PLJ 2023 Peshawar 163
[Mingora Bench]
Present: Shahid Khan, J.
GUL YAR--Petitioner
versus
IZZAT GUL--Respondent
C.R. No. 164-M with C.M. No. 649-M of 2023, decided on 9.5.2023.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX Rr. 1 & 2--Application for grant of temporary injunction—Dismissed--Dismissed--Appeal--Possession of suit property was laying with respondent--Raising of construction on suit property by respondent--Ingredients for grant of temporary injunction--A party who is relying on a specific deed or document of title, in respect of his ownership, he/she has to prove same through cogent & trustworthy evidence--Possession of suit property is lying with respondent and over which has already raised construction on his own risk & cost subject to condition that in case any favourable decree pass in favour of petitioner then in that eventuality, he will not claim any compensation for construction so raised over suit property, as such, two Courts below have rightly dismissed application of petitioner for grant of temporary injunction through impugned judgements, which are neither perverse nor arbitrary nor whimsical--Grant of temporary injunction under Order 39 Rule 2 C.P.C, petitioner is required to establish existence of three essential ingredients i.e. a prima facie case, balance of inconvenience and irreparable loss if interim injunction is not granted in his favour, however, in given facts & circumstances of case in hand, petitioner has not been able to establish aforesaid ingredients--Impugned judgments of two Courts below respectively passed in accordance with law, as such, same are upheld & maintained--Petition dismissed. [Pp. 165 & 166] A, B, C & D
2022 CLC 502 & 2016 CLC 83 ref.
Mr. Muhammad Naeem, Advocate for Petitioner.
(respondent is not represented being a motion case).
Date of hearing: 9.5.2023.
Judgment
Through the subject revision petition, petitioner has challenged, called in question, the legality & propriety of order/ judgment of learned Additional District Judge/Izafi Zila Qazi, Chakdara, Dir Lower, dated 29.03.2023, whereby, the appeal preferred by petitioner/plaintiff was dismissed and maintained & upheld the order/judgment of learned Civil Judge/Illaqa Qazi-II Chakdara, dated 07.03.2023, vide which, the application of the petitioner for the grant of temporary injunction was dismissed.
2. In essence, the petitioner then plaintiff brought a suit for declaration, permanent injunction & possession, alleging therein that he has purchased the suit property commonly known as “Grra “, on the strength of sale deed dated 28.06.1986, in lieu of sale consideration of Rs. 1,40,000/-. It was further alleged in the plaint that on southern side of his purchased property, a public thoroughfare is situated, which has allegedly been converted into a “Kacha Road” and the same has been declared as ownership of petitioner/plaintiff.
3. Along with his plaint, the petitioner/plaintiff has also filed an application for the grant of temporary injunction.
4. The respondent then defendant was summoned, who on appearance submitted his written statement, raising various legal & factual objections. He also contested the application so furnished by the petitioner for the grant of temporary injunction by filing his replication.
5. After hearing arguments of both the learned counsel for the parties, the learned trial Court vide order/judgment dated 07.03.2023 dismissed the application of petitioner/plaintiff. Feeling aggrieved of the aforesaid order/judgment, the petitioner/plaintiff filed an appeal to the Court of learned Additional District Judge/Izafi Zila Qazi, Chakdara, Dir Lower, however, the same was also dismissed vide the second impugned order/judgment dated 29.03.2023.
6. It obliged the petitioner to approach the Court of competent jurisdiction for an appropriate remedy.
7. Arguments of learned counsel for the parties have been heard and the record scanned with their valuable assistance.
8. A bare look of the record made available would transpire that the main claim of the petitioner/plaintiff pertains to a suit land, commonly known as Grra, situated within the revenue estate of Bambolai Bala, which was purchased by him from one Jehandar Shah, on the strength of sale deed dated 28.06.1986. It was further claimed by the petitioner/plaintiff in his plaint that there is a thoroughfare situated on the southern side of his purchased property, which was later on converted to Kacha Road and the same has been given in his ownership. It is a century long old principle that a party who is relying on a specific deed or document of title, in respect of his ownership, he/she has to prove the same through cogent & trustworthy evidence, however, the aforesaid deed on one hand is scribed on a plain paper and on the other the same is an unregistered document/deed.
9. Other than the above, it is also part of the record that possession of the suit property is lying with the respondent/defendant and over which the has already raised construction on his own risk & cost subject to the condition that in case any favourable decree pass in favour of petitioner/plaintiff, then in that eventuality, he will not claim any compensation for the construction so raised over the suit property, as such, the two Courts below have rightly dismissed the application of petitioner/plaintiff for the grant of temporary injunction through the impugned orders/judgements, which are neither perverse nor arbitrary nor whimsical.
10. There is no second opinion about the fact that for grant of temporary injunction under Order 39 Rule 2 C.P.C, petitioner/plaintiff
is required to establish the existence of three essential ingredients i.e. a prima facie case, balance of inconvenience and irreparable loss if the interim injunction is not granted in his favour, however, in the given facts & circumstances of the case in hand, he has not been able to establish the aforesaid ingredients. This Court in case titled “Javed Iqbal and 5 others vs. Government of Khyber Pakhtunkhwa through Secretary Local Government, Peshawar and 4 others reported as 2022 CLC 502, has held that:
“For grant of temporary injunction, it is sine-qua-non for the petitioners/plaintiffs to have on record a prima facie case qua balance of convenience and irreparable loss with co-existence of these ingredients in their favour.
Similarly, in case titled Shahzad Trade Links through Sole Proprietor and another vs. MTW Pak Assembling Industries (Private) Limited through Representative and others reported as 2016 CLC 83, the Sindh High Court has recorded the following observations, in respect of the fact-in-issue:
“No injunction can be issued unless all required ingredients namely prima facie case, balance of convenience and irreparable loss to aggrieved party, were found to subsist.
11. In view of the above discussion, the impugned orders/ judgments of two Courts below respectively dated 07.03.2023 and 29.03.2023 are passed in accordance with law, as such, the same are upheld & maintained and the subject petition stands dismissed, in limine.
(Y.A.) Petition dismissed
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