' IQBAL HAMEED-UR-REHMAN, J.---Through this civil revision, the petitioners pray that the impugned order dated 26-3-2008 passed by the learned Civil Judge 1st Class, Jhang, and the judgment dated 28-4-2008 passed by the learned Additional District Judge, Jhang, may be set aside and stay be granted restraining the respondents from converting the property to any other use, changing nature of the property or granting lease of any portion of the property in dispute for any other purpose.
2. Earlier the instant civil revision had been decided by this Court along with C.R. No,498 of 2008 through the order dated 27-11-2008. On appeal before the apex Court through C.P.No,245-L, of 2009, the order dated 27-11-2008 was set aside to the extent of this civil revision and the honourable Supreme Court had ordered that this civil revision shall be deemed to be pending before this Court and in view of the same, instant civil revision is being decided on its own merits after the order dated 12-3-2009.
3. Succinct facts of this civil revision are that the petitioners filed a suit for declaration along with an application for temporary injunction and the said application was dismissed by the learned Civil Judge, Jhang, vide order, dated 26-3-2008, and the said order was challenged by the petitioners in appeal, which was also dismissed by the learned Additional District Judge, Jhang, vide judgment dated 28-4-2008. Being aggrieved with the said judgment, the petitioners have filed this civil revision.
4. It is contended by learned counsel for the petitioners that the disputed property is Muslim Waqf Property and has been taken over as Waqf Property vide notifications issued on 9-8-1960 and 28- 6-1966 and was attached to shrine of Ghazi Pir Sahib to be used as a graveyard, as such, the observation of the learned appellate Court that there is nothing on the record to show that the aforesaid land was ever given in Waqf is refuted by the said notifications and the said documents duly proved on record that the suit property is a Waqf property duly taken over by the Auqaf Department and is to be used in accordance with the provisions of sections 15, 16 and 17 of Waqf Property Ordinance, 1979 and the rules framed under section 25 of the said Ordinance and according to the aforesaid provisions of law, the Waqf property taken over by the Auqaf Department is to be regulated in accordance with the rules according to which the purposes for which it is be used cannot be converted except for purposes which are religious pious and for best interest of Waqf, as such, the same could not be auctioned on lease for a petrol pump or CNG Station. It is further vehemently contended that even otherwise, according to the rules framed under section 25 of the said Ordinance, the Waqf Property cannot be leased out for more than three years according to rule 7, as such, the said lease could not have been granted for 30 years and the same is against the rules and in this regard reliance is placed upon Naeem Ahmad v. Chief Administrator, Auqaf Aiwan-e-Auqaf Lahore and 2 others (2004 CLC 599), Messers Noor Shah Filling Station (Regd.) through Manager (Administration) v. Auqaf Department through Secretary/Chief Administrator Auqaf, Punjab and 4 others (2009 CLC 1148) and Malik Aslam Pervez, Advocate, v.
Province of Punjab through Secretary, Auqaf Department, Lahore and 15 others (1994 M LD 1986). It is further contended that both the Courts below have committed illegality and irregularity in passing the impugned order and the judgment. It is further contended that the petitioners had a good prima facie case, balance of convenience was also in favour of the petitioners and if the petrol pump had been constructed, it would cause an irreparable loss to the petitioners, as such, all the ingredients for the grant of stay were in favour of the petitioners, as such, they were entitled to the grant of stay.
5. It is further argued that previous suit of Sh. Muhammad Shafi was a general suit or representative suit while in the instant petition, the petitioners being aggrieved in the personal capacity as being Mutawali have challenged the same, as such, principle of res judicata will not apply and it is to be considered as an independent suit and in this regard, reliance is placed upon Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145) and Ghulam Ahmad Chaudhry v. Akbar Hussain through legal heirs and others (PLD 2002 SC 615).
6. It is strenuously stated by learned counsel for the petitioners that the disputed property is admittedly a Waqf Property and is attached with the graveyard and the same cannot be leased out and in view of the same, the impugned order and the judgment be set aside and the application for the grant of temporary injunction be accepted.
7. On the other hand, learned counsel for respondent No,4, who has also filed C.M. No,359 of 2010, seeking dismissal of the titled civil revision being barred by law and hit by section 11 C.P.C. On the principle of res judicata, states that earlier regarding the same disputed property measuring 528, Kanals 10 Marlas a suit titled Sh. Muhammad Shafi and others v. Administrator, Department of Muslim Auqaf and others on the same cause of action was filed as a representative suit under Order I, rule 8, C.P.C. By permission of the Advocate-General Punjab, wherein the present petitioners in the civil revision were the plaintiffs, as such, not only this revision petition merits outright dismissal but also the suit of the petitioners, which has been filed with the permission of the Advocate-General Punjab, is hit by section 11, C.P.C. And its explanation (4) and both the suits reflect that a common dispute has been agitated with regard to the same subject-matter and since the earlier suit filed by Muhammad Shafi was dismissed and the appeal against the dismissal order had also been dismissed as well as civil revision had also been dismissed by this Court and then by the apex Court of the country, same amounts to final adjudication of the dispute as such the cause of action raised in the subsequent suit filed by the same parties only for blackmailing respondent No,4 with regard to the same subject-matter, which has been decided by this Court and the apex Court is hit by principle of res judicata under section 11 C.P.C., therefore, the suit as also the stay application and for that matter, the titled revision petitions are hit by res judicata. It is further contended that the petitioners have no prime facie case nor any balance of convenience lies in favour of the petitioners nor any irreparable loss would cause to the petitioners and it is a sheer abuse of the process of law and the court and in fact the respondents are suffering irreparable loss as they have obtained a license for the installation of a petrol pump and CNG station and they are paying monthly rent of Rs.4000 and have obtained electricity connection and have obtained permission from the highway department and on account of delay, the said license would be cancelled, in view of which the apex Court has directed this case shall be decided by the end of the year 2009 but in spite of the same, the matter is lingering on and the same merits outright dismissal. Learned counsel for respondent No, 2 as well as the learned Additional Advocate-General have also adopted the arguments of learned counsel for respondent No,4.
8. I have heard learned counsel for the parties as well as the learned Additional Advocate-General and have also perused the impugned orders as well as material available on the record.
9. Admittedly, earlier a suit titled Sh. Muhammad Shafi v. Administrator of Muslim Auqaf etc. Regarding the same subject matter i,e, land measuring 258 kanals, 10 marlas attached to the shrine of Ghazi Pir Sahib with regard to the same cause of action has been filed and the petitioners were plaintiffs therein and there is no difference between square numbers and khasra numbers and the findings in the said suit had attained finality upto the honourable Supreme Court, therefore, the learned trial Court was fully justified in observing that the petitioners have got no prima facie case, balance of convenience or any irreparable loss and dismissed the A application of the petitioners for temporary injunction having no merits and the said findings were rightly upheld by the appellate Court. In fact the respondents are likely to suffer if the license of the respondents for the installation of petrol pump and CNG station is cancelled by the Regulatory Authority as they have obtained a license for the installation of a petrol pump and CNG station and they are paying monthly rent of Rs.4000 and have obtained electricity connection and have obtained permission from the Highway Department. In view of the same, the petitioners have no prima facie case, balance of convenience also does not lie in favour of the petitioners and an irreparable loss would not be caused to the petitioners.
10. In view of the above perspective, both the Courts below, while dismissing the application of the petitioners for temporary injunction, have rightly passed the impugned order and the judgment and there is no illegality or irregularity in the same. Therefore, this civil revision is dismissed.