' Messrs Imad & Co. Through its Proprietor Noor Muhammad Khan, brought a suit against Project Director, Family Health Project, N.-W.F.P. And two other i.e, Additional Secretary, Government of N.- W.F.P. Health (Development) Deppartment and N.-W.F.P. Province, through the Secretary, Government of N.-W.F.P. Health Department for a declaration to the effect that the defendants are bound by the contract agreement, dated 27-10-1997 and defendant No,1 to honour its contents in connectiod with the supply of 23 Generators costing Rs,2,507,000 (Rupees Two million five hundred and Seven Thousand only) and they are legally bound to take the delivery of the aforesaid Generators in accordance with the terms of contract. (B) For a permanent injunction restraining the defendants from issuing of fresh Tenders Notice for the purchase of the Generators aforesaid and to restrain them not to purchase from anyone else, and that defendant No,1 be asked to take the delivery of the generators procured by the plaintiff. Alongwith this application an application for temporary injunction was also moved under Order 39, rules 1 and 2, C.P.C. In respect of the aforesaid prayer, written statement was also submitted by the defendants in which they had taken all the legal objections and confronted the allegations of the plaintiff. The petition for temporary injunction was contested by the parties before the Civil Judge, 1st Class, Peshawar who by. His order, dated 28-4-1998 declined to accept the same. Feeling aggrieved M/s. Imad & Co.
Hereinafter respondents preferred and appeal before the learned District Judge, Peshawar and by his order, dated 18-5-1998, the learned Additional District Judge-III, Peshawar accepted the appeal and set aside the impugned order, dated 28-4-1998 of Civil Judge 1st Class, Peshawar. In view of the aforesaid conflicting judgments the petitioner has preferred the present revision petition against the order, dated 18-5-1998 of the learned Additional District Judge, Peshawar.
2. I have heard the learned counsel for the parties and have gone through the relevant record.
3. At the very outset the learned counsel for the respondents raised preliminary objection that the revision petition was incompetent, it has not been properly documented in pursuance of proviso added by section 13 of Ordinance 1998. The learned counsel for the petitioner controverted the arguments by stating that he had properly documented the petition by annexing the copies of the impugned judgment, certified copy of the plaint and the written statement which would suffice the matter for correct adjudication of the present petition. He, however, stated that the copy of the agreement which is the subject-matter of the dispute need not be annexed with the petition because the contents of the same have already been mentioned in the memorandum of the petition. The learned counsel for the petitioner argued that this Court in the present matter can only adjudicate the petition on the basis of settled principle for the grant or refusal of temporary injunction on three ingredients (i) whether the plaintiff has a good prima facie case, (ii) whether the balance of convenience lies in the grant of temporary injunction and (iii) whether the plaintiff would suffer irreparable loss if the injunction is refused to him. To my satisfaction I have summoned the complete record of the case from the Court of Civil Judge, Peshawar and have gone through the same. The objection raised by the learned counsel for the respondents with regard to the deficiency in the documentation of the petition does not seem genuine. This Court can suo motu examine any record for the correct adjudication of the case and I had the opportunity of examining the record which was necessary for a correct decision. This record is in connection with the order placed for the supply of 23 Generators by the petitionef vide Letter No,4276-P, dated 27-10-1997 which is Annexure 'E' on the original file. The record suggests that according to condition-5 of the Tender Notice discretionary powers vest in the defendants to accept or to reject the quotation at any stage. The allegations of the petitioners in their written statements before the trial Court is that the plaintiff-respondent was unfair in dealing and was out to gain illegal benefit on the basis of fake supply order. According to the written statement, the quotation of plaintiff-respondent was to be evaluated and approved by the competent Authority which was the inter departmental purchase committee, constituted by the Government for all. Government purchases of goods in excess of Rs,1.5 million. This committee is constituted by the senior officers of the Finance Department and it has to ensure that all purchases are of standard quality and that the rates are competitive according to rules and procedure, therefore, the Additional Secretary Health defendant No,2 was not competent to give final approval in connection with the present purchase.
4. In the instant case, the petitioner could not make out a prima facie good case in the light of the aforementioned situation. With regard to the question of balance of convenience the injunction if issued to the respondents, the working of the public department would obviously be disturbed because the respondent is not within his rights to detach his claim for restraining the defendants from buying the Generators of their choice according to their suitability and requirements. Besides, it is not a case where the loss caused to the respondents an in terms of money would be irreparable and not countable in terms of money.There has been previous litigations between the parties on the same cause of action and Writ Petition No,23 of 1973 brought by the respondent against the petitioners was dismissed as withdrawn and, thereafter, there was an enquiry carried out against the respondent in connection with the illegality or irregularity committed by him in connection with the supply of Generators.
' As a nutshell of the aforesaid discussion the plaintiff-respondent's claim is that he wants the performance of his part of the contract for which he is entitled to compensation equal to the cost of 23 Generators procured by him and that he reserved his rights to retain compensation separately whereas the defence of the petitioners is that they were not prepared to accept the disputed Generators as they were substandard and that this supply was the result of fraud based on getting the order of supply on the basis of fake supply order. Under Order 39, rules 1 and 2 temporary injunction cannot be granted to restrain execution of public work as with the grant of temporary injunction it would ultimately be against the pubic interest. Since the matter requires adjudication after the parties adduce their evidence before the Trial Court, therefore, the finding of the learned Additional District Judge with regard to the granting the aforesaid relief to respondent- plaintiff in a case like this is not appropriate and legal. The impugned judgment and order of the Additional District Judge, dated 18-5-1998 is accordingly set aside on the acceptance of this revision petition and the order passed by the learned trial Court, dated 28-4-1998 is restored.
However, the trial Court is directed to expedite the trial of the case and decide it within, three months positively.