Cr.R.No.55 of 2008
1.
For
katcha peshi
2.
For
hearing of CMA 330/08
ORDER
15.04.2009
Applicant
in person.
Mr.Bhajandas
Tejwani advocate for the respondents.
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ARSHAD NOOR KHAN J:- This revision application has been
directed against the judgment dated 01.11.2008 passed by the learned Additional
District Judge (H) Sukkur in civil appeal No.04/08, whereby the order passed by
the learned 1st Senior Civil Judge Sukkur in Suit No.163/07, whereby
injunction application filed by the applicant was dismissed, has been
maintained.
The facts leading to the present
application in brief are that the applicant was awarded work of construction of
interior development and refurbishment of Regional Tax Office, Sukkur on
12.12.2005 by way of open tender for the contract price of Rs.26,886,162/- as
successful bidder and the applicant thereafter started the work in accordance
with the specification of the contract but subsequently as per assertion of the
department the applicant did not complete the work within the stipulated period
and there were certain irregularities and lapses on his part enumerated by the
department vide their letter dated 30th May 2007. As per assertion
of the applicant he was not at fault of those lapses but subsequently the
respondents cancelled his contract vide letter dated 21st September
2007 which the applicant did not receive directly but was informed through
messages from the company to whom the work was subsequently awarded therefore,
the applicant filed suit for declaration to the effect that cancellation of the
contract vide letter dated 21st September 2007 was null and void and
is of no legal effect and consequential relief thereby restraining the
defendant to implement the cancellation order, was also prayed. Alongwith the
suit an injunction application u/o 39 Rule 1 & 2 CPC was also filed. The
respondents after receipt of notice of the suit as well as injunction
application filed their written statement as well as counter affidavit,
interalia, denying therein, the allegations contained in the plaint as well as
in injunction application. It was also asserted in the counter affidavit filed
by the respondents that the applicant did not carry out the construction work
himself and had also awarded the contract to some other strangers and sub-contractors
without the consent and approval of the respondents and that the contract subletted
by the applicant to the subcontractors and the work of the subcontractors was
below the standard and specification of the contract and that the applicant delayed
the construction work and subsequently his pace of work was very slow and he
did not complete the work within the stipulated period. Therefore, he was served
with the letters and reminders to complete the work as well as to start the work
of 3rd floor but he avoided and claimed the escalation in prices
quoted by him as such his work was cancelled. The learned trial court after
hearing of learned counsel for the parties dismissed the injunction application
vide order dated 10th April 2008 the applicant being aggrieved
against the order passed by the trial court preferred civil miscellaneous
appeal No.04/08 which was entrusted to the learned Additional District Judge
(H) Sukkur who after hearing of learned counsel for the parties dismissed the
appeal and affirmed the order passed by the learned trial court, hence the
present revision application.
I have heard the applicant in person
he vehemently contended that the learned courts below committed an error while
dismissing the injunction application and did not consider that the applicant
was not at fault and the respondent without just and sufficient cause dismissed
the injunction application and said cancellation order was not directly served
on the applicant and the said cancellation of the work was penal in action which
they could not do so and the act of the respondent is void abinitio in
cancellation of the contract and the applicant has good prima-facie case in his
favour and he will suffer irreparably in case if, the respondents will not
allow him to complete the work. In support of his contention he has relied upon
the cases of Muhammad Shafi, ETC vs. L,D.A,ETC (NLR 1993 Civil 679), Motosons
vs. Trustees of the Port of Karachi (1998 CLC 1261), Nasim Ahmed vs.Salim Ahmad
Khan (NLR 1990 Civil 128), Mansur Ahmed vs. Kalipada Chattopadhya and others
(PLD 1959 Dacca 498), amir Ahmad vs.Province of Punjab and others (1991 CLC
1624), Gulzar Masih and others vs. Sardar Ali and others (1991 CLC 1455), and
Noor Muhammad vs. Civil Aviation Authority and another (1987 CLC 393).
Mr.Bhajandas Tejwani advocate for the
respondents vehemently contended that the applicant was at fault and not
completed the work within the stipulated period inspite of the letter and reminders
to him therefore, the contract was cancelled and after cancellation of the
contract and during pendency of appeal before the appellate court, the work was
awarded to another company and now the construction work is at the verge of
completion and any order passed against the respondents will directly hit to the
company to whom the work has subsequently been allotted and they could not be
condemned unheard. According to him there are concurrent findings of the courts
below, therefore, the said findings could not be disturbed in revisional
jurisdiction of this court.
I have considered the arguments
advanced on behalf of the parties and have gone through the material available
before me.
For the purpose of grant of interim injunction,
it is incumbent upon the applicant to establish that there exist good
prima-facie case in his favour and balance of inconvenience also lies in his
favour and that he will suffer irreparable loss and injury, in case, if the
injunction is refused. I have considered the contentions of the respective
parties in the perspective of the aforesaid ingredients of the interim
injunction. Undisputedly the work was awarded to the applicant in the month of
December 2005 and thereafter he did not complete the work within the period specified
in the contract. The respondents have also issued letters and reminders thereby
enumerating the lapses on the part of the applicant and inspite of the receipt
of the letters dated 30th May 2007, the applicant did not accelerate
the pace of work nor complete it within the time. The attitude and conduct of
the applicant has been surfaced from the record to the effect that during the
course of construction work he insisted for escalation in the prices of the
construction material but he has not pointed out any clause of the contract,
which has not been produced before this court, to show that he was entitled for
any claim, in case, if there was such a dispute in between him and the
respondent over escalation of cost of construction. It was incumbent upon him
to complete the work and had to claim the said escalation by way of filing suit
for recovery. The applicant was also served with notice by the respondents
dated 07th August 2007 whereby he was also asked to intimate his
opinion for financial claim at the earliest but the said opinion was also not
submitted before the respondents however, the applicant was insisting for
escalation in the prices. Sufficient material is available on record, which
remains uncontroverted, to show that the applicant was at fault in completion
of the work as per specification and, in case, if he had any grievance he has
ample opportunity to challenge the same by way of filing the suit for damages
which is the appropriate remedy under these circumstances. The remaining work
have also been awarded by the respondents to some other company and the
construction work is at the verge of completion which has also not been
controverted by the applicant as such the injunction, if any, granted in favour
of the applicant will hamper the construction work and construction work could
not be suspended or stayed in view of observation made by Honourable Supreme
Court in the case of Malik Manzoor Hussain v/s Mohammad Bashir and ors reported
in 1980 SCMR 366. Both the courts have taken into consideration each and every
aspect of the matter while refusing the injunction application and I have gone
through the orders passed by the lower courts and found that the orders
impugned herein does not suffer from any illegality or from jurisdictional
defect. The applicant has therefore not made out a prima facie case against the
concurrent findings of the courts below to grant him the discretionary relief,
as such I am not inclined to interfere with the orders passed by both the lower
courts. The applicant has all the opportunities to claim damages, in case, he
finally succeeds in his suit. It is settled principle of law that the damages,
if any, which could be measured in terms of money, the settled rule is that
injunction could not be granted. The case law relied upon by the applicant, in
my humble opinion are distinguishable from the circumstances of the present
case and are inapplicable.
For the aforesaid reasons and
circumstance I do not find any merit in this revision application, which is
hereby dismissed summarily alongwith listed application.
JUDGE
Imran