1987 PLP 1960 (CLC)

Jari Ullah Khan for Petitioner. Kh. Haris Ahmad for Respondents. Date of hearing: 7th March, 1987. This judgment will also dispose of Civil Revision No.773 of 1986 as both arise out of the same order, dated the 4th of February, 1986, of the learned District Judge, Faisalabad, whereby he partially accepted the appeal arising from a prayer for temporary injunction.

2. It was a suit for administration of the property of the plaintiff Miss Amir Fatima's deceased father Niaz Ali Shah. She alleged that she had been totally excluded by the petitioners‑defendants from inheriting him, and that she was entitled to 7/88th share in the property, mesne profits accruing from it ever since 1940 when he died in India and also in the sale proceeds of the portions which the petitioners claiming themselves to be his exclusive heirs had been disposing of. She made an application under Order XXXIX, Rule 1 and 2, C.P.C., for temporary injunction restraining them from further alienating the property.

3. The petition was opposed. Since the respondent was admitted to be the daughter of the deceased, the trial Court granted the application restraining the petitioners from further disposing of the property. They preferred an appeal. The learned District Judge modified the order restraining them from dealing with the property only to the extent of 7/88th share which ultimately might fall to the plaintiff's share. Both the parties have filed separate Revisions which are the subject‑matter of the impugned order.

4. An objection was taken that since the suit was not for permanent injunction, no temporary injunction could have been granted to the respondent plaintiff. Kh. Haris Ahmad for the respondent laid considerable stress that the rule was not invariable inasmuch as it was restricted to particular facts of the case where the relief sought for was in relation to terms and conditions of service. He placed reliance upon Syed Yousaf Mahmud and others v. Abdul Hadi Khan through Dr. M. A. Has seap and others 1983 C L C 3319 wherein this very rule was held not applicable on distinction of facts. Likewise, he referred to Arshad Ali and another v. Abdul Rashid and 2 others P L D 1980 Lah. 382, Mahbub Alam v. Razia Begum and others PLD 1949 Lah. 263 and Sardar Wali Muhammad v. Sardar Muhammad lqbal Khan Mokal and 7 others P L D 1975 Lah. 492 in which, among other things, it was held that a temporary injunction may not be ruled out because the doctrine of lis penduns applied no added thus the suit for partition of property, in fact, meant possession of respective shares of the deceased's heirs and that it could not have been assimilated to a suit merely for declaration.

5. I regret I am not persuaded by the argument. The rule laid down in Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 is quite peremptory and may not be distinguished merely on facts of the present case. It explicitly enunciates that no temporary injunction could be granted where the suit is not for permanent injunction. The idea behind may be the provisions of section 56(f) of the Specific Relief Act, but the fact remains that it had a clear' import of disallowing temporary injunctions where the main suit did not ask for a permanent one. In the present suit mere administration of the deceased's property was asked for, and that after forty years of his death. It is the respondent's own case that she was not in possession inasmuch as mesne profits accruing there from had been apportioned all along by the petitioners. She asked for a share in the sale proceeds as well suggesting obviously that the de facto control had been all alongwith the petitioners. Notwithstanding the fact that she claimed to be a co‑sharer in her capacity as a daughter of the deceased, for the present purposes the frame of suit would not help her in getting the relief of temporary injunction.

6. For all these reasons, I accept the revision petition, set aside the impugned order and dismiss the respondents' application made under Order XXXIX, Rules 1 and 2, C.P. C. The opposite Revision Petition (No. 773/86) is dismissed. No order as to costs. A.A. /F‑27/L Revision accepted