ALI BAIG, J.---Through the instant civil revision petition filed under section 115, C.P.C. the petitioners/plaintif fs have challenged the impugned judgment/order dated 30.3.2019 passed by the learned District Judge Ghizer in C.F.A. No 13 of 2018, whereby the learned 1st appellate court has dismissed an application filed by the petitioners under Order XXXIX, Rules 1 and 2, C.P .C. for grant of temporary injunction.
2. Succinctly facts leading to the filing of the Instant civil petition are that the present petitioners/plaintif fs instituted a suit for declaration and permanent injunction against the present respondents/ defendants in the learned trial court claiming that the plaintif fs/petitioners are exclusive owners of Japukay Nallah and they are exclusively entitled to use water of Japukay Nallah. The defendants/ respondents by dint of so-called resolution dated 16-10-2017 are bent upon to supply water from said Nallah to Dass Japukay by installing pipeline, which is illegal, and against the rights of the plaintif fs/ petitioners, therefore, the defendants/ respondents may be permanently be restrained from interfering in the water of Japukay Nallah.
3. The respondents/defendants hotly contested the suit by way of filing their written statements in the trial court raising certain legal objections and repudiating the averments of the plaint.
4. Along with the plaint the respondents/plaintif fs had filed an application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction and the learned trial court after hearing arguments on the aforesaid application has dismissed the said application and suit was also rejected vide order dated 18-3-2019.
5. Feeling aggrieved by the afore said order of learned trial court, the present petitioners had filed civil 1st appeal in the court of the learned District Judge Ghizer against the afore said order of the learned trial court and the learned District Judge Ghizer vide the impugned judgment/order dated 30-3-2019 has partially allowed the appeal of the petitioners and impugned order of trial court to the extent of rejection of plaint was set-aside and order of trial court to the extent of dismissal of application filed under Order XXXIX, Rules 1 and 2, C.P.C. by the petitioners/plaintif fs was maintained.
6. The learned counsel appearing on behalf of the petitioners contended that the impugned judgment/order passed by the learned 1st Appellate Court is contrary to law and facts on the record of the case as such the impugned order/ judgment passed by the learned 1st Appellate Court is not maintainable and liable to be set-aside. The learned counsel for the petitioners further argued that the petitioners/plaintif fs are exclusive owner of Nallah Japukey and are entitled to use the water of above mentioned Nallah for drinking and irrigation purpose. The learned counsel for the petitioners further argued that there is shortage/scarcity of drinking and irrigation water in the village Japukey , therefore, the petitioners/plaintif fs have good prima facie arguable case, balance of convenience is also in favour of the petitioners/plaintif fs and if temporary injunction is not granted the petitioners/plaintif fs shall suf fer irreparable loss and injury .
7. On the other hand the learned counsel for the respondents and learned Additional Advocate General controverted the arguments advanced by the learned counsel for petitioners by contending that Govt. has approved a development project/scheme for water supply for village Japukey and Das Japuk ey through installing pipeline as there is sufficient water in Japukey Nallah. The learned counsel for the respondents further argued that the present petitioners/plaintif fs had filed suit by posing/showing themselves representatives of residents of Japukey , but 80 persons/residents of village Japukey appeared before the learned trial court helieing the claim/assertion of the present petitioners and impleaded themselves as defendants in the suit. The learned counsel for the respondents further argued that the petitioners/ plaintif fs have failed to make out prima facie arguable case in their favour as the plaintif fs have not come/approached the court with clean hands, balance of conven ience is also not in favour of the plaintif fs/petitioners and if temporary injunction is not granted in favour of the petitioners they will not suffer irreparable loss. Concluding their arguments, the learned counsel for the petitioners/ Additional Advocate General argued that both the courts below have rightly dismissed the application of the present petitioners/plaintif fs filed under Order XXXIX, Rules 1 and 2, C.P.C. through its concurrent findings, which may be maintained in the interest of justice.
8. I have heard the learned counsel for the parties and perused the record with their able assistance.
9. It is settled principle of law that in order to succeed in obtaining an order of injun ction under Order XXXIX, Rules 1 and 2, C.P.C, the plaintif f is required to demonstrate a good prima facie case in his favour , the balance of convenience must be in favour of the plaintif f and plaintif f will likely to suffer irreparable loss and injury if injunction is not granted. No order of injunction could be granted unless all the above said three ingredients for grant of injunction exist.
10. In the instant case the present petitio ners/plaintif fs have filed a suit for declaration and perpetual injunction on the presumption that if the disputed water supply project is executed and drinking water is supplied through pipeline to the residents of Das Japukey then water rights of the plaintif fs/defendants will be suf fered/af fected.
11. From perusal of the contents of resolution dated 16-10-2017 it reveals that almost all the residents of village Japukey through their notable/representa tives have agreed/conceded to provide ,drinking water to the residents of Das Japukey as evident from the aforesaid resolution.
12. Moreover , the suit was filed on behalf of all residents of village Japukey but later on more than 80 residents of village Japukey had appeared before the learned trial court and have belied the version/claim of the present petitioners/ plaintif fs, thus, petitioners/pla intiffs have failed to make-out prima facie arguable case in their favour , balance of convenience is also not in favor of the plaintif fs and if temporary injunction is not granted the plaintif fs/ petitioners shall not suffer irreparable loss rather irreparable loss would be caused to the respondents if water supply scheme is not allowed/executed. Furthermore, Government of G.B has approved development scheme titled provision of water supply to the respondents/category 1 and 4 Japukey to Dass Japukey and grant of injunction is barred by clause (d) of Section 56 of the Specific Relief Act which lays down that an injunction could not be granted to interfere with public duties of any department of Provincial or the Federal Govt. or with the sovereign act of foreign government. However , where the department or its officers exceed from powers conferred upon them by the legislature this clause cannot apply . In this connection, reliance can be placed on the reported judgment of the Hon'ble Supreme Court reported 1998 SCMR 376 .
13. Furthermore, there are concurrent findings of facts against the petitioners and in such case, this court would not normally interfere.
14. For what has been discussed above, I do not find any merit in this revision petition as both the learned courts below have not committed any material irregularity or illegality while passing its judgments/orders to the extent of dismissal the application of the petitioner s/plaintif fs filed under Order XXXIX, Rules 1 and 2, C.P.C. Consequently , this revision petition is dismissed and impugned judgment/order passed by the learned 1st appellate court is upheld. File.