P L D 1968 Lahore 708 (PLP)

H. M. Muhammad Ibrahim v. M. R. Abdul Hafeez Sahib A I R 1950 Mad. 371 rel. Sm. Kamala Bala Debi and another v. Emperor A I R 1931 Cal. 711 and Radharani Debi v. Nibaram Chandra Mukerji A I R 1929 Cal. 512 ref. Ch. Muhammad Farooq and Sh. Muhammad Nazir for Appellants. Ch. Muhammad Hussain for Respondents. Date of hearing : 17th October 1967. Nur Hussain and eight others (hereinafter called the applicants) filed an application under section 62 of the Lunacy Act IV of 1912, in the Court of the District Judge, Lahore, on the 12th of September 1966. The application was to the effect that Ibrahim son of Ismail caste Kamboh resident of Tapiala Dost Muhammad Tehsil Ferozewala District Sheikhupura was a lunatic and unable to look after his property. It was prayed in the application that necessary enquiry into the matter may be held and some suitable orders should be passed for the Management of his property so that Mst. Fatima (who was made respondent No. 1 and who was the wife of the lunatic) and Ismail and Ibrahim (who were made respondents Nos. 2 and 3 and who were his brothers‑in‑law) may not be able to dispose of or misappropriate his property. In the application, the residence of Ibrahim lunatic was shown as Tapiala Dost Muhammad Tehsil Ferozewala District Sheikhupura. This application was marked by the learned District Judge, Lahore, to the Additional District Judge, Sheikhupura. When the case reached the Court of the learned Additional District Judge, Sheikhupura, an application under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure was filed before him for issuing a temporary injunction restraining the aforementioned respondents from alienating the property of the lunatic in the meantime. In the said application, it was averred that Ibrahim lunatic at that time was in Mauza Kanjanwali near Pul Qadirwala District Gujranwala and his land was situated in Mauza Tapiala Dost Muhammad. The respondents in the main application took objection to the issuance of the temporary injunction on various grounds. The learned Additional District Judge, however, not agreeing with the objections of the said respondents rejected them and issued a temporary injunction that till the decision of the case pending before him they should not alienate the land of Ibrahim. The said respondents have come up in appeal under section 83 of the Lunacy Act to this Court and will hereinafter be called as appellants. The learned counsel for the appellants has raised a number of contentions before me which are almost the same as were dealt with by the learned Additional District Judge.

2. The first point argued by the learned counsel for the appellants was that there is no jurisdiction under the Lunacy Act to issue a temporary injunction with regard to the property of an alleged lunatic. There is no force in this contention. Firstly, because it is an admitted fact that the District Judge has a power to appoint managers of the property of a lunatic. If the jurisdiction to appoint managers is there, then undoubtedly to make ad interim arrangements with regard to the property which is the subject‑matter of adjudication before the District Judge, will also be there. It was held in Krishna Ayyar v. Subbalakshmi Ammar (A I R 1914 Mad 724) that where there is a power to appoint a guardian of a lunatic the same would include in it the power to issue directions regarding the temporary custody of a lunatic. The precise point in that case was whether orders regarding temporary custody of a lunatic were appealable or not. It was held that such orders were included within the general power of appointing a guardian and since they were a part and parcel of the same jurisdiction, they were orders passed under the Act and were thus appealable. Applying the same principle to the facts and the circumstances of the present case, I am of the view that the power to appoint a manager would include the power to issue temporary injunctions with regard to the property B about which a manager is to be appointed. Similarly, it was held In re: Mian Sultan Ali Nanghiana v. Mian Nur Hussain (P L D 1949 Lah. 301) per Cornelius, J. (as then his Lordship was), while examining the question of issuing interlocutory orders, that it is undeniable that where this Court is empowered by law to grant relief, it must also have the power pending decision upon a prayer for such a relief to direct by an interlocutory order that the position as between the parties should not be altered until their respective rights were finally determined." Secondly, it is laid down in section 141 of the Code of Civil Procedure that the procedure prescribed in the Code, shall be followed as far as it can be made applicable in all proceedings in any Court of Civil jurisdiction. It cannot be disputed that a District Judge, when proceeding under the Lunacy Act, is a Court of a civil jurisdiction. This is inherent in the definition of the "District Court" as contained C in the Lunacy Act itself and was so laid down in Mod Lal Seat v. Nepal Chandra Pal and others (A I R 1918 Cal. 353), Maharajah Jugunnath Sahee Deo v. Barra Lal Opendronath Sahee Deo ((1897) 5 W R (Misc.) 54) and Busrat Ali Chowdhry v. Eshan Chunder Roy, Mookhtear on behalf of Arfanissa Chowdhrain ((1867) 7 S W R 267) It was held in E. D. Sassoon & Company v. Mangalchand and others ((1909) 3 S L R 128) that provisions of Order XXXIX, rule 1, C. P. C., are procedural provisions and can 'be invoked by any Court of Civil jurisdiction by dint of section 141, Civil Procedure Code. The power to issue temporary injunction can, therefore, be invoked by a District Judge by virtue of the provisions of section 141 of the Code of Civil Procedure.

3. The second point argued by the learned counsel for the appellants was that under section 62 of the Lunacy Act, an application is to be made to the District Court. The word "District Court" is defined in section 3(3) of the said Act as the principal Civil Court of original jurisdiction in any area. The learned counsel submits that it is only the District Judge who is the principal Civil Court of original jurisdiction and not the Additional District Judge. He argues that in these circumstances, the learned Additional District Judge, Sheikhu pura, had no jurisdiction to issue a temporary injunction. The argument has no substance. Sections 5 and 6 of the West Pakistan Civil Courts Ordinance, 1962, clearly lay down that a District o Judge can transfer any case pending before him to an Additional District Judge who shall have the same power as the District Judge.

4. The third point argued by the learned counsel for the appellants was that at the time when the temporary injunction was issued, the lunatic was residing in District Gujranwala and, therefore, the District Judge or Additional District Judge, Lahore, had no jurisdiction to issue the said temporary injunc tion. This contention has no force. Merely because a lunatic goes away from one district to another would not deprive the E District Judge, within whose jurisdiction he has a permanent ,residence, of the power to proceed under the Lunacy Act. The fact that the permanent residence of the lunatic was in Village Tapiala Dost Muhammad Tehsil Ferozewala District Sheikhupura, is not denied. In that view of the matter, merely temporary movement of the lunatic from one place to another could not .deprive the District Judge or the Additional District, Lahore, of his jurisdiction to pass the order in question. The principle is well‑settled but if authority be needed reference can be made H. M. Muhammad Ibrahim v. M. R. Abdul Hafeez Sahib (A T R 1950 Mad. 371) Sm. Kamala Bala Debi and another v. Emperor (A I R 1931 Cal. 711) and Radharani Debi v. Nibaran Chandra Mukerji (A I R 1929 Cal. 512).

5. The last point argued by the learned counsel for the appellants was that no order with regard to the Management of the property in question could have been passed by the learned Additional District Judge until and unless he had first recorded a finding that Ibrahim was a lunatic. In other words, he submits that there is no jurisdiction in the District Judge or the Additional District Judge to issue ad interim injunctions. I am afraid, h cannot accept this contention. The jurisdiction for the purposes of a prima facie case is to be gathered from the averments made in the plaint the documents attached therewith and other similar relevant material. If a Court is convinced that there is a prima facie case, then on the principle laid down by Cornelius, J., In re: Mian Sultan Ali Nanghiana v. Mian Nur Hussain the jurisdiction to issue a temporary injunction would also be there, provided the other conditions necessary in that behalf like the balance of' convenience, the conception of irreparable loss and the conduct of the parties are fulfilled.

6. No arguments were addressed to me on the merits of the case itself. The temporary injunction issued by the learned Additional District Judge is an innocent type of injunction which restrains the appellants from alienating the property of Muhammad Ibrahim. If the appellants are straight forward persons they should have no objection in accepting such an injunction. It causes no loss to them though, on the other hand, it purports to preserve the property of Muhammad Ibrahim. The balance of convenience lies in favour of issuing a temporary injunction and the learned counsel for the appellants has not been able to, show as to why this injunction should be vacated.

7. The appeal has no substance and is hereby dismissed with costs. S.A.H. Appeal dismissed