SYED SHAHID BAHAR, J. This revision petition is directed against the order passed by District Judge, Mirpur dated 31.08.2023, whereby the order passed by Senior Civil Judge, Mirpur dated 06.07.2023, was set-aside, however, the order to the extent of disallowing status-quo was maintained.
2. Brief facts of the case are that the plaintiff/petitioner filed a suit for perpetual injunction along with prayer for issuance of interim relief/status-quo before Senior Civil Judge, Mirpur against the defendants/respondents regarding land comprising survey Nos. 537, 538, 539, and 539 min, situated at village Kaneli Tehsil and District Mirpur. An application for interim injunction was also filed before the trial Court, whereupon initially temporary injunction was issued in favour of plaintiff against the defendants. After filing of the aforesaid suit, the defendants were summoned who appeared before the court of Senior Civil Judge/trial Court, Mirpur and filed objections upon application for interim relief. After hearing arguments, the learned Senior Civil Judge, Mipur/trial Court vide its order dated 06.07.2023 dismissed the original suit of the plaintiff/petitioner. Against the order of trial Court, the appellant/petitioner filed an appeal before the learned District Judge, Mirpur, who after hearing arguments, vide impugned decision dated 31.08 2023 set-aside the judgment of trial Court and remanded the case to the trial Court with the direction to decide the matter after hearing both parties on merit, however, the interim injunction was disallowed and agreed with the findings of the learned trial Court. Hence, this revision petition.
3. Mr. Riaz Ahmed Alam, the erudite counsel for the petitioner reiterated the fact as narrated in the petition and contended that the findings of the learned courts below are against the law and facts and liable to be set-aside. The learned counsel vehemently contended that the Commission reported that the non-petitioner Muhammad Nazir is constructing house upon the land survey No. 538, survey No. 537 is owned property/proprietary land, while survey Nos.538 and 539 both are "arahk", the petitioner is the owners of the land of village and residing there and under Ailan No.17(12), anyone from the village can challenge the same if the 'arahk dar' are not fulfilling the relevant requirements and committing violation, hence, in this perspective, the non-petitioners cannot be allowed to make construction upon the said land, illegally, hence, the learned courts below have failed to understand the controversy and arrived at wrong conclusion by allowing the non-petitioners to continue his construction/building house. The learned counsel finally prayed that the judgment of the learned District Judge dated 31.08.2023 to the extent of status-quo as well as the judgment of the learned trial Court dated 06.07.2023 may be set at naught.
4. While controverting the arguments of the learned counsel for the petitioner, Raja Inamullah Khan, counsel for the respondents contended that the non-petitioners are the owners of the suit land and they are making construction upon their land and petitioner has no concerned with the said property. He vehemently contended that the suit land is "arahak" and same was transferred to respondents through mutation No.1116 under the relevant law, i.e. AJ&K Regularization of Nutors and Grant of Khalsa Land Ordinance, 1974 (Amended in year 2021), hence, proprietary rights have been shifted properly in accordance with law out of land survey Nos.538 and 539 in favour of respondent No. 3/Muhammad Nazir Khan. The learned counsel defended the impugned order on all counts and lastly prayed for dismissal of the revision petition.
5. I have heard the learned counsel for the parties and gone through the record of the case with due care.
6. After deep perusal of record it transpires, particularly, from the report of Commission that respondent No.3 has completed three stories construction work in the suit land while infact land measuring 2 kanal was remained in his possession pertaining to survey Nos. 539 and 538 and he obtained the proprietary rights of the same under AJ&K Regularization of Nutors and Grant of Khalsa Land Ordinance, 1974 in lieu of Rs.8,54,007/-. While in juxta-position the petitioners herein aggrieved from the Proprietary Rights Transfer Order/Sanction of the suit land in favour of respondents by filing an appeal before Commissioner, Mirpur Division, Mirpur; that too, the petitioner has also, and while in previous round of litigation, the Hon'ble Supreme Court of AJ&K has declined the relief pertaining to survey numbers 537 in favour of petitioners vide its decision dated 26.05.2021.
7. Until and unless, the fact of proprietary rights of suit land obtained by respondent No. 3 are not decided by the competent fora i.e. Commissioner, Mirpur Division, no contrary stance can be entertained qua granted a land in favour of respondent No. 3.
8. Three pre-requisites introduced by law quo adjudication of grant or refusal of stay order speaks vide infra:-
1. Prima-facie case, ii. Irreparable loss, iii. Balance of convenience.
9. All three ingredient supra are to be judged in a manner that if these pre-requisites are simultaneously fulfilled, stay order is granted while on other hand in absence of any one of the above qualified criterion stay order cannot be issued, as the above ingredients breath from the Joint/Combined soul.
10. Prima-facie case is ascertained on the strength of facts flowing from the pleadings which in ordinarily and cursory angle convince a prudent mind in a way that if evidence and facts remain intact a decree can ultimately be passed, while the irreparable loss in short is a loss which cannot be calculated in terms of money and balance of convenience follow the tentative assessment of other 2 ingredients above, even a person enjoying a right with legal backing cannot be put in disadvantageous position.
(Underlining is mine)
11. Rationally the prima-fade case governs the other 2 ingredients the phrase prima facie case in its true paralance denotes a triable case where some substantial questions are to be probed are for that matter to be tried.
12. Injunction cannot be granted unless all the three conditions for grant of injunction co-exist.[1]
13. Injunction is an equitable relief based on well-known established principles.[2]
14. An applicant at the eve of asking for interim injunction must have to come with clean hands and establish a case on the weighting operates of above 3 ingredient in order to obtain equitable discretionary relief.
15. Nitty gritty of the instant revision is that the petitioner is asking for grant of stay order restraining the respondents, from raising further construction over the suit land, whereas the respondents have asserted that they have invested huge amount and almost construction is completed. Thus, issuance of temporary injunction will definitely create a new situation contrary to the ground realities pertaining to possession based upon proprietary rights.
16. There is no merit in the submissions of the petitioner, it becomes evident that 3 storied building has already constructed in the suit land by the answering respondent No. 3 and ongoing construction is nearing completion, therefore, balance of convenience lay in favour of the non- petitioner No.3 and ad-interim injunction stopping the construction at this stage cause irreparable loss to him rather than the petitioner; grant of proprietary rights by competent authority prima- fade speak for non-applicant No. 3. Thus, the above triangular survey of the facts captivated the judicial conscious to uphold the impugned decision and discard the revision.
7. Nutshell of above discussion is that instant revision petition is devoid of force, stands dismissed along with the other miscellaneous applications with no order as to costs.
1. 2020 YLR 63.
2. 2010 MLD1267 + 2007 YLR 1794 + 2020 CLC 1094 + 2017 MLD 1493.