1983 PLP 2541 (CLC)

Malik Muhammad Qayyum for Petitioners. Muhammad Ghani for Respondent. Date of hearing : 20th May, 1978. In a suit for possession of the land in dispute in exercise of right of pre-emption, the learned trial Court passed an order of maintenance of status quo since it was contended that the petitioner intended to install a tube well and carry on improvement. Subsequently this injunc tion order was confirmed on the 7th of February, 1976 on the ground that a tubewell had already been installed, but it was challenged on the 26th of November, 1975 while the temporary injunction had already been granted on the 30th of July, 1975. It was observed by the learned Civil Judge that the defendants had not asserted that they were not going to raise any further construction and consequently the balance of convenience was in the issuance, of the injunction. This order was maintained in appeal by the learned District Judge, vide his order date 10th May, 1977.

2. I have heard the learned counsel for the parties. I am of the opinion that this petition must succeed. In a suit for pre-emption, the defendant-vendee has an absolute right to enjoy his possession of the area in dispute for so long as the decree for pre-emption is not passed against him and is. not executed. The reason is that he remains full owner of the property. If he makes any improvement before he comes to know about the pendency of a suit for pre-emption, the pre-emptor is bound to re-imbrues him for the cost of improvement made before that time. If, however, any defendant persists in making improvements after attaining knowledge about the suit for pre-emption, he does so at his own risk. He cannot-claim reimbursement, but can only be allowed to take away or remove the material which he has used in making the improvement provided it is separable. In either case an injunction order cannot be passed against him restraining him from making the improvements interfere with his right. to enjoy the property in dispute and the balance of convenience would be against the issuance of such injunction. Moreover, if the injunction is not issued, the plaintiff cannot suffer any loss or injury much less any irreparable loss or injury. Both the learned Courts below have, therefore, acted illegally and with material irregularity in the exercise of their jurisdiction by issuance of injunction which is not within the ambit of Order XXXIX, rules 1 and 2 of C. P. C.

3. It appears that the two Courts below have taken into consider ation some alleged violation of the injunction order initially issued since it is alleged that the petitioners had installed a tubewell notwithstand ing such order. This ground which was also urged before me by the learned counsel for the respondent, is absolutely irrelevant for the issuance or continuance of an injunction order in view of what has been stated above. It ,appears from the order passed on the 4th of July, 1977, in this revision petition that the interim injunction order was passed on the 30th of July, 1975, whereas according to a certificate issued by the Sub-Divisional Officer, the electric connection was given on the 12th of November, 1974. This prima facie proves that the ins tallation had already been completed before the connection was approved. There is force in the statement of the learned counsel for the petitioner that the other certificate which has been referred to by the learned Courts below fixing the date of installation as 26th November, 1975, only fixed the date of energisation and not of completion of installation. Assuming that this ground is not absolutely irrelevant, it would hardly help the respondent in view of the date of completion as given above. The learned counsel for the respondent in response to a query put by tree, admitted that an application under Order XXXIX, rule 2 (3j has already been submitted. In view of this concession also, the alleged violation of the injunction order was not relevant for the confirmation, of injunction order which had already been issued.

4. The petition is; therefore, allowed with costs and the two orders of the learned Courts below are set aside with the result that the appli cation for temporary injunction stands dismissed. K. M. A. Civil revision allowed.