'SYED YAHYA ZAHID GILANI, J.--- This writ petition invokes constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan to challenge vires of the order, dated 18-12-2007 of Syed Anees Badshah Bukhari, learned Additional Sessions Judge-IV, Peshawar, whereby status quo order was imposed to stop completion of C.N.G. Pump being constructed by petitioners, on a piece of land owned by them, jointly with respondents.
2. Initially, the temporary injunction prayed for the aforesaid purpose, was declined by the Civil Court vide its order, dated 2911-2007, in the civil suit instituted by respondents Nos.1 and 2, for partition of land. The Civil Judge, simply relied on the undertaking of petitioners that the ongoing construction is on their own risk and cost.
3. However, the order of the Civil Court was set aside vide the impugned order, dated 18-12-2007 by the learned Additional District Judge-IV, Peshawar, in exercise of revisional jurisdiction.
4. Mr. Naveed Maqsood, Advocate argued for the petitioners. He contended that the impugned order is patently violative of law and not sustainable. The petitioners had no other forum to avail remedy. Hence, constitutional jurisdiction of this Court has been invoked.
5. He pointed out that the order of Civil Court, dated 29-11-2007, refusing temporary injunction, was appealable under Order XLIII, rule (1)(r), C.P.C. But instead of appeal, a revision petition was preferred, which did not lie. In this respect he relied on the case of Abdul Ghani v. Mst. Shaheen 2007 SCMR 834. He added that the revision was ex facie incompetent and the jurisdiction exercised thereon was illegal. Hence,, the impugned order is not sustainable, being nullity in the eyes of law.
6. He next argued that the impugned order of status quo is illegal also because the suit is defective and the order is not backed by prima facie case. Enumerating the defects, he stated that the suit- land is assessed to Land Revenue but partition suit has been instituted in Civil Court without clarifying that whey Revenue Court has not been approached. Partition has been prayed without decree for possession. Many co-owners are visible but they have not been arrayed as defendants.
He concluded that plaintiffs/respondents cannot be treated as possessors of prima facie case in such a defective suit. He concluded that since the undertaking has already been given by his clients that the construction is on their own risk and cost, they are entitled to continue construction in the light of decision reported in PLD 1995 SC 426, 2006 MLD 435 and 1994 MLD 550.
7. Mian Mohibullah Khan Kakakhel, Advocate professing the case of respondents 1 and 2, argued that although the impugned order has been passed in exercise of revisional jurisdiction, and the revision did not lie, but since the appeals can be treated as revisions, and the revisions, as appeals, subject to law of limitatiOn; the impugned order may be treated as an order in appeal.
8. On facts, he argued that the pointed out defects in the suit are, rectifiable. The parties are admittedly co-owners: So, the stoppage of construction of C.N.G. Pump, till the partition by metes and bounds is fully justified in law.
9. We have cerebrated over the points argued before us. As laid down in the case of Abdul Ghani reported in 2007 SCMR 834(a), revision does not lie when appeal lies. Impugned order has been passed in exercise of revisional jurisdiction. The request of learned counsel for respondents Nos.1 and 2 that the impugned order may be treated as if passed in appeal, is not tenable at this stage because it would set wrong trends and create legal complexities in future, due to amalgamation of two different jurisdictions, specifically and purposefully segregated in law: So, we are constrained to hold that the impugned order is patently illegal and void ab initio on this score.
10. We further view that it is established law that the three ingredients i,e, prima facie case, balance of convenience and irreparable loss, must co-exist for grant of temporary injunction. The pointed out defects in the suit may be rectifiable but they presently deprive the plaintiffs/respondents Nos.1 and 2 of prima facie case. Even if a prima facie case is available to a party, temporary injunction cannot be claimed as a matter of right and the Court has to take into consideration many relevant factors, like those mentioned in the case Messrs Sui Northern Gas v. Messrs Pakistan Cement Industries PLD 1968 Lah. 876-C. The relevant extract is quoted below for ready D reference:--- "In matter of temporary injunction; 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 workability and reasonableness of the orders proposed to be passed. If by issuing an order it is intended to relieve a party from certain oppression care should be taken at the same time as not to create oppression for the other party."
11. Construction on personal risk and cost has been allowed in joint land, in the reported cases cited by learned counsel for the petitioners and extension of this facility to petitioners is justified in peculiar background of this case too, because that the share of plaintiffs/ respondents 1 and 2 has been calculated as only 1/4 Marla (41/36150 share) as mentioned in the written statement and the same could not be rebutted before us on the strength of Revenue Record. Through a discretionary relief, petitioners should not be deprived of utilization of their major .Share for pretty long period expected to be consumed till final decision of partition suit, when petitioners are undertaking to deliver them their share, when it is determined. This is permissible in the light of the case of Haji Shah Jahan Khan reported in PLD 1995 SC page 462, the case of Muhammad Bashir reported in 2006 MLD page 435 and para.4 of the judgment in case of Fazal Din, reported in 1994 MLD page
550. On this score too the impugned order is not within the legal framework covering the temporary injunctions and status quo order, as it may amount to put the petitioners under oppression. For these reasons we accept this writ petition and set aside the impugned order being without lawful authority and of no legal effect against the petitioners.