2014SAC8026 (PLP)

MUZAFFAR ALI, J.

Through this petition, the petitioner seeks grant of leave to appeal against the impugned order dated 28-11-2013 passed in Civil Revision Petition No. 71 of 2013 by the learned Chief Court Gilgit-Baltistan whereby the concurrent findings of both the learned Courts below were upheld.

2. The facts in short as gleaned out of the record are that the petitioner filed a Civil Suit bearing No. 61 of 2013 in the Court of learned Civil Judge Ishkoman seeking perpetual injunction against the respondents Nos. 1 to 3 by restraining them from interfering into the disputed property perpetually. The learned Trial Court refused to grant the temporary injunction as prayed for by the petitioner vide order dated 2-9-2013. The petitioner feeling aggrieved called in question the order dated 2-9-2013 in the court of District Judge Ghizar who, vide order dated 11-11-2013, dismissed the appeal. The petitioner/plaintiff challenged the order dated 11-11-2013 by filing a Revision Petition No.71 of 2013 in the Chief Court Gilgit-Baltistan which came up for hearing before learned Single Judge of the Chief Court who, vide order dated 28-11-2013, dismissed the petition having been meritless. Hence this petition in hand.

3. The learned counsel for the petitioner vehemently argued that the examination of the averments made in the plaint transpire that the present petitioner has right of ownership over the disputed property not only because the same is "Shamilat" adjacent to the ancestral property of the petitioner but the same had also been allotted to her father by the then (Governor) Raja Punial.

4. We have heard the learned counsel for the petitioner at a considerable length and perused the record available very carefully with the assistance of the learned counsel.

5. The plain reading of the averments of the application filed under Order XXXIX, Rules 1 and 2, C.P.C. and its prayer reveals that the petitioner seeks to restrain the respondents till final disposal of the suit from using a path over her ancestral property, adjacent to the disputed property. In the last para of the prayer, the plaintiff had sought an order to the effect that the respondents be restrained from burying their dead bodies in the disputed property by trespassing the ancestral property of the petitioner herein. The relevant portion of the application, under Order XXXIX, Rules 1 and 2, C.P.C., filed by the petitioner reads as under:-

6. The stand of the appellant taken in the application clearly gives an impression that the petitioner in fact intends to prevent the respondents from using her ancestral property as path to the "subject matter" of the suit. The petitioner has lost sight of the fact that the ancestral property or a path over the same has not been made "subject matter" in the suit. The possession over the suit land is disputed, which is yet to be proved through cogent and reliable testimony of the witnesses in this regard. Particularly, when the petitioner has admitted that some dead bodies from the respondents side have already been buried therein.

7. The defendants/respondents submitted their written statement and controverted the averments made in the plaint. They very categorically claimed their possession over the suit land as joint property of the village Dayeen. Defendants also opposed the application filed by the appellant for temporary injunction, the same is in question before this Court.

8. Order XXXIX, Rules 1 and 2, C.P.C. speak about the "subject matter" of a suit and gives discretion to the courts of law to pass temporary orders during pendency of the suits if court is convinced that the subject matter of the suit is in danger of being wasted/damaged or alienated by any party to the suit.

9. The courts always grant temporary injunction to maintain the status quo of the suit property to restrain both the parties from disturbing the nature of the "subject matter" of the suit prevailing on the day of filing the suit. The courts have no power to grant any temporary injunction in respect of any property which is not "subject matter" of the suit.

10. Since, the petitioner seeks a restraining temporary injunction about a path in her ancestral property which is not "subject matter" of the suit as such the petitioner has failed to establish a prima facie case to get a temporary injunction against the respondents and establishing the prima faice case, along with the other two principles i.e. (a) balance of convenience (b) irreparable loss to the subject matter of the suit, which are prerequisite for grant of a temporary injunction. Therefore, the instant petition does not carry any substance to grant leave to appeal. The petition is, therefore, dismissed and leave is refused. HBT/39/GB Petition dismissed.