2024 M L D 1557
[Balochistan]
Before Iqbal Ahmed Kasi, J
Dr. SADRAK JALA----Petitioner
Versus
BISHOP FREDRICK JOHAN and 4 others ----Respondents
Civil Revision No. 143 of 2023, decided on 22nd May, 2023.
Civil Procedure Code (V of 1908) ----
----O.XXXIX, Rr. 1&2 ---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and
injunction---Interim injunction ---Pre -conditions, absence of ---Suit was with regard to
managing the affairs of hospital in question---Trial Court declined to issue interim injunction
in favour of respondents / plaintiffs but Lower Appellate Court passed interim injunction
against petitioner / defendant ---Validity ---Interlocutory order of injunction under O.XXXIX,
R.1 & 2, C.P.C. can be passed by Court only if plaintiff proves that he / she has prima facie case, who is likely to suffer irreparable loss and injury if injunction is refused and balance of
convenience is also in his / her favour ---In establishing prima facie case, plaintiff needs not
establish his title ---It would be sufficient for plaintiff to show that he has a fair question to
raise as to existence of his rights and that till such question is ripe for trial, a case is made out for preservation of property in status quo--- 'Irreparable injury' means such injury which
cannot be adequately remedied by damages ---Remedy by damages would be inadequate if
compensation ultimately payable to plaintiff in case of success in suit would not place him in
a position in which he was before injunction was refused---'Balance of convenience' means comparative mischief or inconvenience to parties ---Inconvenience to plaintiff, if temporary
injunction is refused, would be balanced and compared with that to the defendant if it is
granted ---If scale of inconvenience leans to the side of plaintiff, then interlocutory injunction
should be granted---Respondents / plaintiffs failed to fulfill all such conditions, and did not
have good prima facie case in their favour ---Irreparable loss in favour of respondents /
plaintiffs was not developed nor balance of convenience laid in their favour ---High Court set
aside the order passed by Lower Appellate Court in favour of respondents / plaintiffs and
restored that of the Trial Court ---Revision was allowed accordingly.
Muhammad Akram Shah for the Petitioner.
Muhammad Riaz Ahmed Bahlol Khan Kasi for Private Respondents.
Date of hearing: 5th May, 2023.
JUDGMENT
IQBAL AHMED KASI, J. ---Through the instant petition, the petitioner has
challenged the validity of the order dated 02.05.2023 ("the impugned order") passed by the Additional District Judge -V, Quetta, ("the appellate Court"), whereby, the appeal filed by the
respondents No.1 and 3, under Order XLIII Rule 1(R) C.P.C. against the order dated
07.12.2022 passed by Senior Civil Judge -III, Quetta, ("the trial Court") has been allowed and
the order on application under Order XXXIX Rules 1 and 2 C.P.C. filed by the
respondents/plaintiffs has been set -aside.
2. Briefly stated, the facts of the case are that respondent Nos.1 to 3 filed a suit for
injunction, against the petitioner/defendant No.2 in the trial Court with the following prayers: -
"To restrain permanently the defendants from interference in the smooth working in
the affairs of Christian Hospital Mission road Quetta and not to cause any nuisance
and disturbance in the interest of justice.
Or
To pass any other order which may deem fit and proper in the circumstances of the
case in favour of plaintiffs and against the defendants in the interest of justice."
3. Along with suit, an application under Order XXXIX Rules 1 and 2 C.P.C. was also
filed by the respondents/plaintiffs. The trial Court initially passed status quo order and then issued notices to the petitioner/defendant No.2 and other respondents/defendants, in response
thereof, the petitioner/defendant No.1 submitted his written statement and contested the suit on legal and factual grounds with the prayer to dismiss the same. After submission of written
statement, the trial Court, heard arguments on application under Order XXXIX Rules 1 and 2
and vide order dated 07.12.2022, rejected the same and the early order of status quo was
withdrawn.
4. The respondent Nos.1 to 3 being aggrieved and dissatisfied to the said order, filed an
appeal under Order XLIII Rule 1 C.P.C. along with the application under Section 151 C.P.C.
before the trial Court, who after fulfilling the codal formalities, heard arguments from both
sides and accepted/allowed the appeal of respondents Nos.1 to 3, vide impugned order and
the order dated 07.12.2022 passed by the trial Court was set -aside, hence this revision
petition.
5. Learned counsel for the petitioner/defendant No.2 contended that petitioner/defendant
No.2 was properly holding the position of Medical Director of Christian Hospital, Quetta and performing his duties legally as per Constitution of Church of Pakistan, but the appellate
Court failed to appreciate this legal aspect of the case; that the respondents/plaintiffs having
no right, authority, power or entitlement to make any kind of interference or interpretation in the affairs of the Christian Hospital, Quetta, which point was also not considered by the
appellate Court; that the appellate Court failed to appreciate the documentary evidence
available before him and passed the impugned order in a slipshod manner.
6. On the other hand, M/s. Muhammad Riaz Ahmed and Bahlol Khan Kasi, learned
counsel for respondents/defendants contended that the relation between the petitioner and respondents are of master and servant. They further argued that the only remedy available to
the petitioner is to file suit for damages or recovery of his outstanding dues/amount. They
also added argued that the petitioner is retired and he is no more Director of the Hospital;
that the ingredients of Order XXXIX Rules 1 and 2 are missing in the case of petitioner.
7. I have heard learned counsel for the parties and perused the available record. It
transpires from the record that the Christian Hospital, Quetta had been functioning well
before the creation of Pakistan. Though, complete history of its administration and
management has not been provided to Court despite demand, but on the basis of what has
been placed on record, it appears that the Church Missionary Trust Association Limited (A
Company incorporated in England) under the Companies Act, 1908, is a voluntar y
association of persons on whose behalf the company acts as trustee and as such holds deals
with the dispose of lands buildings, investments and Civil Revision Petition No. 143 of 2023
property of all kind real or personal moveable or immoveable belonging to the society in any
part of the world. The said trust Association Limited vide instrument of Transfer dated
14.04.1955 had handed over the property of trust to Lahore Diocesan Trust Association Limited, with the aim of making of provision for medical fa cilities to the people of Pakistan
including other Asian Countries. Thereafter, Diocese of Karachi and Balochistan became its trustee and administrator on behalf of the Christian community of Balochistan. It was not a
personal property of the institution of dioceses, as such, was a public property, entrusted to
them. The record further reveals that the control and management was transferred from Diocese to newly created society in 2005 and it remained in control of its affairs, thereafter.
The power group of the society was a "Board of Management" comprising of Ex- Officio
Members including Bishop of diocese as Chairman, Medical Director of Christian Hospital
as Secretary, Administrator as Treasurer, Nursing Superintendent and Principal as Members
by virtue of their posts. Then there shall be two nominated members to be nominated by the Bishop and one of whom shall be Secretary of the Christian Hospital to be nominated at the
discretion of Bishop. Two members shall be elected by the Board. Total number of members
shall be 07 to 9. Duties of the Board had been articulated in Article 8 of the constitution of
said society. Reason to mention such details is to indicate that Diocese of Karachi and
Balochistan was former Administrator of the Christian Hospital, Quetta that itself had
delegated it authority and created a society for its functioning meaning that the Bishop as
chairman of such a society. Besides, the Bishop is also the Chairman of Dioceses as well. So it is quite clear that Diocese of Karachi and Balochistan is the parent organization and still has major control of the Christian Hospital, Quetta. Since the Diocese itself had shifted control and management of the institution in hands of the Board of Management of Christian
Hospital Society, so they should have followed the constitution of the Society themselves.
After creation of this new establishment and only Bishop had changed with the passage of
time. The Board of Management was competent authority for appointment/removal/suspension of the staff of the hospital and then it was further empowered to take strategic decisions within the meaning of Article 10 of the Constitution, for the ready reference Article 10 is reproduced as under: -
"Article 10. Duties of the Board Members:
10.1 Strategic Role
The board shall set the strategic direction for the medical work of Christian Hospital, Quetta. In furtherance of the agreed strategy, the board may from time to time establish new medical programmes and projects.
10.2 Personnel Management Role
10.2.1 The board shall appoint the Medical Director/CEO of Christian Hospital, Quetta.
10.2.2 The board shall appoint the Heads of Departments of Christian Hospital, Quetta. The Board is the body empowered to transfer, suspend or terminate the
contracts of Heads of Departments and Heads of Programmes.
10.2.3 The Board shall be the final tribunal of appeal in all matters of Staff Discipline and Grievance. Its decisions shall be final, binding and not subject to any further appeal.
10.3 Procedural Role
The Board shall determine the conditions under which changes may be made to its procedural rules, including this Constitution."
8. Above Article, restrains the Bishop or Diocese from interfering in the delegated
authority. In the circumstances, by issuing retirement letter to defendant No.2, vide letter No. DOKB/CHQ/2, dated 26th September, 2022, the respondent No.3, who purported himself as Bishop and whose office/authority has been challenged before the Hon'ble High Court of Sindh, in capacity of the Chairman of Diocese had exceeded from his lawful authority in sheer violation of the Constitution of Christian Hospital, Quetta. The record further reveals that number of personnel working at Christian Hospital, Quetta, are with the age of above 65 years, which shows that there is no specific age of retirement.
9. It is the settled position of law that an interlocutory order of injunction under Order
XXXIX, Rules 1 and 2 C.P.C. can be passed by the Court only if the plaintiff proves that he/she has prima facie case; that he/she is likely to suffer irreparable loss and injury if the injunction is refused and that the balance of convenience is in his/her favour. In establishing a prima facie case, plaintiff need not establish his title. It would be sufficient for him to show that he has a fair question to raise as to the existence of his right and that till the question is ripe for trial, a case is made out for preservation of the property in status quo.
'Irreparable injury' means such injury, which cannot be adequately remedied by
damages. The remedy by damages would be inadequate it the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused.
"Balance of convenience" means the comparative mischief or inconvenience to the
parties. The inconvenience to the plaintiff if temporary injunction is refused would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then along interlocutory injunction should be granted.
10. Keeping in view the principles noted above, the facts of this case may now be
examined. The first question to be decided is whether the respondents/plaintiffs have
established a prima facie case. Admittedly, prior to the filing of suit the petitioner was performing his duty as Medical Director smoothly without any objection from any corner in Christian Hospital, Quetta. The record further transpires that the main contention of
respondents is that the petitioner reached to the age of superannuation, thus, retired. The
contention is contrary to the record, which reflects that numerous employees of the
Christian Hospital, Quetta are above sixty (60) but none of them has been retired. For the sake of convenience, the question of balance of convenience and irreparable injury may be considered together. This fact that prior to the filing suit, the petitioner was performing his duties without any interference from any corner and the respondents/plaintiffs failed to establish that they likely to suffer irreparable loss and injury if injunction is refused or that balance of convenience in their favour. On the other hand, the balance of inconvenience tilt in favour of petitioner, as he was restrained from performing his duties without any cogent reason.
11. As far as the finding of appellate Court that the relationship between the respondent
No.2 and petitioner is of master and servant is concerned, I have scrutinized all the record,
but did not find any document, which could show that there is relationship of master and
servant between the parties. On the other hand, there are certain documents available on
record, which show that the Christian Hospital, Quetta has its own Constitution.
12. Needless to mention here that in case where temporary injunction is claimed, the
plaintiff has only to make out that he has a good prima facie case in his favour, meaning
thereby, a serious question is to be tried in the suit and that in the event of success, if the
injunction is not issued, he will suffer irreparable injury. The respondents/plaintiffs in the present case have failed to fulfill all these conditions, therefore, they have no good prima facie case in their favour, as such, irreparable loss in their favour has not been developed, thus, balance of convenience also not lies in favour of respondents/plaintiffs.
Consequently, the petition is allowed and the impugned order dated 02.05.2023
passed by the Additional District Judge -V, Quetta, is set -aside, resultantly, the order dated
07.12.2022 passed by Senior Civil Judge -III, Quetta is upheld.
MH/53/Bal. Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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