2006 PLP 1443 (YLR)

SHEIKH AZMAT SAEED, J.--This civil revision is directed against the order, dated 23-6-2005, whereby, the appeal filed by the petitioners against the order, dated 30-5-2005 was dismissed.

2. Brief facts leading to the filing of this civil revision are that the respondents filed a suit for permanent injunction seeking a decree restraining the present petitioners from building a boundary wall around a primary school so as to block the right of passage and drainage of the respondents. Along with the plaint an application under Order XXXIX, rules 1 and 2, C.P.C. for grant of temporary injunction was also filed. The trial Court after hearing the parties, vide order, dated 30-5-2005 granted the temporary injunction as prayed for. Aggrieved the petitioners filed an appeal, which failed to find favour and was dismissed by the first appellate Court vide the impugned order.

3. Learned counsel for the parties have been heard and the record appended with this revision petition has also been perused.

4. It appears from the record that the trial Court appointed a Local Commission which submitted its report. On the basis of the said report the trial Court came to the tentative conclusion that the construction ofthe proposed wall would interfere with the passage as well the drainage of the respondents; and on the basis thereof granted the temporary injunction as prayed for. The first Appellate Court also relied upon the report of the said Local Commission to conclude that balance of convenience rested in favour of the respondents and in the absence of the temporary injunction irreparable loss and injury would ensue.

5. A perusal of both the orders reveals that two Courts below appear to have been lost site of the third ingredient, which must co-exist in order to justify the grant of temporary injunction i.e. a prima facie case. It is a matter of record that the property whereupon the wall is proposed to be constructed is not owned by the respondent, therefore, in order to exercise any right over the said property the respondents must make out a prima facie legal basis of such claim. This aspect of the matter has been totally ignored by the two Courts below. Similarly, whether in the facts and circumstances of the case, the provision of section 91, C.P.C. were applicable, as contended by the learned counsel for the petitioner, has also not been taken into consideration. It appears that the property in dispute vests in the Provincial Government which has also not been impleaded as a party and the absence of the owner of the property from the array of parties in the list has also not been examined by the two Courts below in its correct perspective. In this view of the matter, the impugned orders are not sustainable. Consequently, the orders dated 30-5-2005 and 23-6-2005 are hereby set aside. The case is remanded back to the trial Court with a direction to decide the application of the respondents under Order XXXIX, rules 1 and 2, C.P.C., more particularly, with reference to the existence of otherwise of a prima facie case in the light of the above observations. Consequently, this appeal is accepted in the above terms. F.B./S-25/L Petition allowed.