1984 PLP 1721 (CLC)

This petition under section 115 of C. P. C. has been filed by the applicants against the order, dated 24-4-1983, whereby the learned Vth Additional District Judge, Karachi allowed Civil Miscellaneous Appeal No. 211/1982, and granted temporary injunction restraining the applicants from ejecting the respondents from the plot in suit till the final decision of the suit. The order dated 9th September, 1982, whereby the learned Civil Judge refused to grant temporary injunction was accordingly set aside.

2. A perusal of the record shows that the respondents (hereinafter referred as the plaintiffs) for valuable consideration was alloted a piece of land measuring 61 sq. yards in Keamari area, Karachi vide allotment dated 4-12-1977. The possession of the said plot was delivered to the plaintiffs, who were allowed by the defendants by their letter, date 12-4-1978 to put up a small cement block room for storage of cement and other construction material on the said plot. The said allotment was subsequently cancelled by the defendants by their letter, dated 13-9-1978. The said allotment, however, after sometime 'was restored. It appears that some disputes thereafter arose but the allotment was again restored and the laud was again granted to the plaintiff vide letter, dated 15th December, 1978, which was accepted by the plaintiffs by their letter, dated 16-12-1978 and confirmed by the defendants by their letter dated 26th December, 1978 (Annexure `O' to the plaint). Subsequently due to heavy rains in Karachi, the asbestos sheet roof over the earlier constructed room on the said plot broke down resulting in serious loss to the plaintiffs, who, therefore, were forced to put up cement block walls without pillars and `Pakka' roof to save further loss or damage to the building material stored on the said plot. According to the plaintiffs with a mala fide intention, the defendants by their letter, dated 8th May, 1971 can-celled the allotment and threatened to eject them in spite of the protest on part of the plaintiffs conveyed in their letter dated 19th May, 1979, wherein they had stated that no breach of any of the conditions of the allotment had been committed. In the circumstances as the plaintiffs were threatened to be ejected from the plot they filed Suit No. 2404/1979 in the Court of the Senior Civil Judge at Karachi, challenging the cancellation of the allotment, dated 8th May, 1979 and the notice of ejectment given to them. In the said suit on an application filed under Order XXXII, rules 1 and 2, C. P. C., the learned civil Court directed the party to maintain status quo. It appears that during the pendency of the said suit, the plaintiff's case was again considered by the defendants and on 19th June, 1980, they restored the allotment of the aforesaid land and granted fresh allotment of the said land to the plaintiffs. The security deposit was enhanced from Rs. 1,800 to Rs. 2,000 keeping in view the construction made on the aforesaid plot as stated above. The plaintiffs withdrew the above-mentioned Suit No. 2404/1979, as desired by defendants and also for the reason that the said suit had become infructuous. It may be mentioned that it is case of the plaintiffs that though they accepted the allotment order made afresh but according to them conditions Nos. 5 and 10 were not applicable as there already existed a `Pakka' roof since before the grant of the new allotment.

3. The defendants again threatened to cancel the last mentioned allot ment order, dated 17th June, 1980 and to eject the plaintiffs from the suit land in spite of their plea that they had not committed any breach of any of the conditions of the allotment. The defendants however threatened to eject them by force for which they issued notice dated 11-6-1979. In the circumstances the plaintiff filed another suit being Suit No. 14/1982 in the Court of the Senior Civil Judge, 1st Class at Karachi. Alongwith the suit, the plaintiffs also moved an application under Order XXXIX, Rules 1 and 2, C. P. C. The learned Civil Judge by order, passed on 9th September, 1982, observed that the plaintiffs had no locus standi to have possession of the demised premises after the receipt of letter Annexure '0' filed alongwith the plaint, and held that the plaintiffs have no prima facie case or balance of con venience in their favour and also no cause of action for filing the suit. The said application was accordingly dismissed by order passed on 9-9-1982. Against the above order, Civil Miscellaneous Appeal No. 211/1982 was filed, which was heard and disposed of by the learned IIIrd Additional District Judge, Karachi, who allowed the said appeal, set aside the order, passed by the learned Civil Judge and restrained the defendant from ejecting the plaintiff from the plot in question till the final decision of the suit.

4. Aggrieved by the above-mentioned order of the learned lower Appellate Court, the defendants/applicants have now filed this petition invoking the revisional jurisdiction of this Court.

5. I have heard Mr. Abbas Ahmed the learned Advocate for the applicants. After hearing the learned counsel I find that the learned- lower Appellate Court granted the temporary injunction restraining the defendants-applicants from ejecting them from the plot in question till the final decision of the suit on being satisfied that the plaintiffs respondents have shown a prima facie arguable case and that the refusal to grant injunction would result in frustra tion of the suit due to the threat on the part of the applicants to eject the respondents/plaintiffs from the plot which had been allotted to them. It was further observed: "Admittedly the appellants are not unauthorised occupants. They have been regularly paying the required fee for using the plot. The con tention of the appellants that the respondents could only forfeit the security deposit lying with them and they cannot cancel the allotment, can only be determined at the time of deciding the case." The above discussion and perusal of the material on the record shows that the learned lower appellate Court in exercise of its judicial discretion after considering the facts of the case granted the injunction restraining the applicants from ejecting the respondents/ plaintiffs from the property in dispute till the decision of the suit. The Honourable Supreme Court in the case of Muhammad Umer Baig v. Sultan Muhammad Khan (P L D 1970 S C 139) as to the principle governing interference by the High Court in exercise of its revisional jurisdiction with the discretionary orders passed by the lower Courts, laid down the following principle : "It may also be pointed out, with all respect to the learned Judge, that he was exercising a limited jurisdiction in revision under section 115 of the Civil Procedure Code which is meant primarily for correction errors made by the subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the dis cretion is found to have been exercised forcifully or arbitrarily."

6. After considering the facts and circumstances of this case I am of the opinion that the temporary injunction granted by the learned lower Appellate Court cannot be said to have been passed in exercise of its discretion, fancifully or arbitrarily. It would be observed, that the applicants themselves had extended the allotment earlier in spite of alleged breach of condition of the allotment and that they also hold security amount in their hands. It is obvious that the ejectment if allowed to take place during the pendency of the suit would result in irreparable loss and injury to the plaintiffs/respondents and that the balance of convenience is in favour of the respondents, whereas the applicants would not suffer any loss in case the injunction is granted particularly for the reason that the respondents are regularly paying rent and the applicants also hold security amount deposited by the respondents. The plaintiffs/respondents having made out a prima facie case, as held by the lower Appellate Court, and in the circumstances applying the principle laid down by the Honourable Supreme Court in the case of Muhammad Umer Baig v. Sultan Muhammad Khan I find that this is not a case, in' which in exercise of revisional jurisdiction this Court would interfere with the discretion exercised by the learned lower Appellate Court.

7. Accordingly this petition is dismissed summarily with the observation that the opinion expressed by this Court and the lower Appellate Court would not prejudice the trial of the suit on merits. M. B. A. Petition dismissed. ***