' This first appeal is directed against the order, dated 14-7-1997, of Civil Judge 1st Class, Rawalpindi, whereby the respondent's application under Order C.P.C.9, Rules 1 and 2, read with section 151,P was accepted and the appellants were restrained from effecting any recovery on account of "amount due" from the respondent-company until the final disposal of the suit.
2. The respondent/plaintiff, a limited company, was awarded a contract by the appellants on 20-11- 1995, for the supply of 5000 tones of cotton seed oil cakes (U). The contract was cancelled on 9-9- 1996. The respondent thereafter instituted a suit, in the Civil Court at Rawalpindi, against the appellants, for a declaration to the effect that cancellation of Contract No .23-0061-2-0, dated 20- 11-1995, for supply for 5000 tones cotton seeds oil cake (U ), vide letter dated 9-9-1996 of the defendant is illegal, void, arbitrary, ultra vires of statute and the terms of the contract, without lawful authority and as such ineffective upon the rights of the plaintiff, and for permanent injunction restraining the defendants from implementing the said letter and effecting any recovery of alleged risk purchase amount from the plaintiff from its lawful dues, securities, bills and payments due against performance of other contracts, and for recovery of Rs,58,26,370. It was also prayed that the decree be passed in favour of the plaintiff and against the defendants, with mark- up, at the rate of Rs,0.60 per day per Rs,1,000 on decretal amount w.e.f, the date of institution of the suit till the final recovery of the suit amount. Alongwith the suit, an application under Order 39, Rules 1 and 2, C.P.C. Read with section 151, C.P.C. Was also instituted, praying that an ad interim injunction be granted restraining the respondent (now appellants) from implementing the letter, dated 9-9- 1996 and effecting any recovery of alleged risk purchase amount from the applicant from its lawful dues, securities, bills and payments due against performance of other contracts, pending disposal of the suit. The plaintiff's application, for the grant of temporary injunction, as mentioned above, was accepted through the impugned order by the Civil Judge 1st Class, Rawalpindi on 14-7-1997.
Hence this appeal.
3. It was contended by the learned counsel for the appellants that the respondent's suit is not maintainable under section 42 of the Specific Relief Act, 1877 because no legal character of the plaintiff is involved and such a suit, merely involving a pecuniary relationship between the parties, is not maintainable. It was also argued that the suit does not involve any denial of any right or title of the respondents' property and for this reason also, the suit, which is still pending, is not maintainable and, therefore, there is no prima facie case in favour of the respondent/plaintiff and the trial Court acted illegally in granting temporary injunction to the plaintiff. It was submitted that in suchlike disputes the plaintiff can file a suit for damages. Learned counsel for the appellants placed his reliance on the case-law which is discussed below:--
(1) M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83. It was held by the apex Court that section 42 of the Specific Relief Ad, 1877 does not contemplate a suit for declaration that a catering contract between a contractor and Railway administration to supply refreshments in Refreshment Rooms of the Railway and to run their buffet cars, was still subsisting. It was clarified that under the provisions of section 42 of the Specific Relief Act, 1877, a person entitled "to any legal character" or to "any right to property" can institute a suit for declaratory relief in respect of his title to such legal character or right to property.
(2) Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190. It was held that section 42 of the Specific Relief Act, 1877, does not permit an unrestricted right of instituting all kinds of declaratory suits at the will and pleasure of the parties. The right is strictly limited and a declaration can be asked for breach of proprietary right or for declaration of "legal character" and the expression "legal character" has been understood as synonymous with the expression "status". The "status" or "character must be conferred by law and it should not be a creature of contract.
(3) Alavi Sons Ltd. v. The Government of East Pakistan and 2 others PLD 1968 Kar.
222. In this case, a declaration was sought against all the defendants to the effect that plaintiffs have not committed any breach whatsoever of any of the terms and conditions of the contract dated the 29th of June, 1963, between the plaintiffs and the defendant No,1, therefore, their security in the form of bank guarantee, to the extent of Rs,66,000 is not liable to be cashed by the defendants Nos.1 and 2 from defendant No,3. It was held that the suit was primarily with respect to pecuniary relationship between the parties and the declaration sought was neither with respect to the plaintiff's legal character, nor with regard to any right to property. Under section 42 of the Specific Relief Act, 1877, it was only with regard to these matters that a person could come to the Court for declaratory relief. It was further held that the phrase "legal character" has been used, in the sense of "status" which is constituted by the attributes which the law attaches to a person in his individual and personal capacity and which, according to the Holland, is referable to such legal conditions as "(1) sex, (2) minority, (3) Patria potestas and manus, (4) coverture, (5) celibacy, (6) mental defect, (7) bodily defect, (8) rank caste and official position, (9) slavery, (10) profession, (11) civil death, (12) illegitimacy (13) heresy, (14) foreign nationality, and (15) hostile nationality. It was further held that in this sense, the expression will include personal rights and burdens to the exclusion of the proprietary relations, contractual capacities and incapacities, or legal conditions imposed upon a person by law without his own consent as opposed to the condition which he has acquired himself by agreement, such as the position of a slave. It was concluded that a declaration that the plaintiff has not committed breach of the terms of a contract is a declaration neither with regard to any legal character, nor any right or in any property and, therefore, such a declaration cannot be granted in the suit under section 42 of the Specific Relief Act, 1877 and for that reason the suit was held to be incompetent and not maintainable and that the plaintiff's remedy could have been either a suit for recession of the contract or for specific performance if so permitted, or for damages for its breach. The suit was consequently dismissed.
(4) Muhammad Farooq Khan v. Suleman A.G. Panjwani and 2 others PLD 1977 Kar.
88. It was held that the declaratio,-,,,sought was neither with respect to plaintiff's legal character in sense of "status" nor with regard to any right to property and, therefore, the same was not available by way of relief under section 42 of the Specific Relief Act, 1877.
(5) Abdul Rehman Mubashar and 3 others v. Syed Amir Ali Shah Bukhari and 4 others PLD 1978 Lah.
113 (D.B.). It was held that section 42 of the Specific Relief Act, 1877, cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants and as a necessary corollary it cannot apply to a case where only the entitlement to legal character or the property of the defendants is denied by the plaintiffs. It was also held that a Court cannot issue declarations outside the provisions of section 42 of the above Act.
(6) Messrs Chaudhry Construction Company Ltd. v. Pakistan and others 1990 CLC 394. In this case, Construction Contractor filed a suit for declaration to the effect that the order of cancellation of contract was illegal, without jurisdiction and of no legal effect. The suit was accompanied by an application for temporary injunction restraining the defendants from interference in the construction being carried by the plaintiff. The learned trial Court accepted the application and granted the temporary injunction as requested. The learned District Judge, however, accepted the appeal and dismissed the application for temporary injunction. A revision was filed in this Court.
The learned Single Judge while dismissing the revision petition held that no injunction can be issued against the owner at the instance of Building Contractor. His proper remedy is suit for damages for the cancellation of the contract.
(7) S.T. Trading v. Assistant Collector, Central Excise and Sales Tax, Sheikhupura and others 1993 CLC 1915 (Lahore). It was held that a suit for declaration that a certain contract still subsisted was not competent for the reasons that in case of any illegality in terminating an agreement the remedy at best lies in claiming damages and not a declaration.
(8) Miss Roohi Sheikh v. Board of Secondary Education, Karachi and 2 others 1996 MLD 1190 (Karachi). Plaintiffs' suit was that from now onward she should be called by a specified name instead of her name as entered in her educational certificates, birth certificate and domicile certificate and that Authorities be directed to correct her name as per her prayer in plaint. It was held that the provision of section 42, Specific Relief Act, 1877, were not exhaustive and no relief could be provided unless same could be brought within four corners of the section. In a suit for declaration, relief to be granted, must be relatable to declaration of status, legal right or character.
It was concluded that the prayer of the petitioner did not fall within any of the above three ingredients of the provisions of section 42, Specific Relief Act and the plaintiff' s/petitioner's suit being not maintainable had been rightly dismissed by the Courts below. The revision petition was accordingly dismissed.
(9) Global Produce Limited v. Habib Credit and Exchange Bank Limited and 6 others 1998 CLC 165 (Karachi). It was held that section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character of property but where right to his own legal character or property is not involved,. The suit is not maintainable. In this case the plaintiff was seeking declaration to the effect that the transfer of management of BCCI to defendant No,1 and its subsequent merger with defendants Nos.3 and 4 be declared unlawful.
Secondly, declaration to the effect that the defendants Nos.1 and 2 are neither legal successors of the former BCCI in Pakistan nor entitled to receive and recover any of the assets/money pertaining to former BCCI. It was held that these reliefs did not fall within any of the legal characters of status of plaintiff and, therefore, the plaintiff which was a body incorporated under Companies Ordinance, 1984 could not maintain such suit. The defendants' application under Order VII, Rule 11, C.P.C. Was, therefore, accepted and the plaint was rejected.
4. The learned counsel for the appellants has further placed his reliance Kanaiyalal Nanalal Desai v.
The Secretary of State of India AIR 1925 Boni. 225 (D.B) (Special Bench), Sripatrao Sadashiv Upre v.
Shankarrao Sarnaik AIR 1930 Born. 331, Nathu Ram v. Mula and others AIR 1937 Lah. 25, Subedar Shingara Singh and another v. Brigadier C.H.D.O. Callaghan and others AIR 1946 (33) Lah. 247, Madanlal v. State of Madhya Bharat AIR 1955 M.B. 1 1 1 and Mahabir Jute Mills v. Firm Kedar Nath Ram Bharose AIR 1960 All.
254.
' On the other hand the learned counsel for the respondent, while opposing the petition, has placed reliance on Messrs Hatta Construction Company (Pvt.) Ltd. v. Faisalabad Development Authority, Faisalabad through Director and another 1995 CLC 1877 (Lahore) and Messrs M.A. Latif Janjua v.
Islamic Republic of Pakistan through Secretary Ministry of Defence, G.H.Q. Rawalpindi and 2 others PLD 1990 Pesh.
137. The former is not relevant to the legal issue discussed above. The latter authority of Peshawar High Court, although relevant to the issue, is of no help to the respondent. A Division Bench of this Court in an unreported judgment, delivered on 29-3-1995, in R.F.A. No,41 of 1991, at Bahawalpur Bench, did not follow this judgment of a learned Single Judge of Peshawar High Court, in view of the law laid down by the Honourable Supreme Court in M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83 and in view of the law laid down by this Court in the authorities cited above.
5. Avoiding the repetition, it is amply demonstrated from the case-law discussed above, the plaintiff's suit for declaration that contract awarded to him was still subsisting and that the cancellation of the contract by the appellants is illegal, is not maintainable as the same does not fall within the four corners of section 42 of Specific Relief Act because the suit is neither with regard to any legal character/status nor any right in any property of the plaintiff and the declaration sought for cannot be granted. This would show that plaintiff has no prima facie case and, therefore, the trial Court acted illegally in granting temporary injunction in favour of the plaintiff. Even otherwise, the element of irreparable loss is also missing because the loss if. Any, is calculable in cash: The remedy to the plaintiff is a suit for rescission of contract, if so desired by him or suit for damages for the alleged wrongful and illegal cancellation of the contract.
7. In view of the abovementioned, this appeal is accepted, the impugned order, dated 14-7-1997 of Civil Judge 1st Class, Rawalpindi is set aside and the respondent's/plaintiff's application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Is dismissed. There is, however, no order as to costs.