CIVIL AVIATION AUTHORITY Versus NOOR MUHAMMAD

AJMAL MIAN, J.‑‑ This High Court Appeal is directed the order dated 28‑8‑1986 passed by a learned single Judge of this Court in Suit No.457 of 1986 on C.M.As. Nos.3241/1986, 3310/1986 and 3311/ 1986. The first application was filed under Order XXXIX, rules 1 and 2, C.P. C. for ad‑interim injunction alongwith the plaint, whereas the other two applications were filed at a subsequent stage. By the above second application the respondent prayed for restoration of the possession and by the third application the plaintiff had prayed for an injunction restraining the defendants from re‑letting or allotting the shop or from dis‑possessing the plaintiff from the said shop. The learned single Judge was pleased to grant the above applications by the order under appeal. The appellants, who were defendants filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that the respondent was in occupation of a shop situated near Air Freight Unit, Terminal No.l, Karachi Airport, Karachi under a licence dated 1‑12‑1976, which was granted for a period of one year. After the expiry of the above period the respondent continued to remain in possession and continued to pay licence fee in terms of the said licence. It seems that in the month of January, 1986 the appellant issued a public notice in Press inviting tenders for certain shops including for the suit shop for the grant of licence for a period of one year. Upon the publication of the above public notice, the respondent filed the aforesaid suit for declaration and permanent injunction. Alongwith the plaint of the suit, the respondent also filed aforesaid C.M.A. No.3241/1986 under Order XXXIX, rules 1 and 2, C.P.C. It seems that after the service of the notice of the stove application, the appellant sealed the shop, took over the possession and removed the articles from the shop belonging to the respondent. Thereupon, he filed the above two applications, namely, C.M.As. Nos.3310/1986 and 3311/1986 for the aforesaid reliefs. The appellants being aggrieved by the above order have filed the present appeal.

3. In support of the above appeal Mr. Khalid M.Ishaque, learned counsel for the appellant has vehemently urged as under;

(i)

That the learned single Judge could not have granted status quo ante merely on the basis that after the service of the notice of the stay application the appellant had ejected the respondent.

(ii) That the respondent had no prima facie case for the grant of ad interim injunction in presence of the terms and conditions contained in the agreement of licence executed between the President of Pakistan and the respondent.

On the other hand Mr. S.Shahenshah Hussain, learned counsel for the respondent has submitted as follows;

(i) That the learned single Judge found prima facie case in favour of the respondent, he was justified in granting status quo ante.

(ii) That there is ample material on record to show that the respondent had a prima facie case for ad interim injunction.

4. Adverting to the above first submission, it may be observed that the learned single Judge has referred to a number of cases of foreign jurisdiction, namely, of U.S.A., U.K. and of India. There seems to be no case of Pakistani origin referred to by the learned single Judge in the order under appeal. However, Mr. Shahenshah Hussain has referred to the case of the National Bank of India Ltd., Narayanganj v. Yakub Mia of Yakub Stores, Dacca (Dacca Law Reports Vol. ?/1955, 606 in which a learned single Judge of the Dacca High Court has held that the Court has inherent jurisdiction upon an interlocutory application to order demolition of a wall which was erected in defiance of the authority of the Court. In the above Dacca case, the facts were that after the filing of the ejectment suit, the plaintiff had erected the wall and the above order was passed upon an application filed by the defendants.

In our view, the point for consideration in the present case is, as to whether simpliciter service of summons and notice upon a defendant in respect of filing of a suit for declaration and permanent injunction and an application for ad interim injunction by a plaintiff, is sufficient to place restraint upon the defendant against taking any adverse action against the plaintiff before the grant of an ad interim injunction by the Court. There cannot be any doubt that the Court can undo any act on the part of a defendant which he might have taken male fidely after the service of the notice of an injunction application, if the Court is satisfied that the dictates of justice so demand and, therefore, in a fit case the Court can pass an order or status quo ante i.e. restoring the parties to the position which was obtaining at the time of the filing of the suit and the injunction application but, in our view, this does not necessarily mean that in A every case where a defendant after service of notice of a stay application takes some adverse action/step against the plaintiff, the Court as a matter of course should order restoration of status quo ante without examining the merits of the case. However, it is desirable that a defendant should not take any action after the service of notice of a stay application with the intention to render the stay application infructuous, as it may create complications for him.

As regards the second submission of the learned counsel for the parties, we are inclined to hold that if we will decide the above controversy, this may amount to the disposal of the suit. However, we may observe that we are not unmindful of the fact that the Airport is a sensitive area and, therefore, the anxiety of the appellant to get the controversy resolved in issue expeditiously is understandable. Mr. Khalid M. Ishaque has submitted that the appellant under take not to eject the respondent from the shop in case the suit is disposed of within a period of six months as it has already listed for evidence and in case the suit is not disposed of within the above period, the learned single Judge may decide the question of grant of an ad interim injunction afresh To this Mr. Shahenshah Hussain is not agreeable. We have gone through the order under,, appeal and we have noticed that the learned single Judge while deciding' the question of prima facie case has not dilated upon the effects of the various clauses contained in the licence.

6. We would, therefore, order that in case the suit is not disposed j of within a period of six months, the learned single Judge will decide the question of grant of injunction afresh after taking into consideration the factum which of the parties delayed the disposal of suit, terms and conditions of the licence and the other material which the parties may bring on record.

7. The appeal stands disposed of in the above terms with no order as to costs.

A.A./C‑42/K order accordingly.