2008 PLP 476 (CLC)

MUHAMMAD ALAM KHAN, J.

Mst. Nusrat Begum daughter of Gul Rehman has filed this revision petition against the interim order of the learned Civil Judge, Charsadda, dated 30-5-2007 and that of the learned Additional District Judge-I, Charsadda, dated 6-10-2007 vide which the application submitted by the petitioner in a pending suit for declaration permanent injunction, possession through partition and demolition of cellular tower and other construction raised by defendants/respondents Nos.12 and 13, the application of the petitioner for ad interim injunction was refused.

2. Facts of the case are that the plaintiff/petitioner brought a suit for declaration, permanent injunction and possession by way of partition and also for possession by way of demolition of construction in the Court of Senior Civil Judge, Charsadda which was marked to Mr. Ubaidullah, Civil Judge, Charsadda. The petitioner had also annexed with the plaint an application for temporary injunction under the provisions of Order XXXIX(1), C.P.C. praying therein that the respondents be restrained to raise construction in the suit property and a prohibitory order not to alienate the same or change its nature.

3. The case of the petitioner was that she being co-sharer, and the property has not been partitioned, so she was entitled to the temporary injunction as prayed for in her application, dated 29-3-2007.

4. The learned Civil Judge after calling for the written statements and replication and hearing the learned counsel for the parties vide order, dated 30-5-2007 refused to grant the injunction as prayed for on the ground, that although the plaintiff being a co-sharer has a prima facie case but for grant of temporary injunction all the three principles must co-exist to entitle the plaintiff-petitioner to the grant of requisite injunction, while in the instant case the plaintiff/petitioner lacks the two requisites i.e. the balance of convenience and irreparable loss in her favour.

5. The plaintiff then filed an appeal before Mr. Muhammad Hussain, Additional District Judge-I, Charsadda who vide Civil Appeal No.12/14 of 2007, decided on 6-10-2007 dismissed the same by concurring with the trial Court. Hence, the present revision petition.

6. The petitioner was heard at great length in support of this revision petition and on previous date i.e. 14-1-2008 Ziaullah attorney of the petitioner was also heard.

7. Perusal of the record reveals that the cellular U-Fone Mobile Tower in the suit property has already been constructed as is evident from the contents of the plaint filed by the petitioner. The aim and object of the injunction is to restrain the future wrong being done to a party and not to disturb the status quo ante, prevailing before the institution of the suit. The other important aspect of this case is that admittedly the tower had already been completed and was functioning so when an act is done and completed, no injunction will ensue as held in the case of Salahuddin Khan and 3 others v. Sultan-i-Room and 3 others PLD 1973 Pesh. p.95 and in case of Mst. Sughra Bai v. Mst. Rabia reported in 1982 CLC 344(a).

8. In temporary injunction prima facie case is not the only requirement but the other two essentials must co-exist in order to warrant the issuance of temporary injunction as held in the case of Messrs Sui Northern Gas Pipeline Company Limited v. Messrs Pakistan Cement Industries reported in PLD 1968 Lah. 876(d).

9. It is pertinent to note that the defendant/respondent No.3 Muhammad Ayaz son of Muhibullah Khan during the pendency of civil appeal before the learned Additional District Judge, Charsadda has submitted an undertaking to the effect that he has only provided electric connection to the already installed U-Fone Mobile tower and in case of partition, if the suit property underneath the tower is allotted to the petitioner-plaintiff, he will not claim any cost or damage from the plaintiff. This undertaking find mention in paras. Nos.6 and 7 of the impugned judgment of Additional District Judge, Charsadda, dated 6-10-2007 which is binding on the defendant/respondent and has sufficiently protected the rights of petitioner/plaintiff as the respondent No.3 has installed the U-Fone Mobile Tower at his own risk and costs for which the defendant/respondent will not be entitled for any compensation as held in the case of Zakia Khatoon v. Roomi Enterprises reported in 1995 SCMR p.753.

10. As regard the alienation and transfer of the property during the pendency of the suit, the prayer for keeping the status quo intact, was altogether ignored by the two Courts below. The defendants/respondents are not within their right to transfer the suit property during the pendency of the suit and the petitioner was entitled at least to this relief, hence, while modifying the impugned judgments and orders of the two Courts below. It is ordered that the respondents/defendants shall not alienate the suit property during the pendency of the suit filed by Mst. Nusrat Begum, plaintiff/petitioner.

11. This being the position, with the above modification, there is no force in this revision petition, which is dismissed in limine with no order as to costs. Copy of this judgment be sent to District Judge, Charsadda for placing the same on the file of Civil Suit No.216/1 instituted on 29-3-2007 titled Mst. Nusrat Begum v. Muhammad Iqbal Khan and others pending in the Court of Mr. Obaidullah, Civil Judge, Charsadda. H.B.T./204/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.