PLJ 2023 Quetta 110
Present: Muhammad Aamir Nawaz Rana, J.
FAQIR MUHAMMAD--Petitioner
versus
MUHAMMAD YOUNAS and another--Respondents
C.R. No. 11 of 2022, decided on 12.08.2022.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX Rr. 1, 2 & Ss. 115, 151--Application for interim relief--Dismissed--Appeal--Dismissed--Parameters for grant of ad-interim injunction--Scope of petition--Report of inquiry committee was not challenged by Respondent No. 1 before any forum--Inherited property--Owner is in possession of suit property--Direction to--Without dilating upon merits of report of inquiry committee; lest, it could prejudice case of either party which has to be decided on its own merits by trial Court, at this juncture in view of available material, there was no justification before fora below to reject request of petitioner for grant of ad-interim stay, as prima facie, petitioner has made out a case in his favour--Revision petition allowed. [P. 113] A
Mr. Ajmal Khan Kakar, Advocate for Petitioner.
Mr. Abdul Sadiq Khilji, Advocate for Respondent No. 1.
Mr. Naseer-ud-Din Mengal, Additional Advocate General for Respondent No. 2.
Date of hearing: 3.08.2022.
Order
The petitioner had filed a suit for declaration, mandatory and permanent injunction along with an application under Order XXXIX Rules 1 & 2, CPC r/w Section 151, CPC before learned Senior Civil Judge-I, Quetta (hereinafter “the trial Court”) seeking the following relief:
“It is, therefore, respectfully prayed that ill the disposal of the instant suit, the private respondent/defendant through official defendant be restrained not to interfere, trespass or illegally take over the possession of the properties in question or making any construction or create any third party interest in the property in question i.e. bearing Khasra No. 168,170
(Qita-2), total measuring 5-Rods 4-8/15-poles situated at Mahal Khushkaba Sra-Khula Mouza Sra-Khula Tappa Surrani-I Tehsil Saaddar District Quetta, boundaries whereof have been mentioned in Para No. 02 of the plaint, in the interest of justice, equity and fair play”.
The said application was rejected by the trial Court vide order dated 19.11.2021 and the appeal so filed by the petitioner was also dismissed by learned Additional District Judge-II, Quetta (hereinafter “the appellate Court”) vide order dated 31.12.2021. Both the orders of fora below are impugned through this petition.
2. Facts necessary to understand the controversy between
the parties are that the petitioner has based his claim as recorded owner in possession of suit property mentioned in detail in para-02 of this suit and has asserted that Defendant No. 1 is interfering in peaceful possession of the petitioner without any justification or legal excuse.
The petitioner has relied upon the revenue record of the suit property falling under Khasra Nos. 168, 170(Qitat-2) measuring 5-Rod 4-8/15-poles and further reliance has been made upon site map of the suit property allegedly prepared on 05.08.2008 in which specific boundaries (Tatima) of the suit property, as per version of the petitioner, is chalked out, whereas the Respondent No. 1 in his written statement has strongly repudiated the assertions of the petitioner on legal and factual grounds and has mainly contended that the suit property in fact had been purchased by Respondent No. 1 from its previous owner namely Shafique-ur-Rehman and said Shafique-ur-Rehman had purchased the property from Bibi Khadija who happened to be the relative of the petitioner. The possession of the suit property, as claimed by the petitioner, has been denied by Respondent No. 1.
Arguments heard from both contesting parties and record perused.
3. The learned counsel for the petitioner strongly questioned the legality of the impugned orders and asserted that petitioner had excellent prima facie case, being owner in possession of suit property (as depicted by revenue record) and suit property being his inherited property was free from any encumbrances and Respondent No. 1 has absolutely no locus standi to interfere in the suit property. The counsel for the petitioner pointed out that nevertheless, in order to resolve the aspersions regarding suit property on the application of the petitioner, inquiry was conducted by the Collector/Deputy Commissioner, Quetta and the findings of the said revenue report, as per version of the petitioner, are in favour of petitioner and against the Respondent No. 1, so on these grounds the counsel for petitioner submitted that both the Courts below badly failed to exercise jurisdiction vested in them and without considering the available record through impugned orders, the interim relief was denied to the petitioner.
4. The counsel for Respondent No. 1, on the other hand, supported the impugned orders and submitted that the suit filed by the petitioner was not maintainable on legal grounds, therefore, the stay application had rightly been rejected by the Courts below on merits.
The counsel of Respondent No. 1 further contended that valid mutation entries are existing in favour of applicant/plaintiff, which have never been challenged by any party including the petitioner so the counsel for Respondent No. 1 requested for dismissal of instant revision petition, as according to him, ingredients for grant of stay are not available to the petitioner.
5. The contentions of both the parties were considered in the light of available record, since rejection of stay application so filed by the petitioner is the subject matter, therefore, while confining scope of this petition to the parameters provided by Order XXXIX Rules 1 & 2, CPC (which contemplates prima facie case, irreparable lose and balance of convenience and inconvenience as pre-requisite for entertaining request for grant of ad-interim injunction), cursory analysis has been undertaken.
Prima facie, the petitioner is seeking stay to the extent of property mentioned in para-02 of the plaint, which as per contention of the petitioner, is recorded in his favour as inherited property and separate (Tatima) also exists, whereas the result of inquiry conducted on the application of the petitioner in revenue hierarchy, prima facie is in favour of the petitioner.
6. The counsel for Respondent No. 1 during course of the Arguments was confronted whether, the finding of said inquiry report has been challenged before any forum by the Respondent No. 1; but the only answer received was that proceedings are under way on revenue side in this regard.
Be that as it may, and without dilating upon the merits of report of inquiry committee; lest, it could prejudice the case of either party which has to be decided on its own merits by the trial Court, at this juncture in view of the available material, we find that there was no justification before the for a below to reject the request of the petitioner for grant of ad-interim stay, as prima facie, the petitioner has made out a case in his favour. Resultantly, the impugned orders dated 19.11.2021 passed by the trial Court and 31.12.2021 passed by the appellate Court are hereby set aside and the application so filed by the petitioner under Order XXXIX Rules 1 & 2, CPC is allowed and directions are issued to the trial Court to expedite the proceedings and preferably decide the matter within the shortest possible period on its own merits and without being influenced from the observations made in this order which are purely tentative in nature.
(Y.A.) Petition allowed
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