1989 PLP 2265 (MLD)

Gohal Allah Diya

Mst. Rafiqan Rafiuddin Abdul Hakim Abdul Majid Died Issueless. Asghar Ali

Shakruddin Petitioner. Muhammad Shall No.2. Respdt: No.1

4. According to the averments in the plaint the land measuring 18 kanals and 19 marlas fully described in the heading of the plaint belonged to Rafiuddin who died in 1947 leaving behind a sister Mst. Rafiqan and his two cousins Abdul Hakim and Abdul Majid, plaintiff is son of Abdul Hakim while the defendants are the sons of Abdul Majid. The grievance of the plaintiff is that on the death of Rafiuddin, the defendants with the collusion of the revenue staff got inheritance Mutation No. 78 attested on 23‑12‑1959 and deprived the plaintiff of his share of the land left by Rafiuddin. It is also pleaded in the plaint that during his minority the plaintiff's father died in the year 1952 when the plaintiff was away from D. I.Khan in search of his livelihood at Karachi, and Hyderabad and other places in Sind. It is also urged that the plaintiff got the knowledge of the attestation of the impugned mutation in the year 1982 when he returned to D.

1. Khan and hence the suit.

5. Alongwith the plaint, the plaintiff put in an application wherein he pleaded that on institution of the suit, the defendants were out to alienate the disputed land and had also entered into an agreement to sell, that he had a good prima facie case, that the balance of convenience was in his favour and if the temporary injunction was not issued, he would suffer irreparable loss and injury. He pleaded that till the decision of the suit a temporary injunction may be issued to the effect that the defendants should not alienate the disputed land controvert. No written statement was filed to the allegations made in the plaint but a reply was put into the application for injunction. In the said reply, it was pleaded that the defendants have not only sold the disputed land in favour of Abdul Rahim but had also delivered the possession thereof who in his turn had alienated the same in favour of other vendees after carving out plots. In this way, it was averred that there was no question of irreparable loss to the plaintiff or any balance of convenience being in his favour and that he was also hot possessed of any prima facie case.

6. The learned Senior Civil Judge, D.I. Khan, who was seized of the suit held that the question as to whether Abdul Hakeem, father of the plaintiffs, had pre‑deceased Rafiuddin would be resolved after the evidence is adduced but, in any case, the fact remained that the plaintiff was possessed of a prima facie case. He was further of the view that in case the injunction was refused anal the property was sold away, the outcome would be "prolongation of litigation mental torture, physical inconvenience and financial loss to the plaintiff." On these grounds, he issued the interim injunction restraining the defendants from alienating the suit property till the decision of the suit. These findings were maintained by the learned appellate Court. Hence this petition.

7. The learned counsel for the defendants‑petitioners has argued that both the learned Courts below have erred in appreciating the objection raised by the defendant‑petitioners in their replication that Abdul Hakeem, father of the plaintiff‑respondent, having admittedly pre‑deceased Rafiuddin, then plaintiff- respondent stood disinherited. He also contends that if he had been given a chance to tile a written statement he could have rebutted the plea of the plaintiff- respondent that he had a good prima facie case. He has also argued that the averment in the plaint that the plaintiff‑respondent had no knowledge of the attestation of the impugned inheritance mutation was belied by the photocopy of the order dated 4‑9‑1962 of the Assistant Commissioner exercising the powers of the Collector. D.I. Khan whereby the appeal filed by the plaintiff‑respondent against the attestation of the impugned mutation was dismissed for default. The learned counsel thus argued that the cause of action had unequivocally accrued to the plaintiff in the year 1959 who had challenged the impugned mutation but did not succeed and accordingly the present suit of the plaintiff was hopelessly barred by limitation.

8. It is disquieting to note that in the recent past in quite a few cases the trial Courts have argued interim reliefs without even a chance to the opposite party to file the written statement which tends to create an impression of undue haste on their part. Unless there are compelling reasons, outright issuance of temporary injunction may possibly be avoided. If there is an imminent danger of the property being alienated, the proper course is to issue an ad interim injunction till the filing of the written statement and the documents inrebuttal of the allegations in the plaint and the application for temporary injunction. After perusal of the pleadings in the plaint and the written statement and averments in the application and replication, the ad interim injunction may either be confirmed, vacated or varied.

9. In the instant case, the grievance of the learned counsel for the defendants‑petitioners is that he has not been given a chance to file a written statement and that had he been given such a chance, there was every likelihood that the learned lower Courts would have come to different conclusion on the point as to whether the plaintiff‑respondent had or had no prima facie case.

10. There is ample force in these submissions of the learned counsel for the defendants‑petitioners. I would, accordingly, accept this revision petition, set aside the impugned order of the Courts below and would only grant an ad interim injunction as prayed for the plaintiff‑respondent till the written statement or other documents, if any, are filed. The learned trial Judge, would, thereafter, come to his own conclusion as to whether the plaintiff‑respondents has a prima facie case, that balance of convenience existed in his favour and also, that in case the temporary injunction is refused, he would suffer an irreparable loss. The file should be remitted to the trial Court expeditiously which should decide the question of confirmation or otherwise of the ad interim injunction in accordance with law. H.B.T./S‑745/P Order accordingly.