2021 Y L R 2425
[Balochistan]
Before Rozi Khan Barrech, J
SALEH MUHAMMAD ---Petitioner
Versus
EXECUTIVE ENGINEER IRRIGATION and 5 others ---Respondents
Civil Revision No. 88 of 2019, decided on 24th July, 2020.
Civil Procedure Code (V of 1908) ---
----O. XXXIX, Rr. 1 & 2 ---Temporary injunction--- Scope ---Petitioner/plaintiff sought
restraining order against the respondents/defendants contending that he was owner -in-
possession of the suit -property after purchasing it from the previous owner ---Responde nts
contended that the previous owner had occupied the area of rainy drain for which matter was
referred to the concerned Tehsildar ---Held, that injunction was not to be granted only on the
basis that prima -facie case existed in favour of the plaintiff ---Courts were required to take
into consideration whether the question of balance of convenience or irreparable loss, to the party seeking such relief, co -existed or not ---For grant or refusal of the injunction , pleading
documents and supporting evidence was to be examined and the assessment was to be made
tentatively , however, where complicated question about merit of the case required framing of issues and evidence was involved, then the injunction order was not to be issued---In the present case, report o f the concerned Tehsildar (Revenue Officer) revealed that property -in-
question was acquired by the Irrigation Department in the year 1991; award was passed and amount was also paid--- Said property was not incorporated in the revenue record in the name
of Provincial Government i.e. Irrigation Department --- Petitioner/plaintiff had failed to make
out a prima facie arguable case for grant of injunction in his favour and balance of convenience also did not lie in his favour ---No illegality or infirmity was foun d in impugned
orders passed by both the Courts below ---Revision petition was dismissed, in circumstances.
Marghub Siddiqi v. Hamid Ahmed Khan and 2 others 1974 SCMR 519 ref.
Syed Saleem Akhtar for Petitioner.
Abdul Latif Kakar, Additional Advocate Gener al ("A.A.G.") along with Qurban Jatoi,
XEN Irrigation Department and Muhammad Kareem, SDO Irrigation Department for Respondents.
Date of hearing: 26th June, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---This Civil Revision Petition in terms of section 115
of Th e Code of Civil Procedure (V of 1908) (hereinafter referred as ("C.P.C.") arises out of
order dated 20.02.2020 (hereinafter "the impugned Order") passed by learned Additional
District Judge Sariab, Quetta, (hereinafter "the appellate Court") wherein the ap pellate Court
while dismissing the appeal under Order III, Rule 1, (R), C.P.C. filed by the appellant upheld
the order dated 12.09.2018 passed by learned Civil Judge Sariab, Quetta.
2. Epitomized facts necessary for adjudication of instant petition are tha t the
petitioner/plaintiff filed a suit for declaration and permanent injunction against the
respondents/defendants before the trial Court along with an application under Order XXXIX, Rules 1 and 2 C.P.C. with the averments that one Rasool Bakhsh was owner in possession of
the property bearing mutation No.3919 having Khasra No.333/282/281 situated at Mohal and Mouza Khushkaba Takhtani, Tappa Kachi Baig No.1, Tehsil City, District Quetta, measuring 0 rod 9 poles which later on purchased by the petitioner/pla intiff and after payment of all the
sale consideration amount the mutation entries of the property in question was transferred on the name of plaintiff/petitioner. It is further averred in the plaint that the previous owner of the property in question cons tructed a house at the said property and no one raised objection.
In the meanwhile, when the petitioner/plaintiff purchased the property in question started
residing in the same, the defendants/respondents with the collusion of each other with mala
fide in tention and ulterior motive noticed the previous owner namely Rasool Bakhsh with the
averments that the previous owner occupied the area of rainy drain as such the matter was referred to the concerned Tehsildar for its measurement and now the respondents/defendants starting interference in the property in question.
3. The respondents resisted the suit along with application under Order XXXIX, Rules 1
and 2, C.P.C. filed by the petitioner/plaintiff, being the defendants. While submitting their
written statements, they controverted the assertions contained in the plaint as well as in the application under Order XXXIX, Rules 1 and 2, C.P.C.
4. After hearing arguments of both the learned counsel for the parties, the learned trial
Court dismissed the application under Order XXXIX, Rules 1 and 2, C.P.C. filed by the petitioner/ plaintiff on 12.09.2018.
5. Being aggrieved from the order, the petitioner/plaintiff filed appeal under Order 43,
Rule (1) (R), C.P.C. before the learned Additional District Judge Sariab, Quetta, which was dismissed vide impugned Order dated 20.02.2019. Hence this appeal.
6. 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 exi sts 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 is placed on the judgment titled Marghub Siddi qi v. Hamid Ahmed Khan and 2
others 1974 SCMR 519.
7. 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.
8. In the instant case the petitioner/ plaintiff filed a suit for declaration and permanent
injunction along with application under Order XXXIX, Rules 1 and 2, C.P.C . and claimed
that he is owner of the property bearing mutation No.3919 having Khasra Nos.333/282/281
situated at Mahal and Mouza Khushkaba Takhtani, Tappa Kachi Baig No.1, Tehsil City, District Quetta, measuring 0 rod 9 poles and the same was purchased fr om one Rasool
Bakhsh.
9. On the other hand, the defendants/respondents claimed that they acquired the said
property for flood stream. It is reflected from the report of Tehsildar City Quetta vide letter No.1542 dated 18.11.2017 that the property in question had already been acquired by the Irrigation Department in the year 1991 but the said acquisition has not been incorporated in the record of right. It is established from the record that the said property was acquired by the Irrigation Department and awar d was also passed and the amount was also paid to the land
owners but the said property was not incorporated in the revenue record in the name of Government of Balochistan i.e. Irrigation Department.
For the foregoing reasons, and facts, I am of the view that the plaintiff has failed to
make out a prima facie arguable case for grant of injunction in his favour. The balance of convenience also does not lie in favour of petitioner/ plaintiff.
In view of the above, the observations and concurrent findings of both the Courts
below, the learned counsel for the petitioner/plaintiff has failed to point out any illegality,
misreading and non- reading of evidence in the impugned orders passed by the trial as well as
appellate Court, thus, the petition being devoid of any merits is dismissed with no order as to cost.
MQ/141/Bal. Petition 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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