1987 PLP 2545 (CLC)

‑‑‑ O. XXXIX, Rr I & 2 read with S.11‑‑Temporary injunction Res judicata‑‑Principles of‑‑Plea of res judicata can be dealt with in proceedings relating to issuance of temporary injunction‑‑ Court, while considering ingredients of prima facie case, has to see whether the suit was prima facie maintainable or not and for that matter point of res judicata can also be gone into. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑ S. 11 & O.II, R. 2‑‑Res judicata‑ ‑Principles of‑‑Plaintiff in previous suit claiming ownership of strip of land in dispute but in subsequent suit claiming that the ownership vested in some one else and he had a right of easement or passage over the same‑‑Plea which could be taken but had not been taken in the suit was to be taken to be a plea which was actually and directly in issue and, therefore, could not be taken in any subsequent suit‑‑Relief available but not claimed in a suit is to be deemed to have been relinquished under O.II, R.2. (c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑ O. XXXIX, Rr. 1 & 2‑‑Temporary injunction‑‑ Requirements for grant of‑‑ingredients of balance of convenience and irreparable loss ought to be examined only when plaintiff has a prima facie case‑ Existence of a prima‑facie case does not in itself entitled a plaintiff to relief of injunction‑‑Petitioner‑plain tiff having no prima facie case, no further probe into matter, held, was necessary while deciding application for temporary injunction. Sardar Riaz Karim for Petitioners The petitioners have filed a suit for a declaration that the strip of land in dispute is their passage and they are entitled to use the same as such and the respondents have no right in or connection with the same. They have also prayed for issuance of a perpetual injunction restraining the respondents from interfering in their use of the passage. Alongwith the suit they filed an application for issuance of a temporary injunction which was dismissed by the learned Senior Civil Judge, Multan vide order, dated 11‑12‑1984. They filed an appeal which was dismissed by the learned Additional District Judge, Multan vide order dated 21‑12‑1986. This revision petition has been filed against these orders.

2. I have heard the learned counsel for the petitioners. Prior to the filing of this suit the petitioners had filed a suit claiming ownership of the strip of land now alleged to be their passage (in dispute) of the petitioners. That suit was decreed by the learned trial court concerned but an appeal filed thereagainst was dismissed and then, the petitioners filed a revision petition in this Court. The same was also dismissed vi‑de order dated 6‑7‑1983 by this Court. The strip in dispute formed a part of the land which had been acquired by the Multan Development Authority. It was obviously found in the previous litigation that the land having been acquired by the Multan Development Authority the petitioners had no right in the said land. It may be pointed out that when such acquisition takes place the land so acquired vests in the Authority free of all encumbrances including any right of easement or passage. Therefore, prima facie when the land, the passage in dispute, alongwith other land was acquired the right of passage, even if there was any, st6od legally abolished. In other words the said strip of the land also vested in the Multan Development Authority free from all encumbrances and without any right of easement or passage, of the petitioners. The acquisition proceedings are not challenged in the present suit. Therefore, prima facie due to the said acquisition the strip of land, the so‑called passage, vested in the Multan Development Authority and they had every right to transfer the same to any one and the transferee would get the same free of all encumbrances as the Multan Development Authority itself acquired. The learned Courts below have refused the prayer of temporary injunction on the main ground that the suit appears to be barred due to said prior litigation. The learned counsel for the petitioners has argued that they have wrongly interpreted that the suit could be barred by res judicata and that the learned trial Court did not examine the ingredients of prima facie case, balance of convenience and irreparable loss. He has further argued that the plea of res judicata could not be dealt with in the proceedings relating to the issuance of temporary injunction. The argument has no force. When we talk of the ingredient of prima facie case we have got to see that the suit is prima facie maintainable or not or for that matter the point of res judicata can also be gone into. The learned Courts below have not given a definite opinion, as they were not supposed to do so, that the suit was barred by res judicata otherwise they could have dismissed the suit itself. They have given a prima facie conclusion that the suit does not appear to be maintainable because of the bar of res judicata and they were within their rights to examine this point and to say so. As already pointed out above the, petitioners. in their previous suit claimed ownership of the strip of land (passage) in dispute. They did not claim that the ownership vested in some one else and they had a right of easement or passage over the same. A plea which could be taken but has not been taken in the suit is to be taken to be a plea which was actually and directly in issue and therefore, cannot be taken in any subsequent suit. Therefore, prima facie the suit appears to be barred by res judicata. Apart from that a relief which is available but is not claimed .in a suit is to be deemed to have been relinquished and it cannot be taken in a subsequent suit. Prima facie the bar of Order II, rule 2, C.P.C. will also apply to the case. It has been stated above that the land (passage) in dispute was acquired by the Multan Development Authority and that the said acquisition vested the land in dispute in the Multan Development Authority free of all encumbrances. On this account, too, the petitioners have no prima facie case. When a plaintiff has no prima facie case it is futile to examine the other two ingredients of balance of convenience and irreparable loss. The said ingredients ought 'to be examined only when a plaintiff has a prima facie case. The existence of a prima facie case alone does not in itself entitle a plaintiff to the relief of injunction. If he has a prima facie case he can be allowed the said relief if the ingredients of balance of convenience and irreparable loss also go in his favour in the present case the petitioners have no prima facie case and therefore no further probe into the matter, while deciding the application for temporary injunction, was necessary. The orders of the learned Courts below do not suffer from any material irregularity or illegality. There is no reason to interfere in the discretion exercised by them. The petition is, therefore, dismissed in limine. S.Q./M‑405/L Petition dismissed.