This appeal has been preferred by the National Highway Authority (hereinafter referred to as the "Authority ") challenging order , dated 14.3.2019, whereby the learned Civil Judge 1st Class, (West) Islamabad accepted application under Order XXXIX Rules 1 and 2 of Civil Procedure Code (hereinafter referred to as "CPC "). The impugned order has the effect of restraining the Authority from terminating the contract executed with the respondent Company .
2. The facts, in brief, are that the respondent Company filed a suit seeking specific performance, declaration, permanent, mandatory and temporary injunction. The dispute which had led to filing of the suit related to agreement, dated 6.11.2017 (hereinafter referred to as the "Agreement "). The Agreement admittedly , contains a termination clause. The respondent Company had instituted the suit apprehending that the Authority had decided to invoke the termination clause wrongfully . The learned trial Court allowed the application filed under Order XXXIX Rules 1 and 2 by restraining the Authority from terminating the Agreement.
3. The learned Counsels for the parties have been heard at length. The learned Counsel for the appellant has argued that; in view of Section 56(f) of the Specific Relief Act, 1877 (hereinafter referred to as the "Act of 1877 ") the injunction ought to have been refused; the learned trial Court by restraining the Authority from exercising its contractual right to consider termination of the Agreement has exceeded jurisdiction vested under the law; any loss the respondent Company may suffer would be measurable in terms of money; reliance has been placed on case titled "Muhammad Hashim and others vs. Government of Sindh through Secretary , Local Government and Rural Development, Karachi and others " (2002 SCMR 307), "Tauseef Corporation (Pvt.) Ltd. vs. Lahore Development Authority and others" (2002 SCMR 1269 ), "Hafiz Muhammad Ishaque and 8 others vs. Inspector General Prisons, Sndh and another" (PLD 1994 SC 733 ).
4. The learned Counsel for the respondent Company on the other hand, has argued that; the Authority had breached the terms and conditions of the Agreement by failing to fulfill its obligations and, therefore, respondent Company was not at fault; the threatened termination of the contract is based on mala fide because the Authority intends to award the same contract to some other party; reliance has been placed on cases titled: "Arabtec Pakistan (Pvt.) Ltd. through Chief Executive vs. Ensshaanlc Developments (Pvt.) Ltd. through its Chief Executive and another " (2011 CLC 323), "Messrs Continental Cable (Pvt.) Ltd. vs. Messrs China Harbor Engineering Co. Ltd. and another" (2011 CLD 1635), "Messrs Crescent Steel and Allied Products Limited vs. Messrs Sui Northern Gas Pipeline Limited and another" (2013 MLD 1499 ), "Messrs Airport Support Services vs. The Airport Manager , Quaid-e-Azam International Airport, Karachi and others" (1998 SCMR 2268 ) "Atlas Cables (Pvt.) Ltd. vs. Islamaba d Electric Supply Company Limited and another " (2016 CLC 1677 ), "Jamil Ahmed vs. Provincial Government of West Pakistan and 4 others" (PLD 1982 Lahore 49), "Molasses Export Co. Ltd. vs. Consol idated Sugar Mills Ltd." (1990 CLC 609), "Retext Global (Pvt.) Ltd. through Chief Executive vs. Export Process Zones Authority through Chairman and another" (2009 CLC 676), "Merc & Co. Ing. and others vs. Hilton Pharma (Pvt.) Ltd. (2003 CLD 407 ).
5. The learned counsels have been heard and the record perused with their able assistance.
6. Admittedly , the dispute is in respect of the agreement, which contains a termination clause. The respondent company apprehends that the option would be exercised by the authority wrongfully . The authority , therefore, under the terms and conditions of the agreement is entitled to terminate the contract and while doing so it is required to adopt such procedure as may have been agreed between the parties and incorporated therein. In the event the option of termination is wrongfully exercised, then the loss, if any, suffered by the respondent company would be measurable in terms of money . The learned counsel for the authority has rightly placed reliance on the provisions of the Act of 1877, particularly clause (f) of Section 56 of the Act of 1877 in support of his contention that the injunction prayed by the respondent company ought to have been refused. It is settled law that Courts while adjudicating disputes cannot pass orders having the effect of altering the terms and conditions agreed between the parties or to rewrite contractual terms. By restraining the authority from exercising the option of termination, the learned trial Court has virtually made the clause relating thereto as redundant. This was indeed not justified nor in consonance with the principles and law relating to granting of injunctions. As noted above, it is not a case which would expose the respondent company to be exposed to irreparable loss if the injunction is not granted.
7. For what has been discussed above, the instant appeal is allowed and consequently the impugned order , dated 14.3.2019, is hereby set aside.