M UHAM M AD NAEEM ANW AR, J. Through the instant petition, the petitioner has assailed the order of learned Additional District Judge-MIL Peshawar, dated 04.11.2019, whereby the appeal filed by respondent No.1 against the judgment and order of learned Civil Judge-I, dated 26.09.2019, was accepted and application for the grant of temporary injunction filed by the petitioner was dismissed.
2. Concise facts of the case are that the petitioner had instituted a suit for declaration to the effect that she is in possession of the property, the details of which was mentioned in head of the head note "A" of the plaint, on the basis of ex parte judgment and decree passed by Judge, Family Court, Dipal Pur (Okara), dated 09.05.2019, on the basis of entries in column No. 16 of 'nikahnama'. It was alleged by the petitioner that she was married to Sami ur Rehman son of Abdul Manan regarding which on solemnization of 'nikah.', the term and condition were properly incorporated in the 'nikahnama' dated 6.10.2010, vide which the disputed property was given to her by Sami ur Rehman.
It was contended by the petitioner that the suit property, which was decreed in her favour, was alienated by respondent No. 1 to someone else regarding which she prayed that they may be stopped from further alienation of it.
3. Respondent No. 1 while appearing before the court has contended that the petitioner has never remained legally wedded wife of respondent No.1, as such, the entries in the nikahnama are forged, fictitious, fabricated and are the result of fraud. It was further contended that Sami ur Rehman has left for China in year, 2009 and, thereafter, uptill now he has never returned back to Pakistan. Ele contended that Sarni ur Rehman has appointed him as General attorney through registered deed No. 563, dated 19.07.2017, on the basis of which he has alienated the property, which is already in possession of the vendees. It was further contended that the petitioner has got no concern with Sami ur Rehman as in accordance with entries in her CNIC, she is shown to be the wife of one Gulam Murtaza. The learned trial court, after hearing both the parties, in respect of the application filed under Order XXXIX, rules (1) and (2) of the Code of Civil Procedure, 1908, has accepted the application, vide its order dated 26.09.2019. Respondent No.1 has preferred an application which was allowed, resultantly, the order of learned trial was set aside and application for the grant of temporary injunction was dismissed, hence, the instant petition.
4. Arguments heard and record perused.
5. The facts, as alleged by the petitioner, that as she was granted a decree by the learned Judge, Family Court, Dipal Pur, (Okara) and, as such, she become owner of the property, vide judgment and decree dated, 09.05.2019. Learned counsel appearing on behalf of the petitioner candidly conceded at the bar that alienation of the property by the respondent No.1 was through registered deed No 433 dated 8.3.2019 on the basis of which three mutations bearing Nos. 8301, 8302 and 8303 were attested. Admittedly, the person, in whose favour the registered deed was attested, on the basis of which mutations were attested, they are not before the court as respondents. In accordance with provisions of Order I, Rule 10, C.P.C, there may be two sets of parties, necessary and proper. Necessary party is one, in whose absence, no effective decree can be passed. In the instant matter, the persons in whose favour the transaction was made through the registered deed No. 433 against whom, the claim of the petitioner is that they be restrained from further alienation are not before the court, then how the order of the court could be executed and against whom plea should be taken, was a question mark. Learned counsel for the petitioner, when confronted with this legal aspect of the case, has candidly accepted that there is flaw in the instant suit, however, he went on to say that an application for amendment of plaint was moved before the trial court, on acceptance of which amended plaint was submitted. Be that as it may, the attested copy of amended plaint was placed on file, which reveals that besides respondent No. 1, there are six respondents against whom the petitioner intends to get a restraining order in respect of the alienation of the disputed property in favour of anyone else. Though the vendees of respondent No.1 have already been arrayed as party before the trial court but it was never requested before this court till today for their impleadment in the array of the respondents, therefore, the instant revision petition is not properly filed.
6. For the grant of temporary injunction co-existence of three essential ingredients i.e., prima facie case, irreparable loss and balance of convenience are must. In the instant case, it was averred by the petitioner that she has become owner of the property on the basis of a decree which was passed against one Sami ur Rehman but interestingly the said Sami ur Rehman was also not arrayed as party. It was alleged that respondent No. 1 in the capacity of general attorney had alienated the property in favour of his vendees. The prayer fox declaration reveals that the power of attorney on the basis of which alienation was made not particularly challenged by the petitioner.
Once again, the learned counsel for the petitioner referred to the amended plaint wherein the factum of execution of the power of attorney was shown to have been challenged by the petitioner.
Learned counsel for the respondents categorically stated at the bar that the decree which was passed against Sami ur Rehman has already been assailed before the court of competent jurisdiction, operation whereof has been suspended.
7. The fact that petitioner was legally wedded wife of Sami ur Rehman and as to whether the disputed property was intended to be transferred to her regarding which the suit was filed and decreed is still subjudice before the court, as operation whereof, has already been suspended and these are the facts which are yet to be proved through recording of pro and contra evidence.
Similarly, the fact as to whether respondent No. I was legally appointed as general attorney as the alienation through registered deed No. 433 is subject to proof. The above referred facts were strenuously opposed by the opposite side and in this scenario the case of the petitioner is one which is standing in need of evidence, the facts as alleged are still to be proved. The principle for grant of temporary injunction is that "suit stands in need of evidence, to he recorded for its establishment, is not considered to be a prima facie case". Reliance is placed on 1987 CLC 2416.
Similarly, the valuable rights have been accrued in favour of the vendees of registered deed bearing No. 433; therefore, at this juncture, the balance of convenience does not tilt in favour of the petitioner. As far as the irreparable loss is concerned, the learned counsel for the petitioner has not been able to point out any such irreparable loss except multiplicity of proceedings. As stated earlier that the facts alleged by the plaintiff are yet to be proved before the court.
8. For all what has been discussed above, the instant petition is hereby dismissed with no order as to costs.