1. ' SAHIB KHAN, J.--- This revision petition has been directed against judgment/order dated 28-5- 2005 passed by the learned District Judge, Gilgit whereby, the learned District Judge dismissed the appeal of petitioner/plaintiff by maintaining the order dated 20-12-2004 passed by Civil Judge 1st Class, Gilgit.
2. ' I have heard the learned counsel for the parties and also have gone through the relevant record of the case.
3. ' The brief facts as narrated in the case file are that the petitioner instituted a civil suit before the learned Civil Judge, Gilgit for cancellation of Mutation 343 attested on 28-12-2002 and entries in periodical record with the contention that these entries were made without knowledge and will of the plaintiff, plaintiff also submitted an application under Order XXXIX, rules 1, 2 read with sections 94/151, C.P.C. For grant of temporary injunction with the suit.
4. ' The learned Civil Judge placing his reliance on the affidavit issued ex parte order for maintaining status quo.
5. ' After service of summons to defendant No,1 he filed his written statement with supporting documents and contested the injunction application and suit. The learned Civil Judge on joint request of the parties appointed a commission to determine the physical possession of the subject-matter although the commission submitted its detail report but was objected by the plaintiff/petitioner No,
1. However, the learned Civil Judge declined the injunction application. The learned District Judge on 1st Appeal on 28-5-2005 maintained the order passed by the Civil Judge dated 18-12-2004 hence, this petition.
6. ' Counsel for the petitioner contended that respondent in collusion with the Revenue field staff has transferred the land owned and possessed by the petitioner to defendant/respondent since the same has been challenged in the suit, therefore, it is necessary to maintain the status quo to avoid future complications. That the case is prima facie one and balance of inconvenience is in favour of plaintiff/petitioner. If status quo is not maintained, petitioner will suffer irreparable loss. He referred the following case-laws:-- ' (1) 1993 MLD p.1078, (2) 1984 CLC p.3413, (3) 1999 MLD p.2583 (4) 1992 CLC p.498.
7. ' Converting the arguments made by the counsel for petitioner, counsel for respondent submitted that petitioner/plaintiff No,1 has not come to the Court with clean hands and intends to enter into the possession of land at garb of status quo. The learned counsel is of the opinion that the suit itself is not maintainable hence the question of existence of prima facie case does not arise at all. He diverted my attention to the reports of Revenue field staff and legal actions taken by the local police. He referred following case-laws:-- ' (1) PLD 1982 Quetta p.134, (2) 1989 CLC p.2098, (3) 1981 CLC p.251 and (4) 1994 CLC p.146.
8. ' On bare reading of the case file it revealed that the petitioner/plaintiff instituted civil suit before Civil Judge on 27-7-2004 and obtained an order for maintaining status quo. The reports dated 5- 8-2004, 23-8-2004, 25-8-2004, 25-8-2005, 26-8-2004, 3-9-2004 and copy of F.I.R. No,159 of 2004 apparently indicate that plaintiff/ petitioner successfully or otherwise attempted to obtain the possession of disputed land. The above mentioned reports further disclose that the petitioner/plaintiff No,1 was not in possession of the disputed land for which he had obtained the status quo order. Prima facie this act of the petitioner cannot be rebutted through the record of the case in hand. While taking into the consideration the plea taken by the petitioner regarding entries in Revenue Record and his possession on the disputed land, this plea has not been supported through any other piece of evidence on record, moreover, in the mutation the signature of the son of the petitioner is affixed as witness of the occasion. This fact cannot be ignored unless it may otherwise prove at the trial of the case.
9. ' Mere institution of a civil suit and allegation made over it cannot substantiate the case and enough to rebut the plea taken by the defendant. It is the plaintiff who has to prove the basic three ingredients for granting an injunction/status quo, but in the instant case I could not find out any material indicating the possession of petitioner on the suit-land nor the copy of Khasra Girdawari placed on file indicates the year/period for which it has been prepared.
10. ' By its nature an injunction is a preventive. Remedy for purpose of preserving the status quo of the matter of suit pending the determination of the suit or to prevent a party from being permanently deprived of relief. It must not create totally a new state of things. It should not be used for restoring status quo ante. The following are the factors to be considered whilst determining the question of granting a temporary injunction:--
(1) The prima facie existence of a right in the applicant and its infringement by the respondent or the existence of a prima facie case in favour of the applicant.
(2) That irreparable damages or injury will occur to the applicant if the injunction is not granted.
(3) That the inconvenience which the applicant will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it or in other words the balance of inconvenience should be in favour of applicant.
11. ' The case-laws referred by the learned counsel for the petitioner found no relevancy with the matter in issue. Authorities referred by the counsel for respondent 1994 CLC page 146, PLD 1982 Quetta page 134, 1989 CLC page 2098 are found more relevant to the matter in hand, hence I rely on the mentioned authorities.
12. ' I found no sufficient material on the record of the case for maintaining status quo or granting injunction. However, if it is proved that the petitioner has illegally entered into the possession of the disputed land, he can be ejected through Court where criminal proceedings are pending adjudication or Revenue Court having jurisdiction over the matter.
13. ' It has been noticed that the learned Civil Judge has discussed the case deep in its merits while disposing the matter of injunction. The learned Judge has also appointed commission for determination of physical possession of suit property. The learned Judge without going into detailed enquiries should tentatively assess the material available on record. i,e, pleadings of the parties and documents placed on file.
14. ' Nothing on the record enough to interfere with the impugned order through revision petition.
15. Hence, dismissed the revision petition. File consigned to record.