2003 PLP 201 (MLD)

Ahmad Waheed Khan for Respondents. Date of hearing: 18th March, 2002. This revision petition is directed against the order, dated 3‑6‑1999 passed by the learned Additional District Judge Lahore, dismissing the appeal of the petitioner against the order, dated 15‑11‑1997 whereby the learned Civil Judge, Lahore dismissed the application under Order 39, Rules 1 and 2 read with section

151. C.P.C., filed by the petitioner‑plaintiff in a suit for partition.

2. The dispute in this case is in respect of the property measuring 8 Kanals bearing Khasras 1971, 1669, 3592, 3598 to 3618, 3625 to 3636, 3639 to 3641, situated behind Thana Mozang, Lahore. The property also includes one shop which was in occupation of respondent No.8 as tenant under Muhammad Afzal son of Muhammad Shafi respondent No. 2., Master Niaz Muhammad‑respondent No.8. The petitioner claimed the ownership on, the basis of sale‑deed alleged, to have been executed by its owner Noor Din on 23‑3‑1939. in favour of one Ibrahim father of the petitioner and respondent No.9.

3. On the other hand, the claim of the respondents that they were owners in disputed shop on the basis of sale‑deed dated 11‑4‑1941 registered on 22‑4‑1941 alleged to have been executed by Mst. Hussain Bibi the real daughter .of original owner namely Noor Din son of Punnoo, who acquired the title on the basis of Tamleeq Nama. Admittedly the ejectment petition was filed by Muhammad Afzal son of Muhammad Shafi one of the respondent against Master Niaz Muhammad. In S.A.O. No.6 of 1996 on 22‑9‑1996, respondent No.8 Niaz Muhammad undertook to deliver the possession of the shop in dispute to the answering respondent‑Muhammad Afzal within a period of one year from 22‑9‑1996. The case of the respondents is that the suit is mala fide and was filed within as aim to protect illegal possession of Master Niaz Muhammad‑respondent No.8.

4. Alongwith the suit an application under Order 39, Rules 1 and 2 read with section 151, C.P.C. was also moved by the petitioner‑plaintiff which was resisted. The same was dismissed by the learned Civil Judge vide his order dated 15‑11‑1997 and appeal filed by the petitioner was also dismissed on 3‑6‑1999. Hence this revision petition.

5. The learned counsel for the petitioner contends that the petitioners are owners of the suit‑land being co‑sharers including the shop on the basis of sale‑deed dated 23‑3‑1939 and all the ingredients for grant of temporary injunction co‑exist in favour of the petitioners.

6. Conversely, the learned counsel for the respondent has defended the impugned orders of the Courts below.

7. For the grant of temporary, injunction under Order 39, Rules 1 and 2 the Court has to consider the following factors:‑‑ (i) The prima facie existence of right in the applicant and its infringement by the respondents or the existence of a prima facie case in favour of the applicant. (ii) An irreparable loss, damages or injuries which may occur to the applicant if the injunction is not granted. (iii) 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.

8. The petitioner has filed the suit for the partition without challenging the `Tamleeq Nama' dated 18‑2‑1939 alleged to have been executed by Noor Din son of Punnoo in favour of Mst. Hussain Bibi, the real daughter who further sold the shop to Muhammad Shafi, the predecessor‑in‑interest of respondents Nos.2 to

7. This shop was admittedly in the possession of Master Niaz Muhammad against whom the ejectment order has been passed by the learned Rent Controller and maintained by the High Court. Tamleeq Nama dated 18‑2‑1939 is earlier in time because, the alleged sale‑deed on the basis of which the petitioner claimed the ownership in favour of his father Muhammad Ibrahim is dated 23‑3‑1939. Further the shop has been sold to Muhammad Shafi vide sale‑deed dated 22‑4‑1941 which is prima facie proof of the ownership in favour of the predecessor‑in‑interest of the respondents. In the case reported as f976 SCMR 291, the Honourable Supreme Court has laid down the rule for grant of temporary injunction and held that all the conditions, i.e., prima facie existence of right in the applicant, an irreparable loss and balance of convenience should co‑exist. In the case of Marghub Siddiqi v. Hamid Ahmad Khan and 2 others (1974 SCMR 519), the Honourable Supreme Court, held that: "O.XXXIX, Rr. 1 & 2‑‑‑Injunction‑Not to be granted only on basis of existence of prima facie case‑‑‑Incumbent on Court to take into account other questions, such a balance of convenience etc."

9. It is well‑settled that except for the purpose of preventing multiplicity of proceeding, injunction cannot be issued by the Civil Court to stay judicial proceedings or to stay proceeding in superior Courts. Reliance can be placed in the cases of PLD 1972 SC 34 followed in PLD 1976 Lahore

871. Admittedly, on acceptance of the application under Order 39, Rules 1 and 2 the order passed by the High Court in S.A.O. No.61 of 1996 on 22‑9‑1996 in pursuance of which Master Niaz Muhammad respondent No.8 had to hand over the possession to Muhammad Afzal respondent No.2 would be stayed. In the case reported in 1976 SCMR 291 it has been ruled by the Hon'ble Supreme Court that the sale‑deed in favour of any party is the prima facie proof of the ownership in his favour.

10. On the touchstone of the provision of Order 39, Rules 1 and 2 and the case‑law referred above, irresistible conclusion can be drawn that the applicant‑petitioner has neither any prima facie existence of right nor there is any irreparable damage or injury and nor there is inconvenience which the applicant will undergo from withholding the injunction. Since all the above three ingredients were not in co‑existence in favour of the petitioner, therefore, the learned Civil Judge as well as the learned Additional District Judge has committed no illegality or material irregularity while passing the impugned order dated 15‑11‑1997 and 3‑6‑1999, through which the application under Order 35 Rules 1 and 2 read with section 151, C.P.C. filed by the petitioner was dismissed. Resultantly, this revision‑ petition fails and is dismissed with costs. S.A.K./A‑521/L Revision dismissed.