DR. KHURSHID IQBAL, J. Through the instant petition, under Article 199 of the Constitution, Anwar Khan, the petitioner, " seeks the following relief: "It is therefore, very humbly prayed that on accepting the instant writ petition, the impugned order/judgment dated 23.02.2022 of the learned District Judge/Zilla Qazi, Shangla/respondent No. 14 may please be set aside and while accepting the application of petitioner for grant of status quo, the official respondents may please be restrained from demolishing the property of petitioner and operations of the impugned notice dated 13.10.2020 under section 3 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, of respondent No.1 also be suspended till disposal of the main case/application before the trial Court.
Any other relief which is not specifically prayed before this august Court, but deems proper may also be granted."
2. Facts shortly are that the respondent No.1. (the Assistant Commissioner of Alpurai Tehsil of District Shangla has served on the petitioner a notice dated 13/10/2020 under the K.P Public Property (Removal of Encroachment) Act, 1977 (the Act). The Notice shows that the petitioner has made encroachment through built up property (ghair mumkin abadi) in Khasra Nos. 1997 and 2046, which have been declared as public property under the Act. The petitioner has challenged the Notice by a civil suit before the learned District Judge (Tribunal under the Act). He moved an application for interlocutory injunction which the learned Tribunal has dismissed by its order dated 23/02/2022. The petitioner has challenged the aforesaid order through the instant writ petition. The case of the petitioner before the Tribunal is that he has purchased the land from Muhammad Zarin and Umar Zarin (respondents Nos. 12 and 13) measuring 01 Kanal, 8 marla in Khasra No. 2029 some 34/35 years ago and has constructed a five-storey house and some shops in it. He further contends that while raising construction, the respondents didn't raise objection. He maintains that recently when he started constructing more shops in the land, he submitted an application to the respondent No. 2 on which spot inspection was ordered. The Assistant Commissioner then sent him the impugned Notice, at which he sought review, but the same was dismissed by writing a single word "baseless" on his application. He then moved an application for demarcation, on which, too, the Girdawar circle submitted a report against him.
3. We have heard. Mr. Asghar Ali, learned counsel for the petitioner and Mr. Haq Nawaz, learned Assistant Advocate General, for the official respondents at length and perused the record.
4. The focal point Mr. Asghar Ali raised is that the petitioner himself submitted an application in respect of encroachment on which the Girdawar circle submitted a report on 15.04.2020. He maintained that subsequently on 21.09.2021, the Executive Engineer of Communication and Works department sent a letter No. 246 to the respondent No. 1 regarding the encroachment. Both these documents, the learned counsel added, are contradictory. In the report dated 15.10.2020, the petitioner and one Muhammad Zarin have been found to have encroached 09 feel which amounts to total 18 feet. This report further shows that according to the revenue record, total area of the road is 23 feet. As per the letter dated 21.09.2021, encroachment to the extent of 4.5 feet (total 09 feet) on the part of both the petitioner and the respondent No. 12, Muhammad Zarin, was mentioned. However, there could be no escaping from the fact that the petitioner is still not recorded as an owner in the Revenue Record. In order to win the discretionary relief of temporary injunction, a plaintiff, has to show that the three ingredients-prima facie, balance of convenience and irreparable loss-coexist. This is not the case in the circumstances before us. Indeed, it is not a fit case for the grant of interlocutory injunction on the above benchmark. On balance, however, possession and construction of the petitioner in the suit property, suggest a prima Facie case which the learned Asst: A.G couldn't controvert. In our view, the aforementioned two aspects make the case a special one, rather "a good arguable" one inasmuch as they help raise a much better argument in the circumstances. if on the one hand, the temporary injunction is not granted and the respondents No. 1 goes ahead and demolish the construction of the petitioner, and on the other, he is able to win the case before the Tribunal, it will be the petitioner who will suffer materially as compared to the respondents. In the event of dismissal of the petitioner's case, the respondent No. 1 may order demolition of the built up property. We, thus, conclude that a good arguable case exists in favour of the petitioner which offers us a threshold for exercising jurisdiction.
5. We would like to discuss the law on the good arguable case test. In Muhammad Yaqoob, the question of a good arguable case was considered by the Hon'ble Sindh High Court. In this case, the plaintiff, already in possession of the suit property under an agreement, faced dispossession in proceeding filed by defendant under the Sindh rent restriction law. The plaintiff brought a suit for declaration and specific performance. The Court while ruling that the plaintiff couldn't resist his eviction, observed that he could be granted relief under Order XXXIX, Rules 1 and 2, C.P.C. on his application he didn't press earlier. In this respect, the Court observed that while the title of property shall remain intact during the pendency of the suit, there is an apprehension that the defendant may create a third party interest and thereby hinder the execution proceedings in case the plaintiff's suit succeeds. The principle applied was that the burden to prove prima facie case for temporary injunction is not as heavy as is necessary for obtaining a decree. Thus, a prima facie case found to exist which was interpreted as an arguable case (Muhammad Yaqoob v. Mohsin, 2000 CLC 1556 [Karachi]).
6. In the above cited case, the Court relied on Muhammad Matin, a 1983 case on the subject. As the case in hand is a different one distinguishable from an ordinary normal case of temporary injunction, we believe it would be helpful to discuss the above referred case also. In this case it was held that existence of a prima facie case alone is sufficient for granting temporary injunction. The Court observed that without going deep into the merits, "the Court will only look to the difficulty in resolving the points that arise in the case and, if it is of the view that a substantial, or, serious question of law, or fact arises, the requirement of having a prima facie case would be satisfied"
(Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1943 Karachi 387, at p 399),
7. The principle laid down in the above cases is that a temporary injunction may be granted, notwithstanding of the fact that the three ingredients don't co-exist where circumstances make out a good arguable case on the strength of a prima facie case only. To further enlighten ourselves on the Subject, we were able to come across the case of Brownlee v. Four Seasons Holding Incorporated, from the UK jurisdiction.
The test of a good arguable case was discussed in Browonlie v. Four Seasons Holding Incorporated by the UK Court Appeal (Civil Division) [2015] EWCA Civ 665. The case shortly was that the respondent got injured and her husband (both citizens and residents of the UK) killed in a road accident during an excursion in Egypt. The excursion was organized by the caretaker of the appellant (Four Season hotel, a Canadian corporation). On return to the UK, the respondent brought, a claim for damages under the contract as well as in torts. The respondent obtained permission of the Court to serve proceedings without notice on the appellant in Canada. The appellant challenged the permission. The question before the Court was that the respondent has to show a "good arguable case" in respect of her claims for damages both in contract and in torts.
The question of exercise of jurisdiction was linked to a good arguable case. The Court observed that in order to answer the question whether a good arguable case has been made out to ascertain that the case is covered by one or more conditions called 'the jurisdictional gateways'.
The Court further observed, that while doing so, it has to apply the "Canada Trust gloss". The argument of the appellant was that the Court didn't apply the test. The Court quoted from the judgment in Canada Trust Co. v. Stolzenberg (No. 2) [1998] 1 WLR 247: On appeal from the above referred case (of 2015), the Court explained the good arguable case in the following words: "What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the Court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it (Four Seasons holding Inc. v. Browlie [2017] UKSC 80, at p 5)."
8. As sequel to the above discussion, we hold that a good arguable case is made out in favour of the petitioner. We allow the instant writ petition and grant temporary injunction in favour of the petitioner but for a period of 45 days during which the learned Tribunal shall decided the case.