1. Appellant filed an application for suspension of order No.,'1673/A-1/AD (Accounts) /dated Peshawar, 25-9-1986 addressed to Deputy Commissioner/ Collector, Mardan vide which, the Collector, Mardan was requested to recover the Government amount worth Rs.2,50,811.21 through Tehsildar; Mardan.
2. While dealing with such like questions principle embodied in Order XXXIX rules 1 and 2, C.P.C. Is to be looked into. A person who seeks the Assistance of the Court/Tribunal is bound to prove that he has got a good prima facie case in his favour, that he will suffer an irreparable loss if the act complained of is not stopped and finally the balance of inconvenience if the impugned order is acted upon. If any of the above ingredients is not fulfilled, in that case, the prayer cannot be honoured. Coming to the facts of the case, counsel for the appellant argued that criminal proceedings against the appellant were withdrawn under section 169 Cr.P.C., his co-accused Umerzada, Naib-Qasid was reinstated afterwards and if the impugned order is not stopped the appellant will be arrested and his household belongings will be put to auction. This will not recover the action if in the long run his appeal succeeds.
3. On the other hand learned Govt. Pleader argued that in money matters, the issuance of temporary injunction is not legal and proper because in case if the appeal succeeds the respondents, being Government functionaries are bound to refund the amount.
4. I have given my patients hearing to the arguments advanced by both sides and have also gone through the record of the case. No doubt Tribunal is guided by the principles enunciated in Order XXXIX rules 1 and 2, C.P.C., yet it is the appellant who is duty bound to prove that provisions of order 39 rules 1 and 2, C.P.C. Are attracted to the facts of the case. Usually Court's/ Tribunal's response to such likes prayers is not so immediate; however if the appeal succeeds, then what remedy would be given to the appellant for his arrest in consequence of the non-payment of the above-- mentioned amount. The humiliation suffered by him on account of his detention in prison cannot be made good of.
5. M.Y.H./52-S/Sr.N.
6. Stay granted.