1985 PLP 217 (CLC)

An appeal was lodged in the High Court (which was treated as a Revision Petition) against the judgment and decree of learned District Judge, Muzaffarabad dated 27-7-1983, whereby the learned District Judge Muzffarabad upheld the judgment of learned Sub-Judge, Muzaffarabad on 10-2-1982. In both the judgments of lower Courts, the petitioners were refused a temporary injunction. The petitioners had prayed that the suit land should not be transferred to any body else by way of sale or Hiba etc. during the pendency of the declaratory suit instituted by the plaintiffs-petitioners before the Sub-Judge, Muzaffarabad. The declaratory suit is still sub judice and in the High Court, we are only concerned with the question as to whether the issuance of temporary injunction has been rightly refused to the plaintiffs-petitioners or not. On an objection that no second appeal lies against the judgment of learned District Judge, Muzaffarabad, passed on 27-7-1983, this appeal was treated as a revision and the learned counsel for the respondents made no objection against treating the appeal as a Revision Petition. Even otherwise, the High Court has got vast powers of inter ference in proper cases as held in P L D 1972 Azad J K 90 and P L D 1983 S C (A J & K) 13.

2. This revision arises from the following facts: Mst. Kaneez Fatima and Mst. Muhammad Jan are daughters of Sher Wali while the respondent Bani Hussain (now dead) was the son of Sher Wali caste Nalgan, resident of Chattar Domel, Tehsil and District Muzaffarabad. Mst. Kaneez Fatima instituted a declaratory suit with consequential reliefs of joint possession and permanent injunction on 12-3-1979 before the Sub-Judge, Muzaffarabad alleging that the plaintiffs as daughters of Sher Wan are entitled to one-half of the suit land left by Sher Wali. The plaintiffs-petitioners applied for a stay order on 8-1-1981. Before that, on their application, another stay order was obtained from the Additional Sub-Judge, Muzaffarabad on 13-3-1979 which was cancelled later on, on 5-6-1979. No appeal or revision was brought by the appellants against the order passed on 5-6-1979. On 11-1-1981, the petitioners moved another application for the stay order (temporary injunction) which was granted on the same day but that was cancelled on 10-2-1982 by the learned Sub-Judge, Muzaffarabad, who heard the case on that date. The petitioners went up in appeal before the learned District Judge, Muzaffarabad against the order of learned Sub-Judge, Muzaffarabad dated 10-2-1982 but were unlucky as the learned District Judge dismissed the appeal on 27-7-1983.

3. Now dissatisfied by that order, the petitioners have come up in revision against the order of the learned District Judge, Muzaffarabad passed on 27-7-1983 and have impeached it on the following grounds:- (1) That Mst. Kaneez Fatima and Mst. Muhammad Jan are daughters and Rani Husain is son of Sher Wali and under Muslim Law, the petitioners-plaintiffs are entitled to one-half of the suit land left by Sher Wali while the other half goes to Bani Hussain's legal representatives; (2) that the plaintiffs-petitioners have got a prima facie good case and the balance of convenience is also in favour of the issuance of a temporary injunction because during the pendency of the suit, the suit land would be transferred to some other person or persons and if no temporary injunction is granted to them; the respondent-defendants wii dispose of the whole property and as such nothing will be left for the satisfaction of a decree which may ultimately be passed in their favour; and (3) that there is no res judicata involved in the issuance of the stay order because the second application was moved under new circumstances.

4. On the other hand, Syed T.H. Tariq the learned counsel for the respondents (non-petitioners) contends:- (1) That the principle of res judicata hits the second application for stay order and as such, under law, no temporary injunction can be issued in favour of the petitioners; (2) that the parties were governed by custom and Sher Wali died during the Dogra Regime and as such the two daughters of Sher Wall, Mst. Kaneez Fatima and Mst. Muhammad Jan are not entitled to get the landed property left by their father. Therefore, they have got no locus standi because they are not co-sharers in the suit land at all which may wholly be owned by Bani Hussain as a sole full owner. Bani Hussain has died and his legal representatives have been made respondents in this case. The stand of the learned counsel for the respondents is that the legal representatives of Bani Hussain are full owners of the suit land and that Mst. Kaneez Fatima and Mst. Muhammad Jan stand disinherited by customary law; (3) that this suit land includes some property which has been acquired by the Government and Bani Hussain or his legal representatives (who are respondents in this case) have been paid up the whole compensation under an award which was made in favour of Bani Hussain alone in 1973. This award was not challenged before any Court of Law and as such, the petitioners cannot claim any amount from the compensation so awarded; (4) that under Ordinance No. 58 of 1980, all the cases pertaining to the compensation are now to be decided' finally by the Commis sioner and any suit regarding the award or the property acquired abates under the Ordinance referred to above; (5) that the record pertaining to the Village Chatter has been burnt during the War of Liberation of 1947 and as such, there is no proof that the petitioners are co-shares in the suit land which is fully owned by the respondents/defendants; and (6) that the discretion of the Courts below was exercised in accor dance with law and needs no interference.

5. I have heard the learned counsel for the parties, perused the record and gone through the judgments of the Courts below and also read the different stay order8 issued and vacated by the trial Courts.

6. I am not going to express my opinion as regards to the merits of the case because my doing so may prejudice the trial Court. Hence I shall refrain from making even tentative remarks except where necessary although under law I am permitted to make tentative remarks to justify my order to be passed in this Revision. However, after careful study of the case, I have come to the conclusion that the impugned orders passed by the Courts below need interference.

7. My reasons are the following:- (a) Although the revenue record of this village has been lost and there is no authentic available record, the petitioner, prima facie, appears to have a fair and arguable case. It was held in P L D 1982 Lab 558 that an applicant for temporary injunction, is not required to establish his case conclusively, but to show that the applicant has got an arguable case. It was held that petitioners had made out a case for grant of a temporary injunction. I reproduce para. 11 below:- "Having given consideration to the controversy involved, I find that there is force in the contentions raised on behalf of the petitioners. It is a well-settled principle that in order to succeed in an application for temporary injunction, the petitioners, do not have to establish their case conclusively but what is required of them is to show that they have an arguable case. Out of the pleadings of the parties as many as eleven issues were framed which revolve around the controversy of the fact regarding ownership of the land in disputue. It is also the admitted position that the land in dispute is an unpartitioned parcel consisting of a large number of Khasra numbers and that excepting respondent No.1 the parties derived title by inheritance from their common ancestor late Malik Shah Muhammad. In such a situation it would obviously be conducive to the interest of justice and to avoid multiplicity of proceedings that a temporary injunction be issued as prayed for by the petitioners on the basis of the principle laid down in P L D 1975 Lah. 492. (b) The section 4 of the Sri Pratap Jammu and Kashmir Laws Consoli dation Act, 1977 (Act No.IV 1977) sanctioned by the Dogra Maharaja on 11th of September, 1920 reads as follows:- (1) The Laws administered and to be administered by the Civil and Criminal Courts of the State of Jammu and Kashmir are and shall be as follows:- (a) The Acts for the time being in force in the Jammu and Kashmir State; (b) Proclamations and Ordinances made and passed by His Highness by virtue of his inherent authority and for the time being in force; (c) The rules having the force of law made and promulgated under the provisions of any Act or law for the time being in force in the State of Jammu and Kashmir; (d) In questions regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqf, partitions, castes or any religious usage or institution, the rule of decision is and shall be the Muhammadan Law in cases where the parties are Muhammadans and the Hindu Law in cases where the parties are Hindus, except in so far as such law has been, by this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority; (e) in quetions relating to the law or Tort, the State Courts shall follow, as far as practicable, the British Indian Law; (2) In cases not otherwise specially provided for, the Courts shall act according to justice, equity and good conscience." (Underlines of 4(d) are mine) It appears therefore, that section 4(d), includes inheritance as well. Therefore, where the parties are Muslims, they are governed by the Muslim Law. Even in Punjab, the first rule was not always the custom while in Jammu and Kashmir State, the first rule was the Muslim Law. If a person alleged a custom, he had to prove that his case was governed by custom, and not by Muslim Law. So there was a presumption in favour of Muslin Law during the Dogra Regime which presumption came to an end in March 1948 wherefrom Muslim Law became the only law applicable to Muslims in such cases. As the petitioners in this case, are daughters of Sher Wali and it is yet to be decided by the learned Sub-Judge Muzaffarabad whether custom has been clearly alleged and whether under custom the two daughters of Sher Wall stand disinherited or not it is but just, fair and proper to look to this aspect of law in this case at this stage and to give relief for the ends of justice to the plaintiffs-petitioners in this case who have claimed the suit land under the Muslim Law of inheritance. The plaintiffs demand 1/2 of the suit land, leaving the rest one-half for their brother Bani Hussain. Under Muslim Law, prima facie, the plaintiffs-petitioners are entitled to one-half of the suit land and, therefore, they appear prima facie justified for seeking a temporary injunction to restrain the respondents from alienating the suit land in any way to any person or persons during the pendency of the suit. I agree with Mr.Muhammad Ashfaq Kiani, the learned counsel for the petitioners when he says that if at the close of the case, the trial Court passes as decree in favour of his clients and that decree is upheld in the upper Courts, there will be nothing left for the satisfaction of that decree in case the property in dispute is transferred to anybody else; I would like to oberve that even in Punjab a person who allegedcustom was burdened with a heavy onus to prove the custom qua the personal law. Sir John Beaumount, after discussing various authorities especially A I R 1917 P C 181 observed in para. 8 of his judgment reported in A I R 1949 P C 70 at pages 70 and 71:- "It was at one time held by the Courts in the Punjab that the effect of S.5, Punjab Laws Act, 1972, was to make custom the primary law of the Punjab in relation to the matters specified in that section and to cast upon anyone alleging that he was governed by personal law the burden of so proving. But in a Full Bench decision of the Punjab Chief Court reported in the Punjab Records No.41, P.390, this view was dissented from and in the judgment of Robertson, J., it was laid down that it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is, and that there is no presumption created by the section of the Act in question in favour of custom. The principle of this decision was expressly approved by this Board in Abdul Hussain Khan v.Bibi Sona Dero, 45 I A P 10:( A I R (4) 1917 P C 181), where the material passage of the judgment of Robertson, J., was quoted in extenso. It must, therefore, be accepted that in the Punjab the burden lies upon those who assert that they are governed by custom to prove the fact, and to establish the particular custom, and if such evidence is not available the parties are governed by their personal law, which in the present case is the Muhammadan Law." (c) As regards the property which has been acquired by the Govern ment, I am afraid, no temporary injunction can be passed regarding this property because the award was made in favour of Bani Hussain in the year 1973 A C and that award was never challenged in any court of law. Moreover, Bani Hussain (or his descendants) have received the amount of compensation, under the award made in 1973 and, there fore, no temporary injunction can be granted in respect of this property; (d) So far as the objection of the learned counsel for the respondents that the suit abates under an Ordinance, he may place that Ordinance before the learned Sub-Judge who is seized of the case and seek abatement of the suit, if law permits him; (e) The learned counsel for the respondents, while opposing the issuance of stay order, has referred to:- (i) 1983 C L C 351; (ii) 1984 C L C 340; In Abdul Shakoor v. Haji Shaukat and 3 others; 1983 C L C 351, respondent No.4 Abdul Majid filed an application against the petitioner, Abdul Shakoor and other respondents, for their eviction from certain premises. It was alleged by the respondent No.4 (Abdul Majid) that the disputed premises were part of the house transferred to him as an evacuee property. The Rent Controller of Jhang dismissed the ejectment petition. The respondent No.4 filed an appeal before the District Judge, Jhang who accepted his appeal and passed an order of eviction. Thereafter the petitioner filed a civil suit against the respondent claiming declaration to the effect that he was owner of the premises in dispute. He also prayed for a permanent injunction restrain ing the respondent from interfering with his possession over the said premises. The temporary injunction was refused by the learned Civil Judge. The appeal before an Additional District Judge also failed and thereafter a revision petition came up for hearing before the High Court of Lahore. It was contended by the learned counsel for the petitioner in that case that the petitioner was entitled to the grant of interim relief. The revision petition was dismissed by learned Muhammad Ilyas, J in limine because on the question of title there was no prima facie case in favour of the petitioner and the discretion was correctly exercised by the two Courts below. This case is distinguishable because here in our case the title of the petitioner/plaintiffs finds support from the Muslim Law. The daughters are being excluded from inheritance and prima facie they have got a good case for 1/2 share of the land left by their father. In 1984 C L C 340 an interim injunction was sought to restrain the Karachi Electric Supply Corporation from installing certain commercial fixtures on the appellants' plots and also to restrain the appellant and/or his agents etc. from commencing, pursuing, and continuing any commercial business or activity on the said premises. From the other side, it was alleged that the applicant had no prime facie case at all. Under the special circumstances of that case, the appeal was allowed and it was held that the facts alleged did not make out a prima facie case for prohibiting the opposite party to persue a. lawful activity or trade. It was also held in that case that mere assertion of a supposed right was not sufficient for obtaining a prohibitive order." I am afraid, the case before me is not a case of mere assertion of a supposed right, specially, when we examine the case of the plain tiffs-petitioners in the light of section 4(d) of Sri Partab Jammu and Kashmir Laws Consolidation Act of 1977 Bikrimi. It will make no difference whether Sher Wali died during the Dogra Regime or even later at any time because as regards to the inheritance of Sher Wali at least there is a presumption in favour of the application of the Muslim Law. Moreover, if the defendants are able to prove before the trial Court that the plaintiffs have got no right to the suit land, then the matter will be different. (f) As regards to the discretion exercise by the trial Court, I have got no hesitation to hold that the trial Court remained shaky and passed different orders at different times. It is regrettable that the trial Court never applied its mind properly to the facts of the case. The temporary injunctions were issued and cancelled without giving solid and cogent reasons. The trial Court failed to make even a tentative assessment of the case of the plaintiffs and never for even a moment advert to or take into consideration 6 the clear presumption which arises in favour of the Muslim Personal Law under section 4(d) of the Sri Pratap Jammu and Kashmir Laws Consolidation Act of 1977 Bikrimi. The learned District Judge also failed to apply his mind properly to this case. As such I can safely hold that the trial Court exercised its discretion arbitrarily, fancifully, capriciously and in disregard to the settled and accepted principles relating to grant or refusal of temporary injunctions enunciated in many authorities especially:-

1. P L D 1970 S C 139.

2. P L D 1972AzadJ1cK80

3. P L D 1973 Azad J & K 62 (67) 4. 1974 SC MR 519 and

5. P L D 1980 Lah. 647. (i) P L D 1955 Sind 445 The case of L ever Bros. Port Sunlight Soap Ltd. v. The Basra Soap Factory which pertained to the infringement of trade mark. The plaintiff succeeded in getting the temporary injunction under Order XXXIX, rule 2, C.P.C. The defendants' Soap was called 'Daylight Soap' qua the 'Sunlight Soap' of the plaintiff. It was held that the plaintiff had made out a prima facie case. The balance of convenience was also considered. Application for injunction was allowed. The interim injunction was confirmed by learned Agha, J. (ii) P L D 1956 Lah. 893: Kaikaus and Shabir Ahmed, JJ Balance of convenience means really balance of inconvenience. The meaning of balance of convenience being in favour of the plaintiff is:- "If an injunction is not granted and the suit is ultimately decided in favour of the plaintiff the inconvenience caused to the plaintiff would be greater than would be caused to the defendant if an injunction is granted but suit is ultimately dismissed. Although it is called balance of convenience, it is really the balance of inconvenience, and it is for the plaintiff to show that the incon venience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal it is the plaintiffs who suffer (899) F." The judgment was written by Kaikaus, J. It was a case of election of the Managing Committee of Hafizabad Co-operative Transport Society. (iii) P L D 1957 Kar. 241 In considering an application under Order XXXIX, rules 1 and 2, C.P.C. what is necessary is not to determine the merits of the case one way or the other; all that is required is to find out whether the applicant has made out a prima facie case (242)A. In deciding whether there is a prima facie case the Court has to see whether the plaintiff has a fair question to raise as to the existence of the right he claims. In this case the defendant objected to the grant of the temporary injunction pleading want of notice under section 80 of the C.P.C. The plaintiff met the plea saying that section 80, C.P.C. itself violated Arts. 4 and 5 of the Constitution. Discussion of such a plea and its answer being a question to be dealt with properly at the hearing of the case, the question of grant of temporary injunction was decided by the Court apart from the plea and its answer. The cases of 'Bishamber Nath A I R 1926 Lah. 589' and of 'Brajendra Nath Ghosh A I R 1946 Pat. 177' are discussed at page

242. The interim order was made absolute. It was a case in which a notice was issued by Registrar, Co-operative Societies, Lahore calling upon the Sind Co-operative Bank to show cause why its Board of Directors might not be suspended for a period of 2 years. Mr. Brohi appeared on behalf of Mian Riaz-ud-Din Ahmed, Registrar of Lahore and he raised two points:- (a) no notice under section 80, C.P.C. was issued; (b) no prima facie case had been made out. The Court did not agree with the contentions of Mr. Brohi and made the temporary injunction absolute. (iv) 'Mansur Ahmed v. Kalipada Chattopadhya' P L D 1959 Dacca

498. It was case of grant of temporary injunction. It was held:- "No Court should go into the merits of the suit in which temporary injunction is prayed for. It is not necessary for the plaintiff, for temporary injunction, to establish that he has got a good case which is likely to be decreed. If the plaintiff has got an arguable case, that is enough for the purposes of temporary injunction." (v) P L D 1965 Dacca 361 (Abdul Manan Fakir v. Province of East Pakistan) also lays down the guiding principles:- "In the matter of temporary injunction one of the guidihg principies as laid down in section 56(k) of the Specific Relief Act, 1877, is that the applicant shall have some personal interest in the matter. A Judge while issuing interim injunction has to indicate whether the plaintiff has any personal interest in the matter and if so whether such interest would suffer in the event of not issuing an ad interim injunction immediately. While considering whether the object of granting injunction would be defeated by delay, if any, the principle underlying section 56(k) of the Specific Relief Act, 1877 or the rule of balance of convenience cannot be ignored." (vi) P L D 1970 S C 139 The well-settled principles for the grant or refusal of temporary injunction are:- Firstly: whether the plaintiff had a prima facie good case; Secondly: whether the balance of convenience lies in favour of the grant of injunction; and Thirdly: whether the plaintiff would suffer irreparable loss if injunction is refused. (vii) P L D 1971 Lah. 1002 (Syed Mazhar Ali Shah's case) Temporary injunction cannot be denied if the order was alleged to be without jurisdiction and petitioner's case is arguable on merits. The argument was that action under Regulation No.13 being in breach of the rules of natural justice was an order without jurisdiction. The case was held to be an arguable one and a fit case for grant of temporary injunction. Reference made was to cases: P L D 1956 Kar. 521; P L D 1959 Dacca 498 and P L D 1967 Lah.

218. It was also held that:- "The temporary injunction cannot be denied on the ground that the petitioner was no longer in the service of the Bank." Temporary injunction was issued. Para 12 is very much relevant. (viii) P L D 1971 S C M R 740 Principles for guidance of Courts in granting or refusing temporary injunctions:- "We need only to refer to the decision of this Court in the case of Shazada Muhammad Umar Beg v. Sultan Mahmood Khan and others P L D 1970 S C 139 which lays down the principles for guidance of Courts in granting or refusing temporary injunctions." (ix) P L D 1973 Note 72 at p. 97-- Principles of grant or refusal of temporary injunction are stated. It is the case of Salahuddin v. Sultane Rome. (x) P L D 1973 Kar. 624 Order made withiout jurisdiction, capri ciously or in flagrant breach of Statue Not protected. "If the order itself is without jurisdiction then it is not an order under the Act at all." It was observed:- "I have therefore, come to the conclusion that the plaintiff had made out a prima facie case and the balance of convenience clearly also is in his favour. I, therefore, allow this appeal, set aside the order of the Court below and grant an injunction pending the disposal of the suit...................... "(Para. 12). (xi) P L D 1973 Azad J & K 62 Brig. M. Aslam Khan v. A.K. Govt. and others. In order to obtain a temporary injunction an application has to show:- (a) a prima facie case in support of the right claimed; (b) an actual or threatened violation of the right; (c) productive of irreparable or at least serious damage; (d) applicant's conduct must be such as not to disentitle him to assistance but it should be fair and honest; (e) there must be greater convenience in granting them refusing the injunction; and (f) equally efficacious relief must not be obtainable by any usual mode or proceeding. A I R 1918 Cal. 495; A I R 1941 All. 76; P L D 1960 Dacca 153; P L D 1956 Lah. 893; P L D 1967 Lab. 365; I L R 10 All. 80; P L D 1969 Dacca 832; P L D 1970 Kar. 332; P L D 1970 S C 139; P L D 1966 Kar. 272; P L D 1969 Lah. 89 referred to. Please note these observations:- "It would be in the interest of justice to maintain the status quo. If the timber is alienated, the appellant, in case he succeeds, will have to file a fresh suit for receiving compensation...The appellant would suffer irreparable loss if the temporary injunction is refused. He would be involved in further litigation and avoidance of multiplicity of proceedings is a consideration in deciding whether the temporary injunction should be issued or not. The status quo can be maintained only if the Government is restrained from alienating the timber in dispute which they claim is in their possession. The appellant had spent money..If the injunction is granted the timber would be there for the successful party to do with it as it please but if the injunction is refused the timber would not be available to the appellant if he succeeds in the proceedings before the Single Judge. If the timber is alienated and the appellant succeeds in the litigation pending before the Single Judge, equally efficacious relief would not be obtainable by him by any other usual mode or porceedings ...The balance of convenience, therefore, lies in favour of issuing rather than refusing the injunction." In the case of Siddiqi v. Hameed Ahmad Khan and 2 others 1974 S C M R 519, it was held that an injunction is not to be granted only on the basis that a prima facie case exists but it is incumbent upon the Court to take into account other questions as well. The learned Judge Hamoodur Rahman (as then he was) mentioned two reasons:- (1) In a ,suit where no perpetual injunction is claimed no question of granting ad interim injunction can possibly arise. (2) Although ad interim injunctions are granted under Order XXXIX, rule 1 of C.P.C. the principles, which govern the grant of injunctions, contained in the Specific Relief Act have also to be kept in view. This was a service case and it was held that the contracts for personal service are not contracts which can be specifically enforced. The granting of an injunction in a service matter was opposed to the principles governing the grant of such injunction, for, by such an injunction the Courts foist an employee upon an unwilling employer. This ruling lays down principles for issuance of ad interim injunction in service matters. In Amtul Batool and another v. Qamar Sultana P L D 1980 Lah. 647, the principles of grant or refusal of a temporary injunctions were stated. It was observed that the Court should weigh the amount of substantial mischief done or threatened to be done to the plaintiff or plaintiffs : "The Order XXXIX, C.P.C. is not exhaustive enough but it has been construed liberally by the Courts and not only the execution and alienation pending the suit be restrained but the Court may also interfere by injunction to prevent serious damage or waste tending to change the nature of value of the property under litigation. In granting such temporary injunction the Court will first see that there is a bona fide or prima facie contention between the parties, and then on which side in the event of establishing a successful title to the suit property, will be the balance of inconvenience, if the injunction does not issue, and further any irreparable loss will be incurred in any case by a party in the event of refusal of injunction prayed for.". The principles stated in this authority are good guide lines. Under special facts and special circumstances of that case the plaintiff was not found eligible to get temporary injunction in that case in which the revision petition was accepted by the Lahore High Court. (g) Whenever there is a suit for declaration with a permanent injunc tion or a suit for permanent injunction, the prayer for a temporary injunction is generally not refused. Here in this case, the plaintiffs instituted a declaratory suit with consequential relief of possession and permanent injunction. The trial Court and the learned District Judge failed to look to this aspect of the case, and refused the prayer for a temporary injunction in utter disregard of legal principles. In Khushi Muhammad v. Ata Muhammad (Civil Revision) 1982 C L C 1647, it was observed at page 716 by Muhammad Munir Khan, J. (Multan in para. 4):- I have considered the arguments advanced by the learned counsel for the parties. Keeping in mind the prerequisites for the grant of temporary injunction, especially in suits for permanent injunc tions, I am of the view that grant of temporary injunction in suits for permanent injunction should be a rule and refusal an exception particularly when the refusal would defeat the very object of the suit and in the instant case I do not find any exceptional circumstance. The contentions raised by the learned counsel as mentioned above require deep assessment which may not be desirable at this stage. I find that the respondents' case is at least arguable and: (i) that if the drain passes through the Ihata of respondent he would certainly suffer an irreparable loss; (ii) that in the circumstances of the case balance of convenience is also in favour of the respondent." This was a case from Sahiwal in which the learned Additional District Judge accepted the appeal filed by Ata Muhammad respondent/ plaintiff against the order of Civil Judge refusing the issuance of temporary injunction under Order XXX, rule 1, C.P.C. in a suit for permanent injunction filed by the plaintiff against Khushi Muhammad and others petitioners/defendants. A temporary injunction was issued. (h) The balance of convenience is also in favour of issuance of a temporary injunction. What is meant by the balance of convenience? The basic case on this principle is P L D 1956 Lah. 893, wherein it was held that the meaning of balance of convenience being in favour of the plaintiff is: "If an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience caused to the plaintiff would be greater than would be caused to the defendant if an injunction is granted but the suit ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience." (i) The principle of res judicata has been pressed in service to avoid the temporary injunction. The origin and rationale of this principle has been discussed in a lucid judgment of our own High Court in PLD 1976 Azad J K

26. Whether the rule of res judicata comes into play or not, the Court has to look at the substance rather than technicalities to determine the question before it. This rule is to be interpretted strictly and the doors of justice are not to be slammed because the intention of law is not what we may term as a technical knock out leaving the aggrieved person with a bitter mouth but of preventing a party who has had a fair fight on merits to drag his opponent back to the Court a second time over the same dispute. Moreover the procedural law is not meant to frustrate but advance the cause of justice and should not be interpretted to make it a sort of trap. Finis litium was intended to be a protective fortess and not an indiscriminate hatchet.

8. Under the circumstances, I accept this revision petition, set aside the orders of both the Courts below and restore the temporary injunction issued by the learned Sub-Judge, Muzaffarabad on 11-1-1981 in favour of the petitioners (plaintiffs). The petitioners (defendants) shall not transfer the suit land in any way, whatsoever, to any person or persons during the pendency of the suit. The status quo which existed on 11-1-1981 shall be maintained till the decision of the case by the trial Court subject to the modification that the land which was acquired by the Government and the compensation whereof, has already been received by the defendant Bani Hussain (or his legal heirs) will not be affected by this temporary injunction of possession or of the loss caused to the plaintiffs in the land already acquired by the Government arises at the time of partition (if and when such a question arises) the plaintiffs will be at liberty to proceed under law before or during the execution proceedings of that decree (if and when passed). The plaintiffs shall not be deprived of the full fruits of their decree and the defendants shall not be allowed to enjoy the illgotton gains as a fait accompli in case the plaintiffs are able to get a decree ultimately in their favour qua the defendants.

9. Following the direction given by learned Mahboob Ahmad, J in the Civil Revision Malik Muhammad Akbar v. Mian Qaumarud Din etc. P L D 1982 Lah. 558 I hereby direct the trial Court to positively dispose of this case (declaratory suit with consequential reliefs) in accordance with law within 4 months from the date of the receipt of the file and to report the progress in the case to the learned District Judge, Muzaffarabad every month. The Registrar, High Court shall get the file transmitted to the trial Court immediately. The parties shall bear their own costs. M.Y.H. Petition accepted.