1984 PLP 1716 (CLC)

O. XXXIX, rr. 1 & 2 Temporary injunction, grant of Estab lishing a prima facie case by plaintiff, a pre-requisit Court bound to look into facts at interlocutory stage to see whether condition of prima facie case was satisfied Not possible to completely shut eyes to facts of a case and pass interim order although court cannot enter into merits nor can give any finding Observations made are tentative in nature and court cannot be bound by such observations during trial Petitioners not claiming to be lessees, allottees or having any right except possession of certain land for last 12 years Land belonging to Govern ment Held, mere possession for last 12 years will not prima facie entitle them to claim same as a matter of right.

O. XXXIX, rr. 1 & 2 Temporary injunction Relief discretionary in nature Both Courts below exercising discretion against petitioner No perversion or illegality shown in exercise of discretion Held, no interference called for in revision in circumstances. Syed Ahmad Farooqui for Applicants. JUDGMENT The petitioners filed a suit before the Senior Civil Judge in representative capacity for declaration that the petitioners are entitled to the regularization of the plots of land as measuring 40 to 60 sqr. yds. and permanent injunction restraining the respondent from dispossessing them. Briefly the facts as stated in the plaint are that the petitioners are residents and permanent settlers in New Karachi for the last 12 years. They have built houses for residential purposes and have been making representations to the relevant authorities for regularization of the plots in their names and other occupants. The respondents served a notice calling upon* the petitioners to vacate the plot s within 24 hours. The petitioners, therefore, filed a suit. According to them the cause of action arose on 14-2-1980 when the notices were served. The petitioners also filed an application under Order XXXIX, rules 1 and 2, C. P. C. praying that the respondents may be restrained from dispossessing the petitioners. This application was dismissed on 23-2-1980 against which Miscellaneous appeal was filed before the learned District Judge. This appeal was also dismissed by the impugned order. Mr. Syed Ahmed Farooqui the learned counsel for the petitioners hasp contended that the petitioners are in possession of the plots and are entitled to be declared as Katchi Abadi and cannot be treated as encroachers. The learned counsel further contended that by the impugned order both the Courts below have in fact decided the merits of the case. It is well-settled that before any application under Order XXXIX, rules 1 and 2 is granted the plaintiff has to establish prima facie case. In order to determine that a prima facie case has been established the Court has to examine the facts and materials on record. It is not possible to completely shut eyes to the facts of the case and pass an interim order in the case. No doubt in such pro ceedings the Court cannot enter into the merits of the case nor can any finding at this interlocutory stage be given, but the Court is bound to take into consideration the facts on record for determining the prima facie nature of the case. Any observation made in this process are tentative in nature and during the trial the Court is not bound by it. The petitioners do not claim to be the lessees, allottees or any right except that they are in possession of certain land for the last 12 years. The land belongs to the Government and mere possession for the last 12 years will not prima facie entitle them to claim it as a matter of right. In the plaint also the plaintiffs have not shown any substantive right or entitlement to the land. Their case is that they cannot be dispossessed by the defendants unless they decide plaintiffs case for declaring the area as Katchi Abadi or provide alternate accommoda tion. At the material time the case relating to declaration of Katchi Abadi was dealt under M. L. O. 110 and now under M. L. O.

183. This M. L. O. provides a complete procedure for dealing with such cases. In these circum stances the petitioners have failed to make out a prima facie case. The learned counsel for the respondents has contended that the petitioners have nowhere alleged in the plaint that notice under Article 131 has been served nor a copy thereof has been annexed with the plaint. On this ground by another order the plaint has been rejected and an appeal against that order is pending. Without commenting upon the merits of this objection prima facie it seems that no averment has been made in the plaint that the plaintiffs have complied with the provision of Article

131. This reflects upon plaintiffs' failure to make out a prima facie case. The other two ingredients necessary for grant of interim injunction do not seem to be satisfied. The grant of injunction is a discretionary relief. Both the learned Courts below have exercised their discretion against the plaintiffs. They have not been able to establish that the discretion exercised by the Courts below is perverse and illegal. In these circumstances it is not possible to exercise revisional jurisdiction for disturbing the impugned order. For these reasons the petition was dismissed by a short order dated 17-2-1983. M. B. A. Application dismissed. ***