1. ' IBADAT YAR KHAN, J.--This in an appeal under section 15 of the Ordinance X of 1980 calling in question the Order of a learned Single Judge of this Court dated 28-7-1980 passed on C.M.A. No, 2784 of 1980 in Suit No, 644 of 1980 under Order XXXIX, Rule 1, C.P.C.
2. ' The facts of the case are that the appellant No,2 Director of Industries and Mineral Development disposed of the rights to quarry surface material in Karachi Division for a period of one year from 1- 7-1979 to 30-6-1980 through an open auction. The bid offered by the respondent being the highest i.e. Rs, 68,25,000 was accepted by the appellants and as such he became entitled to exploit the quarry rights of collecting surface material like sand, Bajri, stone etc. From specified areas in Karachi Division. The bid offered in the auction which was accepted on 26-6-1979 was -finally confirmed on 30-6-1979. Under this contract the royalty of Rs,68,25,000 was to be paid by the respondent to the appellant in 11 monthly instalments during the course of the year. The respondent paid Rs, 50,000 as earnest money on 27-6-1979 and Rs,6,32,500 on 3-7-1979. This 10% of the royalty was paid by the respondent. He also executed a surety bond in the sum of Rs,20,00,000 for due performance of his contract on 21-7-1979. It is admitted position in the case that during the course of the year the respondent had paid five instalments amounting to Rs,39,42,000. The remaining six instalments have not been paid which was resulted in this litigation.
3. ' The grievance of the respondent arose in the earlier stages when the appellants failed to put the respondent in possession and control of the sites and the areas from where the material was to be collected. According to the respondent, out of 16 such collecting points he was given possession of only 6 collecting points and for various reasons enumerated in the plaint as many as 10 collecting points remained out of his reach and he was not allowed to collect material from these. Areas.
4. Among the constructions and hinderances coming in the way of the respondent from properly exploiting the benefit of the contract were that in some areas the Dhakawalas, who were already lifting material from these areas under licences from the Government, resisted the respondent's access to these quarries. So much so that they filed suits to continue to remain in possession and even obtained prohibitory injunction from the Court preventing the respondent/plaintiff from disturbing their possession. In Gadap area the lifting of material was prohibited under section 144 of th Cr.P.C. Similarly no lifting could be effected from the Hub River quarries, because the Government of Baluchistan claimed it to be an area falling within their jurisdiction and the officers of that Government stopped the respondent from having any access to these areas. Safooran Nallah is another quarry from which the respondent could not lift the material as the Cantoment Board Drigh Road had auctioned the quarry rights in favour of another contractor. Whatever may be the merits of these allegations and the claims raised by the plaintiff/respondent, the fact remains that he has not been able to exploit the rights which he was supposed to enjoy under the contract to the fullest measure.
5. ' Towards the close of the period of the contract the appellant No,2 ignoring all the protests which were lodged with them from time to time called upon the plaintiff to show cause why his contract should not be cancelled on account of non-payment of the dues. On 5-6-1980 the respondent/plaintiff furnished his explanation enumerating his difficulties and the reasons for non- payment of the balance amount. By a final notice dated 22-6-1980 the appellants called upon the respondent to pay the dues amounting to Rs,36,49,913.99 with interest of 12% per annum by 30-6- 1980. This demand was also repeated by a notice, dated 28-6-1980 from the Assistant Commissioner. In this notice of 28-6-1980 the respondent/plaintiff was called upon to clear -the dues within 10 days failing which recovery would be made under section 81 of the Land Revenue Act, 1967.
6. ' Placed in this situation the plaintiff filed a suit claiming damages in the sum of Rs,60,00,000 against the appellants on account of their failure to put the respondent/plaintiff in possession of the sites and causing a loss to the respondent/plaintiff. An application for restraining the defendant/appellant from taking any coercive steps for recovery of the balance amount and maintaining status quo was also moved by the plaintiff alongwith the plaint. This application was heard by a learned Single Judge Syed Ghous All Shah, J, and the order of statuts quo which was passed earlier was confirmed by this order, dated 28-7-1980 which is now under appeal before me.
7. ' Unfortunately, this appeal is not well documented. Neither the application, nor any counter- affidavit nor copy of the plaint and written statement are before us, nor indeed the order of status quo which was passed earlier and confirmed by this order is on the record to enable us to see what apprehensions were raised and on which material the present order came to be passed. As a matter of fact when the appeal came up for regular hearing before another Division Bench an order was passed on 1-9-1983 which runs as follows:- "Mr. Abdul Sattar Shaikh, A.A.-General. Mr. All Ahmed Fazeel, Advocate.
8. ' Copies of the application affidavit, counter-affidavit and rejoinder, if any have not been filed alongwith the memo. Of appeal nor has the record of the suit been summoned. Under the circumstances, it is not possible to examine the contention of Mr. Abdul Sattar Shaikh that the respondent has no prima -facie case for temporary injunction.
9. ' We, therefore, by consent adjourn the hearing with the direction that the appellants shall file certified copies of the documents on which they place reliance, including the copies of the application, affidavit, counter-affidavit and rejoinder if any.
10. (Sd.) Naimuddin, Judge.
11. (Sd.) Fakhruddin, Judge."
12. ' Till date, this order has not been complied with although the case has been adjourned from time to time on a number of hearings and today we are not in a position to know all the facts which our predecessor bench was anxious to know on 1-9-1983.
13. ' Handicapped in this way we have only to see by reading the order under appeal whether the discretion vested in the trial Court has been so erroneously exercised as to justify setting aside the order and substitution of our own views for the views expressed thereon. All that we can gather is that there is a demand of Rs,31,83,853.10 as against a claim of Rs,60,00,000 which is being claimed by the respondent in the suit for the failure of the appellants from complying with the terms of the contract and putting the interest of the plaintiff/respondent in jeopardy. We can also visualise the plight of the respondent for not having access to as many as 10 out of 16 collecting points and yet being pressed to pay the full royalty to the appellants. The learned Single Judge in his order, dated 28-7-1980 has finally analysed the position as follows:- "It has also been poined out that the plaintiff No,2 has already stood as a surety for the plaintiff No,1 in the sum of Rs,20,00,000 and the plaintiff No,1 has also paid a sum of Rs,39,42,000 towards the payment of share of royalty payable to the Government under the terms of the agreement. The plaintiff is further prepared to give surety for the remaining sum of Rs,11,00,000 outstanding against the plaintiffs."
14. ' It appears to us that in his order the learned Judge has fully safeguarded the interest of the appellants by ordering the defendants to furnish solvent surety in the sum of Rs,12 lacs to the satisfaction of defendant No,3. The respondent/plaintiff having already furnished surety in the sum of Rs,20,00,000 was also taken into consideration in the order. The aggregate amount of surety would thus come to Rs,32 lacs as against the demand of Rs,31,82,853 vide notice, dated 28-6-1980.
15. ' In the circumstances, no interference is warranted and there is no reason to disturb the view taken by the learned Single Judge. This appeal is, therefore, dismissed without any order as to costs.