P L D 1977 Karachi 101 (PLP)

"That the entitlement of the plaintiff regarding Survey Nos. 124, 129 and 130 Drigh Township are disputed and the rights of the parties are still to be determined after careful examination of the records of the Revenue Authorities as well as the record of the K. D. A. and K. M. C." This application was also rejected by the Civil Judge on 13‑3‑1975 after hearing the counsel for both the parties and in para. No. 5 of the order he said "The main injunction application has not yet been argued and disposed of as the defendant No. 1 has not yet filed his counter‑affidavit and instead he has filed the present application." His conclusion as in para. 8 of his order was :‑ "In these circumstances in my opinion the main injunction application when heard can either be rejected or the ad interim injunction confirmed, but looking to the nature of the prayer made in the main injunction application or the order passed thereon, cannot be amended in the form of status quo, discharged, varied or set aside at this stage as is prayed by the defendant No.

1. I find that defendant No. 1 has failed to advance, sufficient grounds for his dissatisfaction over the ad interim injunction order. This application, therefore, merits no con sideration. I accordingly dismiss the same." A Miscellaneous Appeal was filed by the applicant to challenge this order which was also heard and disposed of by the Additional District Judge who passed the impugned order on 23‑4‑1975, and observed :‑ "So this appeal obviously fails on the ground that if no fresh circumstances are found and the K. D. A. had the full opportunity of hearing which they had not availed. I do not see that there is any reason to change the relief granted by the lower Court which is still to be confirmed." Obviously the applicant did not have the full facts of this case till 12‑4‑1975, as admitted in para. No. 9 of the revision application, where it is stated :‑ "As records were in a confused state, a joint survey was made recently i.e., on 12‑4‑1975 jointly by the officers of the applicant, Inspector of the Anti‑Corruption Department, Deputy Collector of Karachi, Mukhtiarkar, Karachi, and Revenue Supervisor, and the lay‑out plan giving the true picture has been prepared and is annexed hereto marked `H'. This plan clearly shows that respondent No. 1 is putting up illegal construction upon the land acquired long ago for construction of Drigh Village Colony which is being developed by the applicant." About the approval of the lay‑out plan granted earlier, it is stated that the respondent No. 1 had managed to obtain the same on false and fraudulent representations and it was subsequently withdrawn and was subject to proof of his title on the land. The correct position of the three survey numbers, according to the applicant was, that out of Survey No. 124 there was nothing which could be claimed by respondent No. 1 while out of Survey No. 129 there was only an area of 0.15 acres and from leaving thus a total of 0.21 acres which could be claimed by the respondent No.

1. In the background of facts of the case, as stated above, Mr. Waheed Farooqui, learned counsel for the applicant raised three‑fold contentions to support this revision. His first attack was based on the description of the property given in the plaint and consequently in the interim injunction issued by the Civil Court. The suit property according to him was unspecified as it was referred to in the plaint as well as the application under Order XXXIX, C. P. C. as part of survey Nos. 124, 129 and

130. The injunction against the applicant was therefore being misused, for, the respondent No. 1 could possibly claim only an area of 0.21 acres which is left over in these three survey numbers, a fact specified and pleaded in pares. 7 and 8 of the revision application ; but on spot, constructions were being raised on plots which were not confined to that area. The first respondent or his transferees had no right to construct upon an area which was not in their entitlement and thus the order of the Court was being used to authorise an act which was not otherwise warranted by law. In his submission, therefore, the order should have been interfered with under Order XXXIX, rule 4, C. P. C. as prayed and failure to do so by the Courts below, rendered the position amenable to the revisional jurisdiction of this Court. Now, it is true that the suit property is described as stated above ; but as is rightly contended by Mr. A. K. Brohi, the learned counsel for the first respondent, the constructions according to the pleadings, were being made in accordance with the plan which had been approved by the applicant. The applicant being the Custodian of that record, had the full knowledge of that position, and of the specific area that was to be utilized and developed. Even the subsequent withdrawal of the approval by the applicant which was without notice to the first respondent did not alter the information of the applicant, about the suit land, and it cannot at this stage of proceedings be claimed to be unspecified. The pleadings of the first respondent in this regard were not controverted by the applicant at any time. The applicant jointly with other officials, made a survey on 12‑4‑1975, as is alleged now 1 but even this fact was not mentioned in the Court of the Additional District Judge, who at that point of time heard the applicant's Miscellaneous Appeal. The land at one stage was claimed to be acquired by the second respondent K. M. C. as amenity plot, but that respondent neither challenged the interim injunction in appeal nor filed any revision against it. This was probably because the Minister did not approve of the action of the second respondent, in acquiring private property for amenity purposes, when other land was available. This contention of the learned counsel for the appellant is therefore t be rejected, for it involves a question which could not be resolved, without A holding an enquiry into disputed matters of fact and which is not the scope of the revisional jurisdiction of this Court. The learned counsel also could not deny that the approved plan as originally granted by the applicant, would specifically show the area that the first respondent was permitted to develop, and in that case the suit land, as described in the plaint. could not be validly said to be unspecified to the knowledge of the applicant. Even so, the learned counsel did not show how the impugned orders could be treated as improper on that account, particularly when the point was not before the Courts below at all. Mr. Waheed Farooqui, then argued. that the transferees of land from the respondent, who were admittedly raising construction on the plots, had not filed any suit against the applicant and others nor were they made as parties by the first respondent in the present suit. In fact they were the real persons who could say that they were affected by the alleged action of the applicant ; but without claiming any relief, they were allowed to take advantage of the interim order obtained by the first respondent in his suit. In his submission, therefore, the interim order as framed was bad, in so far as it extended the benefit to these transferees. This according to him was a ground sufficient for setting aside the order of the interim injunction under Order XXXIX, rule 4 of the C. P. C. This argument is on the face of it misconceived. In the first place no such objection was raised by the applicant at any time during the proceedings in any of the Courts below What the applicant prayed for there, was maintenance of status‑quo till the decision of the injunction application. Secondly, the interest of the first respondent in the suit land is specifically pleaded, and in spite of the transfer of plots, it is not shown how that interest is terminated or that the language of Order XXXIX, rule 1, C. P. C. would not permit issuance of an interim injunction of the type, as is issued in this case. Even otherwise, the suit as filed by the applicant would not be defeated in law, merely on account of non‑joinder of the transferees for he could be allowed to make them party to the suit, if found necessary even at a subsequent stage of proceedings. The objection of the learned counsel is therefore neither fatal to the suit nor to any proceedings in the suit. The learned counsel for the applicant then referred to the case of Sind Madrassatul Islam Board Society v. Shamim (P L D 1974 Note 54 at p. 93), and relying on the interpreta tion of the language of Order XXXLX, r. 4, C. P. C. made therein, argued that the prayer of the applicant to set aside, vary and/or amend the interim injunction was justified, in law, because ft was being made on the basis of facts and ground that were not initially available to him, but were subsequently discovered. Evidently this submission had reference to the facts that were disclosed during the joint survey made by the applicant and other departments, as specified in the revision application. The date of this discovery as already stated was also mentioned to be 12‑4‑1975. Thus the applicant was making frantic efforts to get the nature of the interim orders altered, without in fact being in possession of or even being aware of facts on which he could place reliance. These facts have for the first time been mentioned in this Court and Mr. A. K. Brohi, learned counsel for the first respondent, had no difficulty in showing that in such circumstances even the case relied upon by the applicant does not in fact support him. Now in that case also, an interim injunction had been granted after notice of the same had been issued. but was not accepted by the defendant. However the latter filed an application under Order XXXIX, rule 4 for getting the interim order vacated on the ground that service of summons and notices was a fraud upon the Court, being the result of collusion of the Bailiff with the plaintiff: This application was contested as being not maintainable. The application being allowed by the Additional District Judge, the matter came up in appeal before this Court and was heard by Mr. Justice Dorab Patel who held that the Additional District Judge had no jurisdiction whatsoever to entertain the respondent's application under Order XXXIX, rule 4, C. P. C. However after a review of the case law the learned Judge agreed with the view taken in the case of Govinda Ramanuja Day Goswami v. Vijiaramaraju and another (A I R 1929 Mad. 803), a Division Bench case, in the following observation :‑ "We think it is clear that Order XXXIX, rule 4 is intended to cover two classes of cases :‑ (1) When an urgent order ex parte has been passed under R. 3, R. 4 will allow the party against whom it has been passed to apply to have it discharged or varied or set aside, and (2) When an injunction order already in force has owing to fresh circumstances, become unduly harsh or unnecessary or unworkable, it would be open to either party to apply under R. 4 to the Court to discharge, vary or set it aside. We are clear that R. 4 cannot give a Court jurisdiction to interfere with an injunction already passed when each side has had an opportunity of being heard, and no grounds other than those available at the original hearing appear or, are argued. When therefore a party has by his own fault neglected to put his case forward at the original hearing. he cannot come forward under R. 4 later on to plead that he has a legal right under that rule to have the case re‑opened and re‑heard. Rule 4 cannot be read so as to allow a party e.g. to let the appeal time slip by or to wait until his appeal has been dismissed and then to re‑open his original case." In the instant case the applicant admittedly had an opportunity of being heard. He deliberately did not avail of that opportunity and for obvious reasons, for on his own showing, he did not have the material for contesting the interim order. Even after the joint survey made by the applicant no effort was made to oppose the interim injunction. Instead the applicant resorted to the provisions of section 151 and Order XXXIX, rule 4 of the C. P. Code. Obviously at the time of making an application under Order XXXIX, rule 4 there was no new material available with the applicant and relying on the above‑quoted observation even that application was, therefore, not competent. Mr. A. K. Brohi, learned counsel, rightly contended that the applicant was attempting to utilise the facts now discovered by them, in this Court, although they had invoked the revisional jurisdiction, the scope of which was limited to the provision made in ~' section 115, C. P. C. That provision would not permit an investigation into facts or even consideration of facts which were not available to the Courts below at the time of passing the impugned order. The applicant had admittedly not filed a written statement or even a counter‑affidavit in the trial Court. The impugned order therefore on the face of it does not suffer from any such defect nor is it shown to be perverse on any other account so as to attract provision of section 115, C. P. C. and justify interference by this Court in exercise of its supervisory jurisdiction. What the Courts below have asked the applicant is only to contest the interim order instead of filing applications under other provisions of the C. P. Code, which really do not apply, and that appears to be proper on the interpretation of law, as quoted above. Mr. Safdar Hussain Fani appearing for respondents 3 and 4 also adopted the arguments of Mr. A. K. Brohi learned counsel for respondent No. 1 and opposed the revision application. The result of the above discussion therefore is that this application is dismissed with costs. S. Q. Application dismissed.