Zeesham ul Haq VS Pak PWD, etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.863 of 2022 Zeeshan Ul Haq Lodhi Versus Pak PWD, PCD-4, Islamabad and others S. No. of order Date of order / Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 10.03.2022 Mr. Ahmad Shahzad Awan, Advocate for the petitioner.

Through the instant writ petition, the petitioner, Zeeshan Ul Haq Lodhi, impugns the order dated 31.01.2022 passed by the Court of the learned Civil Judge, Islamabad dismissing the petitioner’s application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 (“C.P.C.”) filed along with his application under Section 20 of the Arbitration Act, 1940 (“the 1940 Act”).

2.The petitioner has preferred an appeal against the said order dated 31.01.2022 before the Court of the learned Additional District Judge, Islamabad. Vide order dated 07.03.2022, the said appeal was dismissed as not maintainable.

3.The petitioner had entered into a contract for the “Renovation and Rehabilitation of Building Block (DPO) in Survey of Pakistan, Rawalpindi” with the Pakistan Public Works Department (“Pak PWD”). Work order was issued to the petitioner on 08.06.2021. The petitioner was required to complete the work within sixty days from the receipt of the work order.

4.The petitioner’s case is that he has not been paid for the works carried out at the site. Vide letter dated 06.01.2022, Pak PWD informed the petitioner that the Chief Engineer, Pak PWD had cancelled the contract on 04.01.2022 pursuant to clause 12.1 thereof. Thereafter on 22.02.2002, Pak

PWD has issued a notice inviting tenders for the completion of the remaining works under the contract.

5.On 21.01.2022, the petitioner filed an application under Section 20 of the 1940 Act praying for the contractual disputes to be referred to arbitration. Along with the said application, the petitioner filed an application for interim injunction. Vide order dated 31.01.2022, the learned Civil Court dismissed the said application on the sole ground that since the petitioner had raised a monetary claim, he could adequately be compensated in terms of money.

6.It is apt to mention here that an order to grant or refuse an injunction is a discretionary order and once the trial Court exercises discretion and grants or refuses to grant interim injunction, the same will not be normally interfered with by the appellate or revisional Court, unless it is found that such a discretion has been exercised arbitrarily or capriciously or perversely, or where the Court ignored settled principles of law regarding the grant or refusal of interim injunction.

7.It is well settled that if the plaintiff’s loss is measurable in terms of money, injunction cannot be granted in his favour. The mandate of Section 56(i) of the Specific Relief Act, 1877 is that no injunction should be granted when equally efficacious relief can be obtained by any other usual mode of proceedings. In the cases of Mehran Sugar Mills Vs. Sindh Sugar Corporation Limited (1995 CLC 707), Qasimabad Enterprises Vs. Province of Sindh (1998 CLC 441), I.Puri Terminals Limited Vs. Port Qasim Authority (2003 CLD 153), Muhammad Hussain Khan Vs. N.I.B. Bank Limited (2009 CLD 42), Ghulam Nabi Shah

Vs. Pakistan International Airline Corporation (2013 PLC C.S. 768) and Muhammad Kashan Vs. Coca Cola Export Corporation (2015 CLD 1513), it was held that where plaintiffs themselves estimated the damages / losses suffered by them on account of breach of an agreement, no case for temporary injunction was made out. In the case at hand, the petitioner has pleaded in his application under Section 20 of the 1940 Act that his bills for a definite amount had not been released / paid by Pak PWD.

8.The loss, if any to the petitioner, caused by the cancellation of the contract could be measured in terms of money, which could be compensated in terms of money in case of his success in the arbitration proceedings. It cannot be denied that the petitioner can be compensated in money if he establishes that the cancellation of the contact was unlawful. The petitioner had taken the contract with a view to make profit. It should not matter to the petitioner if he obtains that money by way of damages in the arbitration proceedings instead of earning it as profit after completing the contract. To me therefore it appears that in the circumstances of the present case compensation in money can be an adequate relief to the petitioner.

9.The contract for the renovation and rehabilitation of a building awarded to the petitioner was, in essence, a contract for services which is not specifically enforceable. Therefore, the question of granting an injunction restraining Pak PWD from proceeding with the process for awarding the contract for the remaining works through a competitive process to another party does not arise.

10.If the petitioner apprehends that if the new contractor selected by Pak PWD carries out works at the site, it may not be possible to determine the quantum of work already carried out by the petitioner, there is nothing preventing the petitioner from filing an application before the learned Civil Court for an order for the measurement of the works to be carried out.

11.In view of the above, the instant writ petition is dismissed in limine. Since the matter pending before the learned Civil Court pertains to arbitration, it is expected that the application under Section 20 of the 1940 Act shall be decided expeditiously and preferably within one month from the date of the receipt of this order by the learned Civil Court. Office is directed to transmit a copy of this order to the learned Civil Court.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*