PLJ 2025 Quetta 1
Present : IQBAL AHMED KASI, J.
Dr. SADRAK JALAL and another --Petitioners
versus
EXECUTIVE COMMITTEE DIOCESES OF KARACHI AND BALOCHISTAN through
Secretary Diocesan Officer Fatima Jinnah Road Karachi and 6 others --Respondents
C.R. No. 142 of 2023, decided on 22.5.2023.
Civil Procedure Code, 1908 (V of 1908) --
----O.XXXIX Rr. 1 & 2 --Specific Relief Act, (I of 1877), Ss. 42 & 54--Application for temporary
injunction was allowed --Appeal --Allowed --Conditions for grant of temporary injunction were
fulfilled by petitioner --No specific age of retirement --No relation of master and servant between
parties --Challenge to --Number of personnel working at Christian Hospital, with age of above 65
years, which showed that there was no specific age of retirement --As finding of appellate Court
that there was relation between Respondent No. 2 and petitioners Nos. 1 and 2 were of master
and servant, was concerned, High Court had scrutinized all record but did not find any document, which shows that there was relationship between parties --On other hand, there were certain
documents, which show that Christian Hospital, had its own Constitution--In a case where
temporary injunction is claimed, plaintiff has only to make out that he has a good prima facie
case, meaning thereby, a serious question is to be tried in suit and that in event of success, if injunction is not issued, he will suffer irreparable injury--The petitioners, fulfilled all those conditions, therefore, petitioners had a prima facie case in their favour, as such, irreparable loss in their favour developed, thus, balance of convenience also lie in favour of petitioners --Revision
petition allowed. [P. 6] A, B & C
Mr. Muhammad Akram Shah, Advocate for Petitioners.
M/s. Muhammad Riaz Ahmed & Bahlol Khan Kasi , Advocates for Private Respondents.
Date of hearing: 5.5.2023.
J
UDGMENT
Through the instant petition, petitioners have 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. 1,3 to 7, under Order
XLIII Rule 1(R) CPC against the order dated 07.12.2022 passed by Senior Civil Judge -III,
Quetta (“the trial Court”) has been allowed and the order of trial Court on the application
Under Order XXXIX Rule 1 and 2 CPC filed by the petitioners/plaintiffs has been set -aside.
2. Briefly stated, the facts of the case are that petitioners/ plaintiffs filed a suit for declaration and
permanent injunction against the respondents/defendants in the trial Court with the following prayers: -
“A) Declaring that the Plaintiff No. 1 is properly holding the position of Medical Director of
Christian Hospital Quetta and performing his duties legally as well as according to the Constitution of the Church of Pakistan till the decision/appointment of Bishop of Karachi & Balochistan Diocese.
B) Declaring that the Plaintiff No. 2 is holding the position of administrator of the Christian
Hospital Quetta and performing his duties dealing with the affairs of Christian hospital legally
as well as according to the Constitution of the Church of Pakistan till the decision/ appointment of Bishop of Karachi & Balochistan Diocese.
C) Declaring that the Defendants No. 3 to 7 having no right, authority, power and
entitlement to make any kind of interference or interruption in the affairs of the Christian Hospital Quetta or towards the duties of the plaintiffs No. 1&2.
D) After declaring so, the Defendants No. 3 to 7 may kindly be permanently restrained from
any kind of interference or interruption in the affairs of the Hospital by directing the Defendant No. 4 to leave the premises/office of Plaintiff No. 1 as Medical Director.
E) To allow the plaintiffs No. 1 and 2 to continue their duties as Medical Director and
Administrator to run the affairs of the Christian Hospital Mission road Quetta till
appointment/decision of new Bishop of Karachi and Balochistan Diocese.
F) Till disposal of the main suit, the Defendant No. 2 may kindly be directed to
supervise/hold the affairs of Bishop of Karachi and Balochistan Diocese till proper appointment
of Bishop of Karachi & Balochistan Diocese.
G) Any other relief which deems fit and proper may also be awarded in the circumstances of
the case in the interest of justice and equity.”
3. Along with suit, an application under Order XXXIX Rule 1 & 2 CPC was also filed by the petitioners/plaintiffs. After filing of suit, the trial Court was pleased to pass status quo order and
then issued notices to the respondents/defendants, in response thereof, the
respondents/defendants have submitted their joint written statement and contested the suit on legal and factual grounds with the prayer to dismiss the same.
4. The application under Order XXXIX Rule 1 & 2 was also contested by filing reply. Thereafter, the trial Court, after hearing arguments from both sides, allowed the application under Order XXXIX Rule 1 & 2 CPC filed by petitioners/plaintiffs, vide order dated 17.12.2022.
5. Being aggrieved to the said order, the respondents/ Defendants Nos. 1, 3 to 7 had filed appeal
under Order XLIII Rule 1 CPC, along with an application under Section 151 CPC before the appellate Court, who after hearing the arguments, allowed the appeal of respondents, vide impugned order and the order dated 07.12.2022, passed by the trial Court was set -aside, hence
this revision petition.
6. Learned counsel for the petitioners/plaintiffs contended that the respondents/Defendant Nos.
1,3 to 7 have no legal and lawful right to infringe or deny the petitioners/plaintiffs within the meaning of Section 42 of the Specific Relief Act, 1877; that the petitioner/Plaintiff No. 1 is properly holding the position of Medical Director of Christian Hospital, Quetta and performing his duties legally as well as according to the Constitution of the Church of Pakistan, till the
decision/ appointment of Bishop of Karachi & Balochistan Diocese; that the
respondents/Defendant Nos. 3 to 7 having no right, authority, power or entitlement to make any
kind of interference or interpretation in the affairs of the Christian Hospital, Quetta; that the trial Court appreciated the evidence and passed a speaking order, while the appellate Court failed to appreciate the record and arguments advanced by learned counsel for petitioners.
7. M/s. Muhammad Riaz Ahmed and Bahlol Khan Kasi, learned counsel for respondents/defendants contended that the relation between the petitioners and respondents are of master and servant. They further argued that the only remedy available to the petitioners is to file suit for damages or recovery of their outstanding dues/amount. They also added that the petitioner No. 1 is retired and he is no more Director of the Hospital; that the ingredients of Order XXXIX Rule 1 and 2 are missing in the case of petitioners, thus, the appellate Court rightly allowed the application.
8. 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 the Court despite demand, but on the basis 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 volunta ry association of persons, on whose behalf the company acts
as trustee and, as such, holds deals with the dispose of lands buildings, investments and 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 facilities 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, it was a public property, entrusted to them. The record furt her
reveals that the control and management of the Hospital, was transferred from Diocese to newly created society in 2005, who remained in control of its affairs. Thereafter, the power group of the society i.e . “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 f or 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 programmers 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 Programs.
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.”
9. The 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 with the age of above 65 years, which shows that there is no specific age of retirement.
10. As far as the finding of appellate Court that there is relation between the Respondent No. 2 and petitioners Nos. 1 and 2 are of master and servant, is concerned, I have scrutinized all the record but did not find any document, which shows that there is relationship of master and
servant between the parties. On the other hand, there are certain documents, which show that the
Christian Hospital, Quetta has its own Constitution.
11. It is needless to mention here that in a case where temporary injunction is claimed, the plaintiff has only to make out that he has a good prima facie case, 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 petitioners in present case, fulfilled all these conditions, therefore, the petitioners/plaintiffs have a prima facie case in their favour, as such,
irreparable loss in their favour developed, thus, balance of convenience also lies in favour of
petitioners/plaintiffs.
Consequently, the petition is allowed and the impugned order dated 02.05.2023 passed by the appellate Court is set -aside, resultantly, the order dated 07.12.2022 passed by Senior Civil Judge -
III, Quetta is upheld.
(Y.A.) Petition allowedThis 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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