1989 PLP 2090 (CLC)

Badar Alam for Plaintiff. Muneer A. Malik for Defendant. Date of hearing: 29th January, 1989. This is a suit for specific performance, declaration and injunction, wherein the Plaintiff has claimed that he is the real owner of the property in dispute, of which the Defendant is an ostensible/benami owner and has sought a direction for specific performance of arrangements dated 10‑12‑1987 and 18‑2 1985, whereby the disputed property is said to be transferable to the plaintiff. Permanent injunction is sought for restraining the Defendant and all those claiming under her from transferring or disposing of the property, in Suit, or from dispossessing the plaintiff. An application for injunction, which accompanied the suit, sought an Interim Injunction restraining the Defendant or those claiming under her from transferring or disposing of the property in the Suit except to the Plaintiff or from interfering with the Plaintiff's peaceful possession or dispossessing him in any manner except in due course of law. ,

2. The above application (C.MA. No.2825/87) was disposed of through an order dated 18‑10‑1987, whereby an order of restraint, earlier passed, restraining the Defendant from disposing of the property, till the hearing of the application aforesaid, was confirmed.

3. The Plaintiff has now made the present application seeking that the above‑said order of confirmation dated 18‑10‑1987, be amended/varied and an order directing the parties to maintain status quo, be passed. This application is supported by an Affidavit in which it is stated that the Defendant is altering the shape of the property, has removed machinery from a part thereof, has cemented the floor, obtained an electricity connection, let out some area of a portion of the property to a third party, which has started running a factory therein, and has collected construction material with the intention of raising some construction.

4. Now, the object of Order XXXIX, Rule 4, C.P.C., is to seek discharge,, alteration or variation or even setting aside of an Order of Injunction, if sufficient grounds are shown by the aggrieved party in a suit. Normally, such a relief is allowable where the aggrieved party comes up with additional material or substantial pleas which require reconsideration of an earlier Order of Injunction on legal or equitable grounds, which may include such Order becoming unduly harsh, unnecessary or unworkable. Reference in this context may be made to the observations of Naimuddin, J., as he then was,in a Division Bench case of this Court in Muhammad Rafiq Akhter v. Ghulam Sadiq 1983 CLC

333. Even, an ex parte Interim Injunction may warrant reconsideration on such just or equitable grounds, where a party on account of insufficiency of cause for recall of ex parte orders, may not succeed under the strict provisions of Order 1X of the Code of Civil Procedure. But, then, in such matters the grounds for reconsideration must be of a compelling nature. In point may be the Order of the Supreme Court of Pakistan, ascribed to Aslam Riaz Hussain, J., in the case of Bagh Mall v. Muhammad Shari, 1987 SCMR 27 where such Order was recalled on an observation that it may not have been passed if all facts were disclosed at the time of its grant. In appropriate cases even where an appeal has failed against an Interim Injunction, the remedy under Order XXXIX, Rule 4, C.P.C., may still, on just causes, be availed of, for rules of procedure are meant to advance justice and not to retard its course and this, I say, because in Order XXXIX, Rule 4, C.P.C., no restrictive Clauses: as are contemplated under Order 47, Rule 1, C.P.C., are spelled out, one of which bars the relief if an appeal has been taken. Indeed in the case of Farooq Iqbal v. Nawaz Khan 1987 SCMR 226, Javid Iqbal, J., who wrote the Order of the Supreme Court, allowed deposit of money, at the Leave stage, which stood precluded by an Order of Injunction, against which appellate remedies etc., had failed. This, however, was subject to all just exceptions.

5. However, in this case, the plaintiff, in the context of the earlier order of Injunction, succeeded in getting nearly all that he asked for. The remedy under Order XXXIX, Rule 4, C.P.C., being available to an aggrieved party only, cannot be resorted to by the Plaintiff, as he is not such an aggrieved party, having succeeded, as he did, in obtaining an order of Injunction m terms prayed. This, therefore, manifestly; is not a case for variation of orders.

6. This, however, will not preclude the Plaintiff from moving a fresh application for Injunction or, for the matter of that, seeking any other lawful interim relief, if he makes out a case for that purpose. He may make such an application, if he is so advised For the foregoing reasons, this application namely, C.M.A. No.4316 of 1988, is dismissed. M.AK /G‑133/x. Application dismissed