1994 PLP 1337 (CLC)

Muhammad Ilyas Khan for Respondents. Date of hearing: 7th June, 1993, The suit of the petitioner alongwith his application for issuance of temporary injunction against erection of poles by the respondents over his land was dismissed by the learned trial Court through order dated 9‑9‑1992 which has been upheld in appeal filed by the petitioner by the lower appellate Court through order dated 18‑4‑1993 by which the said appeal was dismissed.

2. The suit has been dismissed by the trial Court by observing that the petitioner previously filed suit for the same purpose which was dismissed in which an appeal was pending. As regards the temporary injunction it was held that no prima facie case was made out.

3. Learned counsel for the petitioner submitted that the question whether the present suit was with regard to same land owned by the petitioner regarding which the said previous suit was filed was a question which could be determined after recording evidence after framing issues, therefore, the same could not have been decided summarily without affording opportunity to the petitioner to establish that the present suit was based on independent cause of action. He submitted that even in the previous suit the case has been remanded by the learned lower appellate Court which is pending after remand before the trial Court from which connected Revision Petition No. 741 of 1993 has arisen which has been disposed of today by separate order. He submitted that in the said previous suit the land in dispute of the petitioner was situated in Chiniot‑I which comprised Khatas Nos. 781 and 782 whereas in the present suit the land is situated in Chiniot‑II which comprises Khata Nos. 1284 and 1251.

4. Be that as it may, the question as to what was the effect of pendency of the previous suit filed by the petitioner on the maintainability of the present suit could only be decided after framing issues and recording evidence therefore, the part of the impugned orders passed by both the Courts below for dismissal of suit itself are not sustainable.

5. As regards the order relating to the dismissal of application for temporary injunction the same does not suffer from any material irregularity and illegality because the respondents had already constructed the poles in dispute and they had right under the law to utilize the land of the petitioner for construction of such poles regarding which the petitioner's remedy was to recover compensation as such it was rightly held that three ingredients necessary for issuance of temporary injunction were not present in this case.

6. This revision petition is partly accepted. The part of the impugned orders regarding the dismissal of suit are hereby set aside and the suit restored which shall be deemed to be pending before the trial Court which shall be disposed of in accordance with law as observed above including the question of maintainability of the same with reference to pendency of the previous suit filed by the petitioner or any other objection.

7. The revision petition as regards dismissal of application filed by the petitioner for issuance of temporary injunction is hereby dismissed. The parties " are left to bear their own costs. H.B.T/1400/L Order accordingly.