' This Revision Application has been preferred against the order, dated 10th September, 1983 passed in Civil Miscellaneous Appeal No. 165 of 1983 by the learned Third Additional District Judge, Karachi whereby the said appeal was accepted and temporary injunction was granted and the order passed in Suit No. 1293 of 1983 rejecting plaintiff's application by the trial Court was reversed.
1. The brief facts of the case are that by agreement in writing made on 19th March, 1981 (a copy of which appears at page 49 of the record), the respondents Nos. 2 to 4 agreed to sell the two shops bearing Nos. 3 and 4 on the ground floor of their project known as Mavani-Court on Plots Nos. 1/23 and 1/24-A. S. R. 13, Thaoomal Khusaldas Road, Karachi. The price of each shop was agreed at Rs..
2,00,000 with water connection and domestic light, with three bulb holders and its switches and other works described in the said agreement. Under the clause for "payment" it was provided that :
(a) On signing of the agreement, the plaintiff would pay Rs. 2,00,000 as advance.
(b)On completion of colour, flooring and shuttering door within three to four weeks, the plaintiff would take possession of one shop against a further payment of Rs. 50,000 and
(c) The balance payment of Rs. 1,50,000 will be made against sale/lease. Deed registration of both the shops within 60 days from the date of agreement i.e. 19th March, 1981.
(d)Consequences for non-payment by the applicant, were provided in clause (d) which reads as follows :- "In case of failure of above payment you will have to pay penalty at the rate of 2+ % (two and half per cent) per month on the balance above amount and this facility of payment for item (b) and final payment of Rs. .1,50,000 and this facility is valid for thirty days from the fixed date of expiry."
2. It would also be relevant to mention here that since the two shops were taken by the applicant to install modern press, the aforementioned sale agreement between the parties, further provided : "You will be bound to install modern press which does not disturb in any way the neighbours, including the top floor. And also the fitting and operation of the press must not in any way be damaging to the whole building. The Project is from ground to seven floors and which is under construction and as such you will have no right or any objection till the completion of the project for any inconvenience caused."
' Admittedly the applicant made payment of Rs. 2,00,000 on 19th March, 1981 as contemplated under the agreement to the respondents Nos. 2 to 4 and a further payment of Rs. 50,000 was made to them on 16th April, 1981 as agreed. He was put in possession of shop No. 4 in part of performance of the agreement, dated 19th March, 1981. It would also be relevant here to mention that on 20th April, 1981 for requirement of the applicant to get electric connection for operating his printing press for which the shops were agreed to be purchased, the sellers i.e. The respondents Nos. 2 to 4, wrote letter, dated 20th April, 1981 to the applicant giving consent for taking his own separate electricity connection/supply. The letter being relevant for purposes of disposal of this petition is reproduced below :- "Dear Sirs, ' We hereby confirm that we have signed an agreement for sale on ownership basis, Shops numbers 3 and 4 of Mavani Court, situated on Plots Nos. 1/23 and 1/24-A, on Thaoomal Khusaldas Road, off 1. I. Chundrigar Road, Karachi for installation of Offset Printing Press and as such you are bound to complete all the formalities of the Semi-Government Bodies, or Government Bodies or Government Departments concerned to operate the above Printing Press in the above premises.
' It is agreed that we have been sanctioned independently 78 Kwts of Electricity through our Pillar Box to our Mavani Court and you will have no right to take connection from this line to operate your above Printing Machine and you will be bound to make your own arrangements for the Power for the press operation." (The underlines* are by me).
3. It is undisputed fact on record that possession of the shop No. 4 was delivered to the applicant in part performance of the agreement of sale by the sellers. This fact also finds support from the letter, dated 25th April, 1981 written by the applicant confirming/acknowledging the delivery of Shop No. 4.
' According to the applicant he installed the printing press machine in the said shop and for its operation as envisaged in the agreement of sale, dated 19th March, 1981 and pursuant to the consent given in writing by the owners the respondents Nos. 2 to 4 for getting separate electric connection for its operation, made an application to the respondent No. 1 (hereinafter referred to as K. E. S. C.) for giving him independent separate connection to the said shop which he agreed to purchase and of which possession was delivered to him in part performance. The applicant made payment of Rs. 19,200 on 14th March, 1983 to K. E. S. C. For the work to be carried out in connection with the electricity service/connection to the shop in question. Further sums of Rs. 110 and Rs...1,650 were paid to K. E. S. C. On the same date towards security deposits. The plaintiff thereafter also made payment of Rs. 4,350 to K. E. S. C. For electricity connection to the shop.
4. It however appears that in the meantime disputes had arisen between the plaintiff and the respondents Nos. 2 to 4/the sellers due to which on 9th August, 1982 the latter served a notice upon the applicant purporting to *More in italics] ' terminate the agreement for the alleged reason that be had failed to fulfil the terms and conditions of the agreement "as to the payment of the price etc." and accordingly possession of the Shop No. 4 was demanded from him. This was followed by another notice, dated -15th January, 1983 in which the respondents Nos. 2 to 4 informed the K. E. S. C. That the agreement with the applicant had already been cancelled and that "they place on record their strong objection to supply of electricity to the said shop No. 4 or to the occupant whether for the power or domestic use by sanctioning independent load of electricity." It was also stated in the said letter that the earlier letter, dated 20th April, 1981 given to Litho Packages (applicant) stood already cancelled with the cancellation of the agreement and that since they were taking the matter to the Court of law no energy may be supplied to the plaintiff through separate .Meter for power or domestic use by sanctioning independent load of electricity without their consent in writing and that they strongly oppose the grant of such sanction.
5. As mentioned above in view of the earlier letter, dated 20th April, 1981 written by the respondents Nos. 2 to 4 giving their consent to the separate installation of electric connection asking the applicants to make their own arrangements for the power for the operation of the press machinery and in view of the payments subsequently made to the K. E. S. C. As mentioned above the electricity connection was made to shop No. 4 and power fine was given to the said shop in possession of the applicant under the agreement of sale, dated 19th March, 1981. However, before the electricity could be initiated the respondents Nos. 1 to 4 on 29th March, 1983 filed Civil Suit No. 1293 of 1983 in the Court of XVI Senior Civil Judge, Karachi against the K. E. S. C. (without joining the applicant as a party) for injunction valued at Rs. 24,000 wherein the following relief was claimed :- "(a) Injunction restraining the defendants, their departments, officers, employees, agents and contractors from giving or installing new connections for electric supply to the Shops (Premises Nos. 1, 2, 3 and 4 in Mavani Court on Plots Nos. 1/23 and 1/24 Ttiaoomal Khusaldas Road, Karachi, without the specific written consent of the plaintiffs."
' Alongwith the Suit an application under Order XXXIX, rules 1 and 2, C. P. C. Was also filed for grant of temporary injunction against the K. E. S. C. For restraining them from giving or installing or providing electricity connection to the said two shops, upon which application status quo was ordered to be maintained by the learned Civil Judge as a result of which though the power line connection had already been given by K. E. S. C. To the shop, the electricity energy could not be initiated. The applicant who was not joined a party on coming to know of this ex parte order, moved an application under Order I, rule 10, C. P. C. For his joinder as a party to the suit which application was granted by the learned trial Court. The learned Court thereafter heard the Advocates for the parties and by the order passed on 4th June, 1983 vacated the ad interim injunction earlier granted and dismissed the application filed by the plaintiffs/the respondents Nos. 2 to 4.
6. As the injunction order thus stood vacated, the Karachi Electric Supply Corporation/the respondent No. 1 initiated electricity/energy and the supply of electricity to the shop in question, and the applicant started operating his printing press.
' The plaintiffs/respondents Nos. 2 to 4 being aggrieved by the aforementioned order passed by the learned trial Court on 4th June, 1983; filed C. M. A. 168 of 1983 in the Court of District Judge, Karachi on 4th July, 1983.
' The memo. Of appeal was accompanied by an application under Order XXXIX, rules 1 and 2, C. P. C.
Upon which the learned Judge by order passed on 4th July, 1983 directed that status qua be maintained. In the affidavit filed along-with the said application it was admitted that the Karachi Electric Supply Corporation had already given connection to the applicant in Shop No. 4 but the other shops were without supply of electricity. The effect of the status quo granted by the learned appellate Court on 4th July, 1983 was that supply of the electricity to the shop No. 4 in possession of the applicant continued and the applicant continued to operate his printing press and do his business.
7. The appeal subsequently came up for hearing when by the impunged order passed on 10th September, 1983 the learned lower appellate Court set aside the order of the trial Court, dated 4th June, 1983 and confirmed and granted the injunction and thus restrained the respondent No. 1, K. E.
S. C. From providing electric connection, and from giving, installing or providing electric connection to the shop in possession of the applicant.
8. Being aggrieved by the above order of the learned lower appellate Court passed on 4th July, 1983, the applicant has filed this revision petition challenging the same by invoking revisional jurisdiction of this Court.
9. Mr. Raja Qurieshi, the learned counsel for the applicant after referring to the agreement, dated 19th March, 1981 whereby the respondents Nos. 2 to 4 agreed to sell on ownership basis the two shops to the applicant submitted that the applicant has already made payment to the respondents Nos. 2 to 4/ the sellers, Rs. 2,09,000 on 19-3-1981 as the initial payment as agreed and a further sum of Rs. 50,000 was paid to them on 16-4-1981 and that in part performance of agreement he was put in possession of the shop No.
4. He further submitted that the status of the applicant and his possession in part of performance is that of a 'consumer' within the meaning of clause (c) of section 2 of the Electricity Act, 1910, as amended by Ordinance No. LXII of 1979 (PLD 1980 C'S 7). According to the learned counsel for the applicant in the circumstances his client in possession of Snop No. 4 in his own rights is an "occupier" within the meaning of section 2 (c) of the Electricity Act (as amended) and thus in law he is entitled to get the electricity connection/energy, and that the respondent No. 1/K. E. S. C. Was bound to give the connection and supply him the energy. In order to appreciate the arguments thus advanced it would be relevant to reproduce hereinbelow clause (c) of section 2 of the Electricity Act, 1910 as original enacted :- "(c) 'consumer' means any person who is supplied with energy by a licensee, or whose premises are for the time being connected for the purposes of a supply of energy with the works of a licensee;"
' After the amendment made by Ordinance of 1979 the aforementioned clause (c) now reads as under :-
(c) "Consumer" means any person who is supplied with energy by a licensee, or who is the owner or occupier of the premises which are for the time being connected for the purposes of a supply of energy with the works of a licensee;"
' Note: The words underlined by me were incorporated for the words `whose premises'.
10. Relying upon the amended clause (c) of section 2 it was argued by the learned counsel that the applicant is an "occupier" of the Shop No. 4 which he has agreed to purchase and for which he has already made full payment of the price of Rs. 2 lacs and other wise Rs. 2,50,000 towards the sale consideration of both the shops and has been put in possession of Shop No. 4 in part performance of agreement of sale. It was further argued that though no further permission or consent of the respondents Nos. 2 to 4/the 'sellers was necessary for getting separate electricity connection for the shop No. 4 in question, the fact remained teat the agreement of sale itself provided that the applicant would obtain and install modern press and make his own arrangement for its operation by getting separate electricity connection of his own for supply of electricity for operating the printing press/machinery, the respondents Nos. 2 to 4 by their letter, dated 20th April, 1981 gave the necessary consent which was acted upon.
11. I have considered the above arguments of the learned counsel and find that the applicant agreed to purchase Shop No. 4 in question under the agreement of sale, that he has made payment of Rs. 2,00,000 initially at the time of signing of the agreement and that a further sum of Rs. 50,000 was subsequently paid and that he has been put in possession of the Shop No. 4 in part performance of the said agreement. He, therefore, acquired equitable title in shop No. 4 and his occupation of the said shop in part performance of the agreement, prima facie cannot be disputed by the plaintiffs/the respondents Nos. 2 to 4 or any person claiming through them.
' It is significant to note here that the agreement provides for payment of balance sale consideration i.e. Rs. 1,50,000 within 60 days from the date of the signing of the agreement but the time fixed for such payment has not been made essence of the agreement. The only remedy provided in the clause (d) for "payment" is that in case of failure of the purchaser to make payment of the balance within the time the applicant would pay penalty at the rate of 24% per month for certain period of time. In the absence of any provision making the time for payment an essence of the contract and in the presence of provision for payment of penalty in case of non-payment, in view of the principle laid down in the case of Province of Sind v. Mistral Patel (1),-prima facie it can be inferred that the occupation of the shop No. 4 by the applicant in part performance of agreement continues to be lawful. Recovery of penalty (if any) would depend upon proof of actual loss suffered.
' It would also be relevant here to observe that the time for payment having not been made essence of the contract either by the agreement or by giving any notice muchless a notice fixing a reasonable time and making time essence of contract as laid down by the Honourable Supreme Court of Pakistan in the case reported as Abdul Hamid v. Abbas Bhai (2), for any alleged delay in payment of the balance sale consideration, the agreement for sale of immovable property may not be liable to cancellation.
' In the circumstances mentioned above, in my view the applicant, having paid the entire price of one shop, and that in any event, having made payment of substantial amount, was put in possession of the shop No. 4 in part performance and as such be prima facie, is the "occupier" of the said shop and thus a "consumer" within the meaning of section 2(c) of the Electricity Act, 1910 (as amended). To be an "occupier" as defined, it is not necessary that the applicant must show that he is the owner of the shop where the electricity is to be supplied. In the present case there is sufficient material as discussed above that the petitioner has come in possession of the shop lawfully and has an equitable title protected by section 53-A of Transfer of {{FOOT NOTE}}
(1) PLD 1969 SC 81 (2) PLD 1962 SC 1 {{FOOT NOTE}} ' of Property Act, and thus under section 22 of the Electricity Act the K. E. S. C. Is obliged on an application made to them to supply energy to him subject to the fulfillment of conditions mentioned therein.
12. In the view taken as above, that the applicant is a occupier I find support from the case reported as Shaikh Muhammad Ismail & Co. Ltd. v. The Chief Cotton Inspector, Mu/tan Division Multan (1), wherein the liability for payment of the fees of the cotton ginning factories and cotton pressing factories etc. Came up for consideration, section 30(p) of the Act as originally framed read as follows :- "(p) the fees to be paid by the owners of the Cotton Ginning Factories, Cotton Pressing Factories and Cotton-Seed Oil Factories and by the Managers of any Cotton Market to cover the cost incurred by Government on the staff appointed under this Act."
' Subsequently however the aforementioned clause (p) of section 30 was amended by Ordinance of 1953.. The said clause (p) thus substituted and amended read as follows :- "(p) the fees to be paid by the occupiers of Cotton Ginning, Cotton Pressing or Cotton-Seed Oil Factories, by the cotton dealers, or by the Managers of Companies to cover the expenses incurred by Government on the administration of the Act."
' While interpreting the effect of the amendment the Honourable Supreme Court observed as follows : - "The expression 'owners' occurring in the original clause (p) is much narrower than the term 'occupiers' used in the new clause. The latter term would include allotteess of such factories although they may not have been transferred ownership rights or even managing agents who may be in occupation of such factories. The amendment had obviously been necessitated by the fact that the relevant part of rule 26 framed under the original Act was in these terms."
(The underlines* are by me)
' The following observations of the Honourable Supreme Court being also relevant for the purposes of considering the meaning of the term 'occupiers' are reproduced :- "The suggestion was made that the word 'owners' occurring in cleanse (p) of section 30 of the original Act, should be equated with 'occupiers'. I do not, however, see any strong ground for adopting that course. The word 'occupier' also occurs in other section of the original Act, but in this clause, specifically, the word 'owner' has been used and it must be construed according to its ordinary meaning as no artificial meaning has been assigned to this term in the Act itself. To the extent, therefore, that a fee has been imposed on 'occupiers' who were not 'owners', prior to the amendment in ,954, the imposition would seem to be invalid and would require to be adjusted in the realizations to be made under the amended Act after the date of the amendment.
(The underlines* are by me)
' The Honourable Supreme Court while disposing of the appeals directed the Provincial Government to give an adjustment to the relevant parties in respect of the illegally recovered fee from "occupiers" as contrasted with *Mere in italics] {{FOOT NOTE}}
(1) PLD 1966 SC 388 {{FOOT NOTE}} (2) "owners" prior to the amendment of 1954 in the impositions to be made under the amended Act.
13. Before concluding discussion on the point under discussion reference may also be made here to the observations of Lord Denning, J. In the case of Wheat v. E. Lacon & Co. Ltd. (1), wherein while considering the term `occupier' it was observed :- "In Salmond on Torts, 14th ed. (1965), p. 372, it is said that an `occupier' is "he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons."
' It was further observed :- There is no doubt that a person who fulfils that test is an `occupier'. He is the person who says 'come in'. But I think that test is too narrow by far. There are other people who are "occupiers", even though they do not say 'come in'. If a person has any degree of control over the State of the premises it is enough.
14. It would also be relevant here to take notice of the facts that (0 the applicant is in possession of the shop No. 4 wherein the electricity connection has already been provided, (ii) that the applicant is in possession of the said shop in part performance of the agreement of sale and OW that he has paid substantial amount towards the sale consideration and in fact full price of one shop (shop No. 4). In these circumstances neither the plaintiffs/the respondents Nos. 2 to 4 any person claiming under them prima facie have any right in the said shop to enforce against the applicant any alleged right of ownership on the principle laid down in the case of Ghulam Sakina v. Umer Bhaksh
(2) where it was held "Section 49 of the Registration Act no doubt provides that if a document, which is compulsorily registrable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53-A of the transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property under a document in writing which, through compulsorily registrable has not been registered, then neither the person transferring the property nor any one claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property."
' I may mention here that Mr, Fazeel, the learned counsel for the respondents No. 2 to 4 however referred to the letter dated 9-8-1992 sent by the respondents Nos. 2 to 4 to the applicant and argued that by this letter the agreement of sale was cancelled for the reason that though the applicant had taken possession of shop No. 4 but failed to fulfil the other terms of the said agreement as to payment of the price etc. This letter prima facie cannot operate so as to terminate the agreement or affect the status of the applicant as occupier, a person in possession in part performance in view of section 53-A, Transfer Property Act. Reference may be made to the case of Abdul Hamid v. Abbas Bhai. There is nothing in the agreement making time essence of the contract. Nor my attention has {{FOOT NOTE}} (1)1966 A C 552 (2) PLD 1964 S C456 {{FOOT NOTE}} ' been drawn by the learned counsel to any notice whereby the time for payment was made essence of the contract. For the . Purposes of deposal of the application for the grant of injunction, in my opinion prima facie the plaintiffs were not justified to cancel the agreement Of sale or call upon the applicant the purchaser in possession in part performance, to deliver up the possession of Shop No. 4.
15. On the discussion as above,. I am satisfied that the applicant who came in lawful occupation and enjoyment of the shop in question wherein he has been carrying on his business has made out a prima facie case that he is an "occupier" within the meaning of section 2 (c) of Electricity Act (as amended) and has a right to continue to enjoy the same without any interference from the vendors/the plaintiffs or any person claiming any right under them and is E thus entitled to get energy of supply from the K. E. S. C. Without any interference from them. Even otherwise there was consent in writing given by the plaintiffs vide their letter, dated 20-4-1981 which was sufficient to justify the K. E. S. C. To give separate electric connection to the applicant for Shop No. 4.
' The learned lower Appellate Court failed to appreciate that the plaintiffs/ the respondents Nos. 2 to 4 could not make out that they have a prima facie case in their favour.
16. At this stage I would like to observe that the plaintiffs had to come to the Court with clean, hands. They filed the suit against the K. E. S. C. Without joining the applicant the occupant of the premises in part performance of agreement, and obtained ad interim order for maintaining status quo behind their back. This conduct of the plaintiffs in my opinion was to say the least mala fide and abuse of the process of the Court.
17. Finely now refer to the cases cited by Mr. A? A. Fazed, the learned counsel, for the respondents Nos. 2 to 4. The learned counsel in the first instance cited the case of tihagalpur Electric Supply Co.
Ltd. v. Hari Prasad Shah and others (1). It was a case, in which an application was moved to revise an order of requittal made by a Magistrate against which the Sessions Judge had refused to send a reference to the High Court. In the said petition the term "consumer" as defined in Electricity Act, 1910 came up for consideration. The learned Patna High Court relying upon the term "consumer" then given in section 2 (c) held that the word "consumer" included any person, who is supplied with energy by a licensee and any person, whose premises are for the time being connected for the purposes of a supply of 'energy with the works of a licensee. It was further held that prima facie it was enough to prove either that the energy was supplied for the use of the accused or that the accused were owners or occupiers of premises connected up with the licensee's electric system.
' The other case relied upon by the learned counsel was that of Aswini Kumar Samanta v. Manager, Calcutta Electric Supply Corporation 'Limited (2). It was a case, in which an application was filed under Article 226 of the Indian Constitution for issuance of an appropriate writ directing the Calcutta Electric Corporation Limited to supply electricity at the premises mentioned in the petition.
The petitioner claimed to be in lease holder and made an application to the said corporation for supply of electricity at the premises in dispute. The opposite parties came to know about the above-mentioned application, whereupon they wrote a letter to the said Corporation stating that here was a dispute subsisting in the land in question. The Advocate for the petitioner, placed reliance on section 2 of Electricity Act in support of the petition and {{FOOT NOTE}}
(1) A I* 1938 Pat. 15 (2) AIR 1955 Cale 24 {{FOOT NOTE}} ' argued that it was incumbent upon the Corporation to supply the electrical energy to the premises in question. The learned High Court observed that it was clear from the said section and the conditions of supply referred therein that the consent of the owner was necessary before an electric installation could be made on the premises in respect of which supply was asked for. It was accordingly held that the question as to who was the owner of the premises in the said case, was a material question which was to be decided, before the Corporation could be directed to supply electrical energy to the premises in question and that the question of title was a disputed question of fact which could not be tried in mandamus proceedings and that such a question should properly form the subject-matter of a suit and if the petitioner was so inclined he could have recourse to such a suit for the purposes of determination as to the question of title. In circumstances the learned Calcutta High Court held that the petitioner could not get the relief claimed in the mandamus proceedings under Article 226 of the Indian Constitution.
' It would suffice to state here that the two cases cited by the learned counsel for the respondents Nos. 2 to 4 were decided on the definition of a "consumer" in section 2 (c) as it then existed and thus have no bearing on the present case under consideration in view of the material amendment introduced by Ordinance No: XLII of 1979 in the definition of a "consumer" as noted above which recognised a distinction between "owner" and "occupier" for the first time. Moreover, this is not a case arising out of proceedings under the Constitution but out of a suit in which disputed questions of fact could be considered.
18. The last case cited by the learned counsel for the plaintiffs was that of Gunabala Cho wdhurani v. Hema Nalini Chowdhurani (1), wherein the learned High Court after taking notice of the fact that it was a suit brought by the plaintiff, a pardanashin' Hindu widow, on the ground that the decree was void on account of fraud and thus had claimed a permanent injunction and that the two subordinate Judges had held that a temporary injunction should be issued, observed that having regard to the fact that the suit was for permanent injunction the denial of a temporary injunction would be to defeat the object of the suit. The learned High Court further observed that the lower Judge had found that if a temporary injunction be refused then it would have the unfortunate effect of a denial of the justice to a helpless widow. Perusal of the facts of the said case shows that the observations were made therein in view of its own peculiar facts and circumstances and has no bearing or relevancy to the present case. In my opinion it would not be correct to hold that in every case, wherein the permanent injunction is claimed, merely because refusal to grant the injunction would defeat the object of the suit that would entitle the plaintiff to grant of temporary injunction in his favour. -In the case of Muhammad Umar Beg v. Sultan Mahmood Khan and another (2), it was held that the relevant considerations for the grant or refusal of temporary injunction are (I) whether the plaintiff has a prima facie good case, (2) whether the balance of convenience ties in favour of the grant of injunction and (3) whether the plaintiff would suffer irreparable loss if the injunction is refused.
19. The learned lower appellate Court in the present case failed to take into consideration the principles laid down in the case of timer Baig by the Honourable Supreme Court while passing the impugned order. The plaintiffs not only failed to make out a prima facie good case, but also failed to show {{FOOT NOTE}}
(1) AIR 1918 Cal. 495 (2) PLD 1970 SC 139 {{FOOT NOTE}} ' the balance of convenience lay in favour of the grant an injunction and that' they would suffer irreparable loss in case the injunction was refused.
' The learned lower appellate Court failed to appreciate that in case the injunction was not granted the plaintiffs would not suffer any loss or injury whatsoever muchless irreparable loss or injury.
Moreover, they have received the entire sale consideration for one shop.
' As regards the question of balance of convenience the learned lower Court observed Balance of convenience is in favour of the appellants and further more refusing the injunction in the instant case would, make the suit infructuous which tentamounts to irreparable loss to the appellants. " I am affraid that these vague observations of the lower appellate Court are not only without any substance but are also not supported by any reasoning muchless any valid reason. Merely because in a suit for injunction if temporary injunction is not granted the suit would become infructuous as observed above, could not be a valid ground for granting temporary injunction. I am fortified by the view H taken as above by the following observations made by Mr. Dorab Patel, J. (as he then was) in", the case of Arts Council of Pakistan v. Riazuddin Pirzada (1).
"If this argument is accepted, a plaintiff with a flimsy cause of action can harass a defendant by filing a suit at the eleventh hour and then contend that the suit will become infructuous unless interim orders are passed in his favour, and if this Court cannot examine the conduct of such a plaintiff, or whether be has a prima facie case, it will put a premium on false claim and lead to absurd results. In the absence of authority binding on me, I cannot accept a proposition so contrary to all principles of equity and justice."
20. The learned lower appellate Court also tailed to take into consideration, the fact the trial Court on 4-6-1983 dismissed application for grant of injunction but the appeal was not filed till 4-7-1983 i.e. For about .30 days. Due to this delay in approaching the appellate Court electric energy was initiated by K. E. S. C. In the Shop No. 4 and t the appellant, in possession of the said shop, started operating his printing press and running his business. To discontinue or restrain in the supply of the electricity would ruin his business and cause irreparable loss to the applicant. On the other hand the plaintiffs/the respondents Nos. 2 to 4 who have already received full consideration for the sale of the shop and have put the applicant in its possession specifically for installing and running a press in that shop, would not suffer in any manner if a temporary injunction was not granted to them. The balance of convenience therefore also lay in favour of the applicant and refusal to grant temporary injunction.
21. I am thus satisfied that the plaintiffs failled to make out a prima facie case, that irreparable loss and injury would result to them if injunction is refused and electricity is continued to be supplied by K. E. S. C. In the shop in possession of the applicant in part performance of the agreement for which full consideration has already been received by the plaintiffs and the balance of convenience also lies in favour of the applicant.
I am also of the view that the plaintiffs had not come to the Court with clean hands by omitting to join the applicant when they filed the suit and obtained ex parte order. Thus, it was a fit case in which the equitable relief of temporary injunction ought not to have been granted by the lower appellate . {{FOOT NOTE}}
(1) PLD 1969 Kar. 349 {{FOOT NOTE}} ' Court. The impugned. Order is also against the law laid down by the Honourable Supreme Court of Pakistan.
' For the above reasons this petition succeeds. The impugned order is accordingly set aside and the temporary injunction granted by the learned lower appellate Court is vacated.
The respondents Nos. 2 to 4 shall bear the costs of the applicant.
22. It is clarified that the observations made as above are tentative in nature and shall not in any manner be construed so as to prejudice the trial of the suit on merits.
Injunction vacated.