1. RASHEED AHMED RAZVI, J.---This is an application filed by the petitioner under section 151, C.P.C.
2. Read with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for mandatory injunction, praying that the respondent No.4 be directed to release vehicle Hino bearing Registration No. PA 0226, Model 1993, Engine No. 12645 and to hand over the same to the petitioner since it has been illegally and unlawfully impounded by the said respondent No.4, namely, Recovery Officer, H--bib Bank Limited, Karachi.
3. The case of the petitioner is that he has purchased the abovesaid vehicle on 20-4-1993 from Messrs Maqbool Motors, at a cost of Rs.17,50,000, that he was regularly depositing monthly instalment of Rs.20,000 with the respondent No.1, against which the respondent No.4 was issuing token and that on 3rd July, 1996 the respondent No.4 illegally and unlawfully impounded the vehicle in collusion with respondents Nos.2 and 4, who are Federal Investigating Agency and Inspector- General of Police, Sindh, respectively. It is admitted by the petitioner that he has purchased this vehicle under the Prime Minister's Scheme. Petitioner's all efforts to get the vehicle released have failed and, therefore, he has filed this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, with the following relief:-- "(a) that this Hon'ble Court will be pleased to declare that the impounding note dated 3-7-1996 in respect of vehicle Registration No. PA 0226, make Hino A/C, Model 1993, Engine No. 12645, Chassis No.44320, issued by the respondent No.4 is illegal and without lawful authority and the same is liable to be set aside;
(b) direction be issued to the respondent No.4, to immediately and forthwith release the said vehicle that is PA No.0226, Make Hino A/C, Model 1993, Engine No.12645, Chassis No,.44320 in favour of the petitioner from whose possession the said vehicle was removed by illegal means.
(c) ...............................
(d) ...............................
4. We have heard Mr. Muhammad Amin Lakhani, for the petitioner and Mr. A.R. Akhtar, for respondents Nos. 1 and 4. Noose has appeared on behalf of the respondents Nos.2 and 3. However, one Deputy Inspector of Police, Traffic and Highway, Sindh, has filed his comments denying allegations against respondent No.3. It is stated in the comments that on the directions of the Federal Government, services of traffic police were extended to the Banks 10 provide necessary assistance to implement the decision of the Ministry of Communications for the purposes of impounding the defaulted vehicles and to hand over such vehicles to the concerned bank. According to these para-wise comments no mala fides or illegality was committed by the respondent No-3.
5. Learned counsel for the petitioner has strenuously argued that since the petitioner is regularly depositing the required instalments as such the respondents are not entitled in law to impound the abovesaid vehicle. To substantiate his contention the petitioner has not filed any bank voucher or payment slip. However, a copy of token is filed as Annexure "B", which discloses the vehicle number and the period for which it is valid. He has also argued that the acts of the respondents in impounding the petitioner's vehicle have resulted in heavy losses and hardship.
6. Mr. A.R. Akhtar, for respondents Nos. l and 4, has opposed this application, on the grounds that granting the mandatory injunction at this stage would amount to the grant of entire petition. He has denied that the petitioner is regularly depositing monthly instalments. Their case is that the petitioner was required to deposit Rs. 30,000 as monthly instalments but instead of that he has deposited Rs.20,000 per month, for a brief period. Respondent No. l has filed its counter-affidavit with several documents, duly executed by the petitioner. The respondent No. l has also filed the statement of bank account showing that from 7th January, 1993 till 13th May, 1993 Rs.17,03,000 was advanced by Habib Bank Limited to the petitioner. This bank statement further indicates that on 4th October, 1993 first instalment of Rs.30,000 was deposited and thereafter the petitioner started depositing Rs.20,000 per month. Last instalment was deposited on 16th November, 1995, against which outstanding balance of Rs.14,03,018 is shown. The said respondent has also filed Hire Purchase Agreement, which authorises the bank to take over the possession of vehicle in case of default. It is the requirement of this contract that the Hirer, the petitioner herein, shall make all monthly instalments within 10 days after the same have become due. Clause 8 of the Hire Purchase Agreement dated 7th January, 1993 is reproduced as under:-- "8. In the event of the hiring being determined under clause 6 hereof the Hirer shall forthwith return said cars/buses/vehicles to the Bank at the Hirer's expense and the Bank and its servants or agents shall be entitled without any notice to enter upon any premises where the said cars/buses/vehicles may be and seize and take possession thereof and the determination of the hiring as aforesaid shall not affect or prejudice any claim the Bank may have against the Hirer for arrears of hire payments or for damages for breach of this Agreement of the Bank's right to enforce such claim by action or otherwise."
7. The petitioner, for the purpose of obtaining a mandatory injunction, at this initial stage when this Constitutional petition has not yet been admitted for regular hearing, is required to show existence of a strong prima facie case and that in case of refusal he shall suffer irreparable loss and injury and that the balance of convenience is in favour of granting such relief. It is further observed that the mandatory injunctions at such initial stage are to be granted in exceptional circumstances, in rare cases and not as a matter of routine. (For reference see the cases of Muhammad Idris v. The Collector of Customs,. Karachi and another, PLD 1971 Karachi 736, Ahmed Hussain Khan v. The Secretary to the Government of Pakistan, Ministry of Communication, Islamabad and 3 others, PLD 1973 Karachi 718 and the case of S.A. Abbasi v. Chairman, District Council, Gulshan-e-Iqbal, Karachi PLD 1985 Karachi 400). We are of the tentative view that Annexure "B" to the plaint which is a token, is not a proof of payment of due instalments. We are fully conscious of the fact that the transaction involved in this Constitutional petition is between a costumer and a bank and, therefore, all transactions of debit and credit are to be made through the established procedure in the banking system. Petitioner has not filed any rejoinder affidavit to deny the contents of the counter-affidavit of the respondents Nos. l and 4 and, therefore, for the time being, we are constrained to observe, in absence of denial of the facts as alleged, that the petitioner has not paid any instalment since December, 1995 and that an amount of Rs.14,03,018 could be outstanding since November, 1995.
8. On the question of balance of convenience and suffering of any irreparable loss and injury, we may observe that the vehicle involved is a bus being used for commercial purpose and, therefore, if it is kept idle or impounded this may cause loss of business and goodwill to the petitioner. We are also conscious of the fact that by keeping this vehicle impounded it will not only diminish its utility and may decrease the value but it will also be deteriorated by the efflux of time. Any further detention of this vehicle would neither serve the purpose of the petitioner nor of the bank. The respondent No. 1, being a scheduled bank, is required to look after its financial interest. Therefore, what is expected from the Scheduled Bank is that they should be interested in recovery of their dues and not in impounding defaulted vehicles. Such practice should be restricted for the only purpose of securing the Banks financial interest and must not be vindictive in nature.
(i) That the petitioner shall deposit total of the nine instalments of Rs.20,000 each (from December, 1995 to August, 1996) thus amounting to Rs.1,80,000 with the respondent No. 1.
(ii) That for the remaining outstanding amount i.e. Rs.12,80,000, the petitioner shall execute a bank guarantee/insurance gurantee or any surety to the satisfaction of Nazir of this Court.
(iii) That after compliance of the abovesaid two conditions the respondents Nos.1 and 4 shall hand over the vehicle to the petitioner without any further delay.
9. With the above direction, the listed application stands disposed of.