the trial and that it is to be ordered in exceptional cases only when conditions prescribed by law are satisfied. It was further held that the applicant must show facts indicating that the defendant is about to dispose of his property or is about to remove it from the local limits of the jurisdiction of the Court with intent to obstruct or delay the execution of any decree that may be passed against him.
22. (i.e) Referring to PLD 1979 Kar. 734, it may be pertinent to mention that in the above case the attachment was sought against the defendant a Foreign Company, by the plaintiff on the ground that m case a decree would be passed in his favour, he would not be able to execute the same. It was also alleged by the plaintiff that the defendant was exporting its machinery and equipments out of Pakistan. The application for attachment was dismissed and it was held that simpliciter exporting of machinery and equipments by a Foreign Company in ordinary course of business on completion of the contract work would not prove intention on the part of such Company to obstruct or delay the execution of any decree that may be passed against it. It was also held that mere fact that on the defendant being likely to leave Pakistan and that the plaintiff being not able to execute decree if passed in his favour was not sufficient to invoke the provisions of O. XXXVIII, r. 5, C. P. C.
(d) There cannot be any cavil to the principles of law that the power contained in O. XXXVIII, r. 5, C.
23. P. C. Is to be exercised sparingly with due caution and not as a matter of course. In the instant case we will have to examine, as to whether the plaintiff has made out any case whether under O. XXXVIII C. P. C. Or under O. XL, C. P. C. In order to justify the restraint imposed on the defendant in the form of making the under--taking not to dispose of the aforesaid articles as rule of the Court. That plaintiff in para. 3 of the affidavit in support of its application under O. XXXVIII, C. P. C. Had made a general vague averment that the defendant with a view to defeat the decree was attempting to dispose of the caRs.Air conditioners and furniture lying at the places mentioned in the appli-- cation. No particulars as to the dates or the persons, to whom the defen--dant wanted to transfer those articles were given in the supporting affid--avit. The mere fact that the defendant was a Foreign Firm and was re-exporting certain articles which were brought by it in Pakistan would not entitle the plaintiff' to press into service the provisions of O. XXXVIII, r. 5, C.P.C. However, it has been urged by Mr. Liaquat Merchant that this Court should take judicial notice of the fact that the learned Single Judge to the order under appeal had ordered that the above restraint would be to lifted upon furnishing of a bank guarantee of Rs.5 lacs by the defendant which amount was tentatively reduced to Rs.1 lac by the division bench while admitting above H. C. A. 80/80 subject to the result of the appeal and that the defendant after furnishing the above bank guarantee of Rs.One lac in fact has disposed of the articles in respect of which the aforesaid undertaking was made absolute. In our view the question, as to whether the learned single Judge was justified in imposing the above restraint on defendant is to be decided with reference to the averments contained in the application under O. XXXVIII, C. P. C. And the supporting affidavit and not with reference to any subsequent event which might have taken place. Furthermore, as observed here in above it is an admitted position that the defendant is a Foreign Company and if it has re- exported certain articles after the dispute in question has arisen between the parties, it would not per se prove any intention on the part of the -defendant to defeat or to obstruct execution of the decree which may be passed in favour of the plaintiff in the suit. The bank guarantee furnished by the defendant is still intact and, therefore, upon furnishing of the above bank guarantee the defendant was free to deal with the articles in respect of which the bank guarantee was furnished.
24. Nothing has been brought on the record to show that those articles were disposed of by the defendant in Pakistan and that they were not exported to the country of origin.
25. (e). It was next contended by Mr. Liaquat Merchant that clauses (a) and (b) of sub-rule (1) of R. 5 of O. XXXVIII, C. P. C. Provide that if the defendant is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant within the time to be fixed by it either to furnish security for such sum as may be specified in the order or to produce and place at the disposal of the --Court such property or the value of the same, On the basis of the above sub- clauses of sub-rule (1) of R. 5 of n. XXXVIII, C. P. C. It has been contended by Mr. Liaquat Merchant that both the above situations were present in the instant case in as much as admittedly the defendant was about to dispose of its property or in any case was about to remove the whole or any part of its property from the local limits of the jurisdiction of this Court. In our view, O. XXXVIII, R.
26. 5 is to be read as a whole and the above sub-clauses (a) and (b) of sub-rule (1) of Rule 5 cannot be read in isolation. If the provisions of the above Order are read together, it will be evident that the above contention is devoid of any force. The pronouncements made by this Court inter alia to the above three cited Karachi cases are on all fours applicable to the instant case.
(f) Since there was no sufficient material on record before the learned Single Judge to warrant the, passing of the aforesaid order of impos--ing above restraint on the defendant either under O.
27. XXXVIII, C. P. C. Or under O. XL C. P. C. The same cannot be sustained.
(g) Reverting to the contention of Mr. Lqbal Hyder that there was no justification for the direction to the defendant to file quarterly accounts till the disposal of the suit, it may be observed that it has been vehemently contended by Mr. Iqbal Hyder that the above order is causing serious per judice to the defendant inasmuch as it would cause the disclosure of the business secrets which would be exploited by the plaintiff which is an hostile adversary. In our view, the above contention is devoid of any force. From the quoted prayer in the suit, it is evident that apart from claiming the specific performance of the agreement, the plaintiff has prayed for accounts. From the documents indicated hereinabove namely, annex--ures `A' to `D' prima facie it seems that there was an agreement between the parties. Where by the plaintiff was appointed as an agent by the de-- fendant for establishing the Courier Services to Karachi. If the plaintiff would succeed in its suit, it would in any case be entitled to recover damages, which may have to be determined on the basis of the defend--ant's accounts ill respect of the business which the defendant in breach of the agreement would carry on in Karachi. In this view of the matter a direction in respect of filing a quarterly accounts cannot be said to be unjustified or unwarranted by law.
4. (a) Reverting to the appeal filed by the plaintiff, namely H. .^.. A. 24/81, it may. Be observed that Mr. Liaquat Merchant in support of the above appeal has contended that from the documents filed by the plaintiff a negative covenant can be inferred warranting the application of section 57 of the Specific Relief Act. On the other hand it has been contended by Mr. Iqbal Hyder that no period of agreement is specified in Annexure 'B' or `C' and that the period of 5 years mentioned in annexure `D' which is a photostat copy of an application form for registration of the plaintiff and the defendant companies for collaboration cannot be made the basis to infer a contract period of 5 years. It was also urged by him that there was no negative covenant contained in the annexures 'B' and `C' to the effect that the defendant would not appoint any other person as its agent.
(b) Mr. Liaquat Merchant in support of his above contention has referred to section 57 of the specific Relief Act and also the case of Yusuf Hassan Shirazi and another v. Lt.-Col. Muhammad Alam Shaikh (PLD 1966 Kar. 472), Andrew Yule & Co. v. Ardeshir Bamenji Duhash and another (AIR 1914 Dom. 312), Nathu Lal and others v. Muni Lal (AIR 1927 Lah. 898) and V. N. Deshpande v. 4rvind Mills Co. Ltd. (AIR 1946 Dom. 423).
(i) Reverting to PLD 1966 Karachi page 472, it may be observed that a Division Bench of the erstwhile High Court of West Pakistan, Karachi while considering the provisions of sections 54, 56 and 57 of the Specific Relief Act made the following observation; "The next question which falls for consideration is whether a negative covenant can be spelled out of the agreement in question which should be enforced by an injunction even though the affirmative of it could not been forced by a decree for specific performance. A considerable amount of case law was cited in this connection by the learned counsel for both the parties but, we do not think we should, for the purpose of this appeal from an interlocutory order, deal with all of them. Mr. Sharifuddin placed considerable reliance upon the decision in the case of Lumley v.
28. Wagner in which a singer who had failed to perform his agreement to sing at the plain--tiff's theatre and who could not be compelled by a decree for specific performance to sing at the plaintiff's theatre but who because of an express negative covenant was prevented by an injunction restraining him from singing at another theatre. This case was decided a long time ago.
29. It has been approved in some subsequent cases but has been the subject of criticism in later decisions. In White Wood Che--mical Co. v. Hardman in which the defendant had entered into an agreement to serve as a plaintiff's manager for a fixed term of year and to devote the whole of his time to plaintiff's business but he was trying to set up within the district a rival company to work the same patent which the plaintiffs were working and was devoting part of his time to the business of the rival company, the Court refused to grant an injunction restraining the defendant. Lindley, L. J.
30. Observed; `Every agreement to do a particular thing, in one sense involves a negative. It involves the negative of doing that which is inconsistent with the thing you are to do ... But it does not at all follow that because a person has agreed to do a particular thing, he is there--fore to be restrained from doing every thing else which is incons--istent with it. The Court has never gone that length, and I do not suppose that it ever will -----I confess I look upon Lumley v. Wagner, rather as an anomally to be followed in cases like it, butan anomally which it would be very dangerous to extend.
31. It may be observed that so far we are concerned the law is contained in the statute and while it is true that the illustrations C and D to section 57 go a long way in suggesting that negative can be spel--led out of an affirmative term of an agreement yet it must be reme--mbered that both these clauses relate to contract of service. We do not think that in the present case a negative covenant can be spelled out of the terms of the agreement in question so as to be enforced by an injunction under section 57. It may be noted that there is no express negative covenant in it. The express part of it relates to the promise of appointing the plaintiff as the sole distri--butor. Can it then be effectively urged that if the affirmative term cannot be enforced in this case by a decree of specific performance the implied negative should be spelt out, namely that the defendant shall neither distribute nor sell his products himself nor appoint any one to do so. We asked Mr. Fakhruddin.
32. Whether his clients intended to appoint a sole distributor and his categorical assurance was that they were not going to do so.
33. We are inclined to the view that in order that a negative term may be held to be implied and which may be enforced by injunction it must be such which should be severable from the opposite oblig- -ation. If we were to hold otherwise it would lead to obvious an--omally, viz. Where a positive term of an agreement could not be enforced by an injunction because of the reasons stated in section 54 the some object could be indirectly achieved imputing an implied negative agreement merely out of a positive term and enforce it under the provisions of section 57. We do not think that it was intended by section 57 to destroy the effect of the provisions con--tained in section 54 and clause
(f) of section 56."
(ii) Reverting to AIR 1914 Bom. 312, it may be stated that the Division Bench of the Bombay High Court while considering the provis--ions of a Shipping Charter Party held that an agreement for the lending of a ship to a certain charterer implies that he shall not during the operation of the charter period, provided the Charterer is ready to supply the cargo, employ for any other person or purposes. It was also held that a negative covenant is enforceable in terms of section 57 of the Specific Relief 'Act. It may be pertinent to observe that in the above Bombay case the suit was finally disposed of and the appeal was heard by a Division Bench against the judgment/decree.
34. The Division Bench reversed the judgment and decree of a learned Single Judge and granted injunction prayed for by the plaintiff.
35. (i.e) With reference to AIR 1927 Lahore page 898, it may be menti--oned that a learned single Judge of the Lahore High Court pointed out the distinction between the scopes of sections 21, 56 and 57 of the Specific Relief Act. It was observed that there is a clear distinction between an agreement which contemplates the continuous performance of specific acts, for more than three years and a contract which contemplates forbearance from. The performance from certain act and that while the former kind of contracts cannot be enforced under section 21 (g) of the Specific Relief Act and, therefore, no mandatory injunction could be issued under section 56 but there is nothing in that section to prohibit the grant of preventive relief by way of injunction in the latter kind of cases..
(iv) Referring to AIR 1946 Bombay 423, it will suffice to observe that in the above case inter alia it was held that agreements of service containing a negative convenant preventing the employee from working some where else during the terms covered by the agreements were recognised in India and injunctions were granted in terms of negative covenant under section 57 of the Specific Relief Act. It may again be pointed out here that in this case also a Division Bench of the Bombay High Court was hearing an appeal against the judgment and decree finally passed by learned Single Judge and not an appeal against an interlocutory order.
36. There cannot be any dispute to the proposition of law that in view of section 57 of Specific Relief Act, the Court can enforce a negative covenant by issuing a prohibitory injunction and that a negative covenant may be express or implied in terms of the above section 57. However, the question which require consideration in the instant case is, whether the learned Single Judge was justified in declining to grant a prohibitory injunc--tion in the form in which it was prayed for. It may be advantageous to reproduce here in below the prayer in the plaintiff's application under O. XXXIX, rr. I and 2, C.P.C. Which reads as follows:- "It is prayed on behalf of the plaintiffs that this Honourable Court may be pleased to restrain the defendants, their agents, servants and any person or persons claiming through or under them from carrying on the business of Courier Services in relation to business documents or allied services in Pakistan and further restrain them from entering into any agreement of agency, association or colla--boration with any person or organistaion in relation to said Cour--ier Services till final disposal of the suit.
37. Ad interim orders are solicited."
38. It is an admitted position that there is no express negative covenant contained in the documents filed by the plaintiff in the suit. The learned counsel for the plaintiff has urged that by implication there is a negative covenant for a period of 5 years mentioned in annexure 'D'. With out expressing ourselves on the above contention definitely, it will suthce to observe that the question, as to whether in fact there was a contract for a period of 5 nears in view of annexure 'D' to the plaint is to be determined at the trial of the suit. Furthermore the question as to whether an implied negative covenant can be inferred from the documents on the record can-- not be decided at this stage even tentatively. This question will also require recording of evidence. In any case since, the plaintiff has prayed for accounts in respect of business, which the defandant would carry on in Karachi breach of the agreement and as a direction for filing quarterly accounts by the defendant has been issued by the learned Single Judge in our view the learned Single Judge was justified in declining to grant the prayer contained in the plaintiff's above application quoted hereinabove.
5. For the aforesaid reasons we allow H. C. A. No, 80/80 to the extent that the making of undertaking of the defendant dated 19th August, 1980 as absolute is set aside and the bank guarantee furnished by the de--fendant in the sum of Rs.One lac to the Nazir of this Court in the afore--said High Court Appeal shall stand discharged on the expiry of 60 days from today, i.e. After the expiry of the period for filing a petition for leave in the Supreme Court. Whereas H. C, A. No. 24/81 is dismissed. However, there will be no order as to costs.