' MUNAWAR AHMAD MIRZA, J.---This petition foi: leave to appeal has arisen from Order, dat&1 22nd May, 1998, passed by Peshawar High Court in Civil Revision No,234 of 1998.
2. Facts briefly mentioned are that on 23rd December, 1997, petitioner instituted a Civil Suit before Senior Civil Judge, Peshawar, claiming declaration to the effect that 25% compensation was payable in terms of decision taken by E.C.C. Of the Cabinet, dated 31st March, 1992, keeping in view actual production capacity calculated at 350 working days on three shifts basis. Relief regarding release of 25% raw material quota on furnishing indemnity bond was also sought. Prayer clause of the suit reads as under:- "A. Declaration to the effect that the plaintiff is entitled to 25% compensation in terms of the decision of E.C.C. Of the Cabinet dated 31-3-1992 on its actual production capacity, 350 working days and on three shifts basis and for a direction to the defendants to allow 25% compensation to the plaintiff on the said basis or on the basis of the survey report conducted on the direction of Central Board of Revenue and also on the basis of 25% compensation allowed to similar other units of Gadoon Amazai Industrial Estate, District Swabi and that the plaintiff should not be discriminated as against the similar other industries. B. Permanent mandatory injunction restraining the defendants from taking any action in pursuance to or in consequence of the bank guarantees provided by the plaintiff for release of raw material against 25% compensation quota or any action relating thereto. C. Direction to the defendants to release raw material to the plaintiff as against the 25% compensation claim till the decision of the above noted suit on furnishing of indemnity bond.
D. Any other relief deemed appropriate, not specifically asked, may also be granted. The cost of this petition may be awarded to the plaintiff."
2. Alongwith main suit an application for interim injunction praying for restraining respondents from encashing bank guarantees furnished during the pendency of Constitution petition, coupled with demand for providing raw material against 25% quota in terms of interim order of High Court earlier passed was filed. Relief sought in the interim application is to the following effect:- "It is, therefore, respectfully prayed that the Hon'ble Court may be pleased to issue injunction restraining the respondents Nos.1 to 5 from encashing the bank guarantees provided by the petitioner while releasing raw material against 25 % compensation quota in terms of the High Court order and for a direction to the respondents Nos.1 to 5 to initiate any action in pursuant thereto and in consequence thereof or any recovery proceedings, till the decision of the above noted suit."
3. It may be seen that order of status quo was granted in the above-mentioned Civil Suit, by learned Civil Judge, Peshawar, on 12-1-1998, but same was eventually vacated vide order dated 21- 1-1998. Petitioner feeling aggrieved from decision of trial Court had preferred Civil Appeal No,18/14 of 1998 before Additional District Judge, Peshawar. The appeal was dismissed on 10-2-1998. While vacating ad interim status quo it was observed that trial Court has exercised discretion judiciously, therefore, in the absence of irreparable loss, arbitrariness or perversity the conclusions did not warrant interference. Additionally, Appellate Court expressed that petitioner had another opportunity because application for interim injunction was still to be decided after hearing the parties on subsequent date. Concluding portion of the order is reproduced below:- "Perusal of the file shows that the learned lower Court has not disposed of the main injunction application and the learned trial Court has awarded opportunity to the opposite party for reply and arguments. Learned trial Court vacated the ad-interim status quo order issued by the said Court provisionally. The main interim injunction application is lis pendence before the learned trial Court and in my view the learned trial Court in consequence of the order dated 30-12-1997 of the Hon'ble single Judge of the Peshawar High Court has only 'vacated the ad-interim status quo order which was his discretion. In ibis state of affairs the impugned order of the learned lower Court is neither perverse nor arbitrary. The appeal in hand seems to be pre-mature in nature because the learned trial Judge has awarded opportunity of hearing to plaintiff/appellant and has fixed the case for 18- 2-1998 for reply and arguments on application for the grant of temporary injunction."
4. Petitioner challenged this order by way of Civil Revision Petition No,85 of 1998 which was partly accepted on 6th April, 1998, remanding the case to Additional District Judge-III, Peshawar, for decision of appeals afresh, meanwhile status quo was maintained. Pursuant upon above directions the appeal after hearing the parties was again dismissed vide order, dated 11th May, 1998. Relevant observations are reproduced here:- "8. It has not been disputed before this Court that the bank guarantees were furnished by the .Appellants during the pendency of the writ petitions before the Hon`ble Peshawar High Court, Peshawar. The said writ petitions were filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. According to Article 199 (4-A) of the Constitution of Islamic Republic of Pakistan ' as interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by an authority or person, which has been made, taken or done or purports, to have been made, taken or done under any law which is specified, in Part 1 of the First Schedule or relates to, or is connected with, (State Property or) assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is finally decided, or the interim order is withdrawn, by the Court earlier.
9. This Court is view of Article 199 (4-A) of the Constitution of Islamic Republic of Pakistan, 1973 cannot legally debar the contesting respondent from encashment of bank guarantees furnished during writ petition, even if suits are considered continuation of proceedings initiated in writ petitions, as a period of six months has already been expired and consequently the contesting respondent has become entitled to encash the bank guarantees furnished by the appellants.
10. Even otherwise, the appellants have failed to establish a prima facie case against the contesting respondents as the levy of duty and recovery of the same, prima facie, falls within the authority of Customs Department which cannot be set aside or modified by the Civil Court. The encashment of Bank guarantees cannot be termed an irreparable loss and even if the appellants are found entitled to the claim of 25% compensation the said amount can be re-adjusted later on by the contesting respondents in their favour.
11. In the light of what has been discussed above. I see no force in both those appeals which are hereby dismissed with no orders as to costs."
5. Petitioner dissatisfied from above decisions preferred Civil Revision No,234 of 1998 before Peshawar High Court which came up for consideration alongwith other connected matters involving identical points of law. The petition and other matters were dismissed by means of Order dated 22-5-1998. The observations appearing in paragraphs 5 to 9 of the order being relevant for disposal of present petition are reproduced for ready reference:- "5. The bank guarantees which are now the subject-matter of the civil revisions were furnished by the petitioners in pursuance ,,to interim orders passed by this Court during the pendency of writ petition No,754 of 1994 and 535 of 1997 on the applications of the petitioners for the release of raw material without customs duty etc. Over and above the quantity already calculated by the defendants under the 25% exemption. The purpose of the Bank guarantee was to secure the customs duty leviable on the goods released so that in case the writ petitions were eventually dismissed, the same could be encashed to recover the duties leviable on the raw material so released. With the dismissal of the writ petition all interim orders, including the one in pursuance to which the Bank guarantees were furnished, stood dismissed. Thus, the bank guarantees became encashable after the dismissal of the writ petition. The encashment was suspended only temporarily by the august Supreme Court on 5-8--1997 till the disposal of the petitions for leave to appeal. With the dismissal of the petitions on 18-12-1997 the judgment of this Court in Writ Petitions Nos.754 of 1994 and 535 of 1997 revived and consequently the respondents defendants became entitled to encash the bank guarantee.
6. The contention of the learned counsel for the petitioners that the present civil suits are in continuation of the earlier proceedings is misconceived. Although the subject-matter of the writ petitions filed earlier and the present civil suits may be the same, yet the earlier proceedings brought under the Constitutional jurisdiction of the High Court had finally ended on the pronouncement of the judgment of the Supreme Court when the petitioners withdrew the Civil Petition for Leave to appeal whereas the civil suits brought under the Civil Procedure Code, are separate independent proceedings and can in no way be linked to the earlier proceedings. The observation of the august Supreme Court that the petitoners are free to file a civil suit cannot be equated with a direction by the Supreme Court so as to link the present civil suit with the earlier petition.
7. Since the bank guarantees were furnished in separate proceedings, which had come to an end, the civil court cannot restrain their encashment in civil proceedings. In fact to do so would violate the order and judgment of this Court passed in Writ Petitions Nos. 754 of 1994 and 535 of 1997 as it would resurrect the interim orders of furnishing bank guarantees which stood dismissed with the dismissal of the writ petitions.
8. The arguments of the learned counsel for the petitioners regarding the inapplicability of Article 199 (4-A) of the Constitution has also no merits. True that the present proceedings are regulated by the Civil Procedure Code and not the Constitution yet the order whereby the bank guarantes were furnished by the petitioners were passed under constitutional jurisdiction of the High Court under Article 199 and therefore, subject to its sub-Article (4-A) of the Constitution and its period of validity is to be determined in accordance with the provisions of the Constitution and not the Civil Procedure Code. Thus, even otherwise the orders passed in writ petition whereby the duty leviable were suspended and bank guarantees furnished had by virtue of Article 199 (4-A) lapsed after 6 months of the orders.
9. For the foregoing reasons, the petitioners are not entitled to the grant of temporary injunction as they have not prima facie case for restraining the encashment of the bank guarantees furnished by them in Writ Petitions Nos.754 of 1994 and 535 of 1997 respectively. Both the petitions are, therefore, dismissed in limine."
6. Present petition for leave to appeal is directed against above referred order of Peshawar High Court whereby interim relief with regard to restraining encashment of bank guarantees furnished during pendency of the Writ Petition earlier filed, and claim for providing 25% raw material quota has been refused.
7. There is another fact of the case which has neither any nexus nor linkage with main controversy culminating in present proceedings. Petitioner has established a polymer ballom Tuber Films, and polythene bags and allied products manufacturing units at Gadoon Amazai Industrial Estate, Swabi. Federal Government by means of Notification No,SRO.517 dated 3rd June, 1989 had granted total exemption from customs duty, sales tax etc. However, said notification was withdrawn by the Federal Government on 9th May, 1991. Petitioner had challenged said withdrawal through Constitutional Petition No,754 of 1994 before Peshawar High Court. Several other factory owners had also approached the High Court of Peshawar. It may be seen that these petitions were ultimately dismissed by common order, dated 28th July, 1997 with following observations:- "As discussed in detail, we believe, that the conditions laid down by the Federal Government in their meeting of the E.C.C. Before or while claiming exemption of 25%, have not been fulfilled by the present petitioners. The writ petitions are hereby dismissed."
8. Civil Petition for Leave to Appeal No,828 of 1997 filed by petitioner and other aggrieved persons in these connected matters were, however, withdrawn on 18-12-1997. Order reads thus:- "The High Court, inter alia, dismissed the writ petitions on the ground that disputed questions of facts are involved. We arc of the view that this Court cannot take upon itself the question as to whether the quantity of raw material calculated by the Central Board of Revenue for granting 25% one time concession is correct or not in exercise of Constitutional jurisdiction as its a question of fact. The petitioners want to withdraw the above petitions to file the Civil Suit. They are free to file Civil Suit in accordance with law.
"The petitons are dismissed as withdrawn."
9. Mr. M. Sardar Khan, Sr. A.S.C., appearing for petitioner emphatically contended that;
(i) Petitioner is entitled for 25% compensation in terms of decision taken by the E.C.C. Dated 31-3- 1992, by determining actual production capacity as reflected from survey report showing 350 working days on three shifts basis.
(ii) The Courts below have exercised discretion unlawfully by declining to restrain respondents from encashment of bank guarantees which were furnished by petitioner under the direction of Court during earlier round of litigation initiated by way of Constitution petition.
(iii) The Courts below have completely disregarded basic requirements and condition of grant of interim relief. The conclusions drawn in the impugned order suffer from material defect.
10. We have perused the entire record and carefully considered arguments advanced before us in this matter.
It is quite apparent that an interim order passed by the High Court during pendency of writ petition filed by petitioner has eventually merged into above referred final order dated 28-7-1997. This factual and legal position remained unchanged because the petitions filed before Supreme Court were simpliciter withdrawn. It is, thus, imperative for petitioner to show prima facie case, balance of inconvenience and existence of irreparable injury for claiming the interim relief sought through injunction application. Learned counsel has not been able to satisfy us about legal justification on impending irreparable injury which could entitle petitioner the nature of interim relief sought for.
11. It has been stressed with great vehemence that till final decision of main suit; the bank guarantees earlier furnished by the petitioner during pendency of Constitution Petition No,754 of 1994 filed before Peshawar High Court should not be encashed by the respondents. The argument though noval and attractive yet has apparently no legal significance. The legal position has bean adequately discussed by the learned Judge in Chambers of Peshawar High Court in the impugned order and conclusions drawn by him are unexceptionable. Besides, it would not be out of place to mention here that by virtue of Article 199 (4-A) of the Constitution interim relief granted during pendency of Constitution petition, even otherwise, has ceased to be operative after expiry of six months. Therefore, no impediment existed in encashment of the guarantees for affecting recovery with regard to liabilities secured against such guarantees.
12. However, dilating upon salient feature and relevant regal aspects of the case, we are satisfied that Courts below have exercised jurisdiction in declining to grant relief to the petitioner by giving sound and cogent reasons. There is apparently no illegality or infirmity in the impugned judgments/orders which may warrant interference. The discretion vested in the forums below, has been judiciously exercised. Prayer for interim injunction clearly falls beyond the domain or authority vested in Trial Court, which in the absence of fanciful or arbitrary approach was rightly refused. This view is supplemented by the principle enunciated in cases (i) PLD 1970 SC 139 (Shahzad Muhammad v. Sultan Muhammad Khan and (ii) 1998 SCM R 789 (Noor Muhammad v. Sheran Bibi).
' For the above reasons we find no merit in this petition, which is accordingly dismissed and leave declined.