MARGHUB SIDDIQI vs HAMID AHMAD KHAN AND 2 Other

1. HAMOODUR RAHMAN, J.-This petition for special leave arises out of the judgment and order of a learned Single Judge of the High Court of West Pakistan dismissing a civil revision petition under section 115 of the Code of Civil Procedure. .

2. The present petitioner, who is a permanent and confirmed Head of the Department of Journalism in the University of Punjab, it appears, filed a suit to challenge the validity of a resolution passed by the Syndicate of the University on the 30th of April 1966, whereby the petitioner was suspended, a charge-sheet was framed and enquiry was proposed to be instituted against him on the basis of the said charge-sheet.

3. The petitioner complained that the said resolution had been passed in contravention of the mandatory provisions of clause 28(2)(a) of the West Pakistan Ordinance No. XXII of 1961 and the rules framed thereunder. In the plaint filed by the petitioner, however, the only reliefs claimed were as follows:-

(a) that the action taken against the plaintiff is mala fide;

(b) that the impugned resolution is illegal, void, inoperative and a nullity in the eye of law; and

(c) consequently, the proceedings drawn against the plaintiff are illegal, with consequential relief that the suspension of the plaintiff is deemed not to have taken place and the plaintiff still continues to remain as the Head of the Journalism Department, University of the Punjab."

4. There was no prayer for any perpetual injunction, but the petitioner also applied for an ad interim injunction for restraining the defendants from proceeding with the enquiry as contemplated in the charge-sheet, pro--hibiting them from enforcing the order of suspension and the order debarring the petitioner from entering the premises of the Department of Journalism.

5. The trial Court was fully conscious of the fact that "in order to succeed on an application for temporary injunction the plaintiff must have a prima facie case, the balance of convenience must be in his favour and the inquiry to which he is exposed must be such that it could not be com-- pensated by a monetary award" (vide paragraph 5 Of the judgment), but in deciding the application for ad interim injunction it went on to hold that that the "proceedings of the Syndicate held on 30-4-66 with reference to the case of Marghub Siddiqi are nullity in the eye of law" and that in view of the above finding "it is unnecessary to consider other aspects." The ad interim injunction, as prayed for, was accordingly granted.

6. On appeal, however, the Additional District Judge of Lahore took the view that in so far as the trial Court had not at all considered the points of balance of convenience and irreparable loss it had exercised its discretion to grant an ad interim injunction improperly and upon unsound judicial principles. The appellate Court was of the view that the balance of con--venience was definitely against the granting of the injunction and there was no question of any irreparable loss or loss which could not be compensated in terms of money accruing to the petitioner, if no injunction was granted. The order of ad interim injunction was accordingly set aside.

7. The petitioner went up in revision but the High Court refused to interfere, as, in its view, the decision of the appellate Court below was neither without jurisdiction nor based upon any wrong assumption of fact or law or upon a wrong finding in that regard nor had the lower appellate Court acted illegally or with material irregularity in exercising its jurisdiction to set aside the order of the first Court.

8. The petitioner now seeks special leave to appeal and it is sought to be urged on his b: half that the High Court had failed to notice that the lower appellate Court had acted with material irregularity in the exercise of its jurisdiction in so far as it had interfered with the order of the first Court which bad exercised its discretion to grant an ad Interim injunction upon sound judicial principles. We are unable to agree with this contention, for, the trial Court had clearly not taken into account the question of balance of convenience or irreparable loss but based its decision purely upon it finding that the impugned resolution was bad in the eye of the law. An injunction is not to be granted only on the basis that a prima facie case exists but it is incumbent upon the Court to take into account the other questions.

9. Apart from the question that in the present case the trial Court had exceeded its jurisdiction by deciding the question of the validity of the resolution finally it appears to us that the present petition must fail, for, the ad Interim injunction could not have been granted for two other very good reasons which have unfortunately not been noticed by the Courts below.

10. The first is that in a suit where no perpetual injunction is claimed no question of granting ad interim injunction can possibly arise. In the present case, the application for ad interim injunction should have failed on this ground alone.

11. Secondly it appears to us that none of the Courts have noticed that al--though ad interim injunctions are granted under Order XXIX, rule 1 of the Code of Civil Procedure the principles, which govern the grant of injunctions, contained in the Specific Relief Act have also to be kept in view.

12. Under section 56, clause (f), one of the principles is that an injunction cannot be granted to prevent the breach of a contract the performance of which cannot specifically be enforced. Now it is well settled that contracts for personal service are not contracts which can be specifically enforced.

13. The granting of an injunction, therefore, in a service matter, like the present one, is opposed to the principles governing the grant of such injunctions, for, by such an injunction the Courts really foist an employee upon an unwilling employer. Such an order for injunction made in disregard of e these not only sound judicial principles but even statutory prohibitions cannot, in our view, be regarded as having been made in the proper exercise of the discretion of the Court.

14. For these reasons we are clearly of the view that this is not a fit case in which leave to appeal should be granted. The petition is, accordingly, dismissed.,