P L D 1980 Lahore 382 (PLP)

Briefly stated the facts relevant for the present case are that on 28th of June, 1979 Messrs Maqbool Hussain and others had sold agricultural land measuring 899 kanals and 9 marlas situated in village Nabipur Khanpur, Tehsil Ferozewala, District Sheikhupura, to the respondents. On the 14th of July 1979, the appellants filed a suit for possession through pre. emption and along with the plaint an application under Order XXXIX, rules 1 and 2, read with section 151, Civil Procedure Code, was also moved praying for the grant of temporary injunction to the effect that till the final disposal of the suit the respondents be restrained from selling the suit land for building purposes. In their application the appellants had averred that the respondents were contemplating to change the nature of the suit land. The application was resisted by the respondents who, inter alia, pleaded that within the knowledge of the appellants some contractions have been made on the land. They also pleaded that they were within their right to sell the property and that the rule of lis pendens was not applicable to a suit based upon the right of pre-emption. After hearing the learned counsel for the parties, the learned Civil Judge, by his order dated the 30th of July, 1:79, dismissed the application. In his opinion a vendee is possessed of a legal right to defeat the pre-emptor by transferring the disputed land within the period of limitation to a person having equal or superior right to that of the pre-emptor. The learned trial Court further opined that the Court could not restrain the respondent-vendees from effecting improvement as they were full and complete owners of the disputed land. He, there, reached the conclusion that the appellants had failed to prove a good prima facie case and that being so the other two factors governing the grant of temporary injunction were also not in their favour. Feeling aggrieved the appellants-petitioners have come up to this Court in appeal against the above order.

2. The learned counsel for the appellants did not dispute the proposition that recognises the right of vendees to transfer the land within the prescribed period of limitation to persons having equal or superior rights of pre-emption vis-a-vis the appellants pre-emntors. He? however? urged that in the grab of this right the respondents cannot sell the land in question to strangers and that too for building purposes. Elucidating his point, the learned counsel argued that the decision of the learned trial Court is based on erroneous approach of the case. According to him the primary object of seeking temporary injunction was to restrain the respondents from changing the character and nature of the suit land not that the respondents be prevented from enjoying their rights as observed by the learned trial Judge. He further submitted that it was not the case of the appellants either that by issuing the temporary injunction the Court should maintain their right of pre-emption till such time the decree in favour of the appellants was passed. Learned counsel took me through the application moved under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure and its reply submitted by the respondents and forcefully contended that the appellants were simply asking that till the final disposal of the suit the respondents be restrained from changing the nature of the suit land, i.e., from its agricultural nature to that of a housing colony.

3. It was next contended by the learned counsel .that the- appellants were collaterals of the vendors and co-owners of the estate which qualifications the respondents do not possess. It was vehemently argued that the learned trial Court while examining the question about the existence or otherwise of a prima facie case has overlooked this aspect of the matter and instead, by improperly applying the undisputed propositions, has erroneously held that the appellants have failed to establish a good prima facie case. The learned counsel also addressed arguments on other two factors, namely, balance of convenience and irreparable loss and contended that the decision of the learned Civil Judge on these questions is also open to objection. According to him ' the construction of kothas other than for agricultural purposes by the respondents or by their successors-in-interest shall cause irreparable loss and injury to the appellants in addition to great inconvenience. He urged that the consequence of sale of the land in question to strangers for building purposes will result in multiplicity of suits and inclusion of strangers to the suit. Reliance was placed on the case Sardar Wali Muhammad v. Sardar Iqbal Khan Mokal and others (1).

4. Learned counsel for the respondents, on the other hand, strenuously argued that as the appellants had not asked for a perpetual injunction in the suit, ad interim injunction cannot be granted. In support of his contention he cited Marghub Siddiqi v. Hamid Ahmad khan and others (2), especially to the following passages :-. "Apart from the question that in the present case the trial Court had exceeded its jurisdiction by deciding the question of the validity of the resolution finally it appears to us that the present petition must fail, for, the ad interim injunction could not have been granted for two very good reasons which have unfortunately not been noticed by the Courts below. The first is that in a suit where no perpetual injunction is claimed no question of granting ad interim injunction can possibly arise. In the present case, the application for ad interim injunction should have failed on this ground alone."

5. It is an admitted position that in the suit brought by the appellants perpetual injunction has not been prayed for and at first blush, from the judgment of the Supreme Court the contention raised by the learned counsel for the respondents appears to be plausible but on a detailed examination thereof it. becomes clear that the above-mentioned judgment is clearly distinguishable from the facts and circumstances of the present case. Undisputedly the suit brought by Marghub Siddiqi related to a service matter. In that suit no permanent injunction, though could be claimed, was prayed for may be .because of clause (f) of section 56 of the Specific Relief Azt, and, in view thereof, it appears, their Lordships considered it to be one of the reasons for refusing to grant an ad interim injunction. The other case-law on this proposition cited by the learned counsel for the respondent was the case of Bishun Prashad Pathak and others v. Sashi Bhusan Misra and others (1) wherein the consequential relief in the nature of permanent injunction though available was not prayed for and considering the request for issuance of a temporary injunction their Lordships of the Patna High Court observed "Now, the general principle applicable to cases of this kind is that where a permanent injunction cannot be given, no prayer for a temporary injunction will be allowed". The ratio decidendi of the precedent cases cannot be extended to a pre-emption matter where the right of substitution is to be adjudicated upon and no question of a relief for permanent injunction can arise. Further, it cannot be said that the appellants in the suit have omitted to sue for a relief in the nature of a perpetual injunction and are thus precluded from seeking a temporary injunction. In such a suit the prayer for a temporary injunction is made under Order XXXIX, rules 1 and 2 r; ad with section 151 of the Code of Civil Procedure requesting the Court for issuance of an order for maintenance of status quo vis-a-vis the nature and character of the suit property during the pendency of the suit. Reliance was also placed on the case of Asgha Ali and others v. Muhammad Siddiq Javed and others (2) and Mian Abdull Latif v. Zahoor Din F. A. O. 105 of 1977. Suffice it to say that the point was nether raised nor considered in the case of Asghar Ali. However, in the case of Mian Abdul Latif this question was no doubt raised but the same was not considered as in the meanwhile that appeal was dismissed as not pressed. (1) P L D 1975 Lab. 492??????????? (2) 1974 S C M R 519

6. Learned counsel for the respondents next contended that the principle of lis pendens embodied in section 52 of the Transfer of Property Act, 1882, is not applicable to suits brought to enforce the right of pre-emption. In this behalf reliance was placed by him on the case of Muhammad Akram Khan v. Mst. Kaniz Fatima Bibi and others (3) and Mst. Fateh Bibi v. Ahmad Khan etc. (4). Both these authorities have laid down that a vendee can, within the prescribed period of limitation, transfer the suit property to a person having equal or superior right of pre-emption. This proposition, as noticed above, has not been disputed by appellant's counsel, who however, rightly contended that during the pendency of the suit the immovable property cannot be sold to strangers, adding that any such transfer would be in contravention of section 52 of the Transfer of Property Act.

7. The learned counsel for the respondents further argued that the respondents have a vested right to effect improvement on the suit land: To this proposition, as recorded above, the learned counsel for the appellants did not object. The appellants' case is that the respondents are contemplating to change the nature and character of the suit land which if done would frustrate their claim and cause irreparable loss and injury as well as greater inconvenience to them: There is much force in the contention of the learned counsel for the appellants. Obviously any improvement which tends to change the very nature and character of the suit land is not permissible. The principle of law laid down in Municipality of Tando Adam v. Khair Mahomed and others (1) "It is true that Courts, as a general rule, refuse to interfere by way of injunction to restrain a defendant from making such use as he may think fit of the property of which he is in possession. But in certain cases the Court would interfere with the rights of the defendant. It would certainly interfere when the defendant contemplates destruction of the corpus," is an established proposition and that I am in respectful agreement thereof. (1) A I R 1923 Pat. 133 ??????????? (2) P L D 1917 Lab. 586 (3) P L D 1952 Lab. 489??????????? (4) P L D 1971 Lab. 171.

8. On the question regulating the grant or otherwise of the temporary injunction the learned counsel for the respondents relied upon Maharaja Bahadur Sing v. Seth Hukum Chand (2) and Ahmad Din v. Faiz Ali (4) and contended that the learned trial Court has rightly refused to grant the ad interim injunction to the appellants. I have however, failed to understand how these decisions advance the case of the respondents any further.

9. After hearing the learned counsel for the parties at some length, i have arrived at the irresistible conclusion that the appellants have established a good prima facie case and any change in the nature and character of the suit land is bound to cause them great inconvenience in addition to causing irreparable loss and injury, whereas the respondents are not likely to suffer j any inconvenience or irreparable loss, if such an injunction is granted. 1, therefore, accept the appeal, set aside the order passed by the learned Civil Judge and direct that, during the pendency of the suit, the respondents shall not change the nature and character of the suit land either by themselves or by selling it for building purposes. However, in order to safeguard the interest of the respondents also I would direct that the trial Court will dispose of the suit expeditiously so that the rights of the parties may be determined without any further loss of time. The parties are left to bear their own costs. Appeal accepted. (1) A I R 1925 Sind 260?? (2) A I R 1923 Pat. 109 (3) P I. D 1954 Lab. 414