1. ' By this application under Order XXXIX, rule 4, C.P.C. (CMA 4188 of 2002) defendant seeks recall of the order, dated 3-12-2001 whereby the plaintiff's application under Order XXXIX, rules 1 and 2, C.P.C.
2. Was allowed.
3. ' Brief facts are that the plaintiff instituted above suit for injunction, recovery and damages against the defendant and also moved an application under Order XXXIX, rules 1 and 2, C.P.C. Restraining defendent from entering into another employment of similar nature on the ground that the defendant executed an undertaking, allegedly for consideration, dated 7-2-2000 undertook to serve the plaintiff, a textile mill for a minimum period of five years w.e.f. 10-2-2000. In breach of the undertaking, the defendant left employment of the plaintiff and is stated to have joined his former employer Messrs Muhammad Farooq Textile Mills where he is stated to have previously worked for about 12 years.
4. ' On the stay application initially the following interim orders were passed on 13-9-2001:-- "...By consent in the meanwhile the defendant is restrained from divulging any trade/business secrets etc., which he has become privy to while in the plaintiff's employment either to the defendant or to any one else."
5. ' Finally when the application came up for hearing of the defendant and his counsel were called absent and in their absence the application under Order XXXIX, rules 1 and 2, C.P.C. Was allowed vide order, dated 3-12-2001. The defendant has now moved the above application (CMA No.4188 of 2002) for recall of the said orders.
6. ' Learned counsel for the defendant has contended that the absence of the defendant on 3-12-2001 was due to the fact that he was suffering from typhoid, he has also produced the medical certificate in this respect. Learned counsel also argued that his non-appearance was due to involvement in other professional work. He contended that theorders were obtained without examination of the case in detail, the breach of the condition of undertaking by the plaintiff by not making payment of Rs.10,000 per month as promised, which required consideration while deciding the application under Order XXXIX, rules 1 and 2, C.P.C. Learned counsel further contended that by consenting to the ad-interim orders of status quo the plaintiff agreed and acquiescenced to the defendant remaining in the employment of Messrs Muhammad Farooq Textile Mills which continued over a prolong period during which the season was over, there existed no ground for passing on or divulging any information as to the colour schemes, manufacturing the products and other information which related to the earlier sessions hence, learned counsel for the defendant has prayed for recall of the order, dated 3-12-2001 and allowing of this application.
7. ' Mr. Abid Zuberi, learned counsel for the plaintiff, has vehemently opposed the application. His contentions are that after passing of orders, dated 3-12-2001 no fresh ground for setting aside the said orders has arisen. He further contended that suffering from typhoid is rio ground for recall of order and has placed reliance on the cases of Chiragh Din v. Mushtaq Muhammad and another (PLD 1975 Karachi 1025) and Estate Officer, Karachi v. Akhund Abdul Latiff and others (1976 SCMR 173). After referring to the Paragraph 4,5 and 6 of the counter-affidavit to CMA 4794 of 2001 learned counsel contended that these averments are duly denied. He further argued that both the employers are manufacturers of 'Home Textiles' and trade secrets may be divulged by the defendant. He placed reliance on BNS Air Services (Pvt.) Ltd. v. Anwar Ali and another (1987 MLD 3009), Nooruddin Hussain and another v. Diamond Vacuum Bottle Manufacturing Co. Ltd. (PLD 1981 Karachi 720), Sindh. Madrasatul Islam Board Society v. Shamim (1982 CLC 2242), Karachi Development Authority v. Haji Taj Muhammad and 3 others (PLD 1977 Karachi 101), Engineering Products (Pvt.) Ltd. v. SITE (PLD 1997 Karachi 258) and unreported order in the case of Al-Abid Silk Mills Ltd. v. Syed Mohammad Mudassar Rizvi in Suit No.822 of 2002.
8. ' The plaintiff in Paragraph No.4 has admitted making payment of Rs.2 lacs however it appears that the subsequent payment of Rs.10,000 per month, as was originally agreed, was not made. This prima facie shows that there was an apparent default of the conditions by the plaintiff.
9. ' The plaintiffs were required to produce details of the facts alleged to have been divulged by the defendant. In response the plaintiff filed statement, dated 18-1-2003 mentioning generally the steps and procedures adopted in manufacturing such Textile' products, however, no specific details of any incident or divulging of information appear in the statement.
10. ' Both the learned counsel stated that Home Textiles are manufactured on a seasonal basis and ordered goods for each season are manufactured and supplied before the commencement of such season. In this context Mr. Abid Zuberi argued that the purchasers of the plaintiffs provided details of the colours, material and products for the forthcoming season which were in the knowledge of the defendant and divulging of the same to the plaintiffs' competitors would adversely affect the business of the plaintiffs. From the arguments advanced, it is clear that such information is confined to the products proposed to be manufactured for each subsequent season. With the start, of a fresh season, the colours, pattern and designs are changed. In the instant case several seasons have elapsed and the question divulging of information would not arise as the products of the plaintiffs have already been available in the market during the previous season with the result that their colours, patterns, designs and materials are no longer a secret and the information possessed by the defendant in this regard about the plaintiff's business is no longer relevant.
11. ' There is no cavil with the proposition expounded in the authorities cited by learned counsel for the plaintiff. However, the present case is distinguishable from the case law cited by the learned counsel where the plaintiffs have agreed to interim status quo which continued from 13-9-2001 to 3-12-2001, when the final orders on application under Order XXXIX, rules 1 and 2, C.P.C. Passed, stretching over the entire manufacturing season. As a result of which the earlier information possessed by the 'defendant has lost significance, the information gained during the subsequent season is relevant and the question of balance of convenience and irreparable loss requires examination taking this aspect into consideration.
12. It has been held that when interim order is not a speaking order the party may approach the Court for the order to be varied under, Order XXXIX,, rule 4, C.P.C., as held in the cases of Pakistan Engineering Consultants v. Pakistan International Airlines Corp. & BCCI and others (1993 CLC 882), Abrar Ahmad Khan Tareen v. Munawar Saeed (1994 SCMR 1764), Islamic Republic of Pakistan and others v. Muhammad Zaman Khan and others (1997 SCMR 1508) and Muhammad Inam v. Dr. Muhammad Safdar (1988 CLC 230).
13. ' The grant of temporary injunction in case of employment injunction in case of employment involving personal service came under examination before this Court in the case of Messrs Volkervam (Pakistan) Ltd. And others v. Syed Hamid Hussain (1988 MLD 2067). Inthat case it was observed by Naimuddin, J. (as he then was), in paragraph 16 of the judgment as follows:-- "It is, therefore, clear that the suits for the relief of declaration are not maintainable under section 42 of the Specific Relief Act. However, while deciding this issue, the learned Judge has not adverted to section 42 of the Specific Relief Act at all, though he has mentioned the contention raised on behalf of the applicants that the case being of service nature, the respondents have no right to seek any relief except damages. The relief for injunction sought was of a consequential nature.
14. Even otherwise, a contract of personal service could not be specifically enforced as forbreach thereof generally damages could be obtained and therefore, no injunction could be granted under the provisions of section 56 of the Specific Relief Act. Further, the inquiry, which was sought to be restrained, had already culminated in the dismissal of the respondents from service and, therefore, this prayer had become infructuous. Thereafter, the respondents remedy, if any, was under section 25-A of the Industrial Relations Ordinance, 1969, for if the respondents had any grievance in respect of violation of any right guaranteed under the Standing Orders Ordinance then their remedy was under section 25-A of the Industrial Relations Ordinance, 1969 for it is well settled that where a statute creates a right and also provides machinery for enforcement, resort must be had to procedure prescribed in the statute creating right for its enforcement and jurisdiction of Civil Courts would be barred in such matters. I may here refer to a decision by Mushtak Ali Kazi, J. In Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi PLD 1979 Kar. 640, wherein he observed at page 642 of the report as follows:-- "The above decisions would apply to the case of the plaintiff/respondent also seeking remedy against an apprehended wrongful dismissal. It is not open to the plaintiff to stop the employer from holding a departmental enquiry into his misconduct not could the plaintiff ask for his reinstatement against an order of suspension duly passed by the employer under the rules of service. The remedy for a worker lay under section 25-A of the I.R.O. And for this purpose special jurisdiction vested in Labour Courts. The Civil Courts could not accordingly adjudicate such matters, there being special forum provided for redress of grievance of the workers."
15. ' In the case of Messrs Quality Builders Ltd., Karachi v. MessrsJ.P. Brockhoven. V. Dredging Contractors, Karachi and 9 others (PLD 1979 Karachi 668) Zaffar Hussain Mirza, J. (as he then was) held that bar contained in section 21 and 56(f) of the Specific Relief Act apply to the contract and dismissed the appeal while holding as follows:-- "Having regard to the terms in which the injunction is prayed for in this case, if granted would lease no option With defendant No. 1 but to perform the contract in specie which the Court cannot order in view of the bar contained in section 21 and section 56(f) of the Special Relief Act. It will amount to doing that indirectly what cannot be done directly. Thus it was held in Ehrman's case already cited that the Courts invariably refuse issue of an injunction if it will inevitably result in the enforcement in specie of a contract not otherwise specifically enforceable.
16. ' In view of what has been stated above, I have no hesitation to hold that the plaintiffs have failed to make out a prima facie case for the grant of injunctive relief. It was, however, rightly contended on behalf of defendant No. 1 that no attempt was made to show whether the balance of convenience lay on the side of the plaintiffs or by withholding the relief of injunction they would be exposed to what is generally called as irreparable injury. Apparently the loss if any resulting from the breach of a contract of the kind in question in this case would be assessable in terms of money as the obligation in favour of the plaintiffs was to receive pecuniary remuneration for services rendered under the contract. For all these reasons the plaintiffs have not made out a case for grant of temporary injunction prayed for.
17. ' The same principle was applied in the case of Haji Abdul Ghaffar v. Haji Ratif (1991 CLC 734) where the relief for performance of contract was declined.
18. ' In the case of Messrs Qasimabad Enterprises v. Province of Sindh (1998 CI.0 441) Rana Bhagwan Das, J. (as he then was) while examining the maintainability of the suit for specific performance in a contract involving personal details of service has, in Paragraphs 13 and 14 of the judgment, held that in a case where the party having estimated the damages/losses suffered by them on account of breach of agreement in the event of injunction being refused during the pendency of suit declined the grant of the interim relief.
19. ' From the facts of the above case it is clear that it was with the consent of the plaintiff that the interim order, dated 13-9-2001 was passed and it remained in operation till 3-12-2001. As such question ofirreparable loss after the defendant remained in service of Messrs Muhammad Farooq Textile Mills throughout this period would not arise and the case calls for recall of the ex-parte order.
20. ' In an earlier case of Pakistan Engineer Consultants v. Pakistan International Airlines Corp. And BCCI and others (1993 CLC 882) the scope of entertaining such applications has been examined and the application was held to be maintainable. Likewise where the order calls for re-examination, the Supreme Court interfered to obviate miscarriage of justice where the plaintiff could not make out a case within the settled principles for grant of interim injunction.
21. The powers to recall an order is also available under section 153, C.P.C. Where the Court in exercise of power may set aside earlier order as held in the case of Messrs Nasir Metal Crafts (Pvt.) Ltd.
22. Through Chief Executive v. Zasha through. Chief Executive and 2 others (1997 MLD 1910).
23. ' The same view for refusal of interim relief in cases involving service of personal nature finds support from the following cases from English jurisdiction: Hop Growers, Limited v. Dering (1928) 2 KB 174), The Brahmaputra Tea Co., Ltd. v. E. Scarth (11 Cal .545), Mineral Water Bottle Exchange and Trade Protection Society v. Booth (36 Ch. D 465 and E.M.D Cohen v. Allan Wilkie (16 CWN 534).
24. Mr. Abid Zuberi, learned counsel for the plaintiff, has stressed upon the technicalities which cannot be allowed to obstruct the disposal of matters in accordance with the settled principles of law.
25. Merely by obtaining an order in the absence of a party, when the defendant in fact consented to the continued employment of the plaintiff over a long period, the significance of any information is admittedly affected by efflux of time.
26. ' In Al-Abid Silk Mills' case (supra) the contract provided for employment with the negative covenant that during the period of employment the employee will not work in any other organization in any capacity and upon leaving his employment he will not work for any other organization in a similar trade for a period of 11 months. In that case the plaintiff also imparted such training for quality control and development to the defendant that enhanced his skills and consequently the prayer was allowed. The present case is distinguishable as the defendant had possessed the skills necessary before joining the service and it was only after the breach of condition on the part of the plaintiff that he sought another employment.
27. ' In view of the above as the matter requires consideration on merits and not merely on technicalities, under the circumstances thepresent application under order XXXIX rule 4, C.P.C.
28. (CMA 4188 of 2002) is allowed with CMA 4187 of 2002). However, the defendant is restrained from divulging any trade secrets as per interim order, dated 13-9-2001. "Accordingly" the order, dated 13- 9-2001 is modified to the extent that the defendant is restrained from divulging any trade/business secrets etc., which he has become privy to while in the plaintiff's employment either to the defendant or to any one else.
29. The defendant has moved this application (C.M.A. 4189 of 2002) for rejection of the plaint under Order VII, rule 11 read with section 151, C.P.C. On the ground that the declaration as prayed cannot be granted. The suit is for injunction as well as for recovery of damages amounting to Rs. 14,630,660 which is to be considered in evidence. The plaint cannot be rejected in piecemeal even if, out of the several prayers, one cannot be granted, therefore, no case for rejection of plaint under Order VII rule 11, C.P.C. Is made out. Accordingly this application is dismissed.
30. ' C.M.As. Nos. 4187, 4188 and 4189 of 2002 stand disposed of in view of above alongwith statement, dated 18-1-2003. The written statement already filed by the defendant is taken on record.