The petitioner instituted a suit for Permanent Injunction against the respondents and for obtaining the interim relief application under Order XXXIX rules 1 & 2, C.P.C. was also filed. The learned trial Court vide order dated 19.09.2019 restrained the respondents to interfere into lawful construction work in Khewat No.1079, 4572, 3369, 2166 & 4501 till the next date of hearing i.e. 03.10.2019 besides issuing notices to the defendants/respondents.
This ad-interim order of the learned trial Court was challenged by respondent No.1 by way of appeal before the learned District Judge under Order XLIII rule 1(r), C.P.C. The learned first appellate Court while issuing preadmission notice suspended operation of the impugned order reflecting from its order dated 30.09.2019 and ultimately accepted the appeal vide impugned judgment dated 18.10.2019, as a consequence whereof it not only set-aside the order dated 19.09.2019 of the learned trial Court holding the same nullity in the eye of law but also rejected the plaint under Order VII rule 11, C.P.C. being hit by bar contained under Section 69 of the Partnership Act, 1932; hence, this revision petition.
2. Learned counsel for the petitioner contends that the learned first appellate Court travelled beyond its jurisdiction while rejecting the plaint of the petitioner , which was not pending before it. The seco nd contention raised was to the effect that no appeal was provided against an ad-interim/interlocutory order , thus same was not maintainable. In support of these contentions, the learned counsel placed reliance on Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank of Pakistan (1990 CLC 1473 ), Muhammad Khalil Solahria v. Faisalabad Development Authority and others (1991 CLC Note 304) and Jewan and 7 others v. Federation of Pakistan through Secretary , Revenue, Islamabad and 2 others (1994 SCMR 826 ).
In rebuttal, the learned counsels for respondent No.1 contended that the appeal against an ad-interim order passed under Order XXXIX rules 1 & 2, C.P.C. was maintainable inasmuch as the learned first appellate Court did not commit any illegality while rejecting plaint when its filing was found barred by some provision of law. Reliance was placed on Messrs Paper Corner v. Board of Intermediate and Secondary Education (1991 CLC 740), Niamat Ali and 3 others v. Mst. Sardaran Bibi and 4 others (2003 YLR 51), Mst. Sarwar Jan and 8 others v. District Judge, Bagh and others (2006 MLD 12), Bakht Zada v. Shah Tamash Khan and 5 others (2016 YLR 2337 ), Nanik Ram and others v. Ghulam Akbar and 9 others (2016 MLD 52), Umer Gul v. Malik Abdul Manan and others (PLD 1992 Peshawar 76), Pioneer Pakistan Seed Ltd. v. United Distributors Pakistan Ltd and 5 others (1998 CLC 61) and District Council Haripur through Administrator , Deputy Commissioner , Haripur v. Zaheer Ullah Khan (PLD 1994 Peshawar 228).
3. I have heard the learned counsels for the parties and gone through record of the case with their able assistance.
4. The learned first appellate Court while hearing the appeal preferred against an ad-interim order passed on an application under Order XXXIX rules 1 & 2, C.P.C. came to the conclusion that plaintif f/petitioner 's suit was not maintainable under Section 69 of the Partnership Act, 1932, thus, proceeded to reject the plaint under Order VII rule 1 1, C.P .C. vide impugned judgment when the plaint was not pending before it.
It is true and well settled law that incompetent suit shall be taken off the file at its inception and plaintif f be allowed to retrace his steps. At the same time it is also settled law that plaint can be rejec ted even before summoning the defendants or later-on at any stage of suit proceedings but this power must be exercised by the Court where the plaint is pending or under challenge because scrutiny is only permissible pertaining to the matter pending before that Court.
In the present case matter pertaining to the grant of ad-interim injunctive order issued by the trial Court was called- in question before the appellate Court might be on various grounds including non-maintainability of suit in its present form but court of appeal while deciding the appeal ought to have confined it relating to availability of its jurisdiction because the plaint was not pending before it, therefore, it should have refrained itself from making any definite opinion regarding the fate of the suit. It must draw its opinion qua three ingredients i.e. prima facie case in favour of the plaintif f, balance of inconvenience and irreparable loss or injury . It is also added that grounds for consideration to apply Order VII Rule 1 1, C.P .C. for rejection of plaint are altogether dif ferent.
The learned Division Bench of this Court in a case reported in 1990 CLC 1473 (supra), held that the matter which was not pending before the Court could not be adjudicated upon, therefore, exercising the power pertaining to the matter not pending was beyond the scope of appeal. In short, adjudication upon merits of suit without its pendency before the appellate forum was restricte d/prohibited. Same view was reiterated in 1991 CLC Note 304 (supra) wherein, in similar circumstances, such exercise of jurisdiction to reject the plaint not pending before the appellate Court was declared without lawful authority , illegal and unlawful.
5. On the other hand, much emphasis has been laid by the learned counsels for respondent No.1 on the case-law cited in 1991 CLC 740 (supra) to contend that plaint can be rejected by the appellate Court while hearing the appeal against the injunctive order of the trial Court. The facts of this case were itself explained by the learned Judge at Page 743 thereof and it is expedient to reproduce the same here:- "There is no express bar for restricting its powers in that behalf except that the plaint in the suit must be on its own file. Decision in Shahdev' s case (supra) does not assist the appellants. There also, the plaint was rejected in an appeal directed against an interlocutory order but there is a visible difference in the facts of that case and those existing in the present case. In the cited case, suit was not transfer red to the file of District Judge. Conversely , here by an express order the suit was withdrawn from the trial Court for being kept on the file of the lower appellate Court and then an order rejecting the plaint under Order VII, rule 11, Civil Procedure Code was made. The act of the learned District Judge is supported by a judgment in Vithoba Yadeo v . Suryabhan and another AIR 1924 Nagpur 80." (underline supplied)
It is clear and obvious from above-quoted facts of the relied upon case-law that the learned Judge was agreed with this settled law that plaint which was not pending before the appellate Court could not be rejected by the learned first appellate Court. Undeniably , in this judgment, the suit after its withdrawal from the trial Court had already been entrusted to the appellate Court, therefore, it was within the scope of appellate Court having co-extensive powers with trial Court in terms of Section 107(2) C.P.C. to decide the application for grant of temporary injunction and adjudicate upon fate of the suit.
6. It is perceptible from examining the judgments referred ibid, what I have inferred, adjudication upon merits of the suit is out of scope of the appellate Court when the suit is not pending before the Court and determination of it on merits is not permissible while dealing with the decision of the trial Court perta ining to application for grant or refusal of temporary injunction.
7. In view of the above settled law, I have reached to an irresistible conclusion that the learned first appellate Court has no jurisdiction to take any decision regarding fate of the plaint if it was not part of its file; meaning thereby , while dealing with order of the learned trial court on application for temporary injunction it will confine its observation with regard to the lis pending before it as it lacks jurisdiction to determine the fate of the plaint being not part of its file, therefore, the impugned judgment being based on lack of jurisdiction is nullity in the eye of law, therefore, the judgment impugned passed by the learned first appellate Court qua rejection of plaint is declared to be unsustainable in the eye of law .
Before I conclude this matter , I am constra ined to observe that the learned first appellate Court has put all its efforts on non-maintainability of the suit and concluded that the suit was not maintainable being hit by some provision of law and as a result thereof it set-aside the injunctive order but necessary reasons whereof are deficient i.e. for seeking such relief under Order XXXIX rules 1 & 2, C.P.C., the first appellate Court ought to have given reasons as to grant/refusal of the interim relief qua establishing or non-establishing of an arguable case, an irreparable loss and balance of convenience in plaintif f's favour or against.
It is also noticed that respondent No.1 had challenged the grant of ad-interim injunc tion and not prayed for rejection of plaint in prayer clause of his memo of appeal, therefore, the Court must confine itself to that matter pending before it.
8. As regards the contention of the learn ed counsel for petitioner that the order passed by the learned trial Court being ad-interim in nature was not appealable, hence appeal was not maintainable, has no force in view of the provisions of Order XLIII rule 1(r), C.P.C, which stipulates remedy of appeal against the orders passed under Order XXXIX, Rules 1, 2, 4 & 10 CPC.
Rule 1 of Order XXXIX, C.P.C. is clear and obvious with regard to providing of powers to the trial Court of two kinds of orders relating to grant of injunction: one for grant of restraining order till decision of suit and the other until next date of hearing and both kinds of orders (former/permanent and latter/ad-interim) being part of Order XXXIX rules 1 & 2, C.P.C. are amendable in appeal under rule 1(r) of Order XLIII, C.P.C., therefore obviously, appeal against ad-interim order passed under rule 1 of Order XXXIX, C.P.C. was maintainable. The case-law referred to by the learned counsels for respondent No.1 reported in the dictums laid down in PLD 1992 Peshawar 76, 1998 CLC 61 and PLD 1994 Peshawar 228 (supra) is enough in support of this provision of law. All other judgments, referred to by the learned counsels for respondent No.1, are distinguishable on facts with that of the present one and it is not necessary to go into their details.
9. In view of the above, the impugned judgment dated 18.10.2019 is hereby set-aside as a consequence whereof the appeal of respondent No.1 against the ad-interim order dated 19.09.2019 passed by the learned trial court shall be deemed to be pending before the learned first appellate Court for re-adjudication on merits without being prejudiced from any observation of this Court recorded above or in the impugned order/judgment, in accordance with law. The parties are directed to appe ar before the learned Additional District Judge, Lahore, on 16.11.2019, for its re-adjudication. Accordingly , this revision petition stands accepted and case remanded.