2020 C L C 387
[Balochistan]
Before Muhammad Ejaz Swati, J
SHAMS -UD-DIN ----Petitioner
Versus
SALAHUDDIN and others ----Respondents
Civil Revision No.431 of 2019, decided on 3rd September, 2019.
Arbitration Act (X of 1940) ---
----Ss. 14 & 17 ---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2--- Petition for
making award as a rule of Court ---Temporary injunction, grant of ---Requirements ---
Temporary injunction could not be granted only on the basis of prima facie case existi ng in
favour of plaintiff but Court had to consider whether balance of convenience or irreparable
loss to the party seeking such relief did co- exist or not ---Pleadings, documents and
supporting evidence was to be examined and assessed tentatively for grant or refusal of
temporary injunction--- Where complicated question with regard to merits of the case
required framing of issue and evidence then temporary injunction should not be granted---Where question of amount or share of amount was involved then it could easily be
ascertained, however, if plaintiff succeeded in litigation then irreparable loss measurable in terms of money could not be said to be irreparable loss ---If petitioner succeeded in the
litigation in the present case then he could be compensated in terms of money and question
of balance of convenience and irreparable loss did not co- exist in his favour ---Complicated
questions with regard to merit of the case were involved in the present case which required framing of issue and evidence ---Grant of temporary, injunction was premature, in
circumstances ---Revision was dismissed accordingly.
Marghub Siddiqi v. Hamid Ahmed khan and 2 others 1974 SCMR 519; PLD 1992
Lah. 86; 1982 CLC 344; 1987 CLC 640 and PLD 1983 Quetta 92 rel.
Sheikh Muhammad Ali for Petitioner.
Mujeeb Ahmed Hashmi for Respondent No.2.
Muhammad Ali for Respondent No.3.
Date of hearing: 27th September, 2019.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ----The petitioner (applicant) filed an application
under section 14 read with section 17 of the Arbitration Act, 1940 (the Act, 1940) before the
learned Senior Civil Judge -III, Quetta against the respondents for making the award dated
28th April 2019 rule of the Court with the averments that they (petitioner and respondents)
being real brothers a nd sons of late Mir Khuda -e-Dad Khan, who died in the year 1992, left
behind several properties and business mines and minerals with the name and style of: 1
Messrs Baloch Sangatani Company and 2 M/S Buzdar Mining Company, Quetta, but his said
legacy were not partitioned/distributed among the legal heirs and the respondent No.1
continued with the mining business and affairs of the properties. It is the case of the petitioner that due to non- partition/distribution of the properties, the dispute was referred to
an arbitrator namely Mir Shahnawaz (the arbitrator), vide agreement dated 26th April 2019. The arbitrator after providing opportunity to the parties passed the award on 28th April 2019 (the award).
2. An application under Order XXXIX, Rules 1 and 2, C.P .C. was also filed.
3. The learned Senior Civil Judge -III, Quetta (hereinafter referred to as the "trial Court")
vide order dated 31 August 2019 allowed the application and directed the parties to maintain status -quo in respect of portion of the house in possession of the petitioner. On appeal filed
by the respondent No.2, the learned Additional District Judge -IV, Quetta (hereinafter
referred to as the "appellate Court") vide order dated 12th September 2019 (hereinafter referred to as the "impugned order") allowed the appeal and set aside the impugned order
dated 31st August, 2019 passed by the trial Court.
4. Learned counsel for the petitioner contended that the appellate Court has failed to
appreciate the order passed by the trial Court with regard to mai ntaining status -quo; that the
stay order was passed on sound judicial principles, which aspect of the matter has not been considered by the appellate Court; that after passing of the status -quo order, the respondents
started interference in the peaceful po ssession of the petitioner by locking the main gate,
guest room and by disconnecting the utilities i.e. gas, electricity and water connections; that due to such violation, the petitioner filed contempt application before the trial Court and the trial Court was pleased to call report from the concerned SHO, but the appellate Court while
passing the impugned order did not consider such aspect of the matter; that the appellate Court has also failed to consider that the stay order was passed due to illegally di spossessing
the petitioner from his portion; that on one hand the respondents Nos.1 and 2 contested the application and on the other hand, were taking undue advantage of the arbitration award and trying to dispossess the petitioner, but this aspect of the matter has been ignored by the appellate Court; that the award was passed in respect of ancestral properties left by the predecessor of the parties, who are inter se brothers, which aspect of the matter was properly appreciated by the trial Court, but same was escaped from the notice of the appellate Court;
that the impugned order passed by the appellate Court suffers from misreading and non-reading of evidence, which is liable to be set aside.
Learned counsel for the respondents contended that the trial C ourt had failed to
appreciate the aspect of the matter that the dispute existed between the legal heirs of late Mir Khuda -e-Dad Khan; that the arbitration award clearly shows that the arbitrators travelled
beyond their jurisdiction; that besides above, the trial Court had failed to consider that all the
legal heirs of late Mir Khuda -e-Dad Khan were not impleaded as a party; that the petitioner
was neither signatory in the reference nor in the arbitration award he had appointed any
arbitrator nor the award w as binding upon him; that due to mis -joinder and non- joinder of
necessary parties, hence the appellate Court has rightly set aside the order passed by the trial
Court.
5. Heard the learned counsel for the parties and perused the record. It is well settled law
that an injunction is not to be granted only on the basis of prima -facie case exists in favour of
the plaintiff, the Courts are required to take into consideration whether the question of
balance of convenience or irreparable loss to the party seeking such relief co -exists or not.
Reliance in this regard is placed on the judgment titled Marghub Siddiqi v. Hamid Ahmed khan and 2 others, 1974 SCMR 519, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"The petitioner now seeks special leav e to appeal and it is sought to be urged on his
behalf that the High Court had failed to notice that the lower appellate Court had acted with material irregularity in the exercise of its jurisdiction in so far as it had interfered with the order of the fir st Court which had exercised its discretion to grant
an ad interim injunction upon sound judicial principles. We are unable to agree with this contention, for, the trial Court had clearly not taken into account the question of balance of convenience or irr eparable loss but based its decision purely upon its
finding that the impugned resolution was bad in the eye of the law an injunction is not to be granted only on the basis that a prima facie case exists but it is incumbent upon the Court to take into account the other questions".
6. It is also settled principle of law that for grant of injunction or refusal thereof,
pleading documents and supporting evidence have to be examined and the assessment whereof shall be made tentatively. However, where complicated question about merit of the case requires framing of issue and evidence involved, the injunction order not be issued and where question of amount or share of amount is involved, ft could easily be ascertained, if the plaintiff succeeds in litigation, the refore, irreparable loss measurable in terms of money
cannot be called irreparable loss. Reliance is placed to the cases reported in PLD 1992 Lahore 86, 1982 CLC 344, 1987 CLC 640 and PLD 1983 Quetta 92.
7. In the instant case, the petitioner has filed an application under section 14 of the
Arbitration Act, 1940 for making the arbitration award dated 28th April 2019 rule of the Court, wherein at Clause -1 of the award, share of the petitioner in terms of money with
regard to Bungalow No. 105 measuring 23645 situated at Brewery Road, Quetta has allegedly been specified by the arbitrator as under:
8. From the above, it reveals that if the petitioner succeeded in the litigation, he would
be compensated in terms of money as per alleged share and in the circumst ances, the
question of balance of convenience and irreparable loss did not co- exist in favour of the
petitioner.
9. The petitioner through C.M.A No. 1188 of 219 filed documents i.e. mutation entry of
gift dated 26th October 2018 including agreement dated 2 6th April 2019, whereby Haji Mir
Qadir Bakhsh and Mir Salah- ud-Din had allegedly referred the dispute related to the
properties mentioned therein to the sole arbitrator, but the arbitration award is between Haji
Shams -ud-Din and Mir Salah -ud-Din, Mir Zia -ud-Din, Mir Mohi -ud-Din and Dr. Khuda -e-
Dad. Moreover, the learned counsel for the petitioner could not produce any title documents indicating that the house in question ever existed on the name of his father; rather mutation entry No.85 dated 26th October, 2018, filed by the petitioner reveals that the mother of the
parties being owner gifted some portion of the house/property in favour of her sons namely Mir Zia -ud-Din, Mir Salah -ud-Din and Mir Mohi -ud-Din and said mutation is not subject
matter of the ins tant proceedings.
10. The above aspect of the matter raises complicated question about merit and requires
framing of issue and evidence, therefore, grant of interim injunction is premature, thus the impugned order passed by the appellate Court warrants no interference by this Court in its
revisional jurisdiction.
In view of the above, Civil Revision Petition No. 431 of 2019 is dismissed.
ZC/124/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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