' NAIMUDDIN, J.-By the order dated 6-4-1976 passed in Noor Silk Mills Ltd. v. Indus Development Bank of Pakistan (Suit No, 382 of 1975), a learned Single Judge of this Court on Original Side recommended to the learned Chief Justice to refer to a Division Bench or a Full Bench of this Court, as he deemed fit, the following questions of law "(1) Whether the term "dues" as used in rule 4-A of Order XXXIX, Code of Civil Procedure as inserted by Ordinance XXXI of 1975, connote the dues which are fixed and determined in accordance with the law or also a claim mane by a Bank or Corporation.
(2) Whether the Court can, in view of the provisions of rule 4-A of Order XXXIX, C. P. C. Pass successive orders of temporary injunction from time to time ?"
2. The above questions have been referred on the following facts and contentions as stated in the order of reference
(a) This suit for accounts, declaration and injunction seeks to challenge recovery of a sum of Rs, 2,19;288 claimed as due and payable to defendant No, 1, the Industrial Development Bank of Pakistan. It is common ground that the defendant No, 1 had advanced a foreign currency loan to the plaintiff repayable by instalments. According to defendant No, 1 a sum of Rs, 2,19,288 was due and payable as on 31-12-1974, in the payment whereof the plaintiff had made a default.
Accordingly, a reference under section 41 of the I. D. B. P. Ordinance XXXI of 1961 was made to the City Deputy Collector, Karachi to recover the amount as arrears of Land Revenue, Consequently on 5-5-1975 a demand notice was served under section 41 of the West Pakistan Land Revenue Act, 1967, requiring the plaintiff to make payment within 10 days. In persuance of the aforesaid notice the City Deputy Collector attached the goods of the plaintiff lying at the plaintiff's godown. It is contended in the plaint that as a result of this action the plaintiff compelled to pay a sum of Rs, 60,000 by instalments which were allowed at the request of the plaintiff. It appears that thereafter on 21-8-1975 defendant No, 1 demanded from the plaintiff further dues which had accrued after the last demand notice. The plaintiff thereafter filed the present suit.
(b) It would appear that the plaintiff challenged the demand, inter alia, on the ground that the amount can be recovered as arrears of Land Revenue only after it is determined or adjudicated to be due and payable to defendant No,
1. The plaintiff impleaded defendant No, 3 Habib Bank Limited as by way of security for repayment of the loan amount, a Bank Guarantee was furnished by them.
(c) The defendant No, 1 has resisted the suit and has filed the written statement. The defence set up by defendant No, 1, is that the plaintiff had admitted its liability for payment of the amount by making part payment and by acknowledgment in writing. Accordingly, it is contended that the dues are already determined as there can be no dispute about the liability of the plaintiff.
(d) Alongwith the plaint the plaintiff had submitted an application for temporary injunction seeking to restrain the defendant No, 2, City Deputy Collector, Karachi from recovering the amount as arrears of Land Revenue. An ad interim order granting injunction was passed on 10-9-1975 by the Court which was further extended with consent of parties until further directions. The case did not come up for confirmation of the ad interim orders. Instead of on 19-2-1976, issues were framed and documents were brought on record. Both parties had thereafter produced their respective evidence which has been completed. The final arguments were partly heard when on 13-3-1976, the City Deputy Collector, Karachi served the plaintiff with a fresh notice of demand for payment of the amount. On 25-3-1976, the plaintiff, therefore, submitted a fresh application for injunction, notice of which was issued to the defendants. Defendant No, 1 has filed a counter affidavit to this application.
(e) It is quite obvious that the action of recovery of amount as arrears of land revenue has been taken in spite of the orders of injunction passed by this Court, on the basis of rules 4-A of Order XXXIX, Code of Civil Procedure as inserted by Ordinance XXXI of 1975. As it is necessary to determine the exact scope of the provisions of this Rule, it is necessary to reproduce it, which is in the following terms "Injunction to cease to be in force after certain period- ' An injunction granted by a Court in a Suit which seeks to question the validity or legal effect of any order made, proceedings taken or act done by any authority or person, which has been made, taken or done, or purports to have been made, taken or done, under any law which is specified in Part I of the First Schedule to the Constitution or relates to, or is connected with, assessment or collection of public revenues shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided, or the injunction is discharged or set aside, by the Court earlier."
' Explanation.-In this rule, "public revenues" includes the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government.
( f ) The perusal of this Rule shows that an injunction granted by the Court in a suit of the nature described therein ceases to effect on the expirations of a period of 60 days following the day on which it is made. The Ordinance deals with pending cases of the same nature in section 3 which prescribes that an injunction such as is referred to in rule 4-A, Order XXXIX, granted by a Court before the commencement of this Act shall cease to have effect on the expiration of 60 days from such commencement. It would, therefore, be seen that administration has obviously construed the injuction order passed by this Court before the commencement of the Act as having ceased to have operation on the expiration of 60 days from the date of the Ordinance (29th December, 1975).
(g) The defendant No, 1 is admittedly a bank owned by the Federal Government under the I. D. B. P.
Ordinance, 1961. Accordingly if it is held that the demand by defendant No, 2 from the plaintiff was dues of the bank they would obviously fall within the ambit of the expression "public revenue".
(h) In view of the amendment made in the law as stated above, I called upon Mr. Liaquat Merchant, Advocate to explain how this Court was competent to grant an injunction after the first injunction order has ceased to have effect. Mr. Liaquat Merchant raises the following two contentions :-
(1) That the present suit is not a suit of the nature described in rule 4-A Order XXXIX, C. P. C. As the amount claimed by the defendant No, 1 has not yet ripened as dues.
(2) That the Court is competent to pass successive orders of injunction from time to time.
' Elaborating these contentions learned counsel referred to a chain of authorities commencing with the case reported in PLD 1962 SC 384, wherein it was postulated that a sum of money can be recovered as arrears of land revenue only after it is fixed, ascertained and determined. Before a sum is determined as due, it only constitutes a claim which ripens into dues after such determination. Referring to the explanation appended to rule 4-A, Order XXXIX, C. P. C. The learned counsel pointed out that the expression "public revenues" in the case of banks owned by the Federal Government is expressly stipulated mean to the "dues" of such banks. Counsel submits that the connotation of the term "dues" has now received authoritative interpretation as stated above.
Accordingly, he contends that in a case where the claim is not matured into dues, rule 4-A, would not be attracted.
(i) The next contention of the learned counsel is that the rule 2 of Order XXXIX, C. P. C. Read with section 14 of the General Clauses Act, clearly contemplates that in case of an apprehended injury a Court will be competent to pass orders of injunction from time to time. He submits that on the lapsing of an order of injunction the power of the Court does not get exhausted and the Court retains the jurisdiction, in appropriate cases to pass further orders of injuction restraining the recovery of what is claimed as "public revenues". Mr. A. I. Chundrigar, on the other hand refuted the contentions advanced by Mr. Liaquat Merchant and submits that the word "dues" cannot be given the restricted meaning as submitted by the learned counsel for the plaintiff. Accordingly to Mr. Chundrigar, rule 4-A, is wide enough to include suits relating to the collection of public revenue. He argues that in a case where the defendants claim to recover certain amount as public revenue, it would be sufficient to attract the provisions of the rule 4-A. On the second point the contention of learned counsel was that Order XXXIX, rules 1 and 2(2) of Order XXXIX, C. P. C. Contemplated the fixation of duration of injunction at the discretion of the Court while granting the injunction. By insertion of rule 4-A, counsel urged, the provisions of rules 1 and 2 stand pro tanto amended with the result that in suit of the prescribed nature, the Court has power to grant an injunction for the maximum period of 60 days. Once that power has been exercised the powers get exhausted and no fresh injunction order of the same nature could thereafter be passed.
3. On the same date i,e, 6-4-1976, an order was passed in Noor Silk Mills v. Investment Corporation of Pakistan and City Deputy Collector, Karachi (Suit No, 406 of 1975) as in terms of the order in Suit No, 382 of 1975, but without stating the facts.
4. Accordingly, a Bench was constituted by the learned Chief Justice to hear this reference but due to the elevation of one of the learned Judges, who constituted the Division Bench, to the Supreme Court and due to retirement of another learned Judge and for other reasons the Bench was reconstituted from time to time and ultimately this matter has come up before us.
5. Now, we find that Suit No, 382 of 1975, has already been withdrawn and dismissed by the order dated 9-3-1981. Now, therefore, we are left with the reference in Suit No, 406 of 1975, but in the order of preference as already stated the facts of this case have not been stated. We, therefore, in order to answer the questions, consider it necessary refer to the relevant facts of this suit.
6. The plaintiffs have brought this suit against Investment Corporation of Pakistan and the City Deputy Collector, Karachi defendants 1 and 2 respectively for inter alia the following reliefs.
(i) for declaration that the meaning of the argument, dated 6th August, 1970, Annexure "A" is not certain or capable of being made certain and, therefore, void under section 29 of the Contract Act ;
(ii) for a further declaration that the sum of Rs, 12,92,967.79 sought to be recovered by the defendants as arrears of land revenue pursuant to section 31 of the I. C. P. Ordinance, 1966 is not due in law as contemplated by section 31 of the I. C. P. Ordinance, 1966, and that the demand and proposed action for recovery of the aforesaid sum as arrears of land revenue by compulsory proceedings under the Land Revenue Act, 1967 is misconceived, illegal, unlawful, without authority and of no legal effect:-
(iii) for a permanent injunction restraining the defendants from taking any action for recovery of the aforesaid sum of Rs, 12,92,967.79 as arrears of land revenue under the West Pakistan Land Revenue Act, 1967.
7. The case of the plaintiffs as stated in paragraphs 14 and 15 of the plaint is that the demand of defendant No, 1 for Rs, 12,92,967.79, and the threatened action for recovery of the said amount as arrears of land revenue by defendant No, 2 by coercive proceedings under the Land Revenue Act, 1967 is illegal, unlawful, without lawful authority and jurisdiction and of no legal effect, inasmuch as the amount of Rs, 12,92,967.79 sought to be recovered as arrears of land revenue by defendant No, 2, at the instance of defendant No, 1 pursuant to section 31 of the I. C. P. Ordinance, 1966, is not due payable in law as contemplated by section 31 of the I. C. P. Ordinance, 1966. The stand of the plaintiffs is that the expression "all sums due" appearing in section 31 of the I. C. P. Ordinance, 1966 are only those sums which are determined or established as due by a competent Court of law.
8. It is submitted that section 31 of the I. C. P. Ordinance cannot be availed of for recovery of an alleged amount unless the amount allegedly due has been established in accordance with law and, therefore, the proposed action of the defendants for recovery of alleged dues as arrears of land revenue under the West Pakistan Land Revenue Act, 1967 is misconceived and not maintainable in law until such time as the alleged dues have been established in accordance with law.
9. We may stated that only 7-3-1976, a learned Single Judge had recorded the statement of the learned counsel for the parties which reads as follows :- "(1) Mr. Mansoor Ahmed Khan states that the plaintiff took loan for Rs, 10,00,000 from the defendant in respect of which a loan agreement 6-8-1970 was executed. It is Annexure "A" to the plaint.
(2) Pursuant to the said loan agreement the plaintiff executed debenture Trust Deed dated 21-9- 1970, in which United Executors and Trustees Company Ltd., were named as Trustees under the Trust Deed. It is Annexure "A" to the counter-affidavit dated 30-9-1970, filed on behalf of the defendant in the proceeding under Order XXXIX, in suit.
(3) Annexure "B" to the counter-affidavit is the statement of account showing a liability of the plaintiff amounting to Rs, 10,32,967.79 which includes the principal amount under the debenture trust deed and the interest after the adjustment of certain repayments in instalments received. The statement gives the full picture of the amount from day to day the Annexure "C" to the affidavit is the application made by the defendant to the Collector of Land Revenue, Karachi, "Deputy Commissioner South" in which a certificate for the defendant's dues was given and the Collector re-adjusted to release the same as arrears of land revenues under section 31 of the Land Revenue Act of I. C. P. Ordinance. The application to the Collector dated 19-7-1975 addressed to the Collector and the extent of the I. C. P. Ordinance showing as to what section 31 of this Ordinance is.
(4) Supplementary affidavit by the defendant dated 15-10-1971 photostat copies of the debenture script has been filed.
(5) The plaintiff issued the same debenture scripts and acknowledgment of debenture loan of Rs, 10,00,000 and that debenture script show the terms and conditions, on which the loan was taken and also the mortgage created under the debenture trust deed.
(6) The defendants have stated their position in the counter-affidavit dated 30-9-1975 and that it being a debenture loan no determination by the Court under section 31 is necessary.
' Mr. Liaquat Merchant Advocate states that he agrees with the aforesaid statement of Mr. Mansoor Ahmed except that-
(1) Statement of account filed by the defendant alongwith their counter-affidavit referred to above is denied.
(2) That the application filed by the defendant with the Collector Land Revenue was heard without notice to the plaintiff."
10. We have heard Mr. Liaquat Merchant learned counsel for the plaintiffs and Mr. Mansoor Ahmed Khan learned counsel for defendant No, 1.
11. The learned counsel for the plaintiffs submitted that unless the amounted claimed on the suit by defendant No, 1 is admitted, or established and determined in a Court of Law it could not be recovered as arrears of land revenue, by defendant No,
2. He submitted that a claim could ripen into dues after determination in accordance with law and in the present case the amount claimed by defendant No, 1 is only a claim as it is not determined in accordance with law so to call it as dues. In this connection he relied on Abdul Latif v. The Government of West Pakistan and others (1), Government of West Pakistan and others v. Abdul Majid and mother (2), State Bank of Pakistan v.
Karachi Development Authority (3), The Province of West Pakistan v. Muhammad Ayub Khuhro (4), Karachi Flour Mills Union and others v. Province of West Pakistan and others (5), Zakaria A. Bawany v. City Deputy Collector, Karachi and 2 others (6) and Constructions Ltd. Karachi v. Executive Engineer, Indus Bridge Division, West Pakistan P. W. D. Thatta and another (7) and two unreported decisions of this Court in C. P. No, D-13 of 1976, Messrs Pakistan Pipe & Construction Ltd. v. City Mukhtiarkar Karachi East and another and Writ Petition No, 304 of 1975 Ark Ocean Lines Limited v.
The Director of Industries & Mineral Development (Coal Control Wing) and the City Deputy Collector, Karachi. He particularly laid much emphasis on the case reported in Constructions Ltd.
Karachi v. Executive Engineer, Indus Bridge Division, West Pakistan P. W. D. Thatta and another which is a case in respect of section 31 of the Investment Corporation of Pakistan Ordinanance, 1966 (hereinafter called the Ordinance of 1966).
12. On the other hand, it is submitted by Mr. Mansoor Ahmed Khan that in this case the amount claimed was determined in accordance with the provisions of section 30 of the Ordinance of 1966 and, therefore, it became the amount due and could be recovered as arrears of land revenue under section 31 of the Ordinance of 1966.
13. It may be convenient if we may here quote both the sections which read as follows : "30. Power to call for payment before agreed period.-(1) Notwithstanding any agreement to the contrary the Corporation may, by notice, require any person to which it has made advance or which is otherwise
(1) PLD 1962 SC 384 (2) PLD 1963 (W P) Kar. 653
(3) PLD 1967 Kar. 216 (4) PLD 1967 Kar. 673
(5) PLD 1968 Kar. 810 (6) PLD 1975 Kar. 1008
(7) PLD 1975 Kar. 1059 ' liable to make any payment on any specified date or dates forthwith to repay the advance or make the payment aforesaid immediately in full, if-
(a) it appears to the Board that information false or misleading in any material particular has been given in the application for the advance or the creation of the aforesaid pecuniary liability ; or
(b) the person has failed to comply with the terms of any agreement with the Corporation ; or
(c) there is a reasonable apprehension that the person is unable to pay its debts and liabilities or may go into liquidation ; or
(d) the property pledged, mortgaged, hypothecated or assigned to the Corporation, as security for the advance or the said pecuniary liability, is not insured or kept insured by the person to the satisfaction of the Corporation or has, in the opinion of the Board, depreciated in value and further security to the satisfaction of the Board is not given.
(2) On the giving of such notice the entire advance or the aforesaid deferred pecuniary liability shall become immediately due and realiable.
(3) Notwithstanding the provisions of any agreement of managing agency and subject to conditions prescribed in this behalf the Corporation may take over through an appointed agent the management of any company in which it has acquired majority shareholding, if the affairs of the company are, in the opinion of the Board, not being conducted in the satisfactory manner and if the share capital of the enterprise has been impaired !
"31. Recovery of Corporation's dues.-Without prejudiced to the right of the Corporation to recover its dues in any other manner all sums due to the Corporation shall be recoverable as arrears of land revenue: ' Provided that no sum shall be so recovered unless fifteen days notice has first been given by the Corporation to the debtor that the sum will be so recovered."
14. Now, it may be stated that it is well-settled that any amount under an Act declaring the same to be recoverable as arrears of land revenue could be so recoverd only, it is determined, if there is any provisions in the Act for determining the same, in accordance therewith and in absence of any such provisions in the Act by a Court of law. All the cases cited by Mr. Liaquat Merchant support this view and there is no case amongst the cases cited by him which lays down that notwithstanding the provisions contained in the Act providing machinery for determination of dues a party must first go to a Court of law for such determination. Such a proposition would be quite repugnant to the Act under which the amount is determined.
15. We may here quote a passage from the judgment of the Supreme Court in Abdul Latif v. The Government of West Pakistan and others. The passage appears at page 393 of the report and reads as follows : "It is, therefore, manifest that before the operation of the machinery section for realisation of the arrears, the authority concerned must decide whether there is an arrear due or not."
16. In the present case the stand of the learned counsel for defendant No, 1 is that the amount has been determined in accordance with the provisions of section 30 of the 1966 Ordinance, if it is so, then the amount has become due and it could be recovered as arrears of land revenue in accordance with the provisions of section 31 of the 1966 Ordinance.
17. We may however, mention that in Zakaria A. Bawany v. City Deputy Collector, Karachi and 2 others, which was a case decided by a learned Single Judge of this Court, it was held at page 1115 of the report as follows : "15. My conclusion, therefore, is, that under section 31 of the I. C. P. Ordinance only dues can be recovered as arrears of land revenue and since the dues are those which are determined and established, only such amounts would be recoverable as land revenue as are admitted or established by a competent Court of law, and the present demand of the I. C. P. Being neither, the issue No. 1 answered in favour of the plaintiff."
But in this judgment there is no reference to the provisions of section 30 of the 1966 Ordinance.
These provisions, it appears, were not brought to the notice of the learned Single Judge as under the provisions of subsection (2) of section 30 of 1966 Ordinance on the giving of notice as mentioned in subsection (i) entire advance or deferred pecuniary liability mentioned in subsection
(1) become immediately due and realiable. Thus, subsection (2) of section 30 of the 1966 Ordinance itself provides the machinery for determination of the dues. We may here mention that Mr. Liaquat Merchant fairly conceded that in this case the said provisions were not considered.
Therefore, this decision will not cover these cases against defendant No, 1 which fall within the mischief of section 30 . (ibid).
18. Now, taking up the second point whether the Court can in view of the provisions of rules 4-A of Order XXXIX, C. P. C. Pass successive orders of temporary injunction from time to time. We may here first quote the relevant provisions, which read as follows : "(4-A) Injunction to cease to be in force after certain period.-An injunction granted by a Court in a suit which seeks to question the validity or legal effect of any order made, proceedings taken or act done by authority or person, which has been made, taken or done, or purports to have been made, taken or done, under any law which is specified in Part I of the First Schedule to the Constitution of relates to, or is connected with, assessment or collection of public revenue shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the injunction is discharged or set aside, by the Court earlier.
' Explanation.-In this rule, 'Public revenues' includes the dues of any bank owned by the Federal Government or of any Corporation or undertaking owned controlled by the Federal Government or a Provincial Government."
19. A perusal of the above provisions clearly shows that the intention' of the Legislature seems to be this that an order of injunction granted by a Court in suit which seeks to question the validity or legal effect of any order, proceedings or act done by any authority or person in relation to any specified! Law, which has been made, taken or done or purports to have been made, taken or done under the specified law and which inter alia relates to or is connected with assessment or collection of public revenue which by virtue of the explanation to this rule includes the dues of the defendants, ceases to have effect on expiration of a period of six months following the day on which it was made unless the case is finally decided or the injunction is discharged or set aside by the Court earlier.
20. It is however, submitted by Mr. Liaquat Merchant that the successive orders could be passed and there is nothing in the Rule to indicate that order of injunction could not be successively passed after the expiry of each period of six months. This submission is not well-founded for if the successive order could be passed till the final decision of the suit then there was no necessity for introducing this rule in the Code of Civil Procedure as under the existing rules an injunction granted in suit continues till the decision of the suit unless it is granted for a particular period during the pendency of D the suit. It is common experience that before introduction of these provisions a party after obtaining injunction use to delay the proceedings and thus making the recovery of public revenue delayed. The object of the Legislature seems that matters falling within the mischief of this rule should be expeditiously decided.
21. After the decision of the Supreme Court of Pakistan in Federation of Pakistan v. United Sugar Mills Ltd. (1), there remains no doubt as to the view we have taken. In this case his Lordship Muhammad Gul, J. While delivering the opinion of the Full Bench of 5 Judges at pages 406 and 407 of the report observed as follows :- 'As I look at the matter, the question at the root is to ascertain the Parliament's intendment underlying clause (4-A) in Article 199 of the Constitution. It was pointed out by the learned Attorney-General, that the whole object was to put an end to what he described as gross abuse of process of the Court by which enormous sums of money recoverable by the State as taxes are held in abeyance for indefinite period as a result of the stay orders which are generally secured by big industrialists and businessm en to the detriment of public revenues. Indeed, the amount which has accumulated and has become due since the stay was originally granted by the High Court in C. P.
152-R brings into sharp focus, the rational underlying the amendment. Similarly, in the case of Chaudhry Textile Mills (referred to already), in consequence of the stay granted by the High Court, arrears representing 25% of the taxes held in abeyance, amounted to Rs, 5,46,650.61. Thus, this was the mischief which the Parliament plainly intended to eradicate by restricting the duration of the interim order issued by the High Court to not more than 60 days.
' Once we reach that conclusion and were to hold at the same time that the High Court will also have the power to repeat the order for interim relief after the expiry of the previous order, it will reduce the constitutional provision of clause (4-A) otherwise competently made to a complete force."
22. However, it is submitted by Mr. Liaquat Merchant this decision is distinguishable as the provisions under consideration in this case were clause 4-A of Article 199 of 1973 Constitution but this distinction is not of much avail for the provisions of clause 4-A, are almost identical in material respect. We may, for the sake of convenience, quote relevant provisions here.
"(4-A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceed-
(1) PLD 1977 SC 397 ' ing taken or done by any authority or person ; which has been made, taken or done or purports to have been made taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, assessment or collection of public revenues shall cease to have effect on the expiration of period of sixty days following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier."
23. Indeed we are bound by the rule laid down by their Lordships of the Supreme Court.
24. We, accordingly, answer second question referred to us in the negative.
25. In the circumstances of the case we make no order as to costs.