JUDGMENT MIAN HAMID FAROOQ, J. - Revisional jurisdiction of this Court has been invoked by the petitioners, the Islamic Republic of Pakistan through Secretary, Ministry of Defence and others, by way of filing the petition in hand, whereby order dated 3.9.1998, passed by the learned Additional District Judge, Lahore, has been challenged through which the first Appellate Court has accepted an application for the grant of temporary injunction filed by the respondent.
2. Facts leading to the filing of the present petition, as submitted in the revision petition, are that a contract for the supply of goods, awarded by the petitioners to the respondent, was cancelled due to the acts and omissions of the respondent and was, later on, assigned to Messrs Mughal Engineering Works, Lahore, at the risk and cost of the respondent and the new firm completed the remaining part of the contract, it has been elaborated in the revision petition that the petitioners deducted Rs. 96,760/- from the other bills of the respondent in lieu of 2% bank guarantee in accordance with the terms of the contract, that contract was cancelled on 19.6.1995, which order was appealed by the respondent before petitioner No. 1, but the same was dismissed on 17.12.1996.
Revision petition then narrates that the respondent instead of filing a suit for recovery of Rs.
96,760/- filed suit for declaration thereby challenging orders dated 19.6.1995 and 17.12.1996, before the Senior Civil Judge, Lahore, which was contested by the petitioners thereby raising number of legal and factual objections. Alongwith the main suit an application for the grant of temporary injunction was filed by the respondent, but the same was dismissed by the learned Civil Judge vide order dated 29.4.1998, however, the appeal filed by the respondent was accepted by the learned Additional District Judge, Lahore, vide order dated 3.9.1998, whereby temporary injunction was granted to the respondent during the pendency of the suit, hence, the present revision petition.
3. Alongwith this revision petition, the petitioners have filed an application under Section 5 of the Limitation Act, seeking condonation of delay in preferring the instant revision petition. First of all this application was argued by the learned counsel of the petitioners and vehemently opposed by the learned counsel of the respondent. Suffice it to say, that the provisions of Section 5 of the Limitation Act are not applicable to the proceedings under Section 115, C.P.C, in view of the provisions of Section 29(2) of the Limitation Act, 1 908, as per the law declared by the Hon'ble Supreme Court in a case reported as Allah Dino and another Ks. Muhammad Shah and others (2001 SCM R 286L Being guided by the aforesaid law laid down by the Hon'ble Supreme Court, the present application, which has been filed under Section 5 of the Limitation Act, is not maintainable in law, hence, dismissed.
4. Now the question arises as to whether the revision petition was actually filed beyond the period of limitation prescribed under Section 115(2), C.P.C., or was it within time. The impugned order was passed by the first Appellate Court on 3.9.1998, the petitioners applied for the certified copy of the impugned order on 21.11.1998, the same was prepared and delivered to the petitioners on 26.11.1998 and thereafter the revision petition was filed on 4.12.1998, as an ordinary case, which was diarised at No. 1640. The learned counsel explained that the revision petition was returned by the office on 10.7.1999, with certain objections and the same was refiled on 1.5.7.1999, after removing the objections. *In view of the above resume, the learned counsel for the respondent vigorously contended that the revision petition will be deemed to be filed on 15.7.1999, and as such, the same is time-barred. 0n the other hand, the learned Deputy Attorney General has submitted that as originally the revision petition was filed within time, therefore, it cannot be said that the same suffers from the bar of limitation.
5. From the date, mentioned above, it is clear that for the first time the petitioners filed the revision petition on 4.12.1998, which was, admittedly, within time, on which there is no dispute between the parties. Admittedly, the office, after having raised the objections to the revision petition, did not intimate the petitioners or their learned counsel through a specific notice about the nature of objections, whereas the office was under an obligation to serve a specific notice upon the party or the Advocate informing about the objections and requiring them to remove the same, it is settled law that once a suit, appeal or revision has been presented before the authorised officer of the Court within the prescribed period of limitation, the same could not be treated as barred by time, unless the party/Advocate even after the receipt of notice from the office failed to remedy the defects. Being guided by the law declared by the Hon'ble Supreme Court of Pakistan in a case of reported as Mst. Sabiran Bibi Ahmad Khan and another (2000 SCM R 847) I am of the considered view that as the present revision petition was originally presented in the office on 4.12.1998 and the office did not even issue a specific notice to the petitioners or their learned counsel informing them about the objections, therefore, the revision petition cannot be treated as barred by time. The objection of the learned counsel is misplaced and on the strength of Mst. Sabiran Bi's case, ibid, it is held that the revision petition is within time.
6. On coming to the merits of the revision petition, it has been contended by the learned counsel of the petitioners that the interim relief, granted by the learned first Appellate Court, was the main relief claimed in the suit, which is still pending adjudication, as such, the temporary injunction could not have been allowed as it amounts to decreeing the main suit, it has further been submitted that as the amount deducted by the petitioners is quantified, therefore, there is no question of irreparable loss to the respondent. 0n the other hand, the learned counsel of the respondent controverted the contentions raised by the learned counsel of the petitioners.
7. I have minutely studied both the prayers made in the suit as well as in the application seeking interim relief. Bare perusal of the same amply manifests that in pith and substance both the prayers are similar in nature. As a matter of fact the application for the grant of temporary injunction could not have been decided, as the relief claimed in the application for the temporary injunction was almost same as it was prayed in the suit. There was, even, no prima facie evidence/documents available before the learned Additional District Judge in arriving at the findings and the conclusions, while deciding the appeal, which will, of course, hamper the proceedings and cause prejudice to the parties before the Trial Court. As a matter of fact the learned Additional District Judge, while embarking upon the case had, in fact, while deciding the application for the temporary injunction more or less decree the suit. The controversy raised in the application was germane to the controversies involved in the main suit. Tenor of the order sufficiently show that as if the Court is deciding the appeal against the final judgment and decree, it is evident from the ordered that the learned Additional District Judge has tried to interpret different clauses of the contract for justifying the passing of the impugned order completely forgetting that he is dealing with an application for interim relief, which is linked up with the main suit and is inseparable. The learned Additional District Judge could not undertake such, an exercise while deciding the application for interim relief, as the same questions were yet to be decided and adjudicated upon in the main suit.
8. Next contention of the learned counsel, about qualification of the amount of Rs. 96,760/-, has a considerable force, In view of determined amount of Rs. 96,760/-, which amount, according to the petitioners, has been deducted, on the one hand the respondent shall not suffer any irreparable loss if the injunction is refused, and on the other hand the very institution of the suit and its maintainability will become questionable, In this context the learned counsel for the petitioners has stressed that the jurisdiction of the Civil Courts is itself in jeopardy, the suit filed by the respondent is not maintainable and the question of limitation in filing the suit is also floating on the surface of the case and as such the learned Additional District Judge was not competent in law to pass the impugned order. So far as the questions of maintainability of the suit, its being time-barred and jurisdiction of the civil court are concerned, I have refrained myself from giving any findings or dilating upon the said issues, as the said issues are yet to be decided by the Civil Court, when it will undertake the trial of the main suit. At this stage if any findings are given one way or the other on the said issues, they might prejudice the cause of either of the parties in the suit.
9. Pleadings of the parties manifest that factual controversies are involved in the application/suit, which cannot be resolved without providing an opportunity to the parties to adduce evidence.
Merely asserting the facts does not constitute a prima facie case for the grant of the injunction, whereas the respondent in order to succeed in his application for interim relief has to prove three basic ingredients for the grant of temporary injunction, which are well-known, In this case the respondent comprehensively failed to prove, within the parameters, set up under the law, that either he has got a prima facie case or in case of refusal of injunction he will suffer irreparable loss ar balance of convenience lies in his favour. Findings of the learned first Appellate Court to the contrary are not sustainable in law.
10. For the above reasons and findings, seeing from any angle, the impugned order dated 3.9.1998, passed by the learned Additional District Judge, Lahore, is not sustainable in law, has been passed in exercise of its jurisdiction illegally and with material irregularity and cannot be supported under any law, thus the revision petition is accepted, the impugned order is set aside and that of the learned Trial Court dated 29.4.1998, is restored. The parties are left to bear their on. Costs.