Messrs PAKISTAN ASSOCIATED CONSTRUCTION Ltd. vs ASIF H. KAZI And Another

ORDER

1. SHAFIUR RAHMAN, J.--The petitioner, a plaintiff in a pending civil suit, seeks leave to appeal against the judgment of the Lahore High Court, dated 1-12-W85 dismissing in limine its revision petition against denial of ad interim relief by the two Courts below.

2. The petitioner 'entered into a contract dated 8-1-1983 to undertake and complete within 574 days (22-3-1983 to 16-9-1984) certain works relating to Chasms Right Bank Irrigation Project. The completion of the work was delayed. A fourteen days' notice was served on the petitioner on 18-7- 1985 under Contract Clause 63(1) conveying to it that "on the expiry of which inter alia the site shall be entered upon by the Employer by expelling you there from, for the completion of the contract through any agency as the Employer may select."

3. A constitutional petition was filed on 6-8-1985 alleging as follows:- "That the respondents were solely responsible for the delay in the execution of this work and they, both were aware that inordinate delay has been caused by their wrong designing of the project, giving rise to redesigning of the work in midstream. The respondents also know that in this process the actual magnitude of the work had nearly doubled. They were further aware that extension of time was due to the petitioner on account of the increase in the magnitude of the work and also the time it took the respondents to make up their minds about the final design of the work. And consequently, further compensation of time and money was due to the petitioner on account of the dislocation and back and forth dislocation and chaos caused thereby in the work. The respondents were further aware that monetary compensation was additionally due to the petitioner on account of the said increase in the volume of work and escalation of rise in prices owing to the passage of time caused by the respondents' said defaults."

4. Followed by further allegations as hereunder:- "That in the face of clear knowledge of the aforesaid facts the respondents, instead of proceeding lawfully and bona fide vis-a---vis the petitioner, decided for male fide reasons to withhold from him his rightful dues in respect of the aforesaid extension of time and monetary compensation. In these circumstances the respondents have grossly, abused the authority and powers conferred upon them by law for a public purpose. And have employed the same to cause extreme harassm ent and loss, thereby threatening the petitioner-Company with malicious destruction."

5. This constitutional petition was dismissed in limine on 11-8-1985 mainly on the ground appearing as hereunder:- "The numerous allegations and the counter-allegations give-rise to the controverted questions of fact, the adjudication of which can take place only after obtaining all types of evidence in power and possession of the parties. This can be done either by the Courts having plenary jurisdiction or by the Federal Government. On this short ground alone the constitutional petition is incompetent."

6. An intra-Court appeal was thereafter filed by the petitioner which was disposed of by making certain observations allaying the apprehensions of the petitioner.

7. On 2-9-1985 a civil suit was filed. By an application under Order XXXIX, rules 1 and 2 the petitioner sought the following reliefs:- "WHEREFORE, it is humbly prayed that the respondents be directed, until the decision of the suit:-

(a) Not to in anyway act upon the impugned notice of 18-7-1985;

(b) Not to prevent the petitioner from proceedings normally as he was before the said impugned cancellation;

(c) Not to in any manner deal with the petitioner's plants, equipment and fixed structures on the site except with his written consent;

(d) Any further or other order that this Hon'ble Court may consider just and proper and on such terms as it considered necessary."

8. The trial Court denied ad interim relief. The first appellate Court upheld that order and by the impugned order the High Court declined to interfere.

9. Mr. Reza Kazmi, the learned counsel for the petitioner contended that the punitive action initiated against the petitioner is in its entirety malicious for which no cover is available either in statute or in the Contract governing the parties. The petitioner, according to the learned counsel, is denied access to and use of his own equipment and material lying at the project side. Its entire business and commercial goodwill is at stake, it is threatened with bankruptcy and financial ruin and this Court, should, in its overall responsibility to do complete and prompt justice, afford appropriate relief to the petitioner. Such relief, according to the learned counsel may be in the form of interim relief, revival of the constitutional petition already dismissed in limine, or reference of the dispute to arbitrator after associating the respondents in the proceedings.

10. We find that what the petitioner seeks ad interim is resurrection of the contract in its full form and effect anti permission to perform it. The main reliefs sought in the suit are to declare that "the impugned notice of cancellation, dated 18-7-1985 is null and void" and to appropriately extend the period of Contract". There are more than one good reason why prima facie interim relief keeping in abeyance the cancellation of Contract or of extending the period of its performance, or of allowing access to men and material at site could not be granted by Court. The statutory constraints are to be found in section 21, clauses (a) and (d) and section 56, clause (f) of Specific Relief Act. Relief against the oppressive consequences of the impugned action of the respondents is, however, already indicated in the judgment of the High Court in the following words:- "Syed Iftikhar Ahmad, Advocate learned counsel for the respondents added that the matter of release of the material and the machinery which are not to be used for the completion of the unexecuted work and which are being held as security till the settlement of the liabilities can be negotiated and WAPDA is prepared to consider their release on furnishing of adequate security for the value of the said machinery and material."

11. We find that the Court hat on good grounds refused the grant of interim relief prayed for. It is not a fit case for the grant of leave to appeal. All the same, keeping in view the nature of dispute, and the deep involvement of the parties in it, the trial Court should ensure expeditious disposal of the suit within about six months from today.