This is an application filed by defendant No,1 under Order XXXIX, Rule 4, C.P.C. Read with section 151, C.P.C. For recalling the orders dated 18-8-1998 and 9-10-1996 passed on C.M.A. No,4767 of 1996.
2. Alongwith the main suit the plaintiff filed C.M.A. No,4767 of 1996 under Order XXXIX, Rule 1 and 2, C.P.C. With the following prayer:- "It is respectfully prayed on behalf of the plaintiff that this Hon'ble Court may be pleased to issue interim injunction restraining the defendant No,1, his agents, attorneys, legal representatives, assigns, executors and any person or persons acting for and on his behalf, from enforcing the payment of (a) Cheque No,CB418849 for Rs,4,14,926, (b) Cheque No,CB421692, dated 5-8-1996 for Rs,75,000, (c) Cheque No,CB421693, dated 5-9-1996 for Rs,1,00,000, (d) Cheque No,CB 421694 dated 5-10-1996 for Rs,1,00,000, (e) Cheque No,CB421695, dated 5-11-1996 for Rs,1,40,000 all drawn on H.B.L., Central Branch and also from enforcing the alleged compromise deed and making any use of the aforementioned documents in any manner against the plaintiff till final disposal of the suit. Ad- interim orders to the above effects are also solicited."
3. On 9-10-1996 counsel for defendant No,1 appeared and sought time to file counter-affidavit and Vakalatnama. Time was granted and following order was passed:- "Syed Sarfraz Ahmed, Advocate undertakes to file power on behalf of defendant No,1 and requests for time to file a counter-affidavit. He is permitted to do so. In the meanwhile interim injunction as prayed."
4. On 18-8-1998 no one appeared on behalf of defendant No,1 and therefore, the order dated 9-10- 1996 was confirmed. On the same day in the late hours Syed Sarfraz Ahmed, Advocate for defendant No,1 appeared and submitted that he could not come in the morning due to some personal reasons; his presence was noted in the order sheet; thereafter the present application was moved on behalf of the defendant No,1 supported by the personal affidavit of the counsel. The plaintiff filed objections. Learned counsel for the plaintiff raised legal objection to the maintainability of the application on the ground that there has to be a fresh circumstance which should justify the recalling of the earlier order. He submitted that the application of defendant No,1 failed to make out a case recalling the order dated 18-8-1998. Learned counsel for the -defendant No,1 submitted that the first order dated 9-10-1996 was a tentative order and was passed without hearing and without consideration of merits; the order dated 18-8-1998 too was passed in the absence of the counsel for the defendant No,1 as he could not reach the Court for reasons stated in the affidavit filed by him. It is submitted by him that the Court while passing the order dated 18-8- 1998 did not even consider contentions raised in his counter-affidavit.
5. I considered the submissions made on behalf of the parties and perused the case-law. In the case of Pakistan v. K.D.A. 1988 MLD 2668 while dealing with application under Order XXXIX, Rule 4, C.P.C. In paras. (8) to (10) on page 614 of the judgment, a Division Bench of this Court has held that:- "8. We are of the view that unnecessary conditions should not be placed in respect of the entertainment of application under rule 4 and it is only the ultimate order which should be scrutinized to see whether proper justice has been done in the case or not.
9. Since the Legislature had not preconditioned the power under rule 4, therefore, it does not seem to be appropriate that the judge legislate in that regard and prescribe definite terms and conditions under which that power can be exercised or cannot be exercised or bring the embargo of Order 47, Rule 1 of C.P.C. For the purpose of this rule which appears to be quite independent of Order 47, C.P.C.
10. It will depend upon the circumstances of each case as to whether the Court was justified in entertaining the application. It is an admitted position that fresh circumstances can always attract the provisions of Order 39, Rule 4, C.P.C. In the case of Muhammad Yousuf v. Mst. Sabira A. Muhammad and others 1990 CLC 1127 a Single Judge of this Court while disposing of the application under Order 39, rule 4, C.P.C. In para.(10) on page 1131 of the order observed as under:-- "Although, I find myself in respectful agreement with the views expressed in the two cases just referred to by me, but it may be,pointed out at the same time that nothing can be spelt out from rule 4 to indicate that it can be invoked only in case of ex parte orders passed before issuance of notice to the opposite-party, notwithstanding the fact that Rule 4 immediately follows Rule 3.
However, even in the said cases it has been held that Rule 4 can be invoked in presence of fresh circumstances, making the order unduly harsh and unworkable. I would like to point out here that rules have been framed under the C.P. Code not to place any insurmountable obstacles before the Court but to advance the ends of justice. Law reports can be found full of cases where rules were stretched to provide proper relief to the parties."
6. It is a fact that both the orders i,e, the order dated 9-10-1996 whereby the interim injunction was granted and the order dated 18-8-1998 whereby the interim injunction was confirmed were passed without considering the merits of the case though the defendant No,1 had already filed counter- affidavit in October, 1996; it can therefore be said that the two orders have been passed without considering the merits. It is not the case of the plaintiff that after the order dated 18-8-1998 certain developments have taken place and the same cannot he undone. In fact if the order dated 18-8- 1998 is recalled no retracing steps have to be taken. The objections raised by the counsel for the plaintiff are absolutely technical and that too are not substantiated by law. The above view is supported by the case-law referred hereinabove. It is in the interest of justice that the application under Order 39, Rules I and 2, C.P.C. Be decided on merits after hearing both the parties, the case of Chaudhry Zahoor Ellahi, M.N.A. v. The State PLD 1977 SC 273 is referred.
7. The upshot of the above discussion, the C.M.A. No,8033 of 1998 is allowed to the extent that the order dated 18-8-1998 is recalled and interim order passed on 9-10-1996 continued to be in field till disposal of C.M.A. No,4767 of 1996. This order is passed subject to a cost of Rs,5,000 (rupees five thousand) to be paid by the defendant No,1 to the plaintiff. Office is directed to fix the C.M.A. No,4767 of 1996 for hearing.