The applicant is the tenant of the respondent on the fourth floor in a multi-storeyed building occupied by 14 other tenants. According to the applicant, as the respondent has constructed two more floors over the fourth floor of the building, there developed scarcity of water to the applicant and the other residents of the building. Accordingly with the consent of the respondents and co- operation of the other residents the applicant installed a pipe for drawing subterranean water, but the difficulty was not relieved fully. Accordingly the applicant was compelled to arrange for the installation of another pipe alongwith an electric motor. As soon as this was done the respondent locked the machine-room where the pipes were fixed and is not allowing the applicant to use the same with the result that he is getting insufficient water supply with effect from 13-8-1979. On these allegations the applicant filed suit on 20-8-1979 praying for permanent injunction to restrain the respondent "from restraining the plaintiff from getting the water from the same water pipe and machine" and for damages in the sum of Rs.200 at Rs.25 per day. Simultaneously the applicant also prayed for temporary injunction to direct the defendant, her again or anybody on her behalf to allow the plaintiff to use the pipeline and machine fixed by her on 12-8-1979 for getting the subterranean water and also restraining her from restraining the plaintiff from using the same ripe and machine.
2. On the affidavits of the parties the trial Court in a short and sketchy order dated 29-3-1980 without considering the merits of the case granted temporary injunction on a general observation that "water is necessity of life and if this application is not allowed irreparable loss will be caused".
3. In appeal filed by the respondent, however, the learned Vth Addi--tional District Judge, Karachi, has set aside the order of the trial Court and held that on merits the applicant has not established prima facie case as 9 tenants of the same building had sworn affidavit in support of the respondent's contention that there was no paucity of water and that the respondent was supplying them sufficient quantity of water for their daily needs. He further held on the question of law raised before him that temporary injunction in the mandatory form could not be issued by the trial Court to create an entirely new situation not prevailing on the date of suit. Finally the learned Additional District Judge was of the view that the applicant will not suffer irreparable loss inasmuch as the respondent would provide her with water supply as before and in any case admittedly the applicant had made alternate arrangement by securing the alleged deficient water supply at Rs.25 per day. Aggrieved by the aforesaid order the applicant has come up in revision before this Court.
4. It is first contended by the learned counsel for the applicant that the Court below has erred in holding that the trial Court had no jurisdiction to issue mandatory injunction in the circumstances of this case. There is no substance in this contention, for, clearly the admitted position as mentioned in para. 4 of the plaint is that the respondent has put her lock on the machine-room before the institution of the suit. Learned counsel very fairly conceded that the machine-room belongs to the respondent landlady and she had taken over the control of her property by putting the lock thereon. The obvious effect of the injunction order in the terms prayed for would be to compel the respondent to unlock the room and hand over the operation of the machine for pumping water to the applicant's flat and may be to other flat in the building. Clearly, therefore, through the injunction application the applicant wanted the Court to create circumstances contrary to those that existed on the date of the suit, namely, the control of the machine-room and the pumping of water to be handed over to the applicant. In Mohmed 1dris v. Collector of Customs Karachi (PLD 1971 Kar. 736), it was observed :- "Although the powers of the Court to pass a mandatory injunction in appropriate cases even at interlocutory stage cannot be doubted but as held in a case reported in AIR 1956 Cal. 428 such orders are rare and granted only to restore the status quo and not to create a new situation which may be irretrievable or to establish a new state of things different from those which existed at the time the relief was sought." "(Underlining is mine).
The underlined (italicised) words clearly exclude the passing of order which are aimed at bringing about status quo and prior to the institution of the suit. The learned Additional District Judge was, therefore, right in holding that the injunction in the mandatory form in terms prayed for, could be issued.
5. The learned counsel next made a grievance against the impugned order and submitted that the learned Court below had wrongly stated that the affidavit of the 9 tenants was not rebutted. My attention was drawn to the rejoinder affidavit filed by the applicant dated 11-10-1979 in which it was asserted that the 9 tenants had given false affidavit, but such general allegation cannot be sufficient to ignore the testimony of the other tenants in the building that prima facie there is no paucity of water. It was for the applicant to establish prima facie case but none of the tenants in the building have supported her case as no affidavit from any tenant was filed on behalf of the applicant.
6. Lastly, the learned counsel contended that the Nazir's report on site inspection was not taken into consideration. I have gone through the Nazir's report and find that there is nothing contained therein which could prima facie advance the case of the applicant. On the contrary the Nazir has stated that the tenants on the sixth floor informed him that there is supply of water three times a day which is kept started for use overnight. Counsel, however, pointed out that the Nazir did not find water being supplied at the time in the flats inspected by him. The Nazir visited the building and completed the proceedings at 3-15 p.m, According to his own observation the next supply time for the water was to commence at 4-00 p.m. Prima facie, therefore, this fact is immaterial.
7. It was also urged by the counsel that the Court below erred in holding that no irreparable loss will be caused to the applicant. It may be pointed out that the prima facie finding of the learned Additional District Judge was that the applicant was only seeking additional water supply and her case was not of total absence of water supply. It was in this context that the Court held that since the applicant herself has made alternative arrangement for obtaining the shortfall in water supply from other source for money consideration the loss, if any, is assessable in terms of money. 11 agree with this view since the applicant herself has sought a Decree for damages on that basis. It may be further observed that the applicant seems to have specific remedy under section 11 of the Rented Premises Ordinance for restoration of amenities before the Controller.
8. For the foregoing reasons, there is no case made out for interference, in the revisional jurisdiction as no jurisdictional defect has been made out or other material irregularity shown. This revision application is, therefore, dismissed in limine.