2021 PLP 81 (CLC)

WIQAR AHMAD, J.

This order is directed to dispose of the petition filed by petitioner under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.").

2. Petitioner had instituted a suit praying for declaration to the effect that he has been owner and in possession of the property fully described in heading of the plaint and that defendants have got no concern with the same. Petitioner has stated in Para 2 of his plaint that he had left a private thoroughfare of 7/8 feet for access to his property and houses in the area in dispute, while he was having personal property on both sides of the thoroughfare. He has further contended in his plaint that the official respondents had started interference in the thoroughfare and wanted to convert it into a metallic road of larger width by capturing his personal property on both sides of the thoroughfare, without following the due course of law. Plaintiff has also asserted that the road has been constructed for, on demand and instigation of the inhabitants of another village namely Shwalai, who were already having another approach road to their village. He has also attributed mala fide to the official respondents. His suit was accompanied with an application filed under Order XXXIX, Rules l and 2 of C.P.C.

3. Defendants were summoned in the case. The official and private respondents have filed their separate written statements, wherein they contended that the thoroughfare had earlier been existing on the spot and that the government wanted to construct a road therein for facilitating the people of the area, which was unnecessarily being objected to by the petitioner.

4. Application of the petitioner for grant of temporary injunction was accepted vide order dated 31.05.2017 of the learned Civil Judge Malakand. Appeal against the said order was also dismissed vide order dated 18.07.2017 of the Court of learned Additional District Judge Malakand at Batkhela. On expiry of the period of six months, another application was filed by the petitioner for extension of order of temporary injunction. Another application for vacation of order of temporary injunction had also been filed by some of the respondents. The application for grant of temporary injunction was dismissed this time by the Court of learned Civil Judge Malakand vide his order dated 25.04.2018. The petitioner has filed appeal there-against, which was also dismissed vide the impugned order dated 16.08.2018 of the Court of learned Additional District Judge Malakand at Batkhela. Feeling aggrieved therefrom, the petitioner has invoked the jurisdiction of this Court under section 115 of the C.P.C.

5. I have heard arguments of learned counsel for the parties and perused the record.

6. Perusal of record reveals that petitioner has admitted in his plaint that a thoroughfare had been existing on the spot. This thoroughfare was not having a dead end near the property of the plaintiff but had been leading to the area of village Shwalai and same was being used by inhabitants of the said village, some of whom are also respondents herein. It is also on record that the said village had another way/path for access to the said area, but this is also an admitted position that beside the alternative way, private respondents have also been using the thoroughfare in dispute for access to their property. Facts, to this extent may easily be found admitted in the pleadings of the parties as well as the annexed record. The disputed questions in this case include as to whether the thoroughfare existing on the spot is a public way or exclusively belonged to the plaintiff/petitioner. Additionally, what was its original size and how much more area has been captured by the official respondents while making a road thereupon, and whether same has been owned by the petitioner/plaintiff, or not. Revenue record has never been prepared in the area, as no settlement has taken place yet, and thus there is a little bit difficulty in answering the said questions, at least at this stage. It is however apparent that the project of construction of road on a thoroughfare is a project of public utility, which will be beneficial for all, in the long run including the petitioner/plaintiff. It is also clear from the reports of the bailiff dated 02.12.2017 and 02.04.2018 that substantial progress had been made in construction of the road. The civil work so conducted on the spot is of such a nature which can neither be reversed at this stage, nor such an act is in anyone's interest. The balance of convenience therefore lies in favour of continuation and completion of the project for the benefit of the community. The loss apprehended in the instant suit, has already been caused to the plaintiff/petitioner, in case the property was found to be his ownership. Such a loss cannot be reversed, it may however be compensated for, adequately. The loss in the case in hand would not be h-reparable one as well.

7. The learned counsel for petitioner while arguing the case has also relied upon the findings of the two Courts below recorded earlier while deciding the first application of the petitioner for grant of temporary injunction. The earlier order dated 31.05.2017 of learned civil Court or order dated 18.07.2017 of learned appellate Court whereby the application for temporary injunction had been accepted for the first time, may not be regarded as any findings having achieved finality. A civil Court while deciding an application under Order XXXIX, Rule 2-B, C.P.C. cannot be deemed to have been bound by the earlier decisions made on an application under Order XXXIX, Rules 1&2, C.P.C. It is not supposed to dovetail the earlier decisions invariably. Such a narrow interpretation would render the very provision of Order XXXIX, Rule 2-B, C.P.C. as redundant and would defeat the purpose for which the legislature has inserted the said provision in the Code. Order XXXIX, Rule 2-B, C.P.C. requires fresh reasons to be recorded for the extension. The said provision being relevant is reproduced hereunder for ready reference; O.XXXIX, Rule (2-B):- The order of injunction made under Rule 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of six months unless extended by the court after hearing the parties again and for reasons to be recorded for such extension." This provision has been inserted by the legislature with a definite aim in mind. The object was no other than suppressing the mischief of existence of temporary injunction for extra-ordinary long time as a result of delay in disposal of the main case. In an earlier judgment of this Court in the case of "XEN PESCO (WAPDA) Manshera through Chairman PESCO v. Gas Masters CNG Filling Station, Manshera through Khalid Latif" reported as "PLD 2005 132 (Peshawar)", the matter of extension of temporary injunction has been dealt with as follows;

7. The contention of the learned counsel for the respondents that the phrase/word "extension" used in the provision of Rule (2-B) shall be construed confirmation of the initial order of temporary injunction shall operate and be effective pending disposal of the case is based on misconception of the law. The word "extension" according to the dictionary definition means "to stretch out, to prolong, to enlarge, to expand, to widen". According to the Blacks Law Dictionary centennial addition 1891-1991 word "extension" means any increase in length of time specified in the contract, lease, enlargement of main body, addition of something similar that to which it is attached, to cause to reach or continue as from point to point, to lengthen or prolong, extension of time for performing an act that is otherwise to be done within time specified by the Court rule or order in civil actions.

8. The word "extension" has been issued by the law maker in Rule (2-B) with an definite object to which no different meaning widening its scope can be given because such a construction would certainly defeat the very purpose for the achievement of which the said rule was enacted. The manifest intention behind the same is that the granting temporary injunction for ail indefinite period as was done in the past has been done away and by now it is to be regulated by periodical extension so that tendency of granting temporary injunction in a routine' manner for unlimited period without deciding the main case is to beg curbed/suppressed. The change has introduced a new system of dispensation of quick justice with a proper discipline to be maintained by the subordinate Courts while granting and extending, temporary injunction.

9. The word "confirm or confirmation" have altogether different meaning and connotation. These words mean to give permanency to an interim order, to establish, to verify to satisfy to assume, to admit to full communion. Thus on plain reading and perusal keeping in view the dictionary meaning referred to above no different view can be formed except that the extension of temporary injunction on the expiry of the initial period of six months is an extension and in no case shall exceed six months The plea of the learned counsel for the respondent is not tenable being based on misconception of law and being devoid of sanction of law. The two Courts below were therefore justified in taking a different view in the case in hand. A decision on application for temporary injunction is even otherwise based upon tentative assessment of record and findings given therein may not be termed as definite and final findings of a Court of law, sufficient to attract the doctrine of finality of judgements. The position of material on record changes with the efflux of time and changes may occur in the situation and subject-matter of a suit. Courts of law cannot be therefore held to be bound by a first order made on application for the grant of temporary injunction, while deciding a subsequent application under Order XXXIX, Rule 2-B, C.P.C. In such a situation, no justification exist for reversing the orders of two Courts below, whereby they have refused the injunction to petitioner. The petitioner may however amend his plaint, if so advised, and claim compensation for the property, which he has been claiming to be his ownership. If so claimed, the learned civil Court shall not hesitate in granting adequate compensation, provided the plaintiff proves the area in dispute to be his ownership. In such a situation, refusal of injunction would not cause inconvenience to the petitioner ultimately and his loss may also be adequately compensated, if found at the conclusion of the suit. With these observations, the petition in hand is disposed of. ZC/196/P Order accordingly.