1986 PLP 2681 (MLD)

M.A. Latif Amritsari for Respondents 1 and

2. Date of hearing: 16th June, 1986. The dispute between the parties relates to land measuring 64 Kanals 16 Marlas, which in the first instance was mortgaged with possession by respondent No. 3 in favour of respondent No.2, for Rs.9 lacs for a period of 17 years. It was then sold away to Messrs Province Ginners (Private) Ltd., respondent No. l herein, subject to the mortgage for a consideration of Rs.l lac. The petitioner filed a suit to pre‑empt this sale and alongwith the plaint moved an application for grant of temporary injunction, restraining the respondents from raising any construction and making improvements in the land. The trial Court by its order, dated 15‑5‑1986 refused the temporary injunction. With this refusal, the learned Additional District Judge, did not differ and dismissed the petitioner's appeal on 20‑5‑1986. The appellate Court's order in this behalf is under challenge in this revision petition.

2. It is discernible from the record that respondent No.1 resisted the suit, contested the application and raised the plea that immediately after the purchase of the land, a sign board of the Ginning factory was affixed at the site and that before the institution of the suit the Company embarked upon the construction comprising the factory building, a boundary wall and incurred an expenditure of Rs.2,36,296 on the same; that a tubewell was also installed and a sum of Rs.1,61,000 paid to the WAPDA as security for obtaining the electricity connection. It was further added that the Company has already invested lacs of rupees in purchasing the machinery for erection of a Ginning factory. An objection was also raised that the plaint was not properly stamped and that the petitioner has yet to deposit the "Zar‑e‑Panjum" in the Court. It appears that the respondents' contentions, that the site was purchased for the installation of a factory; a substantial part of the construction was complete and the roof had to be put thereon for safety of the machinery, for which the Company had already spent about Rs.28 lace, prevailed with the learned Senior Civil Judge in disallowing the petitioner's application for temporary injunction. The operative part of his order runs as under: "It is settled proposition of law that the defendant in a pre‑emption suit can claim improvement upto the date of service of notice or date 'of the knowledge of the suit itself. At the proper stage it can be determined separately as to what was spent by the defendant company over roofing and the construction already made. The balance of convenience is not in favour of the plaintiff as he has no prima facie case. His superior right of pre‑emption is yet to be determined and even the deposit of 1/5th amount and affixation of proper court‑fee have still to be checked whether the plaintiff fulfils the directions already given or not. The balance of convenience is, therefore, more on the side of defendant company than on the side of the plaintiff. As already pointed out the costs of roofing can be assessed separately at a proper time and, therefore, the plaintiff may not suffer any irreparable loss. Rather it would be defendant No.1 who may suffer irreparable loss if interim stay is granted in the present circumstances..."

3. According to the appellate Court, the respondent No. l as vendee, has absolute right to make use of the property, affect improvements therein and claim compensation, therefor, as made before the institution of the suit. The Court further maintained that if the vendee continues improvements in the property, even after he is posted with the knowledge of the institution of the suit, in case of its decision against him, would not be entitled to compensation but may remove away the material utilised in affecting the improvements, if it is severable. The learned appellate Court went on to observe that the petitioner had yet to prove his case and as the property was purchased by the Company for establishing a Ginning factory; it could not be restrained from raising construction.

4. I have heard the learned counsel for the parties and examined the available record, to evaluate their conflicting contentions. Relying on Arshad Ali v. Abdul Rashid and others P L D 1980 Lah. 382 it is argued, on behalf of the petitioner, that the suit property is an agricultural land and under the garb of the improvement, the respondents have no right to change its character and convert it into a building site. It is submitted that any improvement which tends to change the nature of the land cannot be allowed.

5. On the other hand, the respondents' case is that the suit land was lying as a brick‑kiln. It was uneven and had deep depressions therein; it was purchased for the installation of a Ginning factory, the preliminaries were taken in hand by the Company before the execution of the sale‑deed. It was urged that immediately after the sale, in view of the urgency the company filled In the depressions, levelled the land, raised two big halls, three small rooms and the major part of the pert‑meter wall completed. It was further urged that the respondents deposited a sum of Ra.1,61,000 lacs with the WAPDA as security for the grant of electricity connection. According to the respondents' learned counsel, even if, the suit property was originally agricultural land, it has already undergone a change and converted into a factory‑premises. He heavily relied on Muhammad Shaft etc. v. Kaneez Zohra Bibi 1983 C L C 2541 to enlist support for his arguments that the Company has the right to enjoy the possession of the property and make use thereof till the suit is decreed in favour of the petitioner. ' ?

6. I find substance in the submissions of the learned counsel for the respondents. In Arshad Ali's case the learned Single Judge was influenced by a decision of the Sind Judicial Commissioner's Court in Municipality of Tando Adam v. Khair Muhammad and others A I R 1925 Sind 260 in which the defendant after building a mosque in the land in dispute dedicated it to the public and transferred its possession to the God Almightly rendering it impossible for the opposite party to retrieve it, even if he was found to be entitled to it. It is obvious that such circumstance does not arise in this case. There are indications on the record before me that the Company took in hand the construction of the factory well before the filing of the suit by petitioner. The learned counsel for the respondents, thus, is not wrong in contending that the nature of the suit property has already undergone a change. The petitioner's learned counsel, however, has taken up the stand that only a small portion of the land is under construction and that rest of the property is still lying vacant. But, to me this assertion does not appear to be correct. From the report of the local commissioner, appointed by the learned Additional District Judge, it is evident that the entire land is being surrounded by a pert‑meter wall, two halls and three other rooms are under construction. The Local Commissioner has estimated the cost of the construction at Rs.1,77,000 excluding the cost of certain items and the building material lying at the site. Further on the file there is a sworn affidavit of Usman Suleman, who is the Chief Executive of the respondent company, to the effect that the respondent filled in the depressions, took in hand the construction of the factory building; a tube‑well and deposited Rs.1,61,000 with the WAPDA, and incurred huge expenditure on the machinery which is intended to be installed before the advent of the coming cotton season. The petitioner has not filed any counter‑affidavit. The contentions raised on behalf of the respondents, thus, have remained uncontroverted .

7. I fell that in the circumstances of the case there is no justification to stop the company at this stage from carrying on its project. The temporary injunction prayed for, if issued would expose the respondents lot of irreparable loss and create complications for it. Balance of convenience decidedly tilts in the respondents' favour. Of course, the company shall not be entitled to any compensation for the improvements made after it became aware of the institution of the suit. In this connection the parties shall be at liberty to file their objections against the report of the Local Commissioner or make a request to the trial Court for appointment of a fresh commission for spot‑inspection.

8. This revision petition cannot succeed, also for another reason. The grant or refusal of temporary injunction was within the discretion of the learned Courts below. Both the Courts below have, for good reasons, refused to exercise their discretion in favour of the petitioner. This refusal, by no means, can be regarded as an arbitrary. In exercise of its jurisdiction under section 115, C.P.C. This Court would not readily interfere in a matter falling legitimately within the discretion of the subordinate Courts. A reference in this connection may be made to Muhammad Umer Beg v. Sultan Mahmood Khan etc. P L D 1970 S C

139. For all these reasons, I do not find any merit in this revision. It is, therefore, dismissed, but with no order as to costs. A. A.??????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.