WIQAR AHMAD, J.---- This order is directed to dispose of Civil Revision No. 906-P/2019 filed by the petitioners against respondents under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code ").
2. The petitioners filed a suit in the Court of learned Senior Civil Judge Dir Upper praying for declaration to the effect that they had been entitled to the construction of a plaza according to agree ment dated 18.08.2017, on the property owned and possessed by defendants, and that defendants were not entitled to raise construction on the property in dispute themselves or throu gh a third party . In prayer "Bay" perpetual injunction for restraining respondents from construction or striking any new deal in respect of property in dispute, had been sought. In prayer "Jim" they had prayed for a mandatory injuncti on against defendants for acting according to the terms of agreement deed dated 18.08.2017. It was contended in the body of the plaint that the property in dispute had been owned and possessed by defendants, in respect of which they entered into an agreement with the plaintif fs, the terms of which were reduced into writing in the shape of agreement deed dated 18.08.2017. When the plaintif fs intended to start construction they digged-out the property in dispute wherein they found huge stones which could not have been broken and removed otherwise than blasting it with explosives. The plaintif fs have further contended that since the law and order situation in the area had been volatile, therefore permission was required from police and military authorities, which took a substantial time due to which construction could not be carried on according to the contract. Defendants were stated to have violated the terms of agreement and have started construction on the property in dispute themselves. On the basis of said cause of action, the plaintif fs had brought a suit which was also accompanied with an application for grant of temporary injunction. Application for grant of temporary injunction was accepted by the learned Civil Judge-III Dir Upper vide his order dated 06.05.2019. Defendants/respondents filed an appeal against the said order which was allowed vide order dated 27.07.2019 of the Court of learned Additional District Judge Dir Upper . Feeling aggrieved therefrom, the petitioners have invoked revisional jurisdiction of this Court by filing the instant revision petition with the following prayer; "It is, therefore most humbly prayed that on acceptance of the instant revision the judgment and order dated 27.07.2019 of the learned Appellate Court District Judge/Zila Qazi, Dir Upper may kindly be set aside, whereas judgment and order dated 06.05.2019 passed by Civil Judge-III/Illaqa Qazi, Dir Upper may kindly be restored."
3. Defendants had filed their written statement in the case wherein they had admitted the factum of compromise and added that the petitioners could not carry on construction for extra ordinary long period of time and later on themselves requested for extinguishing of the contract through a Jirga sent by none else than the plaintif fs. They have further added that thereafter they had started construction and have incurred huge sum of money thereupon.
4. Learned counsel for petitioners submitted during the course of his arguments that the agreement deed was admitted between the parties and therefo re they have got a strong prima facie case. He further added that since the petitioners had been promised proprietary rights in respect of the part of newly constructed plaza therefore the loss likely to occur to them in case of refusal of the contract would be an irreparable loss. Learned counsel in support of his contention, placed reliance on the judgments reported as PLD 1978 Supreme Court 220, 2006 SCMR 688, 2010 SCMR 973, PLD 2012 (AJ&K) Supreme Court 7, 2007 MLD 54 (Karachi), 2007 YLR 2311 (Lahore), 2008 CLC 1462 , 2010 MLD 1596 (Quetta) and 2018 YLR 2417 .
5. Learned counsel for respondents subm itted that the contract was in-fact abolished in pursuance to the refusal of the plaintif fs/petitioners, to raise construction on the property in dispute. He further added that the delay was causing heavy loss to respondents as it had been a commercial property and therefore they themselves started construction on the same, whereupon the respondents had spent huge amount of money and now the construction is at such a critical stage, that if further raising of construction is stopped at this juncture, same may result into damage to the properties of other people situated in the surroundings. To bolster his arguments, he placed reliance on the judgments reported as "PLD 2005 Peshawar 132, 2007 YLR 2190 (Lahore), 2010 CLC 1843 (Karachi), 2012 YLR 1430 (Peshawar), 2012 MLD 1323 (Peshawar), 2012 YLR 809 (H. C. AJ&K), 2019 CLC 1 (Sindh) and 2019 YLR 1721 (Sindh).
6. I have heard arguments of learned counsel for the parties and perused the record.
7. Perusal of record reveals that material facts of the case in hand are mostly admitted. It was admitted that the property was owned and possessed by defendants. The contract/agreement dated 18.08.2017 was also admitted.
The parties were at variance on the causes of failure of performance of the respective obligations of the plaintif fs/petitioners under the contract. From the plaint of the plaintif fs as well as the application for grant of temporary injunction it is clear that no work of construction could be started by the plaintif fs/petitioners on the property in dispute since the date of contract i.e. 18.08.2017 till the institution of the suit on 22.03.2019. In Para. 2 of the application for grant of temporary injunction, the plaintif fs/applicants have stated as follows; {{URDU TEXT}} In the plaint also the plaintif fs/petitioners have stated that when they started digging the earth in the property in dispute they found that there were huge stones which required breaking and removal through explosives, but same could not be done because it required permission from local police and Army officials. The plaintif fs have not annexed any application with their plaint that they had ever applied to the authorities for grant of NOC or permission in the said respect. No substantial steps could be stated to have been taken for construction of the plaza on the property in dispute. In the reproduced Para of their application, they had only stated that they had collected construction materials and that entered into a contract for hiring machinery , but even no such contract for hiring machinery , or receipt of purchase of materials, or other proof could be brought on record. At this stage of the proceedings the Court was supposed to see prima facie case of the petitioners/p4intif fs in respect of the actual issue i.e. delay in raising construction. In the contract dated 18.08.2017 the petitioners had agreed that they will start construction immediately after 'Eid-ul-Azha' , which according to the' calendar had fallen on 02.09.2017. The plaintif f/petitioners could not establish prima facie that they had started construction. So much so, that it had not even been stated in the plaint that they had started construction immediately after 'Eid-ul-Azha' according to the terms of contract. In such a situation, the learned appellate Court has rightly held that the plaintif fs/petitioners were not having a prima facie case.
8. Although objection of the learned appellate Court, regarding the form of suit appears to be correct, yet it is equally true that a right cannot be declined to a person merely on the basis of defective form of suit. The contentions of learned counsel for the petitioners have some force in this regard, but as stated earlier , the petitioners could not establish a prima facie case on merits.
9. The nature of the contract is such, that its execution shall require a prolonged supervision of the Court, because the parties have developed mistrust at the start of the execution of the contract. For ensuring its performance the Court would also have to look into minute details of the transactions. Such minute regulation and prolong supervision may not be feasible for the Court. In such a situation, the learned trial Court shall see at the final conclusion of the trial as to whether the contract can be executed specifically or damages/ compensation should have been granted in the case. According to section 22 of the Specific Relief Act, 1877 (hereinafter referred to as "the Act") grant of decree for specific relief is discretionary . The said discretion shall be exercised according to the provisions of the Act, and the Court at the stage of final disposal, shall determine whether the contract should be allowed to be specifically performed or damages should be granted in the case, but it appears on tentative assessment of the record that the contract would be very difficult to be performed specifically . In the case of "Messrs Pakistan Association Construction Ltd. v. Asif H. Kazi and another" reported as "1986 SCMR 820", the Hon'ble Apex Court held as follows; "We find that what the petitioner seeks ad interim is resurrection of the contract in its full form and effect and permission to perform it. The main reliefs sought in the suit are to declare that "the impugned notice of cancellation, dated 18-7-1985 is null and void" and to appropriately extend the period of Contract". There are more than one good reason why prima facie interim relief keeping in abeyance the cancellation of Contract or of extending the period of its performance, or of allowing access to men and material at site could not be granted by Court. The statutory constraints are -to be found in section 21, clauses (a) and (d) and section 56, clause (f) of Specific Relief Act."
Regarding the contracts extending for longer period of time and the bar contained in section 21 (a) and section 56
(f) of the Act, the Hon'ble Apex Court in the case of "Bolan Beverages (Pvt.) Limited v. PEPSICO INC. and 4 others " reported as " 2004 CLD Supreme Court 1530 " held as follows; "We also believe and hold that in the circumstances of the present case and in the light of section 21(a) read with section 56(f) of the Specific Relief Act, the instant one is not a fit case for the grant of temporary injunction. A similar view was taken by this Court in Hameedullah v. Headmistress (1997 SCMR 855) with particular reference to a contract involving continuous duty extending over a period' longer than three years. As, a contract, in the circumstances, extending over a period longer than three years cannot be specifically enforced under section 21(g) of the Contract Act, the issuance of temporary injunction would not be in the interest of justice simply because the non-issuance thereof would cause inconvenience."
In the case in hand the petitioner has not only been seeking the Court to resurrect the entire contract in full and to ensure its compliance which could naturally run into years. This aspect of the case also diminishes the strength of the case of the petitioners for grant of interim injunction.
10. If after conclusion of the suit the Court comes to the conclusion that the petitioners/plaintif fs should be compensated by granting them relief in terms of money in the form of damages or compensation, then grant of an injunctive relief in such a suit would not be appropriate. The contract also contained a clause that if the same was violated by respondents, then they will be bound to pay a specific amount of Rs.20,00,000 (twenty hundred thousand) beside the actual costs that the petitioners may have incurred on the same. In such a situation, the learned appellate Court had rightly concluded that an irreparable loss was not likely to occur to the petitioners/plaintif fs. The defendants have started construction wherein some progress has also been made, which is evident from report of the Bailif f brought by the defendants on record through C.M. No. 1666-M of 2019. Grant of temporary injunction at such a critical stage would naturally cause greater inconvenience to respondents/defendants. In such a situation, the judgments relied on by the learned counsel for petitioners were not helping the case of petitioners. All the three (3) ingredients had not been existing in favour of the petitioners/plaintif fs therefore their application for grant of temporary injunction was rightly dismissed by the learned appellate Court in its judgment dated 27.07.2019.
11. Learned counsel for the petitioners also stated during the course of his argum ents that according to the new rules substituted by way of amendment made under section 122 of the Code, the appellate Court was having no jurisdiction to entertain the appeal. The learned counsel specifically relied upon the newly inserted Order IX A Rule 2 (c) which provides that any order made under that rule shall not be appealable or revisable except in an appeal or revision, as the case may be, in the main case. The argument of learned counsel is devoid of any force for the reason that Order IX A as a whole relates to case management and scheduling conference. Rule 1 of the said Rules provides for management of the case and scheduling conference and Rule 2 provides for completion of pleadings and disposal of the pending miscellaneous applications. Perusal of record reveals that the learned trial Court had conducted the said exercise of management of the case and scheduling vide its order No. 11 dated 13.06.2019. The application for grant of temporary injunction had not been dispo sed of during the course of the said management of the case under Order IX A of the Code. Decision on the application for grant of temporary injunction was in-fact made on 06.05.2019 which preceded the management and scheduling of the case. It is apparent from Order IX, Rule 2 (c) that an order made under the said scheme shall not be appealable or revisable.
As stated earlier , the order impugned before the appellate Court had not been passed under Order IX A, therefore the appeal was maintainable against the order dated 06.05.2019 of the learned trial Court.
12. All the findings recorded herein were based on tentative assessment of record and were aimed at disposal of the instant petition whose scope was limited to the acceptance and rejection of the application for grant of temporary injunction. Same shall not affect the case of either party at any further stage of the suit, particularly at the time of final disposal which shall be made by the learned trial Court according to the evidence recorded in the case by independently exercising its mind according to law .
13. In light of what has been discussed above, the revision petition in hand was found to be meritless and same is accordingly dismissed.