1976 PLP 482 (SCMR)

MUHAMMAD GUL, J.‑‑This petition is from the order of a learned Single Judge of the Lahore High Court in Civil Revision No. 65 of 1973. refusing interlocutory injunction to the petitioner herein, in a suit filed by him for declaration for certain rights in respect of a residential tenement. The petitioner herein, is a transferee of a residential tenement on the first floor of a two storied property bearing No. S‑2‑45‑46‑47, Block No. 1, Sargodha, which was once evacuee property and in possession of several persons including the petitioner herein. On the petitioner's form he was transferred the residential tenement in his possession, while Abdul Latif respondent No. 1 herein, was transferred shop on the ground floor of the building, indicated in the plan on the file as ABIJ. The transfer of "roof of the shop" has. however, been subject‑matter of contentious proceedings between the parties. The petitioner's claim before the Settlement Authorities we that the respondent, Abdul Latif, was transferred shop less its roof which was appurtenant to the residential tenement transferred to him the petitioner, however filed in his claim for the transfer of the roof of the shop before the Settlement Authorities and also in the High Court in a writ petition. The result was that the shop was finally transferred to respondent Abdul Latif "alongwith its roof". On 18‑9‑1972, the petitioner filed a suit for a declaration that he had right of assessment of necessity and also by prescription to use a portion of the roof of shop ABIJ and has a further right of easement by prescrip tion to pass sullage water of the residential tenement over the roof of the shop. By way of consequential relief, he also claimed permanent injection to restrain the respondent No. 1 from interfering with his right of easement as aforesaid. Alongwith the plaint the petitioner applied for interlocutory injunction during the pendency of the suit. The application was refused by the learned trial Judge by order dated 28‑9‑1972, on the ground that after protracted litigation between the parties, Settlement Authorities had transferred the shop "alongwith its roof" to the respondent Abdul Latif and 'bat the record of the Municipal Committee also showed that the residential tenement transferred to the petitioner bad an alternative passage through another flight of stairs. The learned trial Judge also observed that no irreparable injury was likely to the petitioner in the event of refusal of interlocutory relief. On appeal by the petitioner, the order of the trial Court was reversed by the learned District Judge on the basis of certain implied admissions by the respondent herein. On a revision by the respondent herein, however, that learned Single Judge reversed the order of the first appellate Court and restored that of the trial Court. In seeking leave to appeal the petitioner's learned counsel submitted that the petitioner had a prima facie case as found by the learned District Judge which pa se was sufficient for the grant of interim relief petitioner, and that in any case the injunction should not have been refused in exercise of the revisional jurisdiction of the High Court as in this case. The fact that the shop alongwith the roof was transferred to the respondent finally and Info matter in controversy lay within the discretion of the Courts below is not denied. It is not suggested that the High Curt in restoring the order of the learned trial Judge exercised its discretion arbitrary, particularly when that order on the face of it proceeded on sound reasons. Then there was no express finding by the learned District judge that any irreparable injury was likely to ensue to the petitioner in case of refusal of interim injunction. This is scarcely a fit case for interference by this Court. The petition is accordingly dismissed. Petition dismissed.