1. ' This civil revision has been filed against the order passed by the First Appellate Court (V Additional District Judge), dated 2-3-1998, whereby he dismissed the miscellaneous civil appeal, filed by the applicant/plaintiff and maintained the order of the IV Senior Civil Judge, Hyderabad in Family Civil Suit No,319 of 1996, whereby the trial Court had dismissed the application filed under Order 39, Rules 1 and 2, C.P.C. Feeling aggrieved and dissatisfied with the aforesaid impugned order of the First Appellate Court the applicant/plaintiff has filed the above revision application.
2. ' The brief facts leading to the filing of the aforesaid revision application, are that the applicant/palintiff filed a suit for declaration and permanent injunction against the respondents/defendants, wherein he challenged the election of respondent No,1 as Bishop of Hyderabad Diocese as per result of the election held on 4-8-1997, praying for the following reliefs:--
(1) That the elections dated 4-9-1997 held at Mirpurkhas for the office of Second Bhishop of Hyderabad Diocese electing the defendant No,l's illegal, mala- fide, bogus, perverse, Violating the written constitution of the Church of Pakistan annul and void and that only three conditions I.e. The plaintiff, defendants Nos,2 and 3 are in the field under the existing electoral college.
(2) The decision of the Scrutiny Committee (Annexure "I") is partial and dictatorial which should be clearly to disqualify the defendant No,1 while the remaining three candidates to contest the elections to the office of Second Bishop of Hyderabad Diocese.
(3) Perpetual injunction thereby restraining the defendant No,1 from acting/assuming the office of second Bishop of Hyderabad Diocese and managing the affairs thereof as such and the defendants to allow the previous/estwhile Diocese to manage the same till free and fair elections are held in due course of law and a legal Bishop is elected. Nor does anything prejudicial to this case by tempering with the funds of the Diocese of Hyderabad disturbing any person concerned with result of this litigation.
(4) Costs.
(5) Any other equitable relief, which may be permissible under the circumstances of this case.
3. ' An application under Order 39, Rules 1 and 2, C.P.C. Was also filed by the applicant/plaintiff, praying that till the decision of the suit, respondent No, 1/defendant 'No,1 be restrained from acting as Bishop of Hyderabad Diocese or to deal with or tamper with the funds of the Diocese of Hyderabad as well as from managing the affairs of the Diocese of Hyderabad and meanwhile to allow the Officer and Executive Committee of the last Diocese to manage affairs of the Hyderabad Diocese till fresh election for electing Bishop is held. The applicant/ plaintiff has challenged the appointment of respondent No,1 as Bishop of Hyderabad Diocese on the ground that he did not fulfil the requisite qualification for contesting the election for electing Bishop of Hyderabad inasmuch as he did not possess the qualifications which are necessarily required to be possessed by a candidate/presbyter as per the amended/altered rules as per decision of the Executive Committee dated 12-10-1989, which required that a presbyter should have pastoral experience of at least 10 years in the Church of Pakistan, out of which at least 6 years should be full time in a local parish; that he should be a graduate from a University and have seminary training. It is further the case of the applicant/plaintiff that respondent No,1 did not fulfil the aforesaid requisite qualifications and his nomination papers ought to have been rejected but he managed to get the same cleared by Chairman of the Scrutiny Committee, who held his nomination as proper and in order by overruling the decision of the majority Members of the Scrutiny Committee that respondent No,1 did not possess the requisite qualifications for contesting the election of Bishop.
4. Consequently, respondent No,1 was elected in the elections dated 124.1989 as Bishop of Hyderabad Diocese.
5. ' Alongwith the plaint an application under Order 39, Rules 1 and 2, C.P.C. Was also filed which was duly supported by an affidavit of the applicant/plaintiff, Respondent No,1 filed his counter-affidavit, wherein he questioned the right of the applicant to file the above suit and further submitted that he had no case, whatsoever. It was further stated therein that the applicant had suppressed material and important facts. Respondent No,1 also challenged the maintainability of the suit and further submitted that his nomination papers were duly scrutinized by the Scrutiny Committee which declared his nomination as valid and in order after which respondent No,1 contested the election.
6. Respondent No,1 prayed that since the application has failed to make out a case for instituting the suit against him and for being entitled to the relief prayed for by him, consequently, the application under Order 39, Rules 1 and 2, C.P.C. For injunction restraining him from performing and carrying on the duties as Bishop of Hyderabad Diocese was also without any merit and ought to be dismissed.
7. ' The trial Court after hearing the arguments of the learned counsel for the parties, dismissed the application under Order 39, Rules 1 and 2, C.P.C., on the ground that allowing the application under Order 39, Rules 1 and 2, C.P.C. And granting injunction,, restraining respondent No,1 from acting as Bishop of Hyderabad Diocese would virtually amount to deciding the suit as the main relief prayed for by the applicant, i,e,, declaration that the election of respondent No,1 as Bishop of Hyderabad Diocese be declared as illegal and he be stopped from performing duties and function, would be allowed or achieved. The trial Court further observed that the injunction or the restraint order of the nature which virtually amounts in providing or allowing the main prayer/relief prayed for in the suit is not to be granted. It was further observed that the matter required evidence for deciding the question relating to the existence of a prima facie case in favour of the applicant as well as fulfilment of the further two conditions i,e, causing of irreparable loss and balance of convenience.
8. With regard to the irreparable loss it has been observed by the trial Court that the applicant failed to make out as to what irreparable loss would be caused to him if respondent No,1 was allowed to act and perform the duties as Bishop of Hyderabad Diocese till disposal of the suit. With regard to the balance of convenience the trial Court observed that the inconvenience resulting on account of grant of injunction to respondent No,1 and the Hyderabad Diocese would be caused to the applicant. In view of the above observations the trial Court dismissed the application under Order 39, Rules 1 and 2, C.P.C. The main and most important factor which weighed with the First Appellate Court in maintaining the order of the trial Court of dismissal of the injunction application was that the prayer of interim injunction if granted would amount to allowing the main relief/prayer asked for by the applicant and would virtually amount to deciding the suit, It was further observed that irreparable loss would be caused to respondent No,1 if the injunction prayed for by the applicant was granted, inasmuch as if the suit of the applicant is finally dismissed and is decided in favour of respondent No,1 then it would not be possible to make good the loss which respondent No,1 would suffer on account of having been out of the office due to injunction order of the Court as whatever loss, humiliation and disgrace would have been suffered by him on being restrained from acting and performing his duties of the Bishop of Hyderabad Diocese could not be measured in terms of money nor the payment of money would be due and proper compensation. Accordingly the First Appellate Court upheld the order of the trial Court and dismissed the Appeal. Hence the above revision application.
9. ' I have heard the arguments of the learned counsel for both the parties and have perused the material on record, the relevant provisions of the law and the publications published by the Church of Pakistan as well as the case-law relied upon by the learned counsel for the parties in support of their respective contentions. The concurrent findings of the two Courts, below have been assailed on the ground that the same was in complete disregard of the provisions of the Constitution of the Church of Pakistan as well as the decisions of the VIIth Triennial Meeting of the Synod of Church of Pakistan, which was held from 7th to 9th December, 1989 duly approved by the Executive Committee of the Synod, according to which the necessary qualifications for appointment/election of a Presbyter as a Bishop from the existing qualification of being and an ordained Presbyter and having attained the age of thirty years were altered or modified as under:--
(a) In the present situation and for the manifestation of identity of Church of Pakistan, the Presbyter should be a Pakistani national.
(b) That the Presbyter has a pastoral experience of at least 10 years in the Church of Pakistan, out of which at least 6 years should be full time in a local parish.
(c) That the Presbyter must at least be University Graduate and has Seminary Training.
(d) That the Presbyter if married should have a stable family life.
(e) That the Presbyter should be of good reputation.
10. ' It is the case of the applicant that respondent No,1 did not possess the qualifications mentioned at paras. (b) and (c) above, and consequently he was not eligible to contest the election for election of Bishop of Hyderabad Diocese as obviously he did not possess the requisite qualifications to contest the election for appointment of Bishop of Hyderabad Diocese. The issue/matter was referred to the Diocesan Council of the Hyderabad Diocese and the majority of the members of the Diocesan Council agreed with the contention that respondent No,1 did not possess the requisite qualifications or participating in the election for electing the Bishop of Hyderabad Diocese but the Chairman of the Diocesan Council overruled the objections of the members and gave verdict in favour of respondent No,1, which was absolutely contrary and in conflict with the amended clause/rule relating to the qualifications of a Presbyter for being elected as a Bishop, thus, apparently the participation of respondent No,1 in the election held for electing the Bishop of Hyderabad Diocese would appear to be illegal and contrary to the provisions of the aforesaid relevant clause of the Constitution of Church of Pakistan, and consequently, his election as Bishop of Hyderabad Diocese is contrary to the aforesaid rules. The alterations/amendments made in clause (9) of Chapter IX relating to the qualification of a Presbyter for his eligibility to contest the election of Bishop was reconsidered in the 9th Triennial Meeting of the Synod, Church of Pakistan, held from October 30th to November 1, 1995 and the Executive Committee of the Synod after a lengthy discussion on the subject had framed the following resolution/question putting the same for voting before the members of the Executive Committee of the Synod, Church of Pakistan:- "With immediate effect, the qualifications for the candidate seeking election for the post of a Bishop would be only those, which are laid down in clause (9) of Chapter IX of the Constitution of the Church of Pakistan."
11. ' The members of the Executive Committee by an overwhelming majority voted in favour of the above resolution and it was decided that in future the candidates seeking election for the post of Bishop would have to fulfil no condition other than those which are laid down in clause (9) of Chaptef IX of the Constitution of the Church of Pakistan which is as under:- "9, No one shall become a Bishop unless he is already an ordained Presbyter, and has attained thirty years of age."
12. ' However, the matter does not end here. The question of qualification of a Presbyter for contesting the election of Bishop was again the subject of discussion by the Executive Committee of the Synod in its meeting held on April 8, 1997 at Hyderabad agreed to delete items at 11,12,13 and 14 under the heading Amendments in the Constitution and Rules of the Church of Pakistan from the Minutes of the Executive Meeting held on 24th November, 1995. These items related to the alteration and addition relative to the qualifications of a Presbyter for contesting the election of Bishop. It was agreed that the rules of the qualification of the candidate for the election Bishop as provided in the Minutes and decisions of the seventh Triennial Meeting of the Synod should be allowed to be operative and in force. The Synod in its Special Meeting held on 5th June, 1997 deleted the aforesaid items resulting in the alterations/amendments as per decision of the Synod in Seventh Triennial Meeting to become operative and coming in force requiring the candidate to fulfil the qualifications enumerated in Rules (a) to (e) appearing on page----herein. The mode of alteration/amendment of the Constitution has been provided in Chapter XVII, page 38 of the Constitution of the Church of. Pakistan, which lays down the procedure in detail for altering or adding any provision to the Constitution of the Church of Pakistan. The proposal/resolution to revert back to original Article 9 of Chapter IX of the Constitution of Pakistan, as well as the subsequent decision to delete it and adopt the alterations/amendments or addition as proposed by the Synod of Pakistan relative to the qualification of a Presbyter for contesting the election of Bishop appears to have been made in accordance with the procedure laid down in the,aforesaid Chapter XVII and no exception can be taken to the same with the result that on the date when respondent No,1 contested the election for the post of Bishop of Hyderabad Diocese he would not be deemed to be lacking in any of the required qualifications for contesting the said election with the result that his election as Bishop of Hyderabad Diocese could not be challenged and considered to be illegal or against the provisions of the Constitution and the Rules of the Church of Pakistan so as to be declared as null and void. The contention that the suit filed by the applicant is not maintainable in view of the failure of the applicant to have recourse to clause (7) of Chapter XIV of the Constitution of the Church of Pakistan which provides an appeal both on the grounds of fact and law against every judgment of a Court of a Diocesan Council to the Court of the Synod is also not without substance and is to be considered in determining the fate of the injunction application.
13. ' From the facts and circumstances enumerated above, apparently it transpires that respondent No,1 was not legible to contest the election to the post of Bishop of Hyderabad Diocese and an illegality or irregularity had been committed in allowing respondent No,1 to contest the election as Bishop of Hyderabad Diocese and his election apparently cannot be said to be proper, valid and in accordance with the provisions of the Constitution of the Church of Pakistan. The applicant has succeeded in establishing a prima facie or an arguable case with regard the validity and legality of respondent No,1 being elected as Bishop of Hyderabad Diocese and his entitlement to continue to hold the said office. However, for granting temporary injunction under Order XXXIX, Rules 1 and 2, C.P.C. The applicant is also required to establish that irreparable loss would be caused to him and he would suffer greater inconvenience than the inconvenience likely to be suffered by respondent No,1 if injunction is not granted. In this connection it was submitted that the applicant possesses all the requisite qualifications for being elected as Bishop of the Hyderabad Diocese but on account of the illegality and unconstitutionality in allowing respondent No,1 to contest the election of Bishop of Hyderabad Diocese in contravention of the relevant provisions he could not be elected as Bishop of the Hyderabad Diocese and would continue to suffer irreparable loss till such time as respondent No,1 continues to illegally hold the post of Bishop of Hyderabad Diocese against his rights and entitlement. This contention is without any substance as there was no guarantee or certainty that applicant would have won the election and would have been elected as Bishop if respondent No,1 had not contested the election. No legal entitlement of right of the applicant has been violated so as to cause him irreparable loss. The requirement of balance of convenience is also not in favour of respondent No,1 as the entire work of Hyderabad Diocese being conducted by respondent No,1 as an elected Bishop would come to a standstill. Even, if the Constitution provides an interim measure of carrying the work and performance of duties of a Bishop by some other Authority during the absence of a Bishop, the question is as to why resort should, be had to any interim or stand by measure and it has not been established that the applicant would suffer greater inconvenience if respondent No,1 is allowed to perform the functions and discharge the duties as Bishop of Hyderabad. Mr. P.M. Amer referred me to the cases of: (i) Marghub Siddiqui v. Hamid Ahmed Khan and 2 others reported in 1974 SCMR 519; (ii) Karachi Bus Owners Association and 3 others v. Karachi Yellow Mini Coach Owners Association and 5 others, reported in 1994 CLC 606; and (iii) Mrs. Shazadi Baber v. Hina Housing Project (Pvt.) Ltd. And others, reported in 1994 CLC 1601 in support of the proposition that merely existence of a prima facie case is not sufficient for granting temporary injunction, but the Court has to take into account the question of irreparable loss to the party seeking injunction and the balance of convenience. It will not be out of place to mention here that a temporary injunction or an interlocutory order of stay is granted to maintain status quo or the situation between the parties prevailing on the day when the party had approached the Court and grant of an interlocutory order creating new situation or providing the ultimate relief is not to be resorted to. In support of the above reliance is placed on the case of: (i) Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others, reported in 1997 SCMR 1508; which was referred to by Mr. P.M. Amer.
14. ' Mr. Anwar Zaheer Jamali, referred to the cases of: (i) Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another, reported in PLD 1975 SC 678; (ii) Nasir Abbas v.
15. Manzoor Haider Shah, reported in PLD 1989 SC 568; (iii) Haji Sher Muhammad etc. v. WAPDA etc., reported in PLD 1988 Lah. 511; (iv) Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. And 2 others, reported in PLD 1990 Kar. 1; (v) Agha Saifuddih Khan v. Pak Suzuki Motors Company Limited and another, reported in 1997 c LC 302; and (vi) Mst. Salma Jawaid and 3 others v. S.M. Arshad and 7 others, reported in PLD 1983 Kar.
303. From perusal of aforecited cases, I find that the observations and declarations made therein have no application to the facts and circumstances of this case and are of no help to the applicant in advancing his case so as to entitle him to seek temporary injunction prayed by him or to entitle this Court to exercise jurisdiction under section 115, C.P.C. As the necessary ingredients for warranting interference by way of a Revision are not established.
16. Upon the above discussion, the applicant has failed to make out a case for grant of temporary injunction as prayed by him. The two Courts below did not commit any irregularity or illegality in refusing to grant the temporary injunction in favour of the applicant. The impugned order of 1st Appellate Court, upholding the order of the trial Court diagnosing the applicant under Order XXXIX, Rules 1 and 2, C.P.C. Filed by the applicant does not require to be interfered with. Accordingly this revision application stands dismissed.