' Nawabzada Saadat Khan, plaintiff instituted suit against Military Estate Officer, Kohat and others, defendants, for declaration to the effect that petitioner was entitled to exemption from the recovery of `Developmental Charges' in respect of Plot No.45 situated in Survey No. 93 D.I. Khan Cantt; amounting to Rs.9,76,050 in view of MEO. Kohat Letter No. CDS-93/07/PT/III, dated 1-10-1997 and that the defendants be restrained from recovering the said amount from the plaintiff.
2. The suit was accompanied by an application duly supported by an affidavit for issuance of temporary injunction in the above lines. The application having been strongly resisted, was rejected by learned Civil Judge, D.I. Khan vide order, dated 1-10-2001 on the ground that petitioner and his brothers Nawabzada Nusrat Khan and Nawabzada Nemat Khan, respondents Nos.7 and 8, being co-owners have already availed exemption from payment of development charges in respect of Plot No.12 and under the rules, they cannot claim any exemption in respect of another plot in the old grant.
3. An appeal was filed thereagainst in the Court of learned District Judge, D.I. Khan which was entrusted to learned Additional District Judge, D.I. Khan for disposal, Mrs. Zargaish Sani, learned Additional District Judge, D.I. Khan finding herself in agreement with the trial Court, dismissed the appeal vide order, dated on 22-1-2002.
4. Feeling aggrieved, petitioner has filed instant civil revision under section 115 read with section 151 of the Code of Civil Procedure.
5. Mr. Salimullah Khan Ranazai, Ad-ocate for the petitioner contended inter alia that being the old grantee of the land situated in the Cantt: area, the petitioner is also entitled to be exempted from development charges; that letters, dated 1-6-2001, 19-6-2001, 26-5-2001, 10-5-2001 and 17-10-2001 issued by the competent authority in response to the applications of the petitioner would clearly indicate that respondents No.7 and 8 alone were the beneficiaries and not the petitioner and that the learned Courts b( low proceeded on wrong premises to hold that the petitioner is not entitled for the grant of temporary injunction.
6. As against this, Mr. Salahuddin Khan Gandapur, Advocate for respondent No.2 supported the impugned orders and maintained that the prayer of the petitioner for grant of temporary injunction was refused for valid reasons and the impugned orders are not open to exception. On the strength of authority reported in 2004, SCMR 103, counsel for respondent No.2 also raised an objection regarding maintainability of the suit and submitted that the suit warrants outright dismissal.
7. A perusal of record would reveal that petitioner and his brothers Nawabzada Nusrat Khan and Nawabzada Nemat Khan had been given approval to convert old grant into regular leases. Per ML&C Department Letter No.49/85/Lands/ML&C/96, dated 8-1-1999, payment of developmental charges is exempted only on one sub-divided portion, on which the building already exists. The office had exempted developmental' charges in respect of plot No.12 amounting to Rs.2,49,983.40.
Later on the said plot was transferred in the name of Mst. Zeenat Ara wife of Nawabazada Naimat Khan by way of sale vide M.E.O. Kohat Letter No.CDS-93/12/3, dated 24-10-2000. All the three brothers are co-sharers in the old grant, and they were given approval of old grant for 45 plots.
Nawabzada Saadat Khan claimed that old bungalow existed on plot No.45 and the same be exempted, but claim of the respondents was that no building existed on Plot No.45.
8. Learned counsel for the petitioner assailing the impugned orders contended that the learned Civil Judge as well as the learned Appellate Judge in refusing the grant of injunction had exercised their jurisdiction arbitrarily and in violation of principles governing grant of temporary injunction. To substantiate his submissions, the learned counsel argued that, the petitioner had successfully made out a good prime facie case for grant of injunction, balance of convenience also lay in favour of granting injunction and as such, there was no justifiable reason for refusal of temporary injunction.
9. I would refrain at this stage from going into the rival contentions of learned counsel for the parties, touching merits of the case and expressing my opinion lest it might influence ultimate decision of the suit which is yet to be heard and decided. I will, therefore, confine myself to the question whether the Courts below in refusing the grant of temporary injunction have misdirected themselves and erred in law in refusing injunction. The well-settled principles for grant or refusal of temporary injunction are firstly, whether the plaintiff has made out a prima facie good legal case, secondly, whether balance of convenience lies in favour of the grant of injunction and thirdly, whether the plaintiff will suffer irreparable loss if the injunction is refused. The trial Couit while considering the application for grant of temporary injunction formed the view that plaintiff had failed to make out a prima facie case. The view was upheld in appeal. The learned counsel for the petitioner complained that by giving such a finding the learned Civil Judge has virtually disposed of the suit. I do not entirely agree with the learned counsel. Such observations could not have been avoided while dealing with the application. If the question involved in the application for grant of temporary injunction was inextricably linked with the suit itself, so, certain observations could not be avoided, no grievance of it could be legitimately made. If the argument, of learned counsel, on the other hand, was to be accepted, then in every suit for permanent injunction, the Court would have to grant temporary injunction without considering the merits of the case. It cannot be a valid ground for setting aside the impugned orders of granting injunctions unless it is found that thetemporary injunction was refused in violation of the well-established principles governing the grant of temporary injunction.
10. Without adverting to the merits of the case, I find myself in agreement with the Courts below that essential ingredients for grant of temporal), injunction are missing in this case and the petitioner has rightly been held not entitled for the relief of temporary injunction.
11. Finding no substance in this revision petition, I dismiss the same with no order as to costs.