1987 PLP 2479 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑

S. 115‑‑ Revision‑--Trial Court passing prohibitory order arbitrarily‑‑Appellate Court recalling such order upon an incorrect approach, though order passed was fair and just‑‑High Court declined to interfere in revision on the ground that substantial justice had been done between the parties by the appellate Court. Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lah. P L D 1954 Lahore 755 ref. Khizar Abbas Khan for Appellant. Petitioner being a co‑sharer with the respondents, in certain land situated within the Municipal limits of Chiniot, filed a suit for partition to have his share of 1 Kanal 21 Marlas separated off. Therein he also filed an application to claim a temporary injunction to the effect that the defendants may not either let out the land on rent or transfer its possession in any manner and he also restrained from raising constructions or even using it for residential or commercial purposes and changing its character. The suit appears to still have to be tried. The trial Judge, however, by his order dated 21‑1‑1987 proceeded to pass the prohibitory order to the extent of restraining the defendants from further changing the character of the land till the final disposal of the suit but he observed also that they could sell the property to the extend of their shares but not by specific demarcation nor any specific portion thereof. 2. An appeal thereagainst preferred by the defendants was heard by an Additional District Judge who accepted it by his judgment dated 26‑7‑1987 to vacate the order of prohibition passed by the Trial Court on the solitary ground that there was no decree for permanent injunction claimed in the suit and, hence, a temporary injunction could also not have issued. 3. Plaintiff has now come up to this Court or, revision to seek restoration of the trial Court's order upon setting aside the order passed in the appeal below. 4. Learned counsel contends that since the petitioner had filed a suit for partition, therefore, there could not arise any occasion for him to pray for the passing of a decree for permanent injunction because as soon as a decree for separation of his share was passed the dispute would come to an end. No doubt there is merit in this contention and the Additional District Judge was only ill‑advised to have accepted the appeal on such a ground, still I do not consider that any useful purpose can be served in giving effect to this contention into either setting aside the appellate order on such a ground or restoring the order passed by the Trial Court because I find that whereas in his suit the petitioner has admitted that the defendant /respondents are also the joint owners of the land, he has, not even obliquely alleged that he may be in actual possession of any, part of the land and his reliance appears to be on his constructive possession as a co‑owner. Even in his petition for grant of temporary injunction there is no assertion on the factual site made even remotely to justify the passing of the desired interim order of prohibition. Such orders can, by virtue of the provisions of Rule 1 of Order XXXIX of the C.P.C, be passed only upon a satisfaction of the Court being reached on the basis of affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit. There, however, is no averment anywhere made to such an effect. In law, all co‑owners of property stand on equal footing with regard to the rights of ownership and A preference can be claimed by one co‑owner over the other on the basis only of his actual possession of the joint property which he is entitled to hold until a partition by metes and bounds takes place and he can even transfer the property to the extent of his share to another person so as to also induct him into the possession thereof to the same extent as was held by him. Since in this case the plaintiff‑petitioner has not even alleged that he may be in actual possession of any part of the joint land so that his entitlement as a co‑owner thereof may be better than that of the other co‑owners, namely, the defendant‑respondents, therefore, there is no reason made out at all for claiming the prohibitory order which, it is needless to emphasize, can be passed only upon satisfaction of the Court about the existence in his favour of the considerations relating to prima facie case, balance of convenience and apprehension of having to suffer irreparable loss. None of these considerations was satisfied by the petitioner and yet a prohibitory order was passed by the Trial Court only arbitrarily. Such an order having been recalled in the appeal below, though upon an incorrect approach, there came to be made a just and proper order between the parties which, as has been held in Messrs Ghulam Farid Muhammad Latif and others v The Central Bank of India Limited, Lahore P L D 1954 Lahore 575 does not call for being set aside in exercise of revisional jurisdiction. 5. Upshot of the foregoing is that there is no merit in the civil revision which is accordingly dismissed in limine. M.B.A./17‑D/ Revision dismissed