2008 PLP 674 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant first appeal assailed order, dated 19-9-2007 passed by the learned Civil Judge, Lahore, whereby application of the appellant under Order XXXIX, rules 1 and 2, C.P.C. was dismissed.

2. Succinctly, relevant facts are that appellant filed a suit for declaration and permanent/mandatory injunction with the averments that he is a lessee of 16 Marlas of land in front of Shops Nos.5 and 6 of Bollan Block, Fortress Stadium, Lahore, which was granted in his favour by the then Lt.-General Moin-ud-Din Haider Commander of 4 Corps. Appellant further narrated his family relations with respondent No. l and detailed that he was persuaded to construct a restaurant in the name of "Baloch Sajji" at the leased property. According to him, on his inability to transfer the non-transferable leased property, respondent No.3 is alleged to have entered into some fresh leased agreement with Mst. Shahnaz Younas who is wife of respondent No.

1. Appellant attacked authority of respondent No.3 to execute any lease agreement during subsistence of lease in his favour. Appellant also moved an application under Order XXXIX, rules 1 and 2, C.P.C.- for grant of temporary injunction in form of "status quo", restraining the respondents from raising constructions or from changing the nomenclature of the lease deed in his favour, by any means whatsoever.

3. Respondents being defendants contested the suit by filing their written statements and opposed grant of temporary injunction by filing their written replies to the application in this behalf. All the respondents through their distinct replies, refuted the stance of the appellant and pleaded that lease rights in favour of the appellant stood extinguished and thereafter, lease rights qua the disputed property have been transferred in favour of Mst. Shahnaz Younas (defendant No.4). The learned Civil Judge, who was seized of the suit, after hearing the parties, dismissed the application of the appellant vide his order, dated 28-7-2007. Appellant being aggrieved of the order passed by the trial Court, filed F.A.O. No.208 of 2007 before this Court, which was disposed of on 12-9-2007 with the concurrence of the learned counsel for the parties, remitting the case to the trial Court for fresh decision of stay application. It was also directed that case shall be entrusted to some Civil Judge other than who earlier decided the matter. In the post remand proceedings, stay application was again dismissed by another learned Civil Judge vide his order, dated 19-9-2007. Appellant has now challenged this order again through appeal in hand.

4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Though appellant has not impleaded Mst. Shahnaz Younas as a party to the instant appeal, who being holder of lease rights at the present, was a necessary party, yet in case she is allowed to be impleaded at this stage, no fruitful purpose will be served because lease in favour of the appellant was executed on 18-7-1995 for a period of one year and this period was never extended, subsequently. Undisputedly, appellant is not in possession of the suit property and the new lessee is said to have raised certain constructions and is in its actual/physical possession. Prima facie, in absence of any extension of lease in favour of the appellant or his possession over the suit property, he has no arguable case in his favour. He will not suffer any irreparable loss/injury in case of non-issuance of injunction as the constructions, if any raised by the lessee, shall be at her own cost/risk. Learned counsel representing the new lessee (Mr. Nadeemuddin Malik, Advocate) made a categorical statement before this Court that in case of success of the appellant in his suit, he will not claim any compensation for the construction/work done at the suit property. Similarly, balance of convenience also lies in favour of the new lessee, as her right to remain in possession of the property is supported by respondent No.3 whereas in case of issuance of injunction prayed, the left out party/lessee is bound to suffer inconvenience. Scan of record and impugned order revealed that controversy was correctly put to rest by the trial Court, without committing any error of law/facts.

5. For the reasons noted above, no case for interference in appellate jurisdiction of this Court was made out and consequently the instant appeal being devoid of any merit, is dismissed. The trial Court is, however, directed to expedite the proceedings in the suit and to decide the same within a period of four months under intimation to the Deputy Registrar (Judicial) of this Court. Parties are left to bear their own costs. M.H./W-1/L Appeal dismissed.