P L D 2015 Peshawar 199 (PLP)

MUHAMMAD DAUD KHAN, J.

Through this single judgment I propose to decide the following three connected civil revisions petitions bearing C.R. No. 182-M/2013, C.R. No. 310-M/2013 and C.R. No. 570-M/2013. Out of which C.R. No. 182-M/ 2013 and C.R. No. 310-M/2013 have been filed against the order/judgment passed by learned Additional District Judge/Izafi Zilla Qazi, Dir Lower, Camp Court at Timergara on 13-2-2013 and C.R. No. 570-M/2013 has been filed by plaintiffs/respondents Nos. 1 to 3 against the order of the same Court passed on 26-9-2013.

2. The brief background of the litigation between the parties is that, a piece of land measuring 6 Kanal 6 Marlas 5 Sersai, owned by plaintiffs/respondents Nos.1 to 3 was acquired by respondents No.4 to 11 (Government functionaries of Khyber Pukhtunkhwa) for construction of road to link Balambat Bridge, but out of the acquired land 4 Kanal 13-1/2 Marlas land was utilized for the purpose of construction of road and the rest of land to the extent of 1 Kanal 11-1/2. Marlas was left unutilized, which remained as surplus for considerable period.

3. Later on respondents Nos.4 to 11 leased out the unutilized land to petitioners without observing the codal formalities, which prompted respondents Nos. 1 to 3/plaintiffs to file declaratory Suit No. 110/1 of 2012 in the Court of learned Senior Civil Judge/A'ala Illaqa Qazi, Dir Lower.

4. Along with the plaint, plaintiffs also filed application for issuing temporary injunction to restrain petitioners from construction and changing the status of the land till final decision of the case, but the learned trial Court dismissed application of the plaintiffs vide order 10-11-2012.

5. The plaintiffs assailed the order of learned Senior Civil Judge/A'ala Illaqa Qazi, dated 10-11-2012 before the learned District Judge/Zilla Qazi, Dir Lower at Timergar, who onward entrusted the same to learned Additional District Judge/Izafi Zilla Qazi, Dir Lower at Chakdara, camp Court at Timergara, for disposal in accordance with law.

6. The learned appellate Court vide its order dated 13-2-2013 accepted appeal of the plaintiffs and granted temporary injunction as prayed, for six months or till the final adjudication of the dispute between the parties in the learned trial Court, whichever happens first.

7. Petitioners and respondents Nos.4 to 11 impugned the order of the appellate Court through C.R. No. 182-M/2013 and C.R. No.310-M/2013 respectively.

8. Both the Civil revisions were pending adjudication when the period of six months expired and the order of injunction became infructuous, hence, plaintiffs filed an application under Order XXXIX, R.(2-B), Civil Procedure Code, for extension in the period of temporary injunction, but the learned appellate court refused to extend the time not on merits but on the ground that the Court has become functus officio, therefore, lacks the power to extend the time for temporary injunction. The order was passed on 26-9-2013, which has been impugned by the plaintiffs through C.R. No. 570-M/2013.

9. As all the three petitions are related to the same subject matter and between the same parties, therefore, are being decided through this single judgment/order.

10. Learned Counsel for the petitioners Mr. Abdul Haleem Khan Advocate, argued that the suit land originally belonged to father of the plaintiffs/respondents Nos.1 to 3 but after proper acquisition in accordance with the provisions of Land Acquisition Act, 1894, the land has become in exclusive ownership of the Government of Khyber Pukhtunkhwa and District Coordinating Officer, Dir Lower (respondent No.8), being custodian of the Government lands and other properties, is competent to dispose of the same in the interest of public. He further contended that since the date of completion of acquisition process, the plaintiffs/respondents Nos.1 to 3 have no interest whatsoever with the land in dispute as they have parted with its ownership. It was also argued that as the respondents Nos.1 to 3 have no interest in the land in dispute, therefore, they have no prima facie case, balance of convenience lies in favour of vacating the temporary injunction order and the question of irreparable loss also does not arise. At the end he prayed that the impugned order granting temporary injunction is altogether illegal which has caused miscarriage of justice to petitioners.

11. Learned A.A.-G. also supported the arguments advanced by learned counsel for the petitioners to the extent of finality of the acquisition proceedings and transfer of the land in the name of Government of Khyber Pukhtunkhwa, but he expressed his dissatisfaction on the manner the land was leased out to petitioners and stated at the bar that the same procedure is totally against the Government policy on the subject.

12. Mr. Sher Muhammad Khan, Advocate, learned counsel for the plaintiffs/respondents Nos.1 to 3 supported the impugned order passed on 13-2-2013 and contended that being original owners of the land the plaintiffs are entitled for the return of remaining unutilized land to the extent of 1 Kanal 11-1/2 Marlas on payment of the amount received from the Government, because the land was acquired for the purpose of construction of Balambat road and it could not be utilized for any other purpose, therefore, petitioners are legally entitled for its return. Reliance was placed on the dictum laid down in Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others (PLD 1993 SC page 455) and Ghulam Rasool and others v. Said Ahmad and others (2012 CLC 1655). He argued that the procedure adopted by respondent No.8 for leasing out the property on payment of nominal amount without inviting the public at large to participate in the open auction, is a strong ground for grant of temporary injunction. During course of arguments learned counsel for respondents Nos.1 to 3/plaintiffs offered that if his prayer for the return of the land failed even then they are ready to take the land on lease on ten times higher price than given by petitioners, therefore plaintiffs have good prima facie case, balance of convenience also lies in favour of grant of temporary injunction and the loss will also be irreparable if during pendency of the suit the status of the land is changed.

13. Regarding the order passed on 26-9-2013 learned counsel for the petitioners argued that the same is against law, facts and established principles of natural justice and the learned appellate Court failed to exercise jurisdiction vested in it. His further contention was that the learned appellate Court wrongly held that the record of the case has been requisitioned by this august Court and for that reason it has become functus officio. His last contention was that the learned appellate Court should have decided the application of plaintiffs for extension of temporary injunction on merits in accordance with provisions of Order XXXIX, Rule (2-B), C.P.C. and the report of such extension should have been submitted to this august court. 14 I have heard all the sides at considerable length and gone through the available record.

15. In the instant case record transpires that 6 Kanal 15 Marlas 5 Sersai of land was acquired by the Communications and Works Department Khyber Pukhtunkhwa (respondents Nos.4 to 8) under the Land Acquisition Act, 1894, from the late Qazi Shams-ur-Rehman, predecessor of the respondents Nos.1 to 3, for construction of road to link Balambat bridge. Out of the acquired land the area measuring 5 Kanal 3-1/2 Marlas 5 Sersai was utilized in the said road and 1 Kanal 11-1/2 Marlas land in form of road remained unutilized which is situated at the point where it intersects Timergara By-pass, which is a prime location having very potential and high commercial value and this land has been given in lease for thirty years by the District Coordination Officer to petitioners for construction of commercial market in lieu of Rs.1000 per month. The suit of the respondents for the restoration of land on return of compensation amount on the basis of previous ownership of the unutilized land and even offer to pay Rs.50,000 per month for lease amount, constitutes a good prima facie case.

16. Moreover, serious allegations have been leveled against the defendants in the plaint regarding the impugned "Lease" deed which requires adjudication through proper proceedings. The averments and allegations made in the suit of the respondents are serious in nature and tend a good prima facie case in favour of the respondents Nos.1 to

3. The document submitted along with the suit of the plaintiff transpires that the impugned "Lease" deed was undated, No-objection Certificate by unlawful authority in lieu of meager amount. The impugned lease effected between the District Coordination Officer in favour of petitioners, on its face, seems to be against "The State Land Policy' formulated by the Government of K.P.K and Board of Revenue and Estate, which requires judicial decision after pro and contra evidence and needs status quo till the final result of the suit.

17. Injunction is a judicial order by which a party is required to do certain acts or is prohibited and restrained from doing illegal action and its main object is to maintain status quo till fixed time or till decision of the Court. For convenience the relevant law is embodied in Order XXXIX, Rule 1 of Civil Procedure Code, which is reproduced as under. "

1. Cases in which temporary injunction may be granted.

Where in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors, (c) the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders." For the application of this Rule, Court has to consider (a) prima facie case of the applicant, (b) balance of convenience and (c) irreparable loss, which may accrue to the applicant in case of refusal of injunction.

18. It is well considered view that to determine prima facie case, the Court needs not to closely examine merits of the case nor the plaintiff is required to establish his sureness of success. It is sufficient if the applicant's case is arguable one. The balance of convenience means inconvenience faced by the applicant in case of refusal of interim injunction by the Court, irreparable loss means the loss accrued to the applicant if the injunction is not granted. Reliance in this regard can be placed on judgment reported as Mian Muhammad Latif v. Province of West Pakistan through Deputy Commissioner Khairpur and another (PLD 1970 SC page 180.), in which it has been held:-- "It is needless to mention that in a case where temporary injunction is claimed, the plaintiff has only to make out that he has a good prima facie case meaning thereby that a serious question has to be tried in the suit and that in the event of success if the injunction is not issued he will suffer irreparable injury. The appellant has, in the present case, fulfilled all these conditions. Even the learned Additional Advocate-General and Mr. Nathu Lal, learned counsel for respondent No.2 have not opposed the issue of injunction." To determine all these three ingredients the Court has to make only a tentative assessment of the case enabling itself to see whether the requisite ingredients exist in favour of applicant. In the case in hand, the averments made in the plaint and allegations leveled against the defendants are rather of serious nature and public property is going to be curbed by the petitioners. The matter being serious in nature and in case of refusal of interim injunction, huge loss will occur not only to respondents Nos.1 to 3 but to the public at large as well. The allegations leveled against the petitioners in the plaint regarding the impugned "Lease" deed is based on undated No-objection Certificate by unlawful authority in lieu of a meager amount, if it is true, then irreparable loss will be caused not only to the respondents but also to Government exchequer. In my humble view the respondents have a good prima facie case and balance of convenience also lies in granting of temporary injunction as prayed for and refusal of temporary injunction to the respondents/applicants will cause irreparable loss to them as well as to public exchequer. Learned trial Court, by accepting the appeal of the respondents, has rightly set aside order and judgment of the trial Court and granted temporary injunction in favour of the respondents. In view of the above observations, the instant revision petition as well as the connected C.R. No.310-M of 2013 is being devoid of merits hence, hereby dismissed. However, C.R. No.570 of 2013 is allowed and the learned appellate Court is directed to dispose of the application of plaintiffs for extension of temporary injunction on merits. Parties are left to bear their own costs. ZC/127/P Revision allowed.