' This is a Civil Revision Petition filed under section 119, Code of Civil Procedure, 1908, against the judgment, dated 18-11-1997 passed by IVth Additional District Judge, Karachi, (South) in Civil Miscellaneous Appeal No,16 of 1996 (Syed Zubair Shah, Advocate v. Pakistan Telecommunication Corporation and 3 others) through which appeal filed by the petitioner was dismissed and the order of lInd Senior Civil Judge, Karachi (South), dated 16-4-1996 declining the relief of interim injunction to the applicant/plaintiff was upheld. This revision petition is against the concurrent findings of the two sub-ordinate Courts.
2. The plaintiff who is an Advocate of this Court filed a suit for declaration and permanent injunction in respect of a telephone bearing No,546878. It is admitted by him in his plaint that the said telephone was shifted from shop No,19, Defence Garden Apartments, Defence Housing Authority, Karachi and was installed in the office of defendants Nos.1 and 2 (now respondents Nos.2 and 3). It is the case of the plaintiff/applicant that he left the office of defendants Nos.1 and 2 by the end of 1992 and joined Mr. Khwaja Naveed Ahmad, Advocate, as junior lawyer; that the said telephone was used exclusively by the defendants Nos.1 and 2; that the said defendants in connivance with the employees of defendant No,3, namely, Pakistan Telecommunication Corporation at Karachi (hereinafter for brevity sake referred to as P.T.C.L.) allowed the defendants Nos.1 and 2 to use the said telephone till August, 1993 which resulted in accumulation of an amount of Rs,1,26,000 and did not disconnect the same; that the plaintiff received a notice from P.T.C.L. For disconnection of his other two telephone numbers for non-payment of Rs,1,26,000 as arrears of telephone No,546878. This act of the P.T.C.L. Has been challenged to be illegal, unjust, unathorised and violative of the principles of natural justice. Plaintiff has prayed for the following relief: "(i) That it may be declared that the plaintiff is not liable to pay the amount of Rs,1,26,946 to the defendant No,3 as arrears against the telephone No,546878 and further be pleased to declare that the defendants Nos.1 and 2 are liable to pay the amount abovementioned or whatever to defendant No,3.
(ii) To declare that the defendants Nos.1 and 2 in fact have been using the telephone. No,546878 for their business and personal use the said telephone has not been used by the plaintiff.
(iii) Permanent injunction in favour of the plaintiff restraining the defendant No,3, their employees, servants, agents and all others working for and on behalf of defendant No,3 from disconnecting/obstructing in any manner whatsoever the telephones of the plaintiff bearings Nos.
(1) 5882865 and (2) 5882866.
(iv)
(v)
3. Along with the above suit the plaintiff/applicant filed an application under Order 39, Rules 1 and 2, C.P.C., seeking interim injunction against the P.T.C.L., its servants, employees and other authorized officer from disconnecting the service of two telephone Nos.5882865 and 5882866 till disposal of this suit. This application was rejected by the Trial Court against which the appeal filed was also dismissed vide impugned judgment. Against the concurrent findings of the two Subordinate Courts the applicant/plaintiff has preferred this Civil Revision Petition. On 28-1-1999, after hearing both the learned counsel following order was passed by this Court which reads as follows: " In the morning when this matter was called Mr. Shahan Shah Hussain was present but Mr. Umer Qureshi was reported to be busy before another Bench. I have pointed out to Mr. Shahenshah Hussain that I am of the tentative view that in order to prove a prima facie case, the plaintiff is required to show that his suit is maintainable. In the instant case, the plaintiff is seeking a declaration under section 42 of the Specific Relief Act that he is not liable to pay dues of Pakistan Telecommunication Corporation. Mr. Umer Qureshi has referred to two unreported orders, one passed by a learned Single Judge, dated '21-2-1995 in Suit No,148 of 1994 which was subsequently upheld by a Division Bench in H.C.A. No,50 of 1995. At this stage, Mr. Shahenshah Hussain appears and requests for time to make his submissions on the above point. As suggested, adjourned to 10- 2-1999 "
4. It was strenuously argued by Mr. Shahenshah Hussain that P.T.C.L. Is not legally entitled to disconnect the other two telephone numbers, which are in the name of applicant/plaintiff; that the applicant/plaintiff is not liable to pay the outstanding bills of telephone No,546878 which were being admittedly used by respondents Nos.2 and 3 and that for grant or refusal of an injunction only three criteria as laid down by the Supreme Court are to be seen which are fully attracted in the present case. In other words what the learned counsel for the applicant/plaintiff has suggested is that the question of maintainability or otherwise of a suit would not be relevant for the purpose of deciding an application under Order 39, Rules 1 and 2, C.P.C. Indeed, the question whether a plaintiff has successfully shown a prima facie case, could only be determined after reference to the facts and circumstances narrated in the plaint and affidavits. I would like to observe that where a plaint discloses a prima facie case but at the same time if it is hit by any provision of law then such plaintiff will not be entitled for grant of interim injunction. How to determine existence of a prima facie case, for that, I am fully conscious of a rule laid down by a Division Bench of this Court in the case of Muhammad Matin v. Mrs. Dino Manekji Chinoy (PLD 1983 Kar. 387 at 398) where the term "prima facie" was interpreted in a manner that if a plaintiff has a case where a serious question of law, or, fact was raised in the plaint on which the parties have to go to trial or where the plaintiff has an arguable case as distinct from having no right at all or making, fanciful, frivolous claim than it will fulfill the requirements of bringing plaintiff's case within the term prima facie case. Reference was made to the cases Sui Gas Transmission Company v. Sui Gas Employees' Union and others (1977 SCM R 220) and S.N. Gupta & Co. v. Sadananda Ghosh and others (PLD 1960 Dacca 153). The rule laid down in the case of Muhammad Matin (supra) arises from a suit for specific performance of a contract. It is further observed that where plaintiff's case is apparently defective in law this will displace the above rule. In the circumstances of the present case, the plaintiff, in order to prove a prima facie case was also required to show that he was entitled for a declaration as to his legal status and character as provided under section 42 of the Specific Relief Act.
5. Mr. Umer Qureshi, Advocate, for the P.T.C.L. On the last date of hearing has filed photo copies of the two orders; one passed by a learned Single Judge of this Court Mrs. Majida Razvi, J. (as she then was) in Suit No,148 of 1994, (M/s. Agricides (Pvt.) Limited and another v. Mrs. Farhat Sultan and 2 others) and the order of a Division Bench in H.C.A. No,50 of 1995 upholding the order of Mrs. Majida Razvi, J. In that case the plaintiff was owner of an apartment at Clifton, Karachi, which was rented out to one of the defendants who stayed in the said flat even after the expiry of the agreed period of tenancy and used the telephone facilities. In said circumstances the arrears of telephones accumulated to the extent of Rs,9,51,771 where after P.T.C.L. Started recovery proceedings against the plaintiff. The application for interim injunction filed by the plaintiff in that suit was dismissed by this. Court with the observations "Regarding payment of dues to the telephone department, every subscriber is responsible to pay the outstanding dues in support of telephone number allotted to him under the agreement with the department and as such plaintiff is responsible in the present case to make the payment in respect of pending bills." It was further held by this Court in that case" if the plaintiff has any grievance against the defendants then they can take such appropriate action as or provided under the law". This view was upheld by a Division Bench of this Court in H.C.A.
No,50 of 1995 with the following observations:--- ...We have heard the learned counsel of the appellants and we fail to find any default in the impugned order. In so far as the Telephone Department is concerned, Respondent No,1 (the tenant) is a total stranger. It is the appellant alone, as the owner of the premises and as the subscriber of the telephone connection, who are responsible for the arrears of the said telephone bills. No case for stay of recovery proceedings under section 7(a) of the Telegraph Act is made out by the appellants."
5. Mr. Umer Qureshi has also filed photo copies of Hiring Contract for telephone connection executed between the applicant/plaintiff and P.T.C. In respect of other two telephone numbers, for which applicant/plaintiff was seeking interim injunction for its disconnection. These are the two contracts which were considered by the two subordinate Courts below where after they came to the conclusion that in terms of clause 13 of the said Hiring Contract the plaintiff was not entitled for the interim injunction prayed for. This clause 13 is very relevant for determination of this revision which reads as follows:--- "...13. Disconnection and termination of contract.---(i) In the event of non-payment of telephone bill, bearing disconnection, within due date, the telephone is liable to be disconnected temporarily, disconnection shall lead to permanent disconnection and termination of contract if outstanding bills are not cleared within 59 days of temporary disconnection. In such a case the Customers shall be declared as defaulter and loose all rights granted under this Contract.
(ii) All the telephone connections working in the name of a defaulter in the territory of Pakistan shall be liable to disconnection and termination of respective hiring contracts without any notice.
(iii) All the telephones working at the premises of defaulter shall be liable to disconnection and termination of respective hiring contract without any notice.
(iv) A telephone connection is liable to be disconnected if the Customer:
(a) uses it as public call office.
(b) sublets it to another party.
(c) arranges its illegal/unauthorised shifting to any other premises and
(d) if an obnoxious call is originated from his telephone with or without his knowledge..."
6. The case of Syed Muhammad Akram Shah v. Director-General, Headquarters Special Communication Organisation and another (1995 CLC 476) is not attracted in the present circumstances of this case as in that case reference was made to the AJ&K Telegraph and Telephone Manual Volume-VI. At the same time I may also observe that the terms of the hiring contract were also not referred before the learned Single Judge of High Court of Azad Jammu and Kashmir, which makes this case more distinguishable. Nevertheless the decision of a Division Bench of this Court in H.C.A. No,50 of 1995 (M/s. Agricides (Pvt.) Limited and another v. Mrs. Farhat Sultan and others) is more persuasive and binding on me. In that case the Division Bench of this Court had also referred to section 7-A of the Telegraph Act, 1885, which was introduced in the year 1957 through Act XXV of 1957. Subsequently, it was again amended in the year 1975. Section 7-A of the Act, 1885 provides that where any sum is due against any person under the Act in respect of telegraph, the same was to be recovered under orders of any Magistrate having jurisdiction, as fine imposed under the Act, 1885. The word "Telegraph" has been defined in section 3(i) of the Act, 1885, as an apparatus, equipments or plant used for transmitting, emitting, making, or receiving signs, signals, writing, speeches, sound or visual or electromagnetic system. It would be advantageous if section 7-A of the Act, 1885 is quoted which reads as follows:-- ....(7-A) If any person does not pay any sum due from him under this Act in respect of any telegraph or message, the sum so due may, on application made by the telegraph authority in this behalf, be recovered from such person, as if it were a fine imposed under this Act by any Magistrate having jurisdiction where that person may for the time being be resident; and the telegraph authority may further direct that any message, not teeing on Pakistan State Service, addressed to that person, shall be withheld from him until the sum so due is paid or recovered as aforesaid..."
7. I may mention here that as a result of the Act XVIII of 1991 (the Pakistan Telecommunication Corporation Act, 1991) the P.T.C.L. Was incorporated as Corporation for the purpose of functioning inter alia to establish, maintain and operate telecommunications in addition to other purposes as defined under section 6 of the Pakistan Telecommunication Corporation Act, 1991. Section 12 of the said Act provides transfer of assets and liabilities of Pakistan Telegraph and Telephone Department to the Corporation. All contracts made by the Telegraph and Telephone Department before the commencement of the Act are to be deemed to have been made by the P.T.C.L. The procedure for recovery of sum due of the Corporation in respect of any telecommunication service is to be recovered is an arrears of land revenue. But, in the year 996, this Act was repealed and in its place he Pakistan Telecommunication Reorganization) Act, 1996 was enacted for the purpose of reorganization of telecommunication system in Pakistan.
8. As a result of the above discussion, I am of the view that until and unless the outstanding/arrears of telephone are paid by le plaintiff or in case of bona fide and genuine dispute shown by a plaintiff and upon furnishing of security or bank guarantee, plaintiff would not be entitled for interim junction restraining the P.T.C.L. From disconnecting his other telephone connections. In the instant case the plaintiff died to prove bona fide or genuine dispute I respect of arrears of his telephone dues, he plaintiff was not able to make out a good Prima facie case; there exists no probability that he may suffer irreparable loss or injury in as of the disconnection of his other two telephones and that the balance of convenience was in favour of granting interim junction. In absence of these elements, this petition merits dismissal. In these circumstances, I do not see any illegality or tor in the two orders passed by the a ordinate Courts which in no manner arrant interference of this Court as provided order section 115, C.P.C.
9. Before parting with this order, I would like to refer to one of the allegations of applicant/plaintiff that it were the employees of the P.T.C.L. Who permitted accumulation of telephone arrears up to Rs. 1,26,000 (Telephone No.546878). With this background, I refer this matter to the General Manager, Karachi, Telecom. Region, P.T.C.L. For investigation as to who was responsible for not disconnecting the phone at an early opportunity and who allowed the arrears to reach such a higher figure. He is directed to fix responsibility and to take departmental action according to law against such irresponsible and negligent employee. A copy of such report be submitted within three months with the Member, Inspection Team, High Court of Sindh, Karachi. A copy of this order be forwarded to the Chairman, P.T.C.L., for necessary action.
On 12-2-1999 through a short order this petition for civil revision along with two listed applications were dismissed in limine with no order as to costs. Above are the reasons for the said short order.