1983 PLP 2356 (CLC)

2. The facts giving rise to this petition are that on 7th March, 1981 Ata Muhammad respondent filed a suit for permanent injunction against Khushi Muhammad and others in the Court of learned Civil Judge, Sahiwal, praying that the petitioners may be restrained from digging out drain for the flow of foul water from their Ihata bearing No. 5/11 situated in Farid Colony, Chak No. 135/9‑L, Sabiwal. . The plaintiff/respondent No. 1 averred in the plaint that he was owner of Ihata No. 5/11 measuring 4 Marlas and 5 Sarsahi situated in Farid Colony and that the sullage water of the adjoining houses passed along the road but the petitioners are out to dig out the drain for the flow of foul water from his Ihata with the connivance of Auqaf Department, defendant/respondent No.

2. Ata Muhammad respondent/plaintiff filed an application for the grant of temporary injunction restraining the petitioner from digging out the drain. The learned Civil Judge after hearing the parties dismis sed the application on 1st April, 1981. Against this order the respondent filed an appeal which was heard by the learned Additional District Judge, Sahiwal, who vide his order dated 26th May, 1981 set aside the order of the learned Civil Judge and granted temporary injuncti‑3n in the terms of application under Order XXXIX, rule 1, C. P. C. 3. 1 have heard the learned counsel for the parties and have gone through the material placed on the record including Annexures A, B ,and C. Learned counsel for the petitioners submits that the sullage water of the entire abadi passed through the khasra number in question since 1947 and if this flow is stopped from the channel, the houses of the peti tioners would be badly damaged and, as such, the balance of convenience is in their favour. Learned counsel submits that Annexure A the order of the Administrator Evacuee Trust Property indicates that three sarsahi of land which was left out of the sale in favour of the respondent was actually meant for drainage purpose. He argues that by the passage of time the right of easement of the petitioners had also matured into title which could not be taken away without providing reasonable opportunity to the, parties to adduce evidence in support of their pleas. On the other hand learned counsel for the respondent submits that the temporary injunc tion was rightly granted by the learned Additional District Judge in the circumstances of the case.

4. I have considered the arguments advanced by the learned counsels for the parties. Keeping in mind the pre‑requisites for the grant of tem porary injunction, especially in suits for permanent injunctions, I am of the view that grant of temporary injunction in suits for permanent injunc tion should be a rule and refusal an exception particularly when the refused would defeat the very object of the suit and in the instant case I do not find any exceptional circumstance. The contentions raised by the learned counsel as mentioned above require deep assessment which may not be desirable at this stage. I find that the respondents case is at least arguable one and :‑ (i) that if the drain passes through the Ihata of respondent he would certainly suffer an irreparable loss ; (ii) that in the circumstances of the case balance of convenience is also in favour of the respondent. . For the foregoing reasons, I am of the opinion that the learned Additional District Judge has exercised his discretion legally and pro perly and it is not a fit case for interference under section 115, P. P. C. The petition is discussed with no order as to costs. M. Y. H. Petition dismissed.