1. ' This application under section 151 read with section 94, C.P.C. Has been filed on 25-10-2000 by the plaintiff praying for a direction to defendants Nos.1 and 2 to validate the existing quota pass book of the plaintiff for the year 2000 and to permit him to make export against textile quota category 338 to the extent of 50400 dozens of men's 100% cotton knitted shirts. In support of this application an affidavit has bnefit filed by plaintiff Muhammad Ayub.
2. In his plaint which was filed on 24-12-1997 the relief claimed by the plaintiff is as under:-- "(a) Declaring that the refusal of the defendants Nos.1 and 2 to provide transfer in and transfer out facilities of quota to the plaintiff, and placing of an embargo on the transfer by the plaintiff of its quota entitlement in various categories during the year 1997 is without lawful authority and of no legal effect;
(b) direct the defendants Nos.1, 2 and 3 to grant transfer in and transfer out facilities of quota to the credit of the plaintiff in the passbook, and direct the said defendants to issue export visas in respect of shipments that may be made under the plaintiff quota entitlement and to authenticate the transfer out entries in the passbook of the plaintiff;
(c) in the alternative grant damages to the plaintiff against the defendants Nos.1, 2 and 3 jointly and severally in the sum of rupees thirty-seven million and eight hundred thousand together with interest at the bank rate from the date of suit till realisation of the decretal amount and to further direct the defendants Nos.1, 2 and 3 to include the unutilised quota of the plaintiff for the year 1997 as a part of its entitlement for the year 1998 onwards as if performance of the unutilised quota had been made by the plaintiff in 1997;
(d) grant costs of the suits;
(e) grant such other relief as may be appropriate in the circumstances of the case."
3. ' The facts in brief for the purpose of disposal of this application are that between February, 1997 and March, 1997, the plaintiff acquired 50400 dozens of textile quota for U.S.A. Category-338. Such entries were duly authenticated by the defendant No,2 in the passbook. In the month of December, 1997, the plaintiff attempted to transfer the quota available in his passbook but the defendants Nos.1 and 2 malafidely refused the same, though according to the textile management policy notified by the defendants Nos.1 and 2 it was transferable to another exporter for consideration and in their written-statement the defendants Nos.1 and 2 have taken a plea that the transfer was not authenticated in December, 1997 because the plaintiff was on the 'list of suspicious companies' and at best he was a quota broker and not an exporter.
4. ' The plaintiff has further stated that said allegations against him are false and frivolous. The defendants have no case against him and even if it is assumed that he is a quota broker, he has claimed that the quota is his property and it is transferable and useable. The plaintiff has further stated that he has been able to obtain an order for the export of 'men's 100% cotton shirts' to U.S.A.
5. A copy of the said order is filed with the application. The plaintiff has also stated that the country quota granted to Pakistan by U.S.A. For Category 338 remains largely unutilised and a surplus quantity of quota is available with the defendants Nos.1 and 2 for Category 338, hence the defendants Nos.1 and 2 be directed to validate the existing passbook of the plaintiff for the year 2000 and to permit the plaintiff to make exports against textile quota Category 338 to the extent of 50400 dozens.
6. ' The plaintiff has further submitted mat if he succeed in the suit and his prayer is allowed, the quota on his passbook for 1997 would be carried forward to future years. It has been further contended that in view of the above-stated position, there is a strong prima facie case as well as balance of convenience in favour of the plaintiff and in case his prayer is not granted, he shall suffer irreparable loss due to lapse of existing quota presently as well as in the future years, moreover, unutilised quota adversely affects a country as well.
7. ' In rebuttal counter-affidavit has been filed on behalf of defendants Nos.1 and 2 apart from the written-statement which has also been filed as back as on 20-44998. It has been stated in the counter-affidavit filed by Muhammad Rizwan Khan, Assistant Director of defendant No,2, while denying the case of the plaintiff that application under section 151 read with section 94, C.P.C. Is not maintainable according to law and it has been further prayed that for the sake of brevity the contents of written-statement be treated as a part of the counter-affidavit.
8. ' It has been further urged that granting of the application of the plaintiff/applicant will tantamount to grant of the main relief at an interim stage because the main relief sought by the plaintiff is also the same. It has been further stated that the suit was filed as back as on 24-12-1997, written-statement was filed on 20-4-1998 and issues have also been framed on 15-2-1999, whereas the present application has been filed on 25-10-2000 i,e, 'after about three years of the filing of the suit hence there is laches on the part of the plaintiff. The export policy is made on year to year basis and the past performance of an exporter is to be judged before granting or renewing his quota. The learned counsel for defendants Nos.1 and 2 has also stated that no such application or any other application under appropriate law was filed with the plaint.
9. The learned counsel has further argued that plaintiff/applicant has sought mandatory injunction means of by this application which relief cannot be granted at this stage. It is also the case of the defendants, that the plaintiff has never exported anything in the past on the basis of the alleged quota and, in fact, he is not an exporter but a quota broker. It has been also stated that export visa was never issued to the plaintiff by the Government of Pakistan. It is also urged that if any entitlement for export lames at the end of the year, subsequently it cannot be claimed in the future years. It has been categorically stated by the learned counsel for defendants Nos.1 and 2 that no quota is available which could be given to the plaintiff hence on this score as well the application is liable to be dismissed with costs.
10. ' In reply to the contention of the plaintiff that he has received an export order through Messrs Sangam Enterprises, it has been stated on behalf of defendants Nos.1 and 2 that as per their computer record maintained in respect of all the exporters, the name of Messrs Sangam Enterprises does not appear to be as an exporter in the said list. No such firm, entity or organisation is listed with the defendants Nos.1 and 2 and only those entities which are listed can acquire quota.
11. It has been further urged that the persons pretending to be 'exporters' managed to obtain through various illegal means (including fraud and bogus entries) entries in their passbooks relating to quota and pass on the same to genuine exporters. It results that the overall quota limit exceed and consequently the counter is penalised, furthermore the quota for the future orders is reduced. It has, therefore, been vehemently urged that no case for grant of relief as prayed for is made out and even otherwise no ends of justice have been defeated. The plaintiff has already sued for alleged damages and he has quantified his alleged loss in terms of money hence no case for grant of mandatory injunction is made out.
12. ' I have considered the arguments advanced on behalf of the parties and gone through the record of this suit.
13. ' It is an admitted position that during last about more than two and a half years from the filing of the suit till October, 2000 no such interim relief was prayed by the plaintiff. This application after expiry of so much time obviously suffers from laches. Moreover, the learned counsel for defendants Nos.1 and 2 has made categorical statement that the quota for the year 2000 has been consumed and nothing is left hence the contention of learned counsel for the plaintiff in this regard has also no force. In order to seek mandatory injunction in a suit, it is not only the prima facie case which is to be shown but what I feel that there should be a very strong prima facie case in favour of the plaintiff and it should be shown that if the interim relief in the form of mandatory injunction is not granted, the very purpose of the filing of the suit shall become frustrated. It is not so in this case.
14. The plaintiff has himself assessed the alleged loss and damage in the terms of money hence there is no question of irreparable loss which could not be made good at the time of final decision of the suit. A mandatory injunction during the pendency of a suit is a rare phenomenon. In my humble view the plaintiff has not been able to make out a case for the grant of interim relief as claimed by him and it has been rightly argued by the learned counsel for defendants Nos.1 and 2 that in case the interim relief by way of mandatory injunction is granted at this stage, it would amount to decree the suit as a whole.
15. Resultantly there is no merit in this application which is dismissed, accordingly. However, I may observe here that the issues have been settled about ten months back and the plaintiff may lead his evidence to get the suit concluded at an early stage.
16. Order accordingly.