P L D 1982 Peshawar 24 (PLP)

Date of hearing : 5th September 1981. This revision application has arisen in the following circumstances : The suit property is a Sarai, situate in Chowk Nasar Khan, Peshawar City. Haji Niasar Ahmad respondent herein was its tenant. Muhammad Iqbal etc. respondents, herein filed an application for the ejectment of Haji Nasir Ahmad petitioner in the Court of Rent Controller. The Rent Controller allowed the application and directed the ejectment of the respondent. The respondent then filed an appeal in the Court of District Judge which was also rejected and thereafter his second appeal in this Court was also dismissed. The order of ejectment against the respondent from the suit Sharia thus became final. The respondent then filed the present declaratory suit title Nasir Ahmad and Sons, Merchants Chob Imarat, Chowk Nasar Khan, Peshawar v. Muhammad Iqbal etc. The plea taken by him or for that matter the Firm in the plaint is that the suit property is Waqf-ul aulad, the petitioners are its beneficiaries who have resolved to partition the same amongst themselves. He has, therefore, sought a declaration from the civil Court that the suit property being a Waqf property, the petitioners cannot partition the same amongst themselves. As a consequential relief, he has prayed for the issuance of permanent injunction against the defendants restraining them from ejecting him/firm from the suit property, on account of the ejectment order passed against him in the above-mentioned ejectment proceedings. The learned lady Civil Judge refused to grant the temporary injunction and dismissed his application, vide her order dated 17th July, 1980. The respondent then preferred appeal before the Court of District Judge which was heard by a learned Additional District Judge who allowed the appeal and granted the temporary injunction to the respondent, vide his order dated 17-9-1980. Hence this revision application by the petitioners for the vacation of the order of the learned Additional District Judge. I have heard the learned counsel for the parties and perused the orders of the two Courts below. While rejecting the stay application, the learned lady Civil Judge observed that :- "Prima facie, the plaintiff has no arguable case leaving aside a good prima facie case. A valid order/judgment has been passed in favour of the defendant No. 1 and in case the injunction is granted, it will frustrate the valid order/judgment of a competent Court. In addition, according to law, any orders passed by the Rent Controller cannot be challenged before the civil Court. Moreover, the grant injunction restraining defendant 1 from ejectment of the plaintiff from the suit premises in pursuance to a valid decree will directly hit him but indirectly it will stay the execution proceedings pending before a competent Court not subordinate to this Court, 'therefore, this Court lacks the jurisdiction to grant such injunction in favour of the plaintiff. In view of the above, the application for grant of temporary injunction does not merit and is hereby rejected." In appeal, however, the learned Additional District Judge while granting the temporary injunction to the firm/respondent was influenced by the following considerations :- " . . . . After hearing the arguments of the counsel for the parties and perusing the relevant case on the subject, I am of the opinion that the plaintiff-appellants have put forward serious allegations in their plaint against the defendants to have violated the conditions of the gift deed. The gift deed has not been denied by the defendants and once Waqf has been admitted by the defendants, the civil Court has the jurisdiction to adjudicate upon the allegations mentioned in the plaint which allegations have to be proved by the plaintiffs through their evidence. The case is at very -initial state and the plaintiffs have to be given opportunity to produce their evidence. I have perused section 99 of the C. P. C. This section is concerned with public charities and the Waqf in the instant case is of the private nature being Waqf-al-aulad. The record prim facie also shows that before the Rent Controller, the parties were Haji Nasir Ahmad and Muhammad Iqbal whereas in the present suit for declaration the plaintiff is alleged to be a different person and had sued in the name of Firm "Messrs Haji Nasir Ahmad and Sons" which is also registered one. So the contention of the counsel for the appellant tarries weight presently. The three criteria for granting the temporary injunction are that the plaintiff has to show that he had a prima case. It is not necessary that he shall prove at the very beginning of the suit that in all consequences he will definitely succeed in his case. He is supposed to show a good prima facie case, in which the plaintiff has succeeded to that extent. As there are serious question to be tried at the hearing and if he is not granted the temporary injunction till the decision of the suit, he will suffer irreparable loss because the firm is carrying on running business in the disputed property, so the balance of convenience is also in favour of the plaintiff-appellant because if he is rejected, great inconvenience would be caused to the firm ...... I have not been able to appreciate the parodox of these observations which appear to me to be entirely frivolous in the facts and circumstances of the present case. In .the ejectment proceedings Haji Nasir Ahmad was ordered to be ejected from the suit property and the ejectment order against him because final. Therefore, in law he is no more concerned or has left any interest in the property. It can be said that the present suit in the name of a fire-Haji Nasir Ahmad and sons was brought at his instance in an attempt to frustrate the final ejectment order passed against him. It cannot be said that the present suit has been brought by a firm and in the ejectment proceedings the tenant or for that matter of Haji Nasir Ahmad was a different person, as observed by the learned Additional District Judge. At this stage, this view would appear to be plausible view for the reason that a question can be pertainently raised as to why H. Nasir Ahmad did not raise objection in the ejectment proceedings that the firm and not he was the tenant of the suit property and thus the ejectment proceedings against him were not competent. If at all it is held that in the suit property a firm was established, it cannot be said that the firm was unaware of the ejectment proceedings against Haji Nasir Ahmad, as the firm was constituted in his name and in the name of his sons. In view of this fact, the ejectment order can be said to equally apply to the Firm in the name of Haji Nasir Ahmad and his sons. The other reason given by the learned Additional District Judge in support of his injunction order is that the property in suit being a Waqf property, the civil Court has the jurisdiction in the matter and as the plaintiff has alleged that the suit property is a Waqf-al-Aulad property and its beneficiaries/defendants have resolved to partition it which they cannot under the law, the plaintiff, according to the learned Additional District Judge, has made out a prima facie case in their favour for the grant of temporary injunction. I observe that the more important point involved in this case is not that the suit property is Waqf-ul-Aulad property and its beneficiaries/defendants cannot partition it. The more important point for the present in this case is that as respondent Haji Nasir Ahmad/or for that matter the firm in his and in the name of his sons has already been ordered to be ejected from the suit property and the ejectment order has become final, whether he/firm is entitled to temporary injunction. I do not consider that temporary injunction should be allowed in the circumstance of the case. It has been contended on behalf of the defendants/petitioners that even if it is taken for granted that the petitioners have resolved to partition the suit property which is a Waqf property, it will be the State to question its partition and the plaintiff is nobody to question the same. I do not consider it necessary to go into this question at this stage and leave it to the trial Court for decision. As a result, this revision application is allowed and consequently the temporary injunction order granted by the learned Additional District Judge is vacated. No order as to costs. S. A. H. Application accepted.