2020 PLP 1713 (MLD)

ALI BAIG, J.

Through the instant civil revision petition filed under Section 115, C.P.C., the petitioners have challenged the validity of the impugned judgment/order dated 01-07-2019 passed by the learned District Judge Gilgit, whereby, the learned 1st appellate court has modified the judgment/order dated 22-04-2019 passed by the learned trial court in Civil Suit No.31/2019.

2. Through this consolidated judgment, I intend to dispose of three revision petitions filed under Section 115, C.P.C., bearing C. Rev. No.105/2019, C. Rev. No.124/2019 and C. Rev. No.132/20M as all the three revision petitions have arisen out of one and the same judgment passed by the learned District Judge Gilgit.

3. The brief facts essential for disposal of these revision petitions are that the present respondents Set-II/ plaintiffs (hereinafter called as plaintiffs) instituted a suit for perpetual injuction against defendants in the trial court to the effect that the plaintiffs being bona fide residents of Gilgit are entitled to bring construction material, i.e., sand gravel blocks etc. from within the limit of District Gilgit, whereas, the defendant No.3 in collusion with defendants Nos.8 to 23 has issued illegal order bearing SDK(D)/1505/2019 dated 03-04-2019, whereby, the defendant No.3 has restrained to bring/fetch construction material from Danyore Area which is illegal, ineffective on the rights of plaintiffs and liable to be cancelled. The defendants may also be restrained from transportation of blocks from Danyore to Gilgit City.

4. Along with the plaint, the plaintiffs had also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction. The learned trial court, without obtaining written statements on behalf of the defendants, had partially allowed the application of the plaintiffs filed under Order XXXIX, Rules 1 and 2, C.P.C. and defendants Nos.8 to 16 were restrained from transportation of blocks from block manufacturing centers of Danyore to Gilgit vide judgment/order dated 22-4-2019.

5. Feeling aggrieved and dissatisfied with the aforesaid judgment/order passed by the learned trial court, the defendants Nos.8 to 16 had filed an appeal in the court of learned District Judge Gilgit and the learned 1st appellate court also partially allowed the appeal of the defendants Nos.8 to 16 and they were allowed to transport building material/blocks from Danyore to Gilgit and has also modified the judgment/order of the learned trial court vide the impugned judgment/order dated 01-07-2019, hence these revision petitions.

6. The learned counsel appearing on behalf of the petitioners have contended that the impugned judgment /order passed by the learned 1st appellate court is contrary to law and facts on record of the case as such the impugned judgment/order passed by the learned 1st appellate court is not maintainable and liable to be set aside. The learned counsel for the petitioners has further argued that the learned 1st appellate court has travelled beyond its jurisdiction and pleadings of the parties while passing the impugned judgment/order and has passed the decree while deciding an application under Order XXXIX, Rules 1 and 2, C.P.C. which is not permissible under law. The learned counsel for the petitioners have further argued that there is civil dispute, regarding disputed pasture namely Sangudass, between residents of Danyore and Sultanabad; wherein, the learned District Judge has already granted injunction order by consent of the parties which is still in field, therefore, the impugned judgment/ order passed by the learned 1st appellate court is not sustainable and liable to be set aside.

7. On the other hand, the learned counsel for the respondents have supported the impugned judgment/ order passed by the 1st appellate court by contending that in the given circumstances, the learned 1st appellate court has passed well reasoned judgment which may be maintained as the learned trial court had illegally restrained the present respondents Nos.1 to 6 from transportation of blocks from Danyore to Gilgit.

8. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

9. Admittedly, the plaintiffs have sought only perpetual injunction in their plaint and have not sought declaration of title/ownership of suit land/pasture in the suit, therefore, consequential relief of permanent or interim injunction cannot be granted to the plaintiffs without declaration about their title/ownership. Thus, the learned trial court has erred in law by restraining the defendants from transportation of blocks from the block manufacturing centers of Danyore to Gilgit. Even otherwise, it is fundamental right of every citizen to carry any sort of business and sale items/blocks in any part/city of the country. Moreover, the following conditions have been laid down before an injunction can be granted by a court:-- (a) The property in dispute should be in danger of being wasted, damaged or alienated to any party to the suit. (b) The suit property should be in danger of being wrongfully sold in execution of decree. (c) Condition of prima facie existence of right in the applicant and its infringement by the respondent. (d) Irreparable loss or injury will occur to the plaintiff if injunction is not granted. (e) Mere fact that a prima facie case has been established will not entitle the plaintiff to an injunction unless the aforesaid conditions are fulfilled. The aforementioned conditions are lacking in the case of the plaintiffs.

10. As far as the impugned judgment/order passed by the learned District Judge Gilgit is concerned, from perusal of the impugned judgment/order passed by the learned 1st appellate court, it reveals that the learned 1st appellate court has passed the said order beyond the pleadings of parties and has passed the impugned order going deep into merits of the case which is not permissible under the law. Furthermore, admittedly another suit regarding disputed land/pasture of Sangudass between residents of Danyore and Sultanabad is subjudice before the trial court, wherein, the learned District Judge has reportedly granted ad-interim injunction on the consent of parties which is still in field. Thus, the impugned judgment/ order passed by the learned 1st appellate court is not sustainable in the eye of law. However, the respondents Set-II / plaintiffs may challenge the order bearing SDK-(D)/1505/2019 dated 03-04-2019, issued by defendant No.3 in the court of Collector Gilgit as he has passed the said order as Assistant Collector 1st Grade Sub-Division Danyore.

11. For the foregoing reasons and circumstances, these revision petitions are allowed. Consequently, the impugned judgment/order passed by the learned 1st appellate court as well as judgment/order passed by the learned trial court are set aside. The case is remanded back to the learned trial court with the direction to dispose of suit after obtaining written statement on behalf of defendants and recording of evidence of the parties within shortest possible time. Certified true copy of this judgment be sent to the learned trial court for information and further necessary action. Parties are left to bear their own costs. Certified true copy of this judgment be placed in C. Rev. No.105/2019 and C.Rev. No.132/2019. File. ZC/179/GB Petition allowed.