1. This is an application moved by the plaintiff under Order XXXIX rule 2 read with section 151 C.P.C.
2. With the prayer that the defendants be restrained from committing a breach of contract and to keep the work of leveling measuring 1,10,000 sqare feet carried or done by the plaintiff on Plot No. F- 607, SITE, Karachi intact and undisturbed till the final disposal of the suit.
3. Briefly the case of the plaintiff is that there was a contract between the plaintiff and defendants Nos.1 to 3 which was reduced in writing and has been attached to the plaint as Annexure W.
4. According to this contract the plaintiff was required to carry out the work of leveling of Plot No. F- 423 measuring one acre which is owned by the aforementioned defendants. It was also agreed as per the terms of the contract that the work will be done in four parts/phases and for each part, he will be entitled to a payment of Rs.50, 000. According to the plaint, the plaintiff has received a payment of Rs.1, 49,000 already as against the said work. It is further contended by the plaintiff that the defendants Nos.1 to 3 orally assigned other leveling work of about 1,10,000 square feet on Plot No.F-607 at the rate of Rs.4.75 per square foot which work has also been done by the plaintiff. The grievance of the plaintiff is that the defendants are no more allowing the plaintiff to continue with the work on Plot No.F-423 and, therefore, the Final Bill amounting to Rs.71,000 could not be received by the plaintiff. Apprehending that the defendants Nos.1 to 3 will get the remaining work done by some other source, the plaintiff has filed this suit for recovery, damages and permanent injunction with the following prayers: "(1)For recovery of Rs.5,22,500 against defendants Nos.1 to 5 severally or jointly on account of actual work of leveling done or carried by thePlaintiff on Plot No.F-607 Site Karachi (West).
5. (2)For damages and compensation amounting to Rs. 5,00,000 against defendants Nos. 1 to 5 severally or jointly on account of mental worries, inconvenience, defamation, laborers problems etc. (3)For further damages of Rs. 5,00,000 caused due to loss of work against defendants Nos. 1 to 5 jointly or severally.
6. (4)For permanent injunction against defendants not to forcibly or illegally remove or throw the plaintiff from Plots Nos.F-607 and F-423 and further to restrain the defendants from committing the breach of contract and keep the work of leveling measuring 1,10,000 square feet carried or done by the plaintiff on Plot No.F-607 SITE Karachi intact and undisturbed till the realization of the decretal amount or further order of the Court.
(5) For specific performance of contract dated 15-6-1987 executed between the plaintiff and defendants Nos. I to 3 for the remaining work or in lieu thereof compensation amounting to Rs.
7. 71,000.
8. (6)Profit/mark upat the rate of 17% per annum.
(7) Costs of the suit.
(8) Any other relief/reliefs as deemed fit by Hon'ble Court"
9. I have heard Mr. Muhammad Sharif Khattak, learned counsel for the plaintiff and Messrs. S.M. Alain, SA. Samad Khan and Ilyas Khan, learned counsels for the defendants.
10. Learned counsel for the plaintiff has submitted that in view of the contract abovementioned the plaintiff is entitled to the injunction as prayed for by him. He has admitted that the work on Plot No.F-607 was done by the plaintiff at the instance of defendants Nos. I to 3 for which he was given oral instructions and there is no written agreement or contract. As against this Mr. Ilyas Khan, learned counsel appearing for defendant No.4 has argued that the said Plot No. F-607 is owned by defendant No.4, who has no private of contract with the plaintiff and, therefore, the very suit of the plaintiff as against the defendant No.1 is not maintainable. Mr. Ilyas Khan, Advocate has further submitted that the work done on his Plot was got done by the defendant No.4 himself through his own sources and not through the plaintiff.
11. Mr. S.M. Aslam, learned counsel for defendants Nos.1 and 2 has referred to the counter-affidavit filed by defendant No.1 wherein it is admitted that he had entered into contract with the plaintiff only for Plot No.F-423 and that it was the plaintiff who has failed to fulfil the contract by not completing the leveling work as per, the terms and conditions of the contract. It is admitted that a sum of Rs. 1,50,000 has been paid to the plaintiff. This defendant, however, denies that he or the defendants Nos. 2 and 3 had ever asked the plaintiff to do any leveling work on plot No.607.
12. Mr. SA. Samad Khan, learned counsel for defendant No.5 has submitted that the defendant No.5 has unnecessarily been joined as party to the present suit and no cause of action for filing of the suit has accrued to the plaintiff against this defendant.
13. I have considered the submissions of the learned counsel and perused the material placed on record. It may be observed that by this application the plaintiff has sought two reliefs. Firstly that the defendants should be restrained from committing breach of contract and secondly that the work done by him on Plot No. F-607 is kept intact till disposal of the suit. As far as the first prayer is concerned, it is an admitted position that there was a written contract between the parties, a perusal of this contract will show that it pertained only to Plot No. F-423. It is admitted position that the plaintiff was to be paid Rs. 50,000 after completion of the work on each of the four phases; and that three phases having already been completed a sum of Rs. 1,50,000 has been paid to him.
14. Now remains the question of Rs. 50,000 for the work of fourth phase. The contention of defendant No.1 is that the plaintiff has not completed this work and, therefore, he was not entitled to balance payment and thus the defendants were within their right to cancel his remaining work and get the work done in any other manner. On this score the plaintiff has already claimed the damages in his suit as mentioned in prayer clauses 1, 2 and 3. This itself goes to show that the loss, if any, sustained by the plaintiff can be ascertained in terms of money and, therefore, he would not be entitled to grant of injunction as provided under section 54 of the Specific Relief Act, which reads as under; "54. Perpetual injunctions when granted.-Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication.
15. When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter 11 of this Act.
16. When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases (namely):- (a)Where the defendant is trustee of the property for the plaintiff.
17. (b)Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c)Where the invasion is such that pecuniary compensation would not afford adequate relief; (d)Where it is probable that pecuniary compensation cannot be got for the invasion; and (e)Where the injunction is necessarv o prevent a multiplicity of judicial proceedings.
18. Explanation.-For the purpose of this section a trade mark is property'.
19. With regard to second relief sought by the plaintiff it may be observed that it is an admitted fact that Plot No.F-607 belongs to the defendant No.4; and that there was no private of contract between the plaintiff and defendant No.4. In these circumstances prima facie the plaintiff does not have any case against the defendant No.4. Even if it be so, then also the plaintiff having valued his loss/damage sustained by him would not be entitled to an of injunction as prayed for by him in view of the provisions of section 5Toftthie Specific Relief Act as aforementioned. At this stage the learned counsel for the plaintiff argued that section 54 of the Specific Relief Act deals with perpetual injunctions and not the temporary injunctions to be granted under Order XXXIX rules 1 and 2 C.P.C. Suffice it to say that the grant of temporary injunction under Order (XXXIX) rules 1 and 2, C.P.C. Are also to be governed by the principles laid down in sections 52 to 57 of the Specific Relief Act. Reliance may be placed on the case of Shahid Coal Agency v. The Chairman, Pakistan Railways PLD 1982 Quetta 134. Reliance can also be placed on the, cases reported in PLD 1973 Peshawar 95 and PLD 1965 Dacca 361.
20. In view of above discussion, I rind no merit in this application, which is accordingly dismissed.
21. Above are the reasons for the short order announced in Court on 8-9-1991 AA./M-1468/K