' MUHAMMAD ALAM KHAN, J.--- Briefly narrated the facts of the case are that Haji Faridullah Khan and others brought a suit against Saraar Inayatullah Khan and others for declaration to the effect that they are owners in possession of one Serai known as 'Mir Faujdar Khan' situated in Khasra No,1402 measuring 3 Kanals, 4 Marlas or whatever correct area is proved, which has been admitted by defendants Nos.1 and 8 to 11 in partition dated 10-6-1994, pursuant to which a site plan was also prepared.
2. It was alleged in the plaint that defendants Nos.1 and 8 to 11 are the heirs of Mir Faujdar Khan. A dispute arose regarding the distribution of legacy of Mir Faujdar Khan which was solved by the elders of Bannu, namely, Alhaj Abbas Ali Khan son of Taj Muhammad Khan and Nawab Khan son of Malik Mumtaz Khan and they partitioned the Serai in dispute comprising Khasra No,1402 situated in village Fatima Khel Kalan, Bannu. The plaintiffs were allotted the maximum area while the frontage belonging to defendant No,1 was purchased by the plaintiffs comprising a path and a vacant place vide Mutation No,125 dated 26-2-1994.
3. It is also averred that defendant No,1 has sold some shops out of the suit-land in favour of defendants Nos.2 to 7. Defendants Nos.2 to 7 are trying to grab the path and the vacant site and are going to interfere in the peaceful possession of the plaintiffs. Along with the plaint, an application dated 29-10-2006 was also submitted for issuance of temporary injunction.
4. The learned trial Court summoned the defendants, out of whom, defendants Nos.2 to 7 submitted a detailed written statement in which the allegations and averments contained in the plaint were hotly contested. Similarly, defendant No,1 submitted a separate written statement.
Aftecalling for the replication and hearing arguments on the question of temporary injunction till the disposal of the suit, and considering the material available on the record, the learned Civil Judge-cum-Judge Family Court-VII, Bannu Ms. Zeba Rashid, vide order dated 18-1-2007, granted a temporary injunction prohibiting the defendants from raising construction on the suit premises or changing its nature.
5. Ali Rehman etc. Defendants, aggrieved from the aforesaid order, filed appeal before the learned District Judge, Bannu which was entrusted to Malik Miandad Khan Additional District Judge-I Bannu who, after perusing the record and hearing the learned counsel for the parties in Miscellaneous Appeal No,4/14 of 2007 decided on 25-4-2007, accepted the appeal and vacated the order passed by the learned trial Court. Hence, Haji Faridullah Khan and others have filed the instant revision petition.
7. Haji Faridulllah Khan petitioner No,1 present in person. He was heard in detail in support of his contention. He submitted that the plaintiffs had a prima facie case and the two other ingredients i,e, the balance of convenience and irreparable loss were also leaning towards the grant of temporary injunction and the learned trial Court had rightly passed an ad interim prohibitory order.
It was further submitted that the interference by the learned Additional District Judge in appeal was on wrong premises of interpretation of law as in the pending suit, when the parties are co- sharers, neither the interference is allowed by the defendants-respondents nor they could change the nature of the suit property.
8. I have given my anxious consideration to the facts and circumstances of this case and have gone through the record of the case.
9. For the issuance of temporary injunction, the existence of a prima facie case is not the only criterion unless and until the other two ingredients co-exist. The question of private partition through the elders of the locality will be thrashed out by the trial Court after recording of evidence.
10. Furthermore, as is evident from the order of the learned appellate Court that the respondents had filed affidavits in the shape of an undertaking that they are raising construction on their own risk and cost and in case the land is found to be owned by the plaintiffs-petitioners, they will claim no improvement for the same as held in the case of Zakiya Khatoon v. Roomi Enterprises 1995 SCM R 753 and Haji Shah Jehan Khan v. Aurangzeb Khan and another PLD 1995 SC 462.
11. The filing of affidavits in the shape of undertaking has sufficiently protected the rights of the plaintiffs-petitioners and in case the suit premises was found to be the ownership of the plaintiffs- petitioners, the respondents-defendants will not be entitled to the cost of improvement and they will hand over the peaceful possession along with constructed Abadi to the plaintiffs.
12. The order of the first appellate Court is perfectly sound, judicious and strictly in accordance with law which calls for no interference.
13. Resultantly this revision petition fails which is dismissed in limine along with C.M. No,163 of 2007 with no order as to costs. Copy of this judgment be sent to the learned District Judge, Bannu for placing the same on the record of Civil Suit No,415/1 instituted on 30-1-2006 titled Haji Faridullah Khan and others v. Sardar Inayatullah Khan and others.
14. Before parting with this judgment, with regret I note that Malik Muhammad Bashir Advocate, Dera Ismail Khan, counsel for the petitioners has been personally served in this revision petition. His clerk Muhammad Rafique is present. Haji Faridullah Khan petitioner informed the Court that he has paid the professional fee to the counsel but in spite of that he refused to appear before this Court when the case was called for hearing and on the second call, when he contacted the clerk of the said counsel, the petitioner was informed that he has gone to Islamabad.
15. When a counsel is engaged in a lis it is his duty to appear and conduct the case and assist the Court on behalf of his client in order to secure justice for him. Under the provisions of Legal Practitioners and Bar Councils Act, 1973 and the rules framed thereunder, canons of conduct have been prescribed for advocates and any violation of these canons amounts to professional misconduct. Thus, the copy of the judgment in this civil revision be placed before my Lord the Chief Justice of this Court for onward entrustment to the competent forum for initiating disciplinary proceedings against Malik Muhammad Bashir, Advocate, D.I. Khan.