— حکم امتناعی عارضی مسترد کر دیا گیا— بین الدّوری احکامات— اختیارِ عالیہ عدالت— آئینی دائرہ اختیار— چیلنج— حکم امتناعی عارضی برائے وقتی طور پر مسترد کر دیا گیا اور وہی حکم .................

 PLJ 2025 Lahore 832
Present: Malik Waqar Haider Awan, J.
ARSHAD IQBAL RANA--Petitioner
versus
SALMAN SAJJAD etc.--Respondents
W.P. No. 42046 of 2025, decided on 8.7.2025.

Civil Procedure Code, 1908 (V of 1908)--

----O.XXXIX & Rr. 1 & 2--

آئین پاکستان، 1973، آرٹیکل 199— حکم امتناعی عارضی مسترد کر دیا گیا— بین الدّوری احکامات— اختیارِ عالیہ عدالت— آئینی دائرہ اختیار— چیلنج— حکم امتناعی عارضی برائے وقتی طور پر مسترد کر دیا گیا اور وہی حکم اگلی تاریخِ سماعت تک نافذ العمل رہے گا— درخواست برائے حکم امتناعی عارضی کے ذریعے جو ریلیف طلب کیا گیا، اس کا حقِ ارتفاق سے کوئی تعلق نہیں تھا بلکہ یہ مدّعی علیہ کی جائیداد پر تجاوز کے مترادف ہے— جب حقِ ارتفاق کو حقوقِ ملکیت کے بالمقابل رکھا جائے تو بلاشبہ حقوقِ ملکیت غالب رہتے ہیں اور نام نہاد حقِ ارتفاق کی آڑ میں انہیں شکست نہیں دی جا سکتی— عالیہ عدالت کی جانب سے حکم امتناعی عارضی کی منظوری، ٹرائل کورٹ کے جوتوں میں قدم رکھنے کے مترادف ہو گا جو قانون کے تحت جائز نہیں ہے— زیرِ اعتراض احکامات بے عیب تھے اور عالیہ عدالت کی جانب سے کسی مداخلت کا تقاضا نہیں کرتے تھے— بالا، اس امر سے غیر مبہم طور پر واضح ہے کہ عدالت ہائے ماتحت کی جانب سے حکم امتناعی عارضی کی منظوری یا مسترد کرنے کو چیلنج کر کے عالیہ عدالت کے آئینی دائرہ اختیار کو بروئے کار لانا مناسب تدارک نہیں تھا کیونکہ درخواست برائے حکم امتناعی عارضی کا فیصلہ ہونا ابھی باقی تھا— آئینی دائرہ اختیار ایک غیر معمولی دائرہ اختیار ہونے کی حیثیت سے بین الدّوری احکامات کو چیلنج کرنے کے لیے بروئے کار نہیں لایا جا سکتا جو حتمی یا قطعی نوعیت کے نہیں تھے— درخواست خارج کر دی گئی۔

Constitution of Pakistan, 1973, Art. 199--Interim injunction was declined--Interlocutory orders--Mandate of High Court--Constitutional jurisdiction--Challenge to--Ad interim injunction was declined for meanwhile and that very order would be operative till next date of hearing--Relief sought for through application for interim injunction had no nexus with easement rights rather it amounts to trespass property of adversary--When easement rights were kept in juxtaposition with ownership rights, indubitably ownership rights prevail and could not be defeated in garb of so-called easement rights--Grant of ad interim injunction by High Court would tantamount to step into shoes of trial Court which was not mandated by law--The impugned orders were unexceptionable and did not call for any interference by High Court--In light of above, it is unequivocally clear that invoking constitutional jurisdiction of High Court by challenging grant or refusal of ad interim injunction by Courts below was not an adequate remedy as application for grant of temporary injunction was yet to be decided--Constitutional jurisdiction being an extraordinary jurisdiction could not be invoked to challenge interlocutory orders that were not final or conclusive in nature--Petition dismissed. [Pp. 835, 836, 837 & 838] A, B, C, D & E

2023 SCMR 1442; 2022 SCMR 472; 2021 SCMR 624 &

2024 SCMR 1385 ref.

Mr. Ibrahim Haroon, Advocate for Petitioner.

Date of hearing: 8.7.2025.

Order

Through this constitutional petition, petitioner has challenged the vires of orders dated 01.07.2025 and 03.07.2025 passed by learned Civil Judge Class -I, Lahore and learned Additional District Judge, Lahore, respectively. By virtue of the former, in a suit for declaration, specific performance, permanent injunction with mandatory injunction as consequential relief and alternatively recovery of damages filed by petitioner, request for grant of ad interim injunction has been declined by learned trial Court and through the latter, the same has been validated by learned appellate Court.

2. At the inauguration of hearing, learned counsel for petitioner has been confronted with the question of maintainability of this constitutional petition filed against refusal of ad interim injunction (an interlocutory order), he submits that no other alternate efficacious remedy is available to petitioner, thus in the light of phrase “where there is a right, there is a remedy”, this petition is maintainable. While referring to clause (c) of sub -clause (1) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter called “Constitution”), learned counsel contends that against erroneous orders passed by both the learned Courts below, though interim in nature, constitutional jurisdiction of this Court can be invoked. Places reliance on Pioneer Pakistan Seed Ltd. v. United Distributors Pakistan Ltd. and 5 others (1998 CLC 61) and Hafiz Muhammad Owais v. Additional District Judge and others (2024 CLC 577).

3. While lengthening his arguments and pressing to highlight the facts of this case, learned counsel pleads that petitioner purchased Flat No. 1, First Floor, Dastgir Arcade, Sham Nagar Chauburji, Lahore from Respondents No. 1 and 2 through registered sale deed No. 1870 dated 18.04.2007 . Submits that said flat is situated at the last storey of the building and over the roof top, petitioner’s exclusive water tank as well as solar plates have been installed. Argues that now, owner of the building wants to raise further construction over the petitioner’s flat which is in violation of provisions of the Punjab Environmental Protection Act, 1997 as no approval in this regard has been taken from the concerned authority by Respondents No. 1 and 2. Highlights that under the Easements Act, 1882, petitioner has got the right to use roof top of the building and for the purpose, he has sought restraining order regarding modifications or alterations to the completed 03 storey building. Further submits that there are two types of easements viz. easement by prescription and easement by necessity and to seek the right of easement by necessity, neither an instrument in writing nor a registered document is required. Adds that water and electricity are basic necessities of life which are protected under Article 9 of the Constitution as quality life is right of every citizen. While concluding his arguments, learned counsel has laid stress on three ingredients for grant of ad interim injunction i.e. prima facie arguable case, balance of convenience and irrep arable loss and prays for setting aside the impugned orders being not sustainable in the eye of law. Relies upon judgment dated 26th July, 1909 passed in Letters Patent Appeal No. 18 of 1909 by Allahabad High Court titled Bhagwan Sahai v. Lala Narsingh Sahai and judgments reported as Musunoori Satyanarayana Murti v. Chekka Lakshmayya and others (A.I.R. 1929 Madras 79), Mian Nur Hussain and others v. Khalifa Muhammad Sultan and others {PLD 1956 (W.P.) Lahore 893}, Muhammad Ramzan v. Mirza Naseer Beg (1980 CLC 1555), Husn Bano Begum v. Zaka Ali Khan and 3 others (1983 CLC 1348), Vazir Ali and 5 others v. Hanif (1990 CLC 1842), Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another (1992 CLC 2540), Mian Muhammad Jehangir and 17 others v. Government of the Punjab through Secretary, Housing and Physical Planning, Lahore and 6 others (PLD 1999 Lahore 1), Clifton Centre Association (CCA), Clifton, Karachi through General Secretary v. City District Government through Nazim-e-Aala, Municipal Building, Karachi and 3 others (PLD 2003 Karachi 477), The State and others v. Director-General, FIA and others (PLD 2010 Lahore 23), Mst. Humaira Aslam v. Abdul Rahim Rafi (PLD 2016 Sindh 598) and Mrs. Farkhanda Farouq and others v. Defence Housing Authority and others (2019 CLC 695).

4. Preliminary arguments heard. Record perused.

5. At the first instance, it is imperative to decide the question of maintainability of this petition instituted under Article 199 of the Constitution. The Supreme Court of Pakistan in judgment reported as Muslim Commercial Bank Limited v. Muhammad Anwar Mandokhel (2024 SCMR 298) has held that every Court prior to taking cognizance of and adjudicating upon an issue should first resort to the question of assumption of jurisdiction of the Court. If it comes to the conclusion that jurisdiction can be assumed only then it can adjudicate upon the issue.

6. First of all, it would be expedient to throw light on the case-law cited by learned counsel for petitioner on the point of maintainability of this petition. In the case of Pioneer Pakistan Seed Ltd. (supra), this Court held that against any order of granting or refusing injunction, ad interim or otherwise, First Appeal against order under Order XLIII Rule 1(r) CPC is maintainable whereas in the instant case, petitioner has invoked the constitutional jurisdiction of this Court, thus the afore-referred case-law is not applicable. The case of Hafiz Muhammad Owais (supra) would also not be helpful for petitioner for the reason that in the instant case, learned trial Court has declined the request of ad interim injunction meaning thereby application under Order XXXIX Rules 1 and 2 CPC filed by petitioner is still pending adjudication before learned trial Court. It would not be out of context to mention here that ad interim injunction is declined for the meanwhile and that very order would be operative till the next date of hearing i.e. 25.07.2025.

7. As regards rest of the arguments advanced by learned counsel for the petitioner, the same pertain to factual controversy, resolution of which requires recording of evidence which this Court in its constitutional jurisdiction exercised under Article 199 of the Constitution cannot undertake in the light of judgments reported as Special Secretary-II (Law and Order), Home and Tribal Affairs Department, Government of Khyber Pakhtunkhwa, Peshawar and others v. Fayyaz Dawar (2023 SCMR 1442), Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others (2022 SCMR 472), Province of Punjab through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central) Punjab Highway Department, Lahore v. Yasir Majeed Sheikh and others (2021 SCMR 624) and Messrs Fateh Yarn Pvt. Ltd. Faisalabad v. Commissioner Inland Revenue Faisalabad and others (2021 SCMR 1133).

8. It is crucial to mention here that the basic document, up on which whole infrastructure of petitioner’s case is built up , is the registered sale deed showing petitioner’s ownership and agreement qua total payment of sale price. Both these documents are self-exp lanatory and speak otherwise as it is clearly mentioned therein that sale is without ownership of land and roof top which clarifies the actual situation. The exact wording in the afore-referred documents is reproduced hereunder:

بغیر ملکیت زمین زیریں و چھت بالائی

9. Learned counsel, during the course of arguments, has laid great stress on the fundamental rights guaranteed under the Constitution. There is no cavil to the proposition that fundamental rights of every citizen of Pakistan are protected in the Constitution but same are subject to some conditions coupled with reasonable classification.

10. To my mind, the relief sought for through application for interim injunction has no nexus with easement rights rather it amounts to trespass the property of the adversary. When easement rights are kept in juxtaposition with ownership rights, indubitably ownership rights prevail and cannot be defeated in the garb of so-called easement rights.

11. The assertion of learned counsel for the petitioner that Respondents No. 1 and 2 are having no sanction from the concerned quarters and raising construction over the petitioner’s flat will result into private nuisance does not hold water. It goes without saying that petitioner has nothing to do with it and if Respondents No. 1 and 2 violate any law, they will have to face the music.

12. During the course of arguments, learned counsel for the petitioner accentuated the basic ingredients for grant of ad interim injunction. The observations made in paragraphs No. 7 and 8 of this order are sufficient to meet with this point. An ad interim order granted by a Court holds the field till the next date of hearing and a litigant is supposed to get decided his application for grant of temporary injunction filed under Order XXXIX Rules 1 and 2 CPC. The grant of ad interim injunction by this Court would tantamount to step into the shoes of learned trial Court which is not mandated by law. As discussed above, the constitutional jurisdiction of this Court is supervisory and extraordinary which can only be exercised in exceptional circumstances such as violation of fundamental rights, lack of jurisdiction by lower Court, gross miscarriage of justice and if the orders passed by lower Courts are in violation of natural justice. In the instant case, situation is otherwise, therefore, in my considered view, the impugned orders are unexceptionable and do not call for any interference by this Court.

13. I am fortified with the view taken in judgment reported as Rashid Baig and others v. Muhammad Mansha and others (2024 SCMR 1385) wherein it has been held that High Court must exercise the constitutional jurisdiction keeping in view that it is an interim order, as every interim order need not to be challenged at that stage because when a suit is finally decided by the trial Court, all the interim orders become open in appeal. Paragraphs No. 3 and 4 being essential in this respect are reproduced hereunder:

3. When a party challenges any interim order during the pendency of a suit under revisional jurisdiction or constitutional jurisdiction vested in the revisional Court or the High Court, we are of the view that the Court has to exercise the jurisdiction keeping in view that it is an interim order, as every interim order need not to be challenged at that stage because it is now settled that when a suit is finally decided by the trial Court, all the interim orders become open in appeal, if there is a defect in the interim order that is open to scrutiny at the stage of final appeal, as the first appeal is continuation of a trial and first appellate Court is a Court of fact and law. But, if a party to the suit opts to challenge an interim order when it is passed through appellate jurisdiction, revisional jurisdiction or constitutional jurisdiction, while exercising such jurisdiction the scope of jurisdiction vested in the Court must be in the view of the party challenging the same and we expect that while dealing with the interim order the Court must also keep in view the scope of jurisdiction to scrutinize the interim orders.

4. We are clear in our mind that when a party comes to the High Court in constitutional jurisdiction, he is bound to show that the order challenged through the constitutional jurisdiction is without jurisdiction then the High Court can exercise the constitutional jurisdiction to declare the order as such. When an order has been passed while exercising discretion, the same cannot be declared by any stretch of imagination to be without jurisdiction, therefore, the High Court has rightly exercised the jurisdiction while dismissing the writ petition as the orders impugned before the High Court were with jurisdiction while exercising discretion in favour of the vigilant party.

14. Last but not the least, the expressions “adequate” and “satisfaction” used in clause (1) of Article 199 of the Constitution are significant. It is worth mentioning here that meaning of “adequate” is not provided in the Constitution, hence ordinary dictionary meaning is to be adopted as provided in Black’s Law Dictionary (12 th Edition) which is as follows:

Adequate, 1. Fully satisfying requirements; sufficient, suitable, and acceptable in both quality and quantity. 2. Legally sufficient; sufficing as a matter of law. 3. Minimally satisfactory, barely reaching an acceptable standard; just good enough.

15. With regard to the expression “satisfaction”, I am clear in my mind that for maintainability of a constitutional petition, satisfaction of this Court is sine qua non to the effect that no other adequate remedy is available to the litigant under the law.

16. In the light of above, it is unequivocally clear that invoking the constitutional jurisdiction of this Court by challenging grant or refusal of ad interim injunction by learned Courts below is not an adequate remedy as application for grant of temporary injunction is yet to be decided. I am afraid that if litigants are allowed to question grant or refusal of ad interim injunction through constitutional petitions, it will open floodgates. In the light of above discussion, it can safely be concluded that constitutional jurisdiction being an extraordinary jurisdiction cannot be invoked to challenge interlocutory orders that are not final or conclusive in nature.

17. All respect to the esteemed judgments referred to by learned counsel for the petitioner but the same pertain to final orders and as such are not applicable to the facts of this case as this petition emanates from refusal of ad interim injunction (an interlocutory order).

18. Taking into account the foregoing reasons, it is clinched that this constitutional petition is not maintainable and stands dismissed in limine.

(Y.A.) Petition dismissed