1. MAMOON RASHID SHEIKH, J.--- This petition calls into question the order dated 12-1-2011 passed by the learned Civil Judge, Khanewal and the order dated 24-5-2011 passed by the learned Addl.
2. District Judge, Khanewal, whereby the petitioner has been unsuccessful in obtaining a temporary injunction in her suit for declaration, etc, in respect of the property in dispute.
3. 2.The brief facts giving rise to the petition are to the effect that the petitioner and respondents Nos.5-A to 34 are stated to be co-sharers in the land in dispute bearing Khewat No.30 measuring 165 kanals and 3 marlas and Khewat No.189 measuring 1046 kanals and 8 marlas (total 1211 kanals and 11 marlas), situated in Chak No.125/15-L Tehsil Mianchannu, District Khanewal. An application for partition of the land in dispute was made before the Tehsildar/Assistant Collector Grade-I, Mianchannu on 13-7-1993. During pendency of the proceedings a compromise was effected between the parties whereby land measuring 99 kanals and 14 marlas of the petitioner and one of the co-sharers was separated and the rest of the holding of the other co-sharers was kept intact. A deed of compromise in this respect was presented before the Tehsildar/AC-I, Mianchannu on 8-3- 1994 and an order dated 9-3-1994 was passed thereon. As a consequence, Mutations Nos.1648 and 3082 were sanctioned on 29-3-1994. Feeling aggrieved some of the co-sharers preferred an appeal, inter alia, on the grounds that they had not entered into any compromise with the petitioner, the whole exercise had been carried out by playing a fraud. The Assistant Commissioner/Collector, Mianchannu, however, dismissed the appeal on 26-1-1997 on merits as well as being barred by time. The said co-sharers filed revision petitions before the Addl.
4. Commissioner (Consolidation), Multan Division who through order dated 25-7-1998 dismissed the revision petitions. In the meantime some of the other co-sharers also filed a review petition seeking review of the order dated 9-3-1994. This review petition was dismissed by the Deputy Commissioner/District Collector on 7-7-1994. The revision petition against the order dated 7-7-1994 was dismissed by the Additional Commissioner (Consolidation) on 25-7-1998. The matter ultimately came up before the learned Member Board of Revenue in RORs No.1356, 1583, 1494 and 1495 of 1998. These RORs were allowed and the Senior Member Board of Revenue through order dated 2-8-1999 set aside the order dated 9-3-1994 and cancelled the consequential mutations.
5. The matter was remanded to the Tehsildar/ Assistant Collector Grade-I, Mianchannu, for decision afresh in accordance with the law. Feeling aggrieved the present petitioner filed W.Ps. Nos.11422 and 11531 to 11533 of 1999 which were dismissed by a learned Single Judge of this Court through judgment dated 9-12-2003. The petitioner filed CPs. No.385 to 388 of 2004 against the said judgment before the Hon'ble Supreme Court of Pakistan. The leave to appeal was, however, not granted to the petitioner and the CPs. were dismissed through judgment dated 17-1-2005. Upon remand the Tehsildar/AC-I, Mianchannuaftersummoningthepartiesandinspectingthesite issued partition order dated 30-6-2005. The petitioner challenged the order beforetheRevenueAuthoritiesandultimatelythroughorderdated 1-2-2010 the petitioner's and one Asim Hassan's ROR Nos.1615/2009 and 2049/2007 were dismissed by the learned Member (Judicial- II), Board of Revenue, Punjab. The petitioner thereafter filed a civilsuitchallengingthevariousordersoftheRevenueAuthoritiesasalsotheorderdated 1-2-2010. In the suit the petitioner, as said above, was unsuccessful in obtaining a temporary injunction, hence this petition.
6. 3.At the outset the learned counsel for respondents Nos.7 to 11 has raised preliminary objections regarding the maintainability of the petition and also the suit of the petitioner by, inter alia, submitting that the order dated 30-6-2005 impugned in the suit was an order passed in post remand proceedings in compliance with the judgment of the Hon'ble Supreme Court dated 17-1- 2005 passed in C.Ps. Nos.385 to 388 of 2004. The filing of the suit by the petitioner amounts to contempt of Court. The petitioner's suit is not maintainable. As a consequence, no prima facie case is made out. Hence, the question of grant of a temporary injunction in the petitioner's favour does not arise. Further submits that the petitioner has filed the suit by concealment of material facts inasmuch as prior to filing of the present suit the petitioner had filed a civil suit against the present respondents. Through the said suit the petitioner had, inter alia, sought the declaration that the compromise effected between the parties on 6-3-1994 is effective and binding on the parties. The suit was resisted by the respondents and the plaint was rejectedbythelearnedCivilJudge,Khanewalthroughorderdated 2-7- 1995,interalia,onthegroundsthatthecompromisedeed dated 6-3-1994 had been set aside by the Hon'ble Supreme Court, therefore, a fresh suit on the basis of the compromise deed does not lie.
7. The petitioner's appeal was dismissed by the learned Additional District Judge, Khanewal, through judgment dated 14-3-2009. As the petitioner has failed to mention these facts in her present suit as also the instant petition she is not entitled to any discretionary relief.
8. 4.The learned counsel for respondents Nos.7 to 11 has submitted certified copies of the abovementioned judgments/orders in support of his contentions. The said copies are made a part of the record.
9. 5.The learned counsel further contends that the learned Courts below noted these factors whilst dismissing the petitioner's application for grant of a temporary injunction and the appeal arising therefrom. Indeed, the petitioner was unsuccessful before the learned Courts below for non- disclosure of material facts.
10. 6.The learned Assistant Advocate-General whilst adopting the arguments of the learned counsel for respondents Nos.7 to 11 submits that this is the third round of litigation to which the petitioner has resorted to in respect of the land in dispute. In the first round the Hon'ble Supreme Court set aside the compromise deed dated 6-3-1994 and the subsequent order dated 9-3-1994. In the second round the petitioner filed a suit for declaration on the basis of the compromise deed. The petitioner's plaint was rejected and her appeal was dismissed. Both the learned Courts held that the matter had been finally decided by the Hon'ble Supreme Court, hence, the suit was barred under the law, therefore, the plaint was liable to be rejected. Now without disclosing the factum of filing of the earlier suit the petitioner has challenged the post remand proceedings before the Revenue Authorities. The suit of the petitioner is not maintainable. No prima facie case has been made out, hence, the question of balance of convenience and irreparable loss does not arise. Even otherwise, as held by the learned Member Board of Revenue the petitioner is in occupation of land in excess of her share, therefore, she is merely trying to prolong the litigation to perpetuate her illegal occupation. Prays for dismissal of the petition.
11. 7.When confronted with the contentions of the learned counsel for respondents Nos.7 to 11 and the learned Assistant Advocate-General vis-a-vis the non-disclosure of the filing of the earlier suit, the learned counsel for the petitioner has tried to maintain that the non-disclosure of the filing of the earlier suit is not fatal to the petitioner's case. Contends that the earlier suit was not dismissed on merits. In fact only the plaint was rejected. As a consequence there is no res judicata. Even otherwise the said suit did not challenge the order dated 1-2-2010 passed in ROR No.1619 of 2009 by the learned Member Board of Revenue but in effect sought a declaration vis-a-vis the compromise dated 6-3-1994 arrived at between the parties. Further contends that the petitioner has been able to make out a prima facie case and has also been able to establish that the balance of convenience lies in her favour and if the temporary injunction is not issued irreparable loss shall be caused to her. The learned Courts below failed to appreciate this aspect of the case.
12. 8.I have considered the arguments of the learned counsel for the parties and I have also gone through the record.
13. 9.It is well-settled law that an injunction is not to be granted only on the basis that a prima facie case exists in favour of the plaintiff. The Courts are required to take into consideration whether the question of balance of convenience or irreparable loss to the party seeking such relief co-exists or not. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court reported as Marghub Siddiqi v. Hamid Ahmad Khan and 2 others (1974 SCM R 519).
14. 10.It is also a settled principle of law that besides the above factors the Courts in the facts and circumstances of a case have to take into consideration certain other factors such as whether the plaintiff has approached the Court with clean hands or not; whether the Court has been approached promptly or not; whether the grant of an injunction will be against public interest/policy; whether grant of an injunction to a party shall result into an undue advantage being given to him which would perpetuate injustice and whether a party approaching the Court for interim relief has concealed material facts and/or acted in a mala fide manner. In case the answer of any of the questions is in the affirmative then the relief of an injunction being discretionary in nature can be declined. Reliance in this regard is placed on a judgment reported as ATCO Lab. (Pvt.) Limited v. PFIZER Limited and others (2002 CLD 120).
15. 11.In the instant case admittedly the petitioner is in possession of land beyond her entitlement/share. She has remained unsuccessful in the earlier rounds of litigation even up to the level of the Hon'ble Supreme Court. Moreover, after the Hon'ble Supreme Court had in effect declared that the compromise dated 6-3-1994 did not exist between the parties, the petitioner through her earlier suit unsuccessfully tried to seek a declaration to the effect that the compromise existed and the land in dispute be partitioned accordingly. These factors as also the fact that the filing of the earlier suit has been concealed by the petitioner not only in the plaint of the present suit but also in the instant petition goes to establish that the conduct of the petitioner is not above board and she has approached the Court with unclean hands. On the touchstone of the judgments referred to above and the judgments reported as Syed Kamal Shah v. Government of N.-W.F.P.
16. (2010 SCM R 1377) and Mst. Sharifan Bibi and others v. Muhammad Abid Rasheed (2011 YLR 2396), it can safely be said that one who seeks discretionary relief is, therefore, required to approach the Court with clean hands or in other words one who seeks equity must do equity. The petitioner is not only guilty of concealment of material facts but has also acted in a mala fide manner, therefore, on this ground alone I decline to interfere in the orders of the learned Courts below. Indeed, the learned appellate Court below has in part dismissed the petitioner's appeal for non-disclosure of material facts.
17. 12.Even otherwise, the learned counsel for the petitioner has been unable to show the co-existence of a prima facie case, balance of convenience and irreparable loss in the instant case. The petitioner as notedbythelearnedMemberBoardofRevenueisinpossession oflandinexcessofhershare.HerROR No.1619 of 2009beforethelearnedMember,BoardofRevenuewastime-barred.During the post remand proceedings before the Revenue Authorities the petitioner was given repeated opportunities to present her case but she failed to do so, consequently her defence was struck off. All these factors go to show that the petitioner does not have a prima facie case in her favour nor does the balance of convenience tilt in her favour, similarly the factor of irreparable loss is also missing. Relying, therefore, on Marghub Siddiqi's case supra I find that the petition also fails on merits.
18. 13.Dismissed accordingly.