ASIM HAFEEZ, J. Petitioner has sought relief in following terms:- "It is, therefore, respectfully prayed that the impugned notice issued by Respondent No.4 for recovery demand may graciously be stayed till the final decision of the appeal pending before the Respondent No.3 It is further prayed that Respondent may be restrained from taking any coercive measures against the Petitioner till disposal of petitioner's appeal by Respondent No.3.
It is further prayed that Respondent No.3 may kindly be directed to decide the appeal of the Petitioner on urgent basis."
2. As per instruction, learned counsel appearing for the respondents Nos.2 to 4 submits that appeal filed by the petitioner is already fixed for today i.e., 16.12.2021.
3. This constitutional petition seeks grant of injunctive / restraining order against the recovery of outstanding amounts, adjudged being payable under relevant tax statute, on the premise that appeal against said determination is still pending adjudication before the respondent No.3 being first forum of appeal in terms of the statutory remedy prescribed in relevant law. It is evident that during the pendency of the appeal stay against recovery for 30 + 30 days was allowed. Orders of the appellate court are not enclosed with the petition to enable this court to ascertain pattern of hearings.
4. Appeal is fixed today before the Commissioner (Appeals) but this significant fact was not disclosed in the petition, which amounts to B withholding of material information. Arguments put forward is that petitioner has a right that pending appeal be heard on merits before initiating recovery of disputed liability.
5. Primary question is that whether interim injunction can be granted, in view of the facts and circumstances pleaded. Similar legal issue came up before this court in case of "M/s Imran Traders v. Commissioner Inland Revenue and others" bearing W.P. No.77496 of 2021 and decided vide order of 14.12.2021, wherein request for grant of injunction was denied. Relevant portion of the order dated 14.12.2021 passed in W.P. No.77496 of 2021 is reproduced hereunder as, "4. Apparently, the request seems simple but found oblivious of a deeper issue, touching question of availability-cum-assumption of constitutional jurisdiction, in the context of the relief. Petitioner has neither impugned any judicial / administrative order nor challenged the constitutionality of any provision of law, but sought direction to restrain department from recovering tax liability, till the decision of the appeal before respondent No.3. Simply put, injunctive order is sought against the collection of public revenue(s). There is no cavil that implicitly, the power of the High court(s) to grant injunction(s), temporary or otherwise, under Article 199 of the Constitution of Pakistan 1973, is seated, drawn, and regulated through clause (4) of Article 199 of the Constitution of Pakistan 1973 (the Constitution), perusal whereof suggests placement of certain conditions qua the exercise of power to grant injunction(s), which must be adhered to and followed before assuming or exercising jurisdiction. It is expedient to reproduce clause (4) of Article 199 of the Constitution hereunder, Where --
(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and
(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessm ent or collection of public revenues. the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorized by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order -
(i) would not have such affect as aforesaid; or
(ii) would have the effect of suspending an order or proceeding which on the fact of the record is without jurisdiction."
5. Relief claimed herein, at best, falls within the ambit of paragraphs (a) and (c) of clause (1) of Article 199 of the Constitution. And constitutional command is clear and understandable without any scholarly interpretation. Undoubtedly, assumption and exercise of jurisdiction under above- mentioned clauses is 'subject to the Constitution' and conditions prescribed in paragraph (b) (i) are attracted. The Constitutional restraints imposed, and limitations prescribed, constituting conditions precedent, have had to be revered and applicability whereof must be assessed before proceeding to grant injunction(s) solicited. Upon perusal of the facts pleaded and nature of the relief claimed, no question of want of jurisdictional, excess of jurisdiction or illegal exercise of jurisdiction is pleaded or involved. Yes, unarguably, the grant of injunction, if granted, would have the cause and effect of impeding the collection of public revenue(s). Hence, the conditions imposed, in terms of paragraph (b) (i) of clause (4) of Article 199 of the Constitution are attracted to the facts of this case. And without having requisite satisfaction otherwise, no question of exercise of jurisdiction arises, let alone its availability. In nutshell, injunction, interim or otherwise cannot be granted without addressing conditions prescribed in paragraph (b)(i) of clause (4) of Article 199, ibid - having the effect/consequence of impeding collection of public revenue (s).
6. The condition prescribed in paragraph (b) of clause (4) of Article 199, ibid is objective, manifests legislative rationality, and recapitulates celebrated judicial principle of refusal to grant injunctions where alleged loss is quantifiable in terms of money. Principles / parameters for the grant discretionary relief, by way of injunctions, are governed and regulated in terms of requisite conditions provided under the Order XXXIX, Rules 1 and 2 of Code of Civil Procedure, 1908 - applicability whereof to the exercise of constitutional jurisdiction is not disputed - read with provisions of Specific Relief Act, 1877 - in particular, clause (d) of section 56 in the context of present controversy. One of the elemental principles is that no irreparable damage or injury would occasion or claimable when alleged / threatened loss is ascertainable in monetary terms. And same, principle is alluded to in the context of the lis at hand. The plea of alleged / threatened financial loss is otherwise misleading, as no monetary loss or injury would occasion to the petitioner upon payment of claimed tax liability during the pendency of appeal, which if decided in favour of the petitioner would result in annulment of the disputed liability, entitling petitioner taxpayer to claim refund(s), in monetary terms or by way of adjustments by resorting to statutory mechanism provided for allowing refunds, and monetary compensation thereupon, in case of delayed payment, subject to the conditions.
7. Consequently, upon absence of satisfaction that injunction solicited would not have the effect of impeding collection of public revenues, this court cannot grant injunction - when no case of any jurisdictional error is otherwise made out."
[Emphasis supplied]
6. Learned counsel referred to decisions passed in various cases where in such circumstances interim injunction(s) were granted, details of the cases are provided in Annexure-A enclosed.
Learned counsel has drawn attention of the court to the order passed by learned Division Bench in ICA No.72608 of 2021 titled "M/s Usman Cloth Mills (Pvt.) Ltd. v. Federation of Pakistan" and submits that the judgment passed by this court in W.P. No.68500 of 2021 in case titled "Usman Cloth Mills (Pvt.) Ltd. v. Federation of Pakistan" was considered, whereafter appeal was allowed and interim injunction granted. Learned counsel has referred another decision in ICA No.68764 of 2021 titled "M/s Ameen Steel Industries Ltd. v. Federation of Pakistan", contended that the order passed by this court in W.P. No.66143 of 2021 titled as "Ameen Steel Industries Ltd. v. Federation of Pakistan" was modified and interim injunction was granted by staying recovery of the amounts subject matter of disputed liability.
7. I have examined the decisions in cases referred in Annexure-A and orders passed in I.C.A. No. 72608/2021 and ICA No. 68764/2021, dated 29.11.2021 and 04.11.2021, wherein incidentally the scope of availability and assumption of jurisdiction in the context of Article 199(4) was neither discussed nor any declaration of law made, perhaps due to lack of proper assistance. In the absence of any pronunciation / enunciation of law the observations therein, at best can be termed as mere obiter(s). Respectfully, the judgments referred are per-incuriam. Guidance is sought from the ratio of the decision in the case of "Fasih-ud-Din Khan and others v. Government of Punjab and others" (2010 SCMR 1778), which relevant portion is reproduced as under:- "The word per incuriam means "carelessness" as held by this Court in "Sindh High Court Bar Association v. Federation of Pakistan" (PLD 2009 Suprem e Court 879). It is also settled principle of law that once the Court has come to the conclusion that the judgment was delivered per incuriam. Such judgment itself is without jurisdiction as per incuriam, therefore, learned High Court erred in law to give due weight to said observation without application of mind."
8. While elucidating various categories / classes of precedents, Fazal Karim, J. in its book "Judicial Review of Public Actions (Second Edition) Volume-1, describes obiter dicta as under, "Obiter Dicta: Distinction is then to be made between what is the ratio decidendi of the case and what is mere obiter dicta. What was necessary for the decision of the issue in the case is ratio decidendi and is binding but what was said `by the way' and was entirely unnecessary for the decision of the case or what is a mere gratuitous statement of the law is obiter dicta and is not binding. The distinction, as was pointed out by Lord Greene MR in Uoung v. Bristol Aeroplane, (1944) 2 All ER 293, 298, is between a decision and a dictum. "So far as dicta are concerned, we are, of course, not bound to follow them".
9. Constitutional petition is incompetent and same is, hereby, dismissed. Any observation herein would not prejudice adjudication of the appeal on merits.