P L D 1990 Lahore 22 (PLP)

Muhammad Ramzan Qureshi for Petitioner. After a decree for declaration passed on 23‑4‑1981 in favour of Mst. Izzat Mai and 4 other female respondent (the heirs of Ghulam Hussain) had been unsuccessfully assailed in appeal by the judgment‑debtors Muhammad Murad and others (the heirs of Ahmad Bakhsh); the present petitioner Muhammad Bakhsh appeared on the scene to bring declaratory suit to have the effect of that decree avoided with regard to half share of the land which he claimed to be his own and. subsequent to his failure to therein obtain a temporary injunction for the samc purpose, during the pendency of his declaratory suit he resorted to maintaining an application under section 12(2) of the C.P.C. for the said decree being set aside as having been secured through fraud and misrepresentation. Therein he Filed an application for grant of a temporary injunction for staying implementation of the said decree and even secured an ad interim injunction which was taken up by the trial Court for confirmation alongwith an application filed by the respondents for its recall.

2. Trial Judge believed that the pleadings disclosed an arguable case and although he himself concluded that no irreparable loss can result from implementation Of the declaratory decree in the revenue record because it will be capable of being undone similarly to conform to the decision of the Civil Court, yet, strangely enough, he thought that some complications (not disclosed) would certainly be created which must be avoided and thereupon he proceeded to confirm his order dated 23‑2‑1988 the already passed ad‑interim injunction.

3. Appeal thereagainst, brought by the decree‑holders (the heirs of Ghulam Hussain) the first five respondents herein, was entrusted for hearing to a learned Additional District Judge who came to the view that the present petitioner had approached the lower Court with unclean hands to claim discretionany relief which deserved to be disallowed for this reason alone that an indentical relief claimed by him in the suit had been declined to him already on 3‑6‑1987 in his suit which was still pending and he had suppressed this material fact from the trial Court in his parent‑application brought under Section 12 (2) of the C.P.C. and had even concealed the refusal made just on 3‑6‑1987 in the suit to provide to him such an interim relief and had thereby succeeded in getting an order to the contrary passed in his favour from the same Court barely eight months after the earlier refusal. In that context learned appellate Judge also noticed that the declaratory decree had been passed to the knowledge of the applicant 3‑1/2 years before the institution of his application under section 12(2) of the C.P.C. which appeared to be time‑barred on that account but left the point open to be decided at the appropriate stage. In the above‑reproduced view of the matter, he accepted the appeal by his judgment dated 27‑7‑1989 into setting aside the impugned order of trial Court and dismissed the relevant application of Muhammad Bakhsh who has now come up to this Court on revision.

4. Learned counsel has not been able to deny the above set‑out course of litigation and has tried to argue that the appeal has been accepted on an incorrect assumption made about suppression of facts because there could not be attributable any dishonesty to the petitioner in the non‑disclosure about the resort he earlier had to the independent remedy which did not have to regulate the grant of relief in the later one. This contention would not be much wrong in those matters wherein relief may be admissible as of right but cannot be accepted as a sound proposition where grant thereof has been rested by law in the discretion of Court which, no doubt, remains liable to be exercised judicially in keeping with the equities of different cases which fall to be regulated by their respective facts. Learned Judge in the appeal below cannot be said to have erred in his jurisdiction in being influenced by the rule of consistency for a Court which actually is a cherishable objective for safe dispensation of justice.

5. Be the above as it may, there is no doubt that order passed by the trial Court did not happen‑to be a considered one inasmuch as it did not at all attend to the question of existence of prima facie case for issuance of a temporary injunction and whereas it had itself concluded against the applicant with regard to A the second factor of likelihood of sufferance of irreparable loss or injury and had still proceeded to issue the temporary injunction on the consideration of existence of some undisclosed complications which, of course, are not quite comprehendable in the facts of this ,case; it clean left out of consideration the third factor relating to balance of convenience. It is quite firmly settled that a temporary injunction can be issued only where the above‑referred three factors Q co‑exist and the absence of any one of them has to be regarded as fatal to the plea for issuance of temporary injunction. Appellate jurisdiction has not anywise been wrongly exercised in correcting such an unconsidered order of the trial Court. The order passed in the appeal below cannot be termed a fanciful or arbitrary exercise of jurisdiction which is a pre‑condition for orders pertaining to the realm of discretionary jurisdiction becoming amenable to correction in the exercise of revisional power as is the requirement' laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC'. 139) and Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53).

6. Failure of the trial Court to accord full consideration to the three necessary factors would render its order of temporary injunction almost incapable of being steered through the scrutiny of appeal and revision and its collapse in the appeal below cannot be open to any valid exception. The same is incapable even of being resurrected in revision. 7. 1 have particularly asked the learned counsel to demonstrate to me as to how may a declaratory decree secured by one party be capable of causing irreparable loss or injury to a third person who is not a party to be bound thereby in the presence of the provisions of Section 43 of the Specific Relief Act and why may the balance of convenience and inconvenience be taken to be existing in favour of issuing a temporary injunction thereabout for such a non‑party to a declaratory decree which, by its very nature, remains incapable of being executed? Learned counsel has not even faintly tried to urge any justification and quite rightly so, because there just cannot be any plausible answer thereto.

8. No case exists for exercise of revisional jurisdiction and, in result of the above discussion, this revision petition is dismissed in limine. A.A./M‑1594/L Revision dismissed.