2007 PLP 1794 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Sardar Ali Khan, plaintiff instituted suit against Abdul Hamid and his brother Hamid Khan, defendants, claiming a declaration to the effect that plaintiff was owner in possession of suit-land, detailed in the plaint, by virtue of purchase and defendants had no concern with' it. The plaintiff also prayed for grant of permanent injunction, restraining the defendants to transfer or alienate the suit property in any manner. A prayer for possession through partition by demolition of superstructure constructed thereon, was also made. Along with the plaint, an application duly supported by an affidavit for grant of temporary injunction, in the above terms, was also made. The suit as well as application were resisted on all grounds, legal as well as factual. Resultantly, learned Civil Judge, Peshawar, by her order dated 21-11-2006, accepted application and granted temporary injunction in favour of the respondent. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Peshawar, by judgment dated 27-1-2007. The petitioners, feeling aggrieved, have filed instant civil revision.

2. Learned counsel for the petitioners attempted to argue that the impugned judgments and orders of the Courts below have been recorded in a mechanical manner without adverting to the provisions contained in Order XXXIX, rules 1 and 2, C.P.C., which has resulted in manifest injustice. In support of the contentions, reliance was placed on Haji Shahjahan Khan v. Aurang Zeb Khan and another (PLD 1995 Supreme Court 462) and Amanullah v. Hameedullah and others (2006 YLR 856).

3. An injunction will only be issued if the circumstances mentioned in rule are attracted i.e. as a step in aid of or to refrain or prevent, waste, damage, alienation, sale, removal or disposal of property and even where this is so, it is discretionary with the Court to grant an injunction. The factors to be considered while determining the question of granting a temporary injunction are, the prima facie existence of a right in the applicant and its infringement by the respondent or the existence of a prima facie case in favour of the applicant, irreparable damage or injury will accrue to the applicant if the injunction is not granted and that the inconvenience which the applicant will undergo from withholding the injunction will be comparatively greater than that, which is likely to arise from granting it, or in other words the balance of inconvenience should be in favour of the applicant. The appellant is to prove the prima facie existence of the right claimed in the suit and also its infringement. The Court need not closely examine the merits of the case nor is the applicant to be required to establish his legal title. It is sufficient if the applicant is able to establish an arguable case or show that the nature and difficulty of the question is such that an injunction should issue, or in other words if the evidence were to remain as it is, the applicant should be able to show that he will get a decision in his favour and that the case is not bound to fail on account of some apparent defect in it. In the instant case I find that learned trial Court on appraisal of the material on record, has considered the matter from all angles keeping in view the factors relating to grant or refusal of temporary injunction. The learned trial Court has advanced sound, cogent and sagacious reasons in support of the order which are not open to exception. The learned appellate Court has also upheld said order for valid reasons. The scope of section 115, C.P.C. is limited and, as such, this Court cannot interfere in its revisional jurisdiction with the concurrent findings on a question of fact rendered by the two Courts below unless it finds misreading and non-reading of evidence therein. The mere assertion of learned counsel that the impugned judgments and orders suffer from misreading and non-reading of material on record, without a positive attempt on his part to substantiate the same, is of no consequence. It is well settled law that a concurrent finding of fact recorded by the Courts below cannot be disturbed by this Court in exercise of the revisional jurisdiction under section 115, C.P.C. unless the two Courts below while recording the finding of fact have either misread the evidence or ignored any material piece of evidence on record or the finding of fact is perverse to the evidence on record. Since the learned counsel has not been able to point out any illegality or irregularity in the decisions concurrently arrived at by the forums below, justifying interference of this Court in its revisional jurisdiction, the civil revision fails, which is hereby dismissed in limine. The listed C.M. also meets the same fate. H.B.T./104/P Revision dismissed.