PLJ 2024 Lahore (Note) 10
Present Raheel Kamran, J.
RABNAWAZ KHAN, etc.--Petitioners
versus
Mst. AMEERAN BIBI, etc.--Respondents
W.P. No 59846 of 2023, decided on 18.9.2023.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX Rr. 1 & 2--Application for grant of temporary injunction--Allowed--Appeal--Dismissed--Objection for dismissal of suit was turned down--Challenge to--Issues were already framing--The averments of counsel for petitioners cannot be appreciated without recording of evidence, their plea is not tenable at this stage--Respondents shall seriously prejudiced in case impugned restraining order qua alienation of property is recalled for third party rights may accrue causing undue inconvenience to respondents--No illegality, infirmity or jurisdictional error has been pointed out by learned counsel for petitioners in impugned decisions of Courts below, warranting interference of High Court in exercise of jurisdiction--Petition dismissed. [Para 4 & 5] A & B
Mr. Mushtaq Ahmad Dhoon and Ms. Naila Mushtaq Dhoon, Advocates for Petitioners.
Date of hearing: 18.9.2023.
Order
The petitioners have assailed the order dated 20.05.2023 passed by the learned Civil Judge, Mianwali whereby objection of the petitioners for dismissal of the suit was turned down however, application under Rules 1 and 2 of Order XXXIX of the CPC filed by the respondents was accepted as well as the order dated 15.06.2023 passed by the learned Additional District Judge, Mianwali whereby appeal of the petitioners against the aforementioned order was dismissed.
2. Learned counsel for the petitioners contends that the impugned decisions of the Courts below are against the law and facts and result of misapplication of law inasmuch as the impugned interim relief has been granted in disregard of the fact that the suit instituted by the respondents is not maintainable in view of provision of Section 172 of the Land Revenue Act, 1967. Maintains that even otherwise the suit is barred by limitation.
3. The appellate Court while declining the relief to the petitioners, observed in paragraphs No. 5 and 6 to the following effect:
5. First of all, I would like to discuss the maintainability of the suit. Learned counsel for the plaintiff has contended that the matter in hand is related to the correction of revenue record, therefore, the jurisdiction of Civil Court is barred u/S. 172 West Pakistan Land Revenue Act, 1976. Admittedly, the Mutation No. 4135 was sanctioned on 10.09.1965 pertaining to the land measuring 37-Kanals & 06-Marlas. It is also admitted that the aforesaid mutation has not been incorporated in the revenue record to the extent of land measuring 27-Kanals & 02-Marlas. This is not simple question of correction of record because the Respondent No. 1/appellant also sought decree for declaration to the affect that she is owner of suit property. Moreover, as per Section 53 West Pakistan Land Revenue Act, 1967, long standing entries of the revenue record can only be rectified/corrected by the Civil Court of competent jurisdiction. In this backdrop, learned Admonitive Judge rightly turned down the objection of appellants pertaining to the maintainability of the suit.
6. Now coming to the application for the grant of temporary injunction. It is not disputed that the Mutation No. 4135 dated 10.09.1965 was sanctioned in favour of Respondent No. 1/plaintiff to the extent of land measuring 37-Kanals & 06-Marlas. There is nothing on record, which suggests that appellants or their predecessor-in-interest (Ameer Qalam Khan) ever challenged the validity the mutation before any forum. The impugned mutation is still in field. At present, the Respondent No. 1/plaintiff has prima facie good arguable case and remaining ingredients for the grant of temporary injunction are also in her favour. No infirmity or any material irregularity has been found in the impugned order. Consequently, the instant appeal is dismissed being devoid of any legal force ......”
4. The above referred findings of the appellate Court are unexceptional. Even otherwise, issues in the suit have already been framed reflecting pleadings of the parties including issues relating to the limitation and maintainability of the suit. The averments of learned counsel for the petitioners cannot be appreciated without recording of evidence, therefore, their plea is not tenable at this stage. Additionally, the respondents shall seriously prejudiced in case the impugned restraining order qua alienation of the property is recalled for third party rights may accrue causing undue inconvenience to respondents.
5. In view of foregoing, no illegality, infirmity or jurisdictional error has been pointed out by learned counsel for the petitioners in the impugned decisions of the Courts below, warranting interference of this Court in the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Resultantly, instant petition, being devoid of any merit, is hereby dismissed in limine.
(Y.A.) Petition dismissed
0 Comments