1. This revision petition is directed against the judgment and order of Additional District Judge, Muzaffarabad Camp Athmuqam recorded on 5-5-2004, whereby an order passed by Civil Judge, Athmuqam dated 4-9-2003 has been maintained.
2. The precise facts giving rise to the supra titled revision petition are that Mst. Rukhtaj Begum respondent herein, brought a suit for declaration and perpetual injunction in the Court of Civil Judge, Athmuqam on 28-4-2003. It was averred that she has inherited suit-land from her father including Khasra No.1528 min, comprising 8 Marlas, situated in village Shahkot, Tehsil Athmuqam. It was further stated that a house has been constructed by her on the aforementioned number Khasra and is living therein since 30 years. It was alleged that land comprising Khasra No.1525 Shamlat Deh is adjacent to number Khasra 1528 and is in possession of petitioner herein. From the aforementioned land a passage/way passes to the plaintiff's house and the plaintiff is using the same without any obstruction since 25/30 years. It was alleged that defendant-petitionef herein obstructed the way and the same was released by the order of Naib Tehsildar, Magistrate II Class Athmuqam. It was further stated that the defendant has closed the way illegally by erecting a fence. It was prayed that a decree for declaration and perpetual injunction may be granted in the term that plaintiff is entitled to use the way located in number Khasra 1525 and defendant may be prohibited from obstructing the easement rights of the plaintiff. Along with the suit an application for interim relief was also moved on the same date on behalf of the plaintiff. The learned trial Judge issued the status quo order subject to the objections from the other side on 28-4-2003. Defendant filed objections on 19-8-2003. After hearing the parties and making the spot inspection the learned Judge vide his order dated 4-9-2003 maintained. The status quo. Feeling aggrieved from the aforementioned order an appeal was filed by appellant herein before the Additional District Judge, Muzaffarabad Camp Athmuqam on 8-9-2003. The learned Additional District Judge also concurred with the order of Civil Judge Athmuqam and dismissed the appeal, hence this revision petition.
3. ' Mr. Abdul Aziz Mughal, the learned Advocate appearing for the petitioner by referring to the facts stated in the application as well as record annexed thereto and filed at the time of spot inspection by the learned Presiding Officer contended that it was amply proved from the record that plaintiff- respondent herein has no prima facie case, nor balance of convenience is in her favour. Despite that the trial Court issued interim injunction and the. First Appellate Court confirmed the same against the record, thus both the orders are arbitrary, capricious and perverse besides being against the ,record. The learned Advocate vehemently contended that spot inspection has been made in absence of the plaintiff, therefore, no conclusion can be based on this inspection as well as the record obtained by the Presiding Officer on spot. The learned Advocate maintained that spot inspection is not substitute of the record appended with file. Therefore, findings on the basis of this record are not legally sustainable. The learned Advocate submitted that it was admitted fact that passage was closed before institution of the suit, therefore, anti-status quo could not be restored by the Courts below, especially so when plaintiff has an alternate approach.
4. ' Sardar Shah Zaman, the learned Advocate appearing for the other side has controverted the arguments advanced on behalf of the petitioner and submitted that both the Courts below on the basis of the available material unanimously came to the conclusion that plaintiff has no alternate easy approach to her house except the disputed way, thus both the Courts have rightly maintained the status quo order. The learned Advocate further submitted that order of Tehsildar and spot inspection note as well as other record sufficiently prove that plaintiff-respondent herein has a prima facie case. The learned Advocate further submitted that disputed question requires resolution after evidence can't be gone into at a preliminary stage and the proper course has been adopted by the subordinate Courts by maintaining the status quo.
5. ' I have heard the learned Advocates for the, parties and perused the record carefully.
6. So far as the present case is concerned, the plaintiff has specifically alleged in her pleading that the only way leads to her house is located in number Khasra 1525. The inspection note, as has been observed, endorsed the stand of the petitioner. Defendant, so far, has not filed written statement and in his objections it is not specifically denied the construction of the house or existence of the passage/way, which is claimed by the plaintiff-respondent herein. Mr. Abdul Aziz Mughal, the learned Advocate has objected the grant of stay order mostly on the ground that it is admitted by the plaintiff that before institution of the suit the disputed passage/way stood closed. This fact is also mentioned in the inspection note, but the fact remains that jurisdiction of civil Courts in such matters analogous to that in nuisance. The general principles on which the jurisdiction of equity to restrain the violation of easement is based are similar to those, which constitute the foundation of the relief against nuisances. Indeed, so closely allied are the two subjects that it is difficult to draw the line between what constitute a violation of an easement and what a nuisance. In a generic since every violation of an easement may be considered as a nuisance, although the converse of the proposition does not hold true. In both cases, to warrant the interposition of equity, an irreparable injury must be made to appear, which is not susceptible of adequate compensation in pecuniary damages, or which, from the nature of the case, would occasion a constantly recurring grievance, such as loss of health, trade, business, or destruction of means of substance.
7. ' The grant or refusal of the temporary injunction in easement case should always be considered keeping in view the aforesaid principle. In S.N.G. Pipelines Co. Ltd. v. Messrs Pakistan Cement Industries PLD 1968 Lahore 876, his lordship Mr. Justice K.E. Chauhan, J. (as his lordship then was) observed as under:-- ' I may caution that I have mentioned all these factors simply to demonstrate as to how oblivious the order of the learned Civil Judge is of all these aspects. In matters of temporary injunctions, prima facie case is not the only requirement, but a Court is also required to examine the concepts of balance of convenience; irreparable loss; conduct of the parties; nature of suit; the time likely to be absorbed in it; the stakes of the parties involved and the work ability and reasonableness of the orders proposed to be passed. If by issuing an order it is intended to relieve a party froth certain oppression care should be taken at the same time as not to create oppression for the other party.
8. Similarly, the aim should be to prevent the recurrence of a future injury, if any, and not to grant compensation and damages for past alleged injuries."
9. ' In Khawaja Abdus Subhan's case 2000 YLR 2898, the apex Court has opined as under;-- "6 After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that at the stage of grant or refusal of an ad interim relief, the Court is not expected to examine closely the merits of the case of the parties. It is not the requirement of law that the suit of the plaintiff must succeed in all respects in order to secure the interim relief in his favour."
10. Again in para.7 of the same report it has been observed as under: The perusal of the documents shows that the claim put forth by the plaintiff-appellant has some substance and he cannot be thrown out at the stage of issuance of ad interim relief. Thus, keeping.
11. In view the arguable case in favour of plaintiff and irreparable loss, which tilts in his favour, if the suit-land is transferred during the pendency of the suit the ends of law and justice demand that the status quo of the suit-land should be maintained till decision of the suit by the trial Court. Our aforesaid view finds support from the fact that during the pendency of the suit the respondents have transferred some portion of the land in favour of one Shafiq-urRehman. If the status quo order is not issued the respondents are likely to transfer further the suit-land which will occasion an irreparable loss to the plaintiff and the same will give rise to multiplicity of suits."
12. Judging the present controversy in light of the facts as well as rule of law laid down in Abdul Subhan's case (supra) I am of the opinion that orders of the subordinate Courts need no interference.
13. ' In view of above, finding no force in this revision petition, it is hereby dismissed. Before parting with case it may be observed that the learned trial Court has recorded same observation which relates to merit of the case. Mr. Abdul Aziz Mughal has a very serious objection to it. Be that as it may these observations are always tentative in nature and have no material bearing on the main controversy.
14. However, for safe administration of justice the Courts should avoid such observation, which may prejudice the case of either the party at trial.