AMIR HANI MUSLIM, J.---This Petition for leave to Appeal is directed against order dated 5.10.2015, passed by the Islamabad High Court, Islamabad, whereby Civil Revision of the Respondent No.1 was allowed and the orders of the Courts below dismissing the injunction application of the Respondent No.1 were set aside. The learned High Court while passing the impugned order remanded the matter to the trial Court for decision on the injunction Application of the Respondent No.1, afresh after af fording opportunity of hearing to the parties.
2. The facts necessary for the present proceedings are that the Petitioner for establishing a residential colony for its members purchased 900 kanals of land in Zone-II, Sector G-17, Islamaba d. The Petitioner through an advertisement dated 25.8.2000 invited proposals from financially sound parties for purchase of land, its physical possession, consolidation and its development for the establishment of a housing scheme in Sector G-17, Islamabad, as per rules of the Capital Development Authority . It was further stipulated that the successful bidder would purchase minimum 1600 kanals of land in G-17 and carry out consolidation and development of the land including the already purchased 900 kanals purchased by the Petitioner . The development cost was to be paid by the Petitioner to the Respondent No.1 in 10 equal installments from the date of commencement of the development work,
3. The Respondent No.1 submitted a bid dated 5.9.2000, accepting the above- mentioned Terms of Reference (T.O.R). The bid of the Respondent No.1 was accepted and a Joint Venture Agreement dated 22.3.2001 was executed between the parties for purcha se and development of the land in Sector G-17, Islamabad. As per the express stipulation in the J.V.A, the entire finance for procuring the land and its development was to be borne by the Respondent No.1, consisting of development of entire land by laying down sewerage lines, electric supply and internal water supply and provision of gas and in turn the Petitioner had to pay to the Respondent No.1 the proportionate cost of development of 550 plots at the rate of Rs.435,000/- per kana l plus escalation costs and taxes etc. It was further stipulated in the J.V.A that the development charges falling into the shares of the Petitioner would be paid within a period of three years in 10 equal installments. It was further agreed between the parties that the development of land would take place in 4 phases and in each phase, 450 kanals of land would be utilized. It was further agreed that the terms and conditions of the invitation of proposal and the bid of Respondent No.1 would be read as an integral part of the J.V.A. It was further agreed that the Respondent No.1 would complete the process of purchase of land within a period of one year and finish the development work within three years.
4. It is alleged that the Respondent No.1 neither transferred any land in the name of the Petitioner nor purchased the remaining land to start Ist phase of the project in accordance with clause (vi) of the J.V.A. When the Respondent No. 1 failed to discharge its obligations under the J.V.A, the Petitioner paid a sum of Rs.24,97,00,000/- to the Respondent No.1 through different cheques, which the Petitioner was not required to pay under the J.V.A, for purchase of land. The receipt of this amount was duly acknowledged by the Respondent No. 1.
5. Upon its failure to purchase land directly from the land owners to secure a compact block for the establishment of the housing society , the Respondent No.1 applied to the EDO (Revenue) for acquisition of 393 kanals of land and issued cheques in favour of the Land Acquisition Officer, which were dishonored. The Respondent No.1 requested the Petitioner to deposit an amount of Rs.14,73,75,000/- on behalf of Respondent No.1 and the Managing Partner of Respondent No.1 sworn an affidavit to return the said amount along with profit/interest within one month. The Petitioner claims that in good faith they deposited the said amount with the Land Acquisition Collector , but due to mala fide designs of the Respondent No.1, the land could not be acquired.
6. The Respondent No.1 through its letters dated 19.7.2014 and 18.9.2014, admitted that the land required for the establishment of the housing scheme could not be purchased by them though the Petitioner , at all material times, fully complied with the terms and conditions of the J.V.A to achieve the expeditio us fulfillment of the agreement which was not achieved due to Respondent No, l's financial inability , lack of capacity and interest. A meeting of the Managing Committee of the Petitioner was held on 25.9.2014 which was also attended by the Managing Partner of Respondent No.1 in which they reiterated their stance taken in the above-mentioned letters.
7. Upon persistent and multiple breaches of contract by the Respondent No.1, the Petitioner terminated the J.V.A vide letter dated 7.3.2015 and called upon the Respondent No.1 and its partners to forthwith return a sum of Rs.64,28,10,548/- and Rs.1,56,79,000/- the proportionate to the increase in the value of land since the period when the payments were made. The said termination letter was served on the Managing partners of the Respondent No.1 and duly received by them on 8.3.2 01.5. On 11.3.2015; the Respondent No.1 instituted a suit for permanent injunction against the Petitioner before the Civil Judge, Islamabad (West) along with an Application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of interim injunction. The Application was granted by the trial Court vide order dated 22.3.2015, which was later on set aside vide another order dated 17.4.2015. Being aggrieved of the order dated 17.4.2015, the Respondent No.1 filed an Appeal before the District Judge, Islamabad, and the same was disposed of as under:- 'Mr. Abdur Rasheed Awan, counsel for the Petitioner states that the appellant has filed a fresh suit wherein a status quo order has bee issued. Therefore, under the circumstances, the instant appeal has become intructuous, hence requests for withdrawal of the same. The instant appeal is disposed of accordingly . Record of lower Court be returned. Filed be consigned to the record."
8. On 16.06.2015, during pendency of the said Appeal, the Respondent No.1 yet filed another suit for Declaration and Permanent Injunction against the Petitioner along with Application under Order XXXIX, Rules 1 and 2, C.P.C. for interim injunction. The said Application was dismissed, vide order dated 28.07.2015. The Respondent No.1 filed Appeal against the order dated 28.7.2015 before the District Judge, Islamabad, which was dismissed, by order dated 16.09.2015, against which the Respondent No.1 filed Civil Revision before the Islamabad High Court, which was allowed, by the impugned order . Hence this Petition for leave to Appeal.
9. The learned Counsel for the Petitioner has contended that the impugned order passed by the learned High Court in exercise of its revisional jurisdiction is not tenable in law, particularly in the peculiar circumstances of the case where the Courts below have recorded concurrent findings against the Respondent No. 1. He submitted that the parties entered into a service contract which was titled as Joint Venture Agreement. He states that the terms of the contract provides that the development of the scheme to be handed over to the existing members of the Petitioner's Society within three years from the date of start of the development work. He conte nded that the Respondent No.1 had failed to perform their part of the contract and did not develop any portion of the Society besides had received from the Petitioner a huge amount of Rs.24,97,00,000/-. He submitted that the Managing Committee of the Petitioner in its meetings repeatedly asked the Respondent No.1 to discharge their obligations in terms of the contract and pay back the money recovered by them, but the Respondent No.1 had failed to do so.
10. He contended that since the very inception of the J.V.A, the Respondent No.1 had neither financed nor invested any amount instead kept on stating that they are facing financial problems and ultimately in its meeting dated 25.9.2015, minutes of which were reduced in writing, the Managing Partner of Respondent No.1 had clearly stated that they could not purchase the remaining land on account of financial constraints, which fact was reiterated in their earlier letters dated 19.7.2014 and 18.9.2014. In this backdrop, the Petitioner's Counsel submitted that the Petitioner had no option but to terminate the contract. He contended that the notice of termination of the contract was sent to the Respondent No.1 on their business address by T.C.S, by Special Messenger and registered AD Post. He submitted that the learned High Court while passing the impugned order has observed that since the Respondent No.1 had categorically denied to have received the termination notice, therefore, the Courts below should not have concluded that the Respondent No.1 had been served with the termination notice. The learned High Court has further held that the dismissal of the injunction Application had virtually rendered the proceedings filed by the Respondent No.1 to be infructuous. He submitted that the learned High Court could not have set aside the orders of the Courts below on the aforesaid ground in the face of the material produced by the parties. He submitted that the three principles of grant of injunction i.e. prima facie case, balance of convenience and irreparable loss were not at all considered by the learned High Court while passing the impugned order .
11. As against this, the learned Counsel for the Respondent No.1 has contended that the Courts below have misdirected themselves, by holding that the second suit filed by the Respondent No.1 was hit by Order II, Rule 2, C.P.C. The Joint Venture Agreements were wrongly construed as service agreements. He submitted that the Respondent No.1 at all times was willing to perform their part of the contract, but it was the failure of the Petitioner which had delayed the development process. He while arguing the matter has relied upon the report of the Administrator and submitted that the former President of the Society had extorted huge amounts from the Respondent No.1 by blackmailing them. He submitted that in the given circumstances, the notice for termination of the contract was unwarranted and the learned High Court was justified in setting aside the orders of the Courts below .
12. We have heard the learned Counsel for the parties and have perused the record with their assistance. The findings recorded in paragraphs 6 and 7 of the impugned order are not in conformity with the material on the basis of which the Courts below have passed the orders dismissing the injunction Application of the Respondent No. 1.
The receipt of notice of termination by the Respondent No.1 by three modes, as claimed by the Petitioner , itself has no bearing on the merits of the interlocu tory Application. It is elementary principle of law that orders passed on interim applications do not have any binding effect on the final outcome of the main proceedings. The learned High Court while passing the impugned order had wrongly held that orders of the Courts below had determined the controversy between the parties. The Respondent No.1 from the very inception of the contract till the termination of the contract had not addressed a single letter to the Petitioner or to any other forum, justifying their failure in discharging their obligations under the contract. Admittedly , the Respondent No.1 has pocketed huge amount of Rs.24,97,00,000/- immediately after amendment in the basic contract, which amount the Petitioner was not obliged to pay to the Respondent No.1 and even at the time of hearing of these proceedings, the Counsel for the Respondent No.1 admits that an amount of more than two crores is laying with them, which they have offered to pay to the Petitioner .
13. The material produced before us clearly establishes that the Respondent No.1 was not in a position to develop the land. The learned Judge in Chambers while passing the impugned order has lost sight of the principles for grant of injunction. A party approaching the Court must show prima facie ease, balance of convenience and irreparable loss. These three ingredients have neither been discussed nor attended to while passing the impugned order . The second suit filed by the Respon dent No.1, challenging the notice of termination of the contract, does not, spell out justifiable grounds restraining the Respondent No.1 from discharging their obligations under the contract.
14. We have inquired from the learned Counsel for the Respondent No.1 to show us from the record that the Respondent No.1 was blackmailed by the Former President of the Society , who too, left the office in 2012, or that they ever put notice the Petitioner the reasons which restricted them from discharging their obligations under the contract, the learned Counsel concedes that no written letter was ever addressed by the Respondent No.1 from 2001 till the termination of the contract, offering any explanation for not starting development work of the project.
The learned Counsel was also called upon to justify as to whether the Respondent No.1 under the terms of the contract was entitled to receive huge amount of Rs.24,97,00,000/- from the Petitioner , but he did not offer any plausible explanation except that these amounts received were adjusted towards the land which the Petitioner was required to provide and the Respondent No.1 has a balance amount of more than Rs.two crores which they are willing to pay back.
15. The Respondent No.1 has wilfully avoided to plead the material facts in regard to the amounts which they have invested or spent on the land pursuant to the terms of the contract. In absence of such details in the pleadings, the Respondent No.1 cannot seek injunction against the Petitioner .
16. We may farther observe that while granting interim injunction the Courts are obliged to follow the mandate of law for grant or refusal of permanent injunction, as envisaged by sections 54 and 56 of the Specific Relief Act, which postulate that no such injunction shall be granted where the specific performance of the grant cannot be allowed. While passing the impugned order the learned High Court has lost sight of this aspect of the matter which, by itself, was suf ficient ground to deny interim injunction to the Respondent No. 1.
17. The learned High Court has recorded findings against the Petitioner without scanning the material produced before it which clearly establishes that prima facie the Respondent No.1 did not approach the Court with clean hands. The issue in regard to maintainability of the suit or its format shall be decided by the trial Court on the application of the parties. Since we have only examined the legality of the impugned order confined to the grant of injunction to the Respondent No.1, theref ore, the observations made hereinabove shall not influence the trial Court in deciding the main suit, which shall be decided on the basis of the evidence adduced by the parties at trial.
18. We for the aforesaid reasons, are of the considered view that the Respondent No.1 has failed to make out prima facie case for grant of injunction. The balance of convenience does not lie with the Respondent No.1 to allow them to continue after termination of the contract for which they can otherwise approach the Court for damages in case if it is established that the termination of the contract was unwarranted in law .
19. The above are the reasons for our short order of even date, which reads as under:- "We have heard the arguments of both the learned ASCs for the parties. For reasons to be recorded separately , this petition is converted into appeal and allowed; impugned judgment is set aside and the judgment of the two courts below dated 28.07.2015 and 16.09.2015 are restored."