1985 PLP 813 (SCMR)

DORAB PATEL, J.‑‑The petitioner purchased land in Lahore District from the sixth respondent in this petition by a registered sale‑deed dated 25‑5‑1977. But, presumably because he apprehended mischief he obtained possession of the land purchased by him and started constructing a boundary wall on it before the registration of the sale‑deed in his favour. However, despite all the precautions taken by him a month after the registration of the sale, the first respondent filed a suit against him, and respondents 2 to 6 before us in which the only relief sought by this respondent was a mandatory injunction to restrain the petitioner and the other respondents from raising any construction or interfering in any way with the land of which particulars were given by the first respondent in his plaint. Now, according to learned counsel, the land thus claimed by the first respondent in his suit is part of the very land sold by this respondent and the other respondents to .the petitioner, therefore, the petitioner has contested the first respondent's suit. Now, together with his suit, the first respondent had applied for an interim injunction to restrain the defendants in his suit from raising any construction or interfering in any way with the land in dispute. It is the unfortunate practice of subordinate Courts to grant ad interim orders freely, therefore, the first respondent obtained ad interim orders in his favour. The petitioner thereupon filed an application under Order XXXIX, rule 4 of the Civil Procedure Code for recall of the order passed against him, but as his application was dismissed and the ad interim order in the first respondent's favour confirmed, the petitioner challenged this order in a first appeal in the Lahore High Court. The petitioner had filed the first appeal directly in the High Court, because in his opinion, the value of the land in dispute was about Rs 1 lac. But, the first respondent had valued the suit for the purposes of court‑fees and jurisdiction at Rs.200 and Rs.1,000 respectively, therefore, the main controversy before the learned Judge, who heard the petitioner's appeal was whether the petitioner should have filed an appeal in the High Court or in the District Court. And, as the learned Judge was of the view that the appeal should have been filed in the District Court, Lahore by his order, dated 9‑7‑1979, he directed that "the Memorandum of Appeal shall be returned to the appellants for presentation before the District Judge, Lahore". The appeal was thus dismissed with costs, therefore, the petitioner has filed this petition for leave. The learned Judge dismissed the petitioner's appeal because he was of the view that he could not in view of section 12 of the Court Fees Act interfere in an interlocutory appeal with the valuation of the suit made by the plaintiff (first respondent) in his suit. Mr. Iftikhar Ahmad submitted that this view is based on a misreading of subsection (2) of section 12 of the Court Fees Act, and we are satisfied that this submission requires examination. Learned counsel further submitted that the interim injunction confirmed by the trial Court in the first respondent's favour was a perverse exercise of discretion, and, therefore, the view taken by the trial Court required re‑examination. The petition raises other questions of law also, therefore, we grant leave as prayed. Security in the sum of Rs. 2,

000. The appeal will be made ready on the present record with liberty to the parties to file additional documents. Learned counsel presses for an ad interim order on his stay application. Notice to the respondents of the stay application for the second week of March, 1980. M.I. Leave refused