1991 PLP 1546 (CLC)

Date of hearing: 19th February, 1991. This revision petition is directed against the order dated 7-10-1984 passed by the learned Additional District Judge, Kasur, dismissing the petitioner's appeal against the order dated 18-5-1980 passed by the learned trial Court dismissing his application for issuance of temporary injunction during the pendency of the suit.

2. The petitioner in the suit challenged the alleged arbitration agreement, arbitration award and the decree passed on the basis of the award on the ground of fraud, misrepresentation. His case was that he neither executed any arbitration agreement nor participated in the arbitration proceedings. He also did not appear before the Court which made the award rule of the Court which order was obtained through fraud. Alongwith the suit an application was made that the petitioner's possession over the property in dispute may not be disturbed during the pendency of the suit.

3. The learned trial Court found that the petitioner did not fulfil the three conditions for issuance of temporary injunction, therefore, the application of the petitioner was dismissed through order dated 18-5-1980 which has been upheld in appeal by the learned lower appellate Court through order dated 7-10-1984 by which the appeal of the petitioner was dismissed.

4. It has been argued by the learned counsel for the petitioner that respondent No. 2 who is as arbitrator filed written statement in which he supported the case of the petitioner by averring that it was respondent No.l who got the award signed by him through misrepresentation. Respondent No.3 is admittedly the tenant over the land in dispute who is attorning to the petitioner as admitted by the learned counsel for respondent No.2 during argument. After an order was obtained for making the award rule of the Court, respondent No.l dispossessed forcibly said Jan Muhammad who initiated proceedings for restoration of his possession. Learned counsel for the respondent frankly conceded that the A.C. has passed an order for restoration of possession to Jan Muhammad who is in possession of the property who was put in possession in compliance with the said order of the A.C.

5. It was admitted by the learned counsel for respondent No.l that before the arbitration agreement and award was obtained the petitioner was the owner of the land, who allegedly agreed to sell the same to respondent No.l. It was to settle the dispute of sale of land in pursuance of the alleged agreement of sale that the matter was referred to the arbitrator which fact has been denied by the petitioner. In view of these admitted facts that the petitioner is the owner of land and that Jan Muhammad is tenant under him and the arbitrator having supported the case of the petitioner, it could not be maintained by respondent No.l and held by the two Courts below that the petitioner had no prima facie case, that the balance of convenience was not in his favour and that he was not to suffer irreparable loss in case the temporary injunction was refused.

6. Learned counsel for respondent No.l submitted that the appeal before the learned lower appellate Court filed by the petitioner was not maintainable because notice as contemplated under Order 43 was not issued by the petitioner before filing the appeal as the appeal was directed against an interim order.

7. It was the duty of the learned lower appellate Court to have processed the appeal before the issuance of notice to the respondent so that if there was any defect the same could have been removed. The learned lower appellate Court having admitted the appeal and issued notice to the respondent who appeared and contested the appeal and was heard before passing the order, therefore, the appeal at this stage could not be held to be not maintainable. It is apart from the fact that the learned lower appellate Court after holding that no notice as contemplated under Order 43, C.P.C. had been issued, proceeded to record findings on merits of the case.

8. The two Courts below for the foregoing reasons acted with material irregularity and illegality in exercise of jurisdiction vested in them under the law in dismissing the application of the petitioner for temporary injunction. This revision petition is accepted. The impugned orders of both the Courts below in this revision petition are set aside. The application of the petitioner for issuance I of temporary injunction is accepted. Respondent No.l is restrained from interfering in the possession of the petitioner of the land through Jan Muhammad his tenant and from alleging any right of ownership in the land in dispute and exercising any such right till the disposal of the suit. The parties are left to bear their own costs.

9. The suit is fairly old one. The learned trial court shall expedite its disposal and try to dispose it of before 31-12-1991. H.B.T./M-2668/L ??????????? ??????????????????????? ??????????????????????? ??????????? Revision petition accepted.