' Through instant Civil Revision, applicants have assailed the order dated 03.02.2014 passed by District Hudge, Tando Muhammad Khan in Civil Miscellaneous Appeal No, 04/2014, whereby maintained the order dated 09.12.2013, passed by Senior Civil Judge, Tando Muhammad Khan, consequently application U/O XXXIX Rules 1 and 2, C.P.C. Of the applicants/plaintiffs, moved in F.0 Suit No, 72/2012, (Re-Gui Hassan Shah and others v. Province of Sindh and others); was declined.
2. Succinctly, relevant facts are that one late Syed Muqeem Shah and Respondents No, 6 and 7 belong to Shia sect. Deceased left behind certain properties including agricultural land. Syed Muqeem Shah died on 11.07.2010, leaving his surviving legal heirs as Gul Hassan Shah (son), Mst.
Fatima Bibi (daughter) and Mst. Sharifan Bibi (daughter), Mst. Ameena Bibi and Mst. Mumtaz Begum both as widows so also one Mst. Seema (daughter). Applicants approached to higher Revenue authority for the change of Foti Khata in favour of the legal heirs but failed to succeed thus applicants filed CP.No, D-1858 of 2010 before this Court and vide order dated 11.02.2011 this Court directed the applicants/petitioners to approach the competent Court of law/Civil Court. After the death of Syed Abdul Muqeem Shah, Respondents No, 6 and 7 filed F. C. Suit No, 45 of 2011 before learned District Judge but same was withdrawn vide order dated 14.03.2012 with permission to file a fresh suit; ultimately they filed F. C. Suit No, 15 of 2012 before the trial Court which is pending in which they have joined the present applicants as party; they have denied the rights of the applicants. The Respondents No, 6 and 7 in collusion with Respondents No, 4 and 5 have put clouds over the rights and interest of the applicants and have denied rights and title of the applicants. It is pleaded in plaint that the Respondents No, 6 and 7 have maliciously claimed that only they are the legal heirs of Abdul Muqeem Shah, hence applicants filed suit for declaration of the rights of applicants over the suit land before trial Court and prayed for the judgment and decree as under:--
(a) Declare Plaintiffs and Defendants No, 6 and 7 are legal heirs of Abdul Muqeem Shah are entitled to get the share as per Muhammadan Law, declare the ownership rights over the suit land, described in plaint Para No, 02 left by Abdul Muqeem Shah.
(b) To Direct the Defendants No, 04 and 05 Taluka Mukhtiarkar Tando Ghulam Hyder and Supervising Tapedar of the beat to make/affect the Foti Khata Badal, under Section 42 of Land Revenue Act 1967 in the names of the Plaintiffs and Defendants No, 06 and 07 are legal heirs of Abdul Muqeem Shah.
(c) Cost of the Suit be borne by Defendants No, 06 and 07.
(d) Any other relief which this Honourable Court deem fit and proper be awarded.
3. That applicants filed application under Order XXXIX Rules 1 & 2 r/w Section 151, CPC alongwith suit for permanent injunction, restraining the private respondents from interfering in peaceful possession of suit land, which was dismissed vide order dated 09.12.2013. Against the above order, applicants filed Miscellaneous Appeal before District & Sessions judge, which was also dismissed, hence they filed this revision.
4. Learned counsel for applicants have argued that impugned orders passed by both Courts below are opposed to law and facts; both the lower Courts have failed to consider that the applicants are lawful co-owners of the property in dispute; impugned orders of both the Courts are misconceived and misconception under the law hence liable to be set aside; that the impugned orders are based on conjectures, surmises, assumption and presumptions having no value in the eye of law.
In support of his contentions, learned counsel has relied upon the cases reported as Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), Rabat Khan alias Zafri v. Captain (Retd.) Tahir Naveed and 6 others (2009 S.L.J. 1062), Sahib Jan and others v. Mst. Ayesha Bibi through L.Rs, and others (2013 SCMR 1540), Abdul Razzak v. Lal Buz and another (2012 CLC 4), Islamic Republic of Pakistan through Secretary, Ministry of Commerce, Islamabad v. General Traders and ammunition manufactures Ltd. Through Chief Executive (2008 CLC 1462), Messers Decemtn Marble through Registered Attorney v. Government of Sindh through Chief Secretary Karachi and 5 others (2008 CLC 737), Muhammad Iqbal v. Muhammad Irfan and 6 others (2014 YLR 1972), Muhammad Afzal through Legal Heirs and others v. Riaz Mahmood, Additional District judge, Lahore and 8 others (PLD 2004 Lahore 115) and Syed Murshad Ali v. Syed Amjad Ali and 3 others (2014 YLR 1620).
5. Conversely, learned counsel for Respondents No, 6 and 7 while supporting both impugned orders, contends that same are speaking and passed in accordance with law; applicants are not entitled for claiming their share in the suit property; applicants did not claim for permanent injunction before the trial Court and filed suit only for declaration; the instant revision has been filed only to prolong the matter hence the same may be dismissed being meritless. In support of his contentions, learned counsel has placed reliance on the cases reported as Mohar Khan and 7 other v. Sultan Khan and 5 others (1988 CLC 20), Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 Supreme Court 139), Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 Supreme Court 53), Hussain. A. Haroon and others v. Mrs. Laila Sarfraz and others (2003 CLC 771), Unichem Corporation (Put.) Ltd. And others v. Abdullah Ismail and others (1992 MLD 2374), Fayyaz Ali Shah v. Amir Fatima and others (1987 CLC 1960) and Messers Iftikhar and C. Ltd. v.
Uzin Export-Import Enterprises for foreign trade, Baluchistan (1986 CLC 303).
6. Heard learned counsel for the parties and perused the material available on record.
7. Before dilating upon the merits of the case, let me make it clear that the provision of Order XXXIX R. 1, CPC is not meant for introduction of a new situation but is meant to preserve the interests and rights and to maintain a status-quo during pendency of the lis. Here, it is necessary to add that the provision of Section 54 of the Specific Relief Act does recognize the right of a party to seek for 'perpetual injunction'. The said section, being relevant to the controversy involved is reproduced hereunder:-
54. Perpetual injunction when granted.--Subject to the other provisions contained in, or referred to by tins Chapter a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication.
' When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.
' When the defendant invades or threatens to invade the plaintiffs right to or enjoyment of property, the Court may grant a perpetual injunction in the following cases (namely)
(a).
(b)
(c) where the invasion is such that pecuniary compensation could not afford adequate relief., (d)where it is probable that pecuniary compensation cannot be got for the invasion: (e).
' The underlining would show that whenever there is an invasion or threat to invade the plaintiff's right to or enjoyment of property a perpetual injunction can competently be granted by the Court but subject to condition that 'invasion or threat to such right should not be capable of being compensated through pecuniary compensation or by other adequate relief, This condition is also applicable for grant of an injunction, even if granted Under Order XXXIX R. 1, CPC because no injunction can be granted, where ' irreparable loss/injury' is not established, as it is one of the most important ingredients out of three required ingredients.
8. I am quite aware of the legal position that an interim injunction can be sought by the defendant; when the plaintiff intends to seek an 'status-quo' during pendency of the suit his prayer for interim injunction is required to be controlled by the main relief which he/she sets through pleading because he/she approaches the Court while pleading an invasion or threat to invade his/her (plaintiffs) right to or enjoyment of property. This could have been the object because of which the Honourable Supreme Court in the case of 'Marghub Siddiqui v. Hamid Ahmed Khan & 2 Others (1974 SCMR 519) held that: "C" The first is that in a suit where no perpetual injunction is claimed no question of granting ad interim injunction can possibly arise. In the present case, the application for a interim injunction should have failed on this ground alone.
9. On the above principle, the order (s) of both the Court (s below do not appear to be result of some illegality. However, on merits per available pleading, the applicants have failed to make out a case for grant of injunction. To make things rather easy, it would be conducive , to refer the prayer clause of injunction application which is as under;-- "It is prayed that this Honourable Court may be pleased to grant ad-interim injunction against the Defendants whereby restraining the Defendants not to interfere in the peaceful physical cultivating possession of the suit land, not to alienate directly or indirectly through themselves, agents, subordinates, attorneys restrained or from creating any 3rd party interest over the suit land till the disposal of the suit on the consideration of the grounds mentioned in accompanying affidavit."
' The applicants sought restraining order against the respondents to the extent of 'interference in peaceful cultivating possession of suit land' so also 'for alienation and creation of third party interest'. The perusal of the pleading of the applicants would show that they did not claim to be in specific possession of the property in question nor claimed to have been threatened so by the respondents/defendants hence in absence of such fact (not pleaded in plaint) and prayer the applicants/plaintiffs cannot claim interim injunction beyond their own pleading because a plaintiff is required to plead all facts, including invasion or threat to invade to his/her right to enjoy property.
Even otherwise, the relief (s), sought by the applicants are such that if they succeed in establishing their case there would be no issue of 'irreparable injury' because any alienation or third party interest would fall within meaning of lis pendens and even otherwise can well be compensated through adequate relief. Worth to conclude that there is no cavil in proposition of law that when a relief which is not sought as main relief by the plaintiff, the same cannot be extended as interim injunction and Courts are bound to proceed within prescribed limits of law.
10. In view of above, it is patent that this is not a case where one can take plea that impugned orders are illegal and ab-initio void. Besides, learned counsel for applicants contends that on account of this situation, he has filed application Under Order VI Rule 17, C.P.C., whereby he is seeking amendment in prayer clause by adding such relief of permanent injunction thus without prejudice of the observations made hereinabove, applicants would be at liberty to file a fresh injunction application in case application Under Order VI Rule 17, C.P.C. Is allowed by the trial Court.
11. In view of above, instant revision application is dismissed.