2010 PLP 1092 (CLC)
AFZAL SHAH — Petitioner Versus FAYYAZ ALI and 7 others — Respondents
| Citation | 2010 PLP 1092 (CLC) |
| Forum / Court | Peshawar |
| Bench Members | N/A |
| Parties | AFZAL SHAH — Petitioner Versus FAYYAZ ALI and 7 others — Respondents |
| Primary Law | Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2010 PLP 1092 (CLC)?
This judgment primarily cites: Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2010 PLP 1092 (CLC)?
The case was heard and decided by the Peshawar bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2010 PLP 1092 (CLC) (AFZAL SHAH — Petitioner Versus FAYYAZ ALI and 7 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Manzoor Khan Khalil for Petitioner.
- Arguments of learned counsel for petitioner heard and available record perused.
- 11. Keeping in view all the above circumstances, both the Courts below have acted legally while refusing the exercise of this discretionary power in favour of the petitioner. Nothing illegal has been pointed out by the learned counsel for petitioner and, therefore, the impugned judgments of both the Courts below need no interference by this Court, hence the petition in hand is accordingly dismissed in limine.
Headnotes / Summary
O. XXXIX, Rr.1, 2
Specific Relief Act (I of 1877), Ss.42 & 54
Suit for declaration and permanent injunction
Grant of stay order--Ingredients of
Ingredients necessary for grant of stay order were; whether there existed a prima facie case in favour of grant of stay; whether the refusal of injunction would result in irreparable damage or loss; and whether refusal of grant of injunction would result in inconvenience to the applicant
Prima facie case would mean that whether applicant had established an arguable case or not
Irreparable damage or loss was that injury which could not be compensated in terms of coins
Principle of balance of inconvenience, denoted that the applicant would suffer more inconvenience in case of refusal of injunction than the respondent
In order to establish a prima facie case, the plaintiff was required to prove the same
Court, while assessing same, had to see whether an applicant had got a prima facie case and for that conclusion, the court was required to assess the merit of the case summarily and need not go into details
Mere apprehension would not constitute balance of inconvenience in favour of the applicant, because normally the balance lay in favour of continuation of status quo
Defendant in the present case had allegedly constructed a house over the suit property and if the injunction was issued, it would result in inconvenience to him and the inconvenience in case of refusal of stay, if measured, would be lesser than that of the defendant
Both courts below had acted legally while refusing exercise of discretionary power in favour of the plaintiff/applicant
Nothing illegal having been pointed out by the counsel for the plaintiff, impugned judgments of both the courts below needed no interference by the High Court in its revisional jurisdiction.?
Judgment & Decree
ATTAULLAH KHAN, J.
The dispute between the parties is regarding issuance of stay order.
2. Plaintiff/petitioner filed a suit for declaration and permanent injunction on the ground that he is owner in possession of the suit property and an illegal mutation has been attested in favour of the defendants/respondents, which is liable to be recalled/cancelled.
3. The suit was contested by defendants concerned. Alongwith the plaint, the petitioner also filed an application for grant of stay against defendant/respondent No.1 not to interfere or change the nature of the suit property. This application was also contested.
4. After hearing arguments of learned counsel for the parties, the learned trial Court dismissed the application vide order dated 11-10-2008 which was assailed before the appellate Court through an appeal and the same was also dismissed. The order of learned Additional District Judge-I, Peshawar 13-12-2008 has been impugned through the revision petition in hand. Arguments of learned counsel for petitioner heard and available record perused.
5. According to the learned counsel, the petitioner has proved his case for grant of stay in terms that he has got a good prima facie case.
6. This Court will have to find out whether the ingredients necessary for grant of stay are fulfilled or not. Normally, the grant of stay is an equitable relief which is discretionary in nature and depends upon the following three factors:
?????? (a) Whether there exists a prima facts case in favour of grant of stay. (b) Whether the refusal of injunction would result in irreparable damage or loss; and (c) Whether refusal of grant of injunction would result in inconvenience to the applicant.
7. In order to establish a prima facts case, the plaintiff is required to prove the same. The Court, while assessing that, has to see whether an applicant has got a prima facie case. For this conclusion the Court is required to assess the merit of case summarily and need not go in details. In this way, in other words, a prima facts case would mean that whether a petitioner has established an arguable case or not.
8. It would be gathered from the written reply and statement of respondent/defendant No.1 that respondent/defendant No.1 has constructed a house upon the suit property. Copies of demand notice for electricity connection, Sui Gas bill and electricity bill are available on office. These documents would show that electricity and gas connections have been obtained by respondent/defendant No.1 in: the house constructed by him. The availability of these three documents would suggest that no prima facie case existed in favour of the petitioner for obtaining a stay order.
9. Coming to the irreparable loss, the petitioner has also failed to point out any such loss in case the stay is refused. The irreparable damage or loss is that injury which could not be compensated in terms of coins. So this fact is also missing. Such is the case of balance of I inconvenience. This principle denotes that the petitioner/applicant will suffer more inconvenience in case of refusal of injection than the respondent. A mere apprehension would not constitute balance of inconvenience in favour of the petitioner because normally the balance lies in favour of continuation of status quo.
10. In this case, the respondent concerned has allegedly constructed a house over the suit property and if the injunction is issued, it would result in, inconvenience to him and the inconvenience, in case of refusal of stay, if measured, would be lesser than that of the respondent.
11. Keeping in view all the above circumstances, both the Courts below have acted legally while refusing the exercise of this discretionary power in favour of the petitioner. Nothing illegal has been pointed out by the learned counsel for petitioner and, therefore, the impugned judgments of both the Courts below need no interference by this Court, hence the petition in hand is accordingly dismissed in limine. H.B.T./113/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.