2008 C LC 930

[Peshawar]

Before HamidFarooq Durrani and Syed Yahya Zahid Gilani, JJ

ARBAB FAZAL RAUF and another—- petitioner

Versus

ARBAB SAJJAD and 6 others—-Respondents

Writ Petition No.180 of 2008, decided on 20th March 2008.

(a) Civil Procedure Code (V of 1908)—

—-O. XXXIX, Rr.1, 2, O.XLIII, R.1(r) &S.115—Constitution of Pakistan (1973), Art.199—Constitutionalpetition—Order refusing temporary injunction—Revision, incompetencyof—Temporary injunction prayed for by respondents was declined by the civilcourt, but order of civil court was set aside by Appellate Court in exercise ofits revisional jurisdiction—Order refusing temporary injunction wasappealable under O.XLIII, R.1(r) C.P.C., but instead of appeal, revisionpetition was preferred—Validity—Revision was not competent when appeallay—Request of counsel for respondents that impugned order could be treatedas if passed in appeal, was not tenable because it would set wrong trends andcreate legal complexities in future due to amalgamation’ of two differentjurisdictions, specifically and purposefully segregated in law—Impugned orderwas patently illegal and void ab initio on that score, which was set aside bythe High Court in exercise of its constitutional jurisdiction.

Abdul Ghani v. Mst. Shaheen 2007 SCMR 834; PLD 1995SC 426; 2006 MLD 435 and 1994 MLD 550 rel.

(b) Civil Procedure Code (V of 1908)—

—-O. XXXIX, Rr.1 & 2—Grant of temporaryinjunction—Ingredients—Three ingredients i.e., prima facie case, balance ofconvenience and irreparable loss, must co-exist for grant of temporaryinjunction—Even if a prima facie case was available to a party, temporaryinjunction could not be claimed as a matter of right and the court had to takeinto consideration other factors like balance of convenience, irreparable loss,conduct of parties, nature of suit, the time likely to be absorbed in itetc.

Messrs Sui Northern Gas v. Messrs Pakistan CementIndustries PLD 1968 Lah. 876 ref.

Naveed Maqsood for Petitioner.

Mian Mohibullah Kaka Khel for Respondent.

Date of hearing: 20th March, 2008.

JUDGMENT

SYED YAHYA ZAHID GILANI, J.— This writpetition invokes constitutional jurisdiction of this Court under Article 199 ofthe Constitution of Islamic Republic of Pakistan to challenge vires of theorder, dated 18-12-2007 of Syed Anees Badshah Bukhari, learned AdditionalSessions Judge-IV, Peshawar, whereby status quo order was imposed to stopcompletion of C.N.G. Pump being constructed by petitioners, on a piece of landowned by them, jointly with respondents.

2. Initially, the temporary injunction prayed for theaforesaid purpose, was declined by the Civil Court vide its order, dated29-11-2007, in the civil suit instituted by respondents Nos.1 and 2, forpartition of land. The Civil Judge, simply relied on the undertaking ofpetitioners that the ongoing construction is on their own risk and cost.

3. However, the order of the Civil Court was setaside vide the impugned order, dated 18-12-2007 by the learned AdditionalDistrict Judge-IV, Peshawar, in exercise of revisional jurisdiction.

4. Mr. Naveed Maqsood, Advocate argued for the petitioners.He contended that the impugned order is patently violative’ of law and notsustainable. The petitioners had no other forum to avail remedy. Hence,constitutional jurisdiction of this Court has been invoked.

5. He pointed out that the order of Civil Court,dated 29-11-2007, refusing temporary injunction, was appealable under OrderXLIII, rule (1)(r), C.P.C. but instead of appeal, a revision petition waspreferred, which did not lie. In this respect he relied on the case of AbdulGhani v. Mst. Shaheen 2007 SCMR 834. He added that the revision was ex facieincompetent and the jurisdiction exercised thereon was illegal. Hence, theimpugned order is not sustainable, being nullity in the eyes of law.

6. He next argued that the impugned order of status quois illegal also because the suit is defective and the order is not backed byprima facie case. Enumerating the defects, he stated that the suit-land isassessed to Land Revenue but partition suit has been instituted in Civil Courtwithout clarifying that whey Revenue Court has not been approached. Partitionhas been prayed without decree for possession. Many co-owners are visible butthey have not been arrayed as defendants. He concluded thatplaintiffs/respondents cannot be treated as possessors of prima facie case insuch a defective suit. He concluded that since the undertaking has already beengiven by his clients that the construction is on their own risk and cost, theyare entitled to continue construction in the light of decision reported in PLD 1995SC 426, 2006 MLD 435 and 1994 MLD 550.

7. Mian Mohibullah Khan Kakakhel, Advocate professingthe case of respondents 1 and 2, argued that although the impugned order hasbeen passed in exercise of revisional jurisdiction, and the revision did notlie, but since the appeals can be treated as revisions, and the revisions,’ asappeals, subject to law of limitation; the impugned order may be treated as anorder in appeal.

8. On facts, he argued that the pointed out defectsin the suit are rectifiable. The parties are admittedly co-owners. So, thestoppage of construction of C.N.G. Pump, till the partition by metes and boundsis fully justified in law.

9. We have cerebrated over the points argued beforeus. As laid down in the case of Abdul Ghani reported in 2007 SCMR 834(a),revision does not lie when appeal lies. Impugned order has been passed inexercise of revisional jurisdiction. The request of learned counsel forrespondents Nos.1 and 2 that the impugned order may be treated as if passed inappeal, is not tenable at this stage because it would set wrong trends andcreate legal complexities in future, due to amalgamation of two differentjurisdictions, specifically and purposefully segregated in law.’ So, we areconstrained to hold that the impugned order is patently illegal and void abinitio on this score.

10. We further view that it is established law thatthe three ingredients i.e. prima facie case, balance of convenience andirreparable loss, must co-exist for grant of temporary injunction. The pointedout defects in the suit may be rectifiable but they presently deprive theplaintiffs/respondents Nos.1 and 2 of prima facie case. Even if a prima faciecase is available to a party, temporary injunction cannot be claimed as amatter of right and the Court has to take into consideration many relevantfactors, like those mentioned in the case Messrs Sui Northern Gas v. MessrsPakistan Cement Industries PLD 1968 Lah. 876-C. The relevant extract is quotedbelow for ready reference:—

“In matter of temporaryinjunction; prima facie case is not the only requirement, but a Court is alsorequired to examine the concepts of balance of convenience; irreparable loss;conduct of the parties; nature of suit; the time likely to be absorbed in it;the stakes of the parties involved and the workability and reasonableness ofthe orders proposed to be passed. If by issuing an order it is intended torelieve a party from certain oppression care should be taken at the same timeas not to create oppression for the other party.”

11. Construction on personal risk and cost has beenallowed in joint land, in the reported cases cited by learned counsel for thepetitioners and extension of this facility to petitioners is justified inpeculiar background of this case too, because that the share of plaintiffs/respondents 1 and 2 has been calculated as only 1/4 Marla (41/36150 share) asmentioned in the written statement and the same could not be rebutted before uson the strength of Revenue Record. Through a discretionary relief, petitionersshould not be deprived of utilization of their major share for pretty longperiod expected to be consumed till final decision of partition suit, whenpetitioners are undertaking to deliver them their share, when it is determined.This is permissible in the light of the case of Haji Shah Jahan Khan reportedin PLD 1995 SC page 462, the case of Muhammad Bashir reported in 2006 MLD page435 and para.4 of the judgment in case of Fazal Din, reported in 1994 MLD page550. On this score too the impugned order is not within the legal frameworkcovering the temporary injunctions and status quo order, as it may amount toput the petitioners under oppression. For these reasons we accept this writpetition and set aside the impugned order being without lawful authority and ofno legal effect against the petitioners.

H.B.T./30/P Petitionaccepted.