1996CLC838 (PLP)

Sharif Ahmad for Respondents.

1. Patti Kulalote through Abdul Ghani and others filed a declaratory suit No.22/93 in the Court of Civil Judge, Ist Class, Astore against the Zamindaran Mouza Rattu through Haji Inayatullah and others on 13‑6‑1993. Alongwith the plaint, the plaintiffs filed an application under Order 39, Rules 1 and 2 read with section 94/151, C.P.C. for the issuance of an injunction. In the first instance, the plaintiffs annexed with the plaint a photostat copy of grazing right of 1973 Bikrami but on 5‑8‑1993 through an application under Order 13, Rule 2 of the Code of Civil Procedure, the plaintiffs sought permission to file some documents i.e. names of pastures of Astore and a copy of Wajib‑ul‑Arz, which was allowed. In the meanwhile, the defendants had filed their written statement to the plaint as well as the application for injunction and in support of their written statement, they had filed copies of revenue record as well as other relevant documents.

2. The learned Trial Judge, however, accepted the application and issued an ad interim injunction on the very day when the suit was filed, i.e. 13‑6‑1993. This order was followed by an order of confirmation dated 18‑11‑1993.

3. The defendants dissatisfied with the order of injunction filed an appeal with the District Judge, Diamer but he dismissed the same vide judgment dated 12‑6‑1994. Hence the present civil revision by the defendants for setting aside both the orders of the lower forums.

4. I have heard the learned counsel for the parties and with their assistance have also gone through the record, which consists of various revenue and other documents, and have come to the inevitable conclusion that this revision petition must succeed, for reasons that are not far to seek. In a case of grant of temporary injunction, it is the firm duty of the Courts to see as to whether the three essential ingredients are available for the issuance of such an injunction, which are balance of convenience, irreparable loss and a prima facie case. In this case, the documents which have been annexed by the defendant‑petitioner with their written statement and replication go a long way to prove that instead of the plaintiff‑respondents they had to suffer irreparable loss with the issuance of the injunction.

5. The learned Trial Judge has completely misread the documentary evidence furnished by the defendant‑petitioners in the shape of copies of Jamabandies, grazing rights etc. It is an admitted fact that the residents of Mouza Rattu are the owners of the suit property whereas the plaintiff -respondents who admittedly belong to Patti Kulalote, Mouza Choogam are the tenants. The mutation bearing No.161 placed on record shows that it was attested in presence of the parties for their benefit and the plaintiff‑respondents cannot now turn and say that they had no knowledge of the same. It is also on record, that defendant‑petitioners have no concern with "Shonigai Pahar" and "Shukishai", which is the exclusive ownership of the plaintiff- respondents.

6. Shonigai Paeen, is a separate pasture. There are three pastures, namely, Shonigai Pahar, Shonigai Paeen and Shonigai Bala. Shonigai Paeen and Ghonigai Bala will not be mixed up with Shonigai Pahar . and as regards Shonigai Bala, the same belongs to Faqir Kote Mouza, which position was admitted by the learned counsel for the plaintiff‑respondents. The defendant‑petitioners had no claim to the ownership of Shonigai Pahar and Shukishai which are the exclusive ownership of the plaintiff‑respondents, but the documents placed on record with their written statement and replication make it manifest that they have grazing rights and rights of collecting fire‑wood since time immemorible, injury will be caused to the defendant‑petitioners.

7. From what has been discussed above, it becomes crystal clear that it is a fit case for interference by this Court. On the face of the record, both the Courts below have misread and non‑read the evidence in the shape of documents produced by the defendant‑petitioners.

8. This is a case of illegality and irregularity committed by the two Courts below warranting interference.

9. Accordingly, I accept this revision petition, set aside the impugned orders of the lower forums. No orders as to costs. A.A./4/Gilgit Revision accepted