Munir Gul and others Vs Jehanzeb and others

.fudgment Sheet

IN THE PESHAWARHIGH COURT,

PESHAWAR

IWilCAL DEPARTMENT"

JUDGMENT

Civil Revision No.54 5-P 12023.

Date of hearing 23.11.2023.

Munir Gul & others Versus Jehanzeb & others.

Petitioner (s) by: Mn Asif Nawaz Advocate.

Respondent(s) by: Nemo (motion).

WIQAR AHMAD. J:-. Throueh instant revision petition filed under Section 115 CPC, petitioners have ohallenged irnpugned judgment and decree dated 02.06.2023, passed by learned Additional Dishict Judge-I, Takht Bhai, District Mardan, whereby interim injunction already granted was not extended a L As per contents of instant petition, petitioners had filed a suit for declaration, perrnanent injunction, mandatory injunctions, specific perf,ormance and possession in respeot of property fulty detailed in the heading of plaint on the strength of agreement dated 05.09.2011, clairned to have been

V

effected between the parties. Alongwith plaint, petitioners had also filed application for grant of temporary injunction before learned civil Court below. Respondents/defendants contested the suit and application for grant of temporary injunction by filing written statement and replication. Respondents also filed application under Order VII Rule 11 CPC for rejection of plaint. After hearing the parties, learned civil Court below dismissed both the applications filed by parties vide order dated 02.12.2022. Aggrieved from said order, petitioners/plaintiffs filed appeal before learned appellate Court wherein status quo was granted in favour of petitioners/plaintiffs vide order dated 08.12.2012. On 02.06.2023 petitioners requested for adjoumment which was strongly resisted by learned counsel for respondents on the ground that commitment made by leamed counsel for petitioners on the previous date (regarding arguing the case) had not been honored. Learned appellate Court did not extend the interim injunction in favour of petitioners while adjouming the case to next date of hearing. Aggrieved from impugned order of non extending the ad interim injnction by learned appellate

Court, petitioners have filed instant civil revision petition.

3 Arguments of learned counsel for

petitioners heard and available record perused.

4 Perusal of record reveals that petitioners had filed a suit before civil Court on 17.03.2022 and an application for grant of temporary injunction had also been filed with the main suit, which had been dismissed by leamed civil Court vide order dated 02.\2.2022. Against said order, petitioners' appeal was pending wherein at interim injunction had also been granted in limini on 08.12.2022.The appeal was pending when impugned order was passed on 02.06.2023. In the impugned order it has been mentioned that appellant had been seeking adjournment despite the fact that he had obtained ad interim injtmction from the Court and counsel for petitioners had also committed before Court on previous date that he would not seek any further adjournment. On the next date, keeping in view request for adjournment on behalf of petitioners, the appellate Court refused to extend ad interim injunction further and also held that such a request

could only be entertained when appeal was finally argued by both sides.

Learned counsel for petitioners

contended that on first date of hearing i.e, 08.12.2022 after finding a prirna facie case, interim injunction had been granted,till20.l2.2022 andthat unless the appeal was decided on merit, the appellate Court must have kept on extending ad interim injunction as otherwise the appeal would have become infructuous.

6 Grant of interim injunction on the first date of hearing i.e, 08.12.2022 was for maintaining status quo till 22.12.2022, whictr could not be construed that Court was bound to have extended said way interim injunction, whether or not counsel for petitioners was ready for arguing the main appeal.

Placing such interpretation on relevant clauses would firstly amount to doing violence with express words of law on the subject and secondly it would open further doors for abuse of process of law. Order XXXTX CPC is providing for grant of temporary injunction, where Rule I empowers the Court for grant of temporary injunction where any property in dispute was found in danger of being wasted,

damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors. Rule 2 of Order XXXX CPC was also providing similar powers of Court alongwith certain explanations and remedial measures in case of violation of injunctive order. Rule 2(a) of Order XXXX CPC was relevant to controversy in instant matter, which is also reproduced hereunder for ready reference;

"(2-A) An interitn injunction passed under rule 1 or 2 in the absence of, defendant shull not ordinarily exceed ftfteen days:

Frovided that such injunction may be ertended for failure of its service on the defendant when such fuilure is not uttributable to the plaintiff or when the defendant seeks time for defence of, application for injunction."

Rule 2 (a) was expressly providing that when an interim injunction is passed in absence ofdefendant, it should not ordinarily exceed 15 days and such injunction may be extended for failure of service on defendant, when such failure was not attributable to plaintiff or when defendant sought tirne for defence of application for injunction. In other words if

adjoumment is attributable to plaintiff then ad interim injunction should not be extended according to Rule 2(a) of Order XXXIX CPC. Rule 2(a) has been added by legislature with particular purpose and object and for suppressing the mischief of abuse of process where ad interim injunction obtained from civil Court used to be dragged for extra ordinary long time on the pretext of seeking adjoumment. Rule 3 of Order )O(XIX CPC was also providing that Court shall in all cases, before granting an injunction, direct notice of application for same to be given to the opposite party. The proviso inserted therein was inter alia providing that where it appeared that the object of granting injunction would be defeated by delay then the Court may dispense with such prior notice. The general scheme of law was therefore to the effect that before granting interim injunction, other party had to be given notice. Ad interim injunction granted on the first date in case was therefore interim measure rnade under the powers provided in exception to the general rule contained in Rule 3, so as to ward off danger of a situation that the time spent in serving notice would defeat the purpose of granting injunction. It did not

mean that Court had ascertained a prirna facie case and that petitioners had got a vested right for grant of ad interim injunction on first date that it shall be extended in all situation till final disposal of appeal.

Appropriate course in such matters would be that when adjournment in such a case is attributed to defendant, then ad interim injunction should be extended. If adjournment was found attributable to petitioner/plaintiff or a party seeking injunction then the Court may refuse extension of injunction under Rule 2(a) of Order XXKX CPC. It cannot be stated that it was vested right of plaintiffs to have obtained adjoumment as well as extension of ad interim injunction. Such interpretation would run again literal construction of Rule 2(a) of Order )O(XIX CPC, which would also defeat the purpose of insertion of Rule 2(a) in Order XXXIX CPC. A party after getting interim injunction for seven or fifteen days by pleading exigency, would be able to drag such injunction for unlimited time by seeking adjoumments and the Court would be helpless in curtailing such trends. Besides, when meaning of Rule 2(a) of Order XXXX CPC was clear then Rule of literal

construction as well as the mischief rule were requiring that same should be adhered to and given its true purport and effect. Maxwell on the Interpretation of Statutes in twelfth edition by P.St.J.Langan has noted that while construing statute, a Judge should make such a construction which will suppress the mischief, advance the remedy and would also suppress all evasions for continuance of mischief. It was further opined on the basis of Courts dicta in a manner so as to defeat all atternpts to do or avoid doing any direct or circuitous manner that thing which had been prohibited. Relevant passage from that reties is also reproduced hereunder for ready reference:- uI Never understand", said Lord Cranworth L.C. (at p.89), "what is meant by evading an Act of Parliament. Either you are within the Act or yoa are not; if yoa are not within tt, yow are right; if you are within it, the course is clear, and it cannot be said that you are not within it because the very words of the Act may not have been violated." On the other hand, there is no doubt that uthe offtce of the Judge is, to make such construction as will suppress the mischief, and adtance the remedy, and. to suppress all evasions for the continuance of the mischief." To cflrry out effectually the obiect of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect of circuitous wanner that which it has prohihited or enioined:

quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud.

This manner of construction kas two aspects. One is that the courts, mindful of the mischief rule, will not be astute to narrow the langaage of a statute so as to allow persons within i* purview to escape its net. The other is that tke statute may be applied to the substance rather than the mere form of transactions, thus defeafing any shif* snd contrivances which parties may have devised in the hope of thereby falling outside the Act.When the courts Jind an attempt at concealment, they will, in the words of Wilmot CJ, "brush away the cobweb varnish, and skew tke transactions in the true light."

7 This is also a cofirmon phenomenon which we noticed that after obtaining interim injunction from civil Court, the parties in whose favour such orders are issued even till a specific date, tries to drag and prolong such injunction for extraordinary long time. Various delaying tactics are being applied for the purpose. It also happens that ad interim injunction IS dragged for more than six months or even a yeao. despite the fact that maximum time for temporary injunction (even after it is confirmed by civil Court), has been provided as six months under Order X)OOX Rule 2(b) CPC. It was for suppressing this particular mischief that Rule 2(a)

has been added to Order X)C(D( CPC and this Court should make an interpretation where avoidance of the mandate of Rule 2(a) is discouraged and it is ensured that same rule embodied therein is cornplied in letter and spirit, unless there is a case of extreme compulsion requiring resort of civil Court to exercise its power under Section 94 or l5l CPC for extension of ad interim injunction in a case where plaintifPs counsel could not argue the application for grant of temporary injunction on a single date, due to certain compulsion.

8 Whether we interpret Rule 2(a) of Order XXXIX CPC by following literal Rule of construction or the mischief rule, we come to same conclusion that it is discretionary with a Court granting injunction (till a particular date) to extend it or not and while extending same, ad interirn injunction, the civil Court must follow Rule 2(a) of Order X)OilX CPC i.e, that the extension should only be made when adjournment in the case is not attributable to plaintiff. If plaintiff or his counsel was found to be employing delaying tactics then civil Court or appellate Court would be duty bound not to extend the ad interim injunction.

ll

However for genuine reason if one or two adjoumments are sought by plaintiff or his counsel, then the Court may in its discretion make appropriate orders in circumstances of a particular case, in which regard discretion of Court under Section 94 or 151 CPC rnay be resorted to, but only when interest of justice so demands and the Court was fully convinced that the adjoumment was sought on behalf of plaintiffs/appellant for very genuine cause. Such cause or justification for granting extension of'ad interirn injunction should expressly be written in the order with a last chance for next date which last chance should mean a last chance as held by Hon'ble Supreme Coun of Pakistan in its judgment rendered in case of "Moon Enterprises CNG Station, trlawalpindi v. Sui Northern Gas Fipelines I-,imited through General Manager Rawalpindi and another" reported as 2020 SCMR 300. In said judgment it was held that for the purpose of maintaining confidence of litigants in Court system and presiding officers it was important that where a last opportunity to produce evidence was granted and the parties had been warned of the consequences, the

Court must enforce its order unfailingly. It had also been observed that such like orders would not only put the system back on track and reaffirm the ma.jesty of law but would also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Relevant part of observations of the august Supreme Court is also reproduced hereunder for ready reference;

"fn aur view it is important for the purpose of maintaining the conftdence of the litigants in the court systems and the presiding afficers that wkere last opportunity to prodwce evidence is granted and the party has been warned of the conseqwences, tke caurt mast enforce its order unfailingly and unscrupulously without exception. Suck order would in our opinion not only pwt lke system back on track and reaffirm the majesty of the law but also put a check on tke trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reilson. Where the Court has passed an order granting the last opportwnity, it hss not only passed a jwdicial order bwt also mude a promise to the parties to tke lis that no further adjournrnents will be granted for any reason" The Cowrt must enforce its order and honour its promise. There ir absolutely no room or chaice to do

anytking else. Tke order to close the right to prodace evidence must autotnatically follow failure to produce evidence despite last opportunity cowpled witk a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akkri Mouqa) make s mockery of tke provisions of law and thase responsible to interpret and implement it. Such practices mast be dis co ntin ued, forthw ith. n

9 Learned counsel for petitioners was heard at length but he failed to make out a case for interference of this Court in exercise of its revisional jurisdiction. Instant revision petition was found lacking substance and same is accordingly dismissed.

GE

Dste olheafing & announcemenl ofiudgrnent,,. 23.11.2023.

D te of prcparolion ond signiry ofiudgnenl .... ...... 29.1L2023, "A,Qafarn PS" (DB) Ilon'ble Mr. lasice W,qa, Ahrnad