2005 PLP 210 (YLR)

Nehmat-ur-Rehman for Respondents. Date of hearing: 23rd April, 2004. Muhammad Zahir, petitioner/ plaintiff filed a suit against respondents in the Court of learned Civil. Judge, Oghi seeking declaration and perpetual injunction. Along with the said suit an application for grant of temporary injunction was also filed. The suit as well A as the application were resisted by filing written statement/reply. The learned trial Court after hearing the learned counsel for the parties restrained the respondents to construct new PSO out-let vide order, dated 24-3-2003. Feeling aggrieved with the said order, respondents filed Appeal No.11/14 of 2003 in the Court of learned District Judge, Mansehra. The said appeal was allowed vide judgment/order, dated 8-7-2003. Being not contented with the said judgment and order passed by the learned Appellate Court the petitioner-has filed revision petition in hand.

2. Mr. Masoodur Rehman Awan learned counsel representing the petitioner argued that the learned trial Court had allowed the application for grant temporary injunction. The learned Appellate Court while remanding the case back to the learned trial Court for deciding the application afresh did not maintain status quo order of the learned District Judge was illegal.

3. It was also argued that the petitioner/plaintiff had a strong a prima facie case. The policy of PSO was also in his favour. As per the said policy, in case of existing PSO site falling on opposite site in minimum distance of 3 kilometres is to be kept on either side of the proposed site but in the case in hand, the total distance between the existing PSO site and the one to be constructed by the respondent was 1.8 kilometres as is clear from the local commissioner's report.

4. On the other hand Mr. Nehmatur Rehman, learned counsel representing the respondents argued that the petitioners/plaintiff has no cause of action because he is not the proprietor or dealer of Nasim Filling Station as is clear from certificate issued by PSO, dated 9-1-2004 (placed on record today).

5. It was also argued that the suit filed by the petitioner/plaintiff had been dismissed for non-prosecution vide order, dated 17-10-2003. An application for restoration of the suit was moved which too was dismissed vide order, dated 22-11-2003. The applicant/plaintiff has now filed another application for restoration of his earlier application dismissed for non prosecution. Since no suit was pending before the learned trial Court, therefore, the revision petition has become infructuous.

6. I have heard the learned counsel for the parties at length and perused the record.

7. The learned Appellate Court vide his order, dated 8-7-2003 while allowing the appeal filed by the respondents remanded the case back to the learned trim Court with the direction to decide the fate of the application of petitioner/plaintiff for grant of temporary injunction afresh in the light of observations made by the learned Appellate Court. The grievance of the petitioner that while remanding the case back to the learned trial Court status quo order should have been maintained has no force. The perusal of the judgment/order passed by the learned trial Court shows that the respondents/defendants were restrained to construct new PSO out-let for a period of 6 months which period has since expired. Secondly the suit filed by the petitioner/ plaintiff stands dismissed for non prosecution and now his application for restoration is to be decided first. Although temporary injunction can be granted even during the pendency of an application for restoration of the suit but since the petitioner/plaintiff was not vigilant to pursue his suit as well as application for restoration which conduct of the petitioner shows that there is no urgency and he would not suffer any irreparable loss if the learned trial Court is directed to decide the application for restoration as well as grant of temporary injunction within a period of one month. I, therefore, without commenting upon or without passing any observation on the application for grant of temporary injunction lest my observations may not influence the learned trial Court, direct the learned trial Court that the B application for restoration be decided within a fortnight and if the said application is allowed then application for grant of temporary injunction which had been remanded by the learned District Judge be also decided within a period of one month from today positively. Parties shall bear their own costs. H.B.T./263/P Order accordingly