' This civil miscellaneous application as a same day institution has been put up before me today which seeks that ad interim order of this Court, dated 26th October, 1983 may be recalled and stay vacated. The learned counsel for the appellant was given notice of it and he appeared and has been heard.
2. The learned counsel for the applicant/respondent Mr. Naeem Bokhary states that the ad interim stay order passed by me on 26th October, 1983 may be recalled as irreparable damage would be caused to the respondent in that the bond in question the enforcement of which has been stayed is expiring tomorrow. He further states that ad interim order of stay otherwise also ought not to be issued in the circumstances as no irreparable damage would be caused to the appellant even if the bond is encashed inasmuch as in case of ultimate success in the matter, the amount can be always retrieved from the respondent which is a liquid party i,e, the Federation of Pakistan. He further submits that material facts were suppressed and not brought to the notice of this Court when obtaining the order, dated 26th October, 1983. The learned counsel for the applicant further submits that there was no private of contract between the appellant and the Federation of Pakistan and that the bond was executed by Messrs Kentron Pakistan Inc., in favour of the Federation of Pakistan wherein the appellant does not figure anywhere.
2. Mr. M.A. Rahman, on the other hand, submits that the allegation of the applicant that material facts were suppressed from this Court while arguing the case yesterday was wholly unjustified and that no adverse inference ought to be drawn against him on that score. He does not deny the fact that in the bond the appellant does not figure but states that it was on appellant's account that respondent No, 4 Messrs Kentron Pakistan Inc. Were able to procure the guarantee from respondent No, 6 Messrs Dubai Bank Limited. He further submits that on the basis of the statement given by the counsel for the Federation of Pakistan Mr. Saleem Beg on 23rd October, 1983, the bank guarantee has already been extended by the bank beyond 28th October, 1983 which would be kept alive by the bank till the decision of the suit. For this purpose, he also relies on Annexure wherein this position stands confirmed by the Dubai Bank Limited in their telex to the learned Civil Judge trying the suit and the Railways. According to the learned counsel, no damage would be done since the bank guarantee is not expiring on 28th October, 1983 and is alive on extension as per the communication of the respondent bank. In so far as the extension of the period of the guarantee and the issuance of telex in that behalf is concerned, this fact is not presently controverted by the learned counsel for the applicant. However, it is submitted that whatever be the position, complications are likely to arise if the bank acting in collusion with the appellant puts up false pleas and pretexts not to encash the guarantee after 28th October, 1983.
3. I have considered the matter. I am not entering into the merits of the case in view of the order that I propose to pass.
4. This case had come up before me yesterday in the later part of the day when I was already busy in hearing R.S.A. No, 859 of 1966 which was a hotly contested case. Mr. M.A. Rahman appeared at that time and made short submissions.
5. Apart from the legal niceties being argued suffice to observe that the fact that the bank guarantee was expiring on 28th October, 1983 or its other implications were not brought to my notice at the time of the passing of the ad interim order, the tenor of which itself shows that it was only intended to accommodate the learned counsel for the appellant to prepare and present his case in view of the shortage of time at his disposal since according to him the order had been passed by the learned Civil Judge at 4-45 p.m. Qn the previous day and be was even not possessed of some of the certified copies. Today, surprisingly the learned counsel for appellant submits that he is always prepared to argue his cases and the impression gained by this Court was possibly as a result of a communication gap. If that was so, it defies comprehension why the learned counsel for the appellant insisted for time upto 31st October, 1983. I am clear in my mind that the sole intention for my passing the ad interim order was to accommodate the request of the counsel to allow proper time to prepare and present his case which request, prima facie, appeared reasonable. If Mr. M. A. Rahman finds himself in no handicap and is ready to argue the case with or without copies, then the foundation for obtaining the ad interim order, dated 26th October, 1983 automatically disappears. It may also be observed that if the material facts had been brought to my notice, the order of this Court may well have been different even for the purposes of an ad interim relief on considerations of their implications and of balance of convenience or inconvenience.
6. As for Mr. Rahman's submission today that he gives an undertaking on behalf of his clients that the bank guarantee will continue to remain operative and the respondent bank will honour the same even after 28th October, 1983 depending upon the result of the suit, the same can be raised and considered when the appeal is heard on the next date.
7. I would, therefore, recall the order, dated 26th October, 1983 and thus vacate this Court's ad interim stay with the result that civil Court's impugned order would remain operative. The case may be listed as already ordered.
8. This order will be communicated to the respondent No, 6 through telex and telegram at the expense of the applicant/respondent No, 1.