M/S Shamim & Company Pvt vs Ghulam Mustafa Tahir etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Civil Revision No.1792 of 2016

M/s. Shamim & Company (Pvt) Ltd Vs. Malik Ghulam Mustafa Tahir, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 31.01.2017 M/s. Muhammad Khalid Ashraf Khan, Malik Ahsan Mehmood and Usman Ali Bhoon, Advocate for the petitioner.

Mr. Mughees Aslam Malik, Advocate for respondent No.2.

Mr. Irfan Wyne, Advocate for respondent-Bank.

This civil revision is directed against the order dated 22.12.2016 passed by the learned Addl. District Judge, Multan, whereby the application for leave to appear and defend filed by the respondents No.1 and 2 was allowed subject to furnishing of surety bond and unconditional leave to appear and defend was allowed to respondents No.3 to 5 and the application for temporary injunction filed by the petitioner was dismissed as not maintainable.

2.Brief facts of the case are that the petitioner filed a suit for recovery of Rs.50,00,000/- against the respondents in the court of the learned Addl. District Judge, Multan on 19.10.2016 and with the plaint the petitioner also filed an application for temporary injunction. Decree was sought against respondents

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No.1 and 2 whereas the remaining respondents are proforma respondents. Respondents No.1 and 2 filed an application for leave to defend which was allowed to them vide order dated 22.12.2016 subject to furnishing surety bonds and the application for temporary injunction filed by the petitioner was dismissed as not being maintainable. The petitioner has now challenged the order dated 22.12.2016 through this civil revision.

3.Learned counsel for the petitioner has contended that the petitioner is a beverage company that manufactures aerated water soft drinks i.e. 7-Up, Pepsi Cola, Miranda Orange, etc and supplies its products to different retailers and dealers and distributes in different cities. The respondent/defendant No.1 was dealer of the petitioner/plaintiff in Dunyapur. The petitioner appointed another distributor for the area and the respondents obtained stay order against the same.

On the last occasion the defendant procured products on 03.09.2016, where after supply was not made to them. Some of the dealers made payment to the petitioner in cash on account of holidays of Eid-ul- Adha and Eid-ul-Fitr etc. Government declared holidays at the eve of Eid-ul-Adha from 12.09.2016 to 14.09.2016. Bashir Ahmad, Assistant Cashier was directed by the petitioner to deposit Rs.50,00,000/- in

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the account of distributor Ramzan Traders, Multan, Rs.

50,00,000/- in the account of Madni Traders Multan, Rs.50,00,000/- in the account of Arsalan Traders Khanewal and Rs.10,000,000/- in the account of Makki Traders , Multan and Arsalan Traders Khanewal but instead of depositing of Rs. 10,000,000/- in the account of Makki Traders Dera Bakha, the said Bashir Ahmad inadvertently deposited Rs.50,00,000/- in the account of Mustafa Traders Dunyapur. When the Bank informed the petitioner of the said mistake, the petitioner contacted the respondent on the same date and informed them about inadvertent deposit who issued a cheque valuing Rs.50,00,000/- on 15.09.2016 but due to rush of work the official of the petitioner could not get the cheque en-cashed on the next working day. Subsequently, on 17 & 18.09.2016 the Bank was closed due to weekly holiday and on 19.09.2016 when the cheque was presented before the Bank it was informed that the respondent had stopped payment.

4.The claim of the petitioner is that amount has wrongly been deposited in the account of respondents.

Relationship between the petitioner and respondents No.1 and 2 as distributor and supplier is admitted, however, litigation has erupted between the parties.

Respondents No.1 and 2 have claimed that the amount

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of Rs.50,00,000/- was paid to them on account of security amount and advance paid by them that has been refunded by the petitioner. Furthermore, the said amount had been deposited through five slips of Rs.10,00,000/- each. It is yet to be scrutinized that this deposit was due to some inadvertent mistake. For this purpose leave to appeal was granted by the trial court subject to furnishing surety bonds in the sum of Rs.50,00,000/-. The other respondents were granted unconditional leave. The court refused to grant temporary injunction to the petitioner to restrain the respondents from en-cashing the amount of Rs.50,00,000/- lying in the account of the respondents No.1 and 2 by observing that application was not maintainable.

5.The counsel for the petitioner has argued that court was not justified to grant leave to defend to the plaintiff and the same should have been refused as admittedly the amount deposited by the petitioner was available in the account of respondents for which the respondents had not been able to give any satisfactory explanation and in the alternative if leave is granted it should be granted subject to deposit of amount of Rs.50,00,000/- or bank guarantee of the like amount.

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6.As per law, it is for the court having cognizance of the matter to see under what condition it is inclined to grant leave to defend to the defendants. For this purpose order 37 Rule 3(2) of the C.P.C is relevant, wherein leave to defend may be given unconditionally or subject to such terms as to payment into court, giving security or otherwise as the court thinks fit. It is for the court having cognizance of the matter to decide the term on which leave to defend is to be given. The court has taken into consideration the facts of the case and with conscious application of mind granted leave to appear and defend to respondents No.1 and 2 subject to furnishing Rs.50,00,000/- and unconditional leave to respondents No.3 to 5. To that extent, the court has fairly exercised jurisdiction vested in it. No illegality or perversity in the order impugned has been seen to the extent of grant of leave to appear and defend. The order of the court to that extent is upheld and the civil revision to that extent is dismissed.

7.In the same vein, while deciding the application for leave to defend, the learned Addl. District Judge held that the application for grant of temporary injunction is not maintainable and the same was dismissed without discussing its merits. This was a fallacy committed by the court and this course of action

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is not tenable especially when earlier on 20.10.2016 ad- interim injunction was granted on the same application restraining the respondents from en-cashing disputed amount of Rs.5.00 million. The application for grant of temporary injunction should have been decided either way on merits. This was not done and the decision to the extent of dismissal of application for interim relief as being not maintainable is liable to be set-aside.

8.In view of the above, the civil revision to the extent of dismissal of application for temporary injunction as not maintainable is allowed and the order to that extent is set-aside. Consequently, the matter is remanded to the learned Addl. District Judge, Multan for decision of application for temporary injunction afresh and the said application shall be deemed to be pending and decided on its own merits. Order accordingly.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan