ALI BAIG, J.---Through the instant revision petition filed under section 115, C.P.C., the petitioners have assailed the impugned judgment/order dated 21.7.2020 passed by the learned vacations/District Judge Gilgit, whereby the learned vacations District Judge Gilgit has accepted the civil first appeal of the respondents/defendants by setting aside the judgment/order dated 7.7.2020 passed by the learned trial Court.
2. Succinctly facts of the case necessary for disposal of the instant revision petition are that the present petitioners/plaintif fs (herein after called as petitioners) had filed suit for declaration and perpetual injunction against the present respondents/defendants (here in after called as respondents) in the trial Court, asserting therein that the present respondents Nos. 1 to 10 had approved a project/scheme for construction of a Livestock Dispensary at Jutal Tehsil Danyore. After approval of above said scheme a site for construction of aforesaid dispensary was selected at Muhallah Mujahidabad Jutal by site selection committee. The contract of said dispensary was awarded to contractor/ respondent No. 14. The respondent No. 4 issued start order to the contractor and accordingly the contractor started construction work on the selected site. In the meanwhile some residents of Jutal approached the D.C./respondent No.7 to change the site of dispensary . The respondent No.7 has reconstituted site selection committee and the said committee has changed the disputed site for construction of Livestock Dispensary . Feeling aggrieved the petitioners had filed a civil suit in the trial Court.
3. Along with the suit the petitioners had moved an application under Order XXXIX, Rules 1 and 2, C.P.C. in the trial Court for grant of temporary injunction. The learned trial Court after hearing arguments on behalf of both the parties has allowed the aforesaid application of the petitioners and granted temporary injunction in favour of the petitioners and respondent No. 16 vide judgment/order dated 7.7.2020.
4. Feeling aggrieved and dissatisfied with the impugned judgment/order passed by the learned trial Court, the respondent No:16 had filed a civil first appeal in the Court of learned vacations Judge District Gilgit. The learned vacations District Judge/first appellate Court after hearing of arguments on behalf of both the parties has allowed the civil first appeal of present respondent No.16 and has rejected the suit of the petitioners vide the impugned judgment dated 21.7.2020, hence this civil revision petition.
5. The learned counsel appearing on behalf of the petitioners contended that the impugned judgment/order passed by the learned first appellate Court is contrary to law and facts on the record of the case as such the impugned judgment/ order passed by the learned first appellate Court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the learned first appellate Court has failed to apply its judicious thought while passing the impugned judgment and has travelled beyond its jurisdiction and has erroneously rejected the suit/plaint of the petitioners. The learned counsel for the petitioners further argued that the petitioners have prima facie arguable case, balance of convenience is also in favour of the petitioners, if temporary injunction is not granted the petitioners as well as respondents Nos. 1 to 13 will suffer irreparable loss as construction work of the dispensary at the previous site has been started by contractor and 25% construction work has been done by the contractor , therefore by accepting this revision petition the impugned judgment/ order passed by the learned first appellate Court may be set aside and the judgment/ order passe d by the learned trial Court may be upheld.
6 Conversely , the learned counsel for respondent No. 16 vehemently opposed this revision petition by contending that the previous site selection committee has selected wrong site for construction of Livestock Dispensary therefore, the D.C./respondent No. 7 has rightly changed the site for construction of Livestock Dispensary in the interest of the residents of Jutal. The learned counsel for respondent No. 16 further argued that the D.C./respondent No.7 has to acquire the land for construction of Dispensary and in the previous site selection committee the respondent No. 7 was not present, therefore the respondent No. 7 has rightly changed the site in question.
7.. Mr. Kamal Hussian, Advocate while representing respondents Nos. 10 and 11/Livestock Department G.B. supported the version of the counsel for the petitioners by contending that the department concerned has already started construction work of the disputed Dispensary on the previous site and 25% construction work been done by the concerned contractor and if the previous site for construction of the disputed Dispensary is changed, the respondents Nos. 10 and 1 1 shall suf fer financial loss.
8. I have heard the arguments advanced by the learned counsel for the parties and with their able assistance have gone through the record.
9. From perusal of record it transpires that the respondent No. 11/ Deputy Director Livestock Department Gilgit vide his letter dated 5.4.2019 addressed to A.C. Danyore has requested that on 18.4.2019 at 10.00 a.m. has been fixed for selection of site for construction of Veterinary Dispensary at Jutal, therefore a representative may be deputed for the said purpose. Accordingly , the A.C. Danyore has deputed Mr. Iqbal Jan, Tehsildar Danyore for the said purpose. The site selection committee comprising of representatives of D.C. Gilgit, P & D Department, Building Division GBPWD and representative of acquiring department i.e. Livestock and Dairy Department have selected one Kanal land owned by Mr. Iqbal Hussain son of Ibrahim situated at Mujahidabad Jutal on 6.6.2019 as evident from site selection report dated 6.6.201 9. The contract of said Veterinary Dispensary was awarded to one contractor namely Ali Jasim Raza and respondent No. 12 has issued directions to the abovenamed contractor to start the work immediately vide letter dated 12.6.2019. As per statement of the learned counsel for the respondents Nos. 10 and 11 the abovenamed contractor has started construction work of Veterinary Dispensary Jutal at the selected site and has completed/done 25% of construction work on the spot.
10. It is astonishing to note that the D.C/respondent No.7 abruptly has changed the site of Veterinary Dispensary without any justification by constituting fresh site selection committee wherein the representatives of acquiring agency/Livestock department and executing agency/GBPWD were not present in the subsequent site selection committee, thus mala fide on the part of respondent No. 7 cannot be ruled out.
11. For the foregoing reasons, I have come to the conclusion that the counsel for the petitioners/plaintif fs has been able to make out prima facie arguable case, balance of convenience is also in their favour and if temporary injunction is not granted in favour of petitioners, the petitioners and respondents Nos. 10 and 11 would suffer irreparable loss, thus the learned trial Court has rightly granted temporary injunction in favour of the petitioners and against the respondent No. 16. The learned first appellate Court has failed to apply its judicious mind while passing the impugned judgment and has arrived at wrong conclusion. The learned first appellate Court has committed material irregularity and illegality while rejecting the suit/plaint of the petitioners under Order VII, Rule 1 1, C.P .C.
12. For what has been discussed above, this civil revision petition is allowed. Consequently , the impugned judgment/ order passed by the, learned first appellate Court dated 21.7.2020 is set aside and judgment/order dated 07.07.2020 passed by the learned trial Court is maintained. Civil Misc. Petition No. 360/ 2020 is also disposed of along with the instant civil revision petition. The suit of the petitioners is remanded back to the trial Court with the direction to dispose of the suit in accorda nce with law after recording of evidence of the parties. Parties are left to bear their own costs. File.