1. ' This revision is directed against the order of 5th Additional District Judge, Karachi, dated 7th March, 1979 allowing application of respondent for grant of a temporary injunction in a pending suit for declaration and permanent injunction on the condition that the respondent in order to complete their construction work may remove the existing glass partition on the back portion of the shop of respondent and after merging the present corridor ceiling with the lobby ceiling shall restore the removed glass partition and the entrance door in the same position within 20 days.
2. ' I have heard Mr. Muhammad Ali Sayeed and Mr. Shahenshah Hussain, the learned counsel for the applicant and respondent respectively.
3. ' Mr. Muhammad Ali Sayeed, the learned counsel for the applicant has mainly contended that the order of the Additional District Judge, dated 7th March, 1979 directing the applicant to complete the remaining construction work by removing the existing glass partition wall at the back of respondent's shop and to restore the same in the same position after completion of work, is an order in excess of jurisdiction as the controversy in the suit between the parties related only to the closing of the access from the back side of the shop of respondent. The admitted position in the case is that shop No, 10 occupied by the respondent in the shopping arcade of the applicant had its main entrance from the front side facing Club Road and the back side of the shop had a glass partition with a door opening into the corridor. Adjoining the corridor there was an open space in between the shopping arcade and the main Hotel building. In or about January, 1978 the applicant commenced its rehabilitation programmer which amongst other improvements involved extension of the existing lobby of the hotel right up to the shopping arcade across the open space which meant merging of the ceiling of the hotel lobby with the ceiling of the shopping arcade. In the year 1979 when, the aforesaid work was in progress the respondent filed a suit before the 20th Civil Judge, 2nd Class, Karachi, for declaration and permanent injunction. In the suit the plaintiff filed an application for grant of a temporary injunction restraining the applicant from closing back access of the shop. The trial Court granted ad interim status quo order on the application but after hearing the parties vacated the same and dismissed the application for grant of temporary injunction mainly on the ground that the respondent is a licensee of applicant and therefore not entitled to the relief of injunction. On appeal the 5th Additional District Judge, took the view that respondent has succeeded in making out a strong prima facie case, the balance of convenience is also in his favour and if injunction is not granted he is likely to suffer irreparable injury. However, keeping in view that a major portion of improvement work commenced by the applicant was already executed by them the learned Additional District Judge, allowed the respondent to remove the existing glass partition and to restore the same after completion of the work but not later than 20 days from the date of its commencement. It is necessary to reproduce here the operative part of the order of the Additional District Judge, which is now challenged in this revision in order to dispose of the contention of the learned counsel. The relevant portion of the order is as follows :- "During the course of argument Mr. Ghanchi of respondents suggested that let the wall be raised by removing the partition and then the appellant shall be at liberty to establish its claim. He, however, did not come out as to what is the future plan and what would be the fate of the appellant after the removal of the proposed temporary wall. The appellants showed no objection against the temporary removal of glass partition and for raising another temporary wall, as referred to in respondent's letter dated 24th October, 1978, but its anxiety was as to what would be its future. Mr. Ghanchi was not at all prepared to disclose the real intentions of the management.
14. However, after considering each and every aspect of this case, I am of the considered opinion that the appellant has made out a good prima facie case and has also been able to show that balance of convenience lies in his favour and that it would suffer irreparable loss if injunction is not issued. However, in view of the peculiar circumstances of this case that major portion of respondent's work has been completed and in order to minimize the difficulties of the respondents as well I would prefer to issue interim injunction to the effect that after removing the existing glass partition the respondent may raise temporary wall as suggested by Mr. Ghanchi during the course of arguments, as also indicated in letter dated 24th October, 1978, but immediately after merging the present corridor ceiling with the lobby ceiling the respondent shall restore the original position of the appellant i. e. Would bring back the glass partition and the entrance door to the shop as undertaken by them in their own letter dated 24th October, 1978, but this work shall be completed within at least 20 days from its commencement. The appellant also apparently have no objection to this temporary arrangement. This interim arrangement shall, however, remain in force during the pendency of the suit. The suit shall, however, be disposed of finally on merits within four months hereof positively, with these observations, the appeal is disposed of and the parties are directed to appear before lower Court on 15th March, 1979. It is hoped that the trial Court shall not encourage unnecessary and frivolous adjournments in this case."
4. ' The main grievance of Mr. Muhammad Ali Sayeed, the learned counsel for the applicant before me is that the order of the learned Additional District Judge, allowing the applicant to remove the glass partition wall with the condition that it will be restored after completion of the work is an order in excess of jurisdiction and therefore it should be set aside. It is contended that the only grievance made in the suit as well as in the application for grant of temporary injunction related to closing of access to the shop from the rear and therefore the direction of the Court below regarding restoration of glass partition after completion of work was ultra vires as it did not cover the matter which was subject of controversy in the suit between the parties. The learned counsel referred to the cases of Muhammad Javid Iqbal v. The Government of Pakistan and Marghoob Siddiqui v.
5. Hamid Ahmad Khan in support of his contention.
6. ' The above cases cited by the learned counsel have no application to the facts and circumstances of the present case. In the first cited case of Muhammad Javid Iqbal the compromise between the parties related to the disposal of an interim injunction application wherein the Advocate.
7. Appearing for the respondent had agreed to the grant of injunction on furnishing security for the payment of the amount of telephone bills which was in dispute in the suit as well as for the future bills. It was contended by the petitioner in that case that the demand of future telephone bills by the Department amounted to breach of injunction which was granted as a result of compromise.
8. This contention was repelled by the Court and it was held that in the suit which was filed before the Civil Judge the question of payment of future bill was not at all in dispute and therefore the .
9. Compromise/settlement between the parties relating to payment of future telephone bill was outside the scope of suit and therefore was ultra vires and not binding on the parties. In the case of Marghoob Siddiqui cited by the learned counsel the Court found that in the absence of a prayer for grant of permanent injunction in the suit, the question of grant of temporary injunction did not arise. In the present case firstly the order of 1st Appellate Court ordering restoration of glass partition wall on the back of respondent's shop could not be said to be beyond the scope of the suit as at the time of filing of the suit the glass partition wall was very much in existence and respondent was allowed to remove the same under the impugned order. The learned counsel for the respondent has also invited my attention to the issues framed in the suit and it appears that one of the issues framed in the suit relates to the right of respondent to the glass wall on the rear portion of the shop occupied by him. Apart from it the remedy under section 115 of the C. P. C. Is a discretionary remedy and the Court will not exercise this discretion in favour of party who has acted in bad faith and has not come to the Court with clean hands. The impugned order allowing the applicant to remove the glass partition wall was passed on 7th March, 1979. The applicant taking advantage of this order removed the glass partition on the back of the shop of the respondent but refused to restore the same in accordance with the terms of the order. The present revision was filed in this Court on 5th of June, 1979 when the respondent complained to the Court that the applicant after removing the glass partition have failed to restore the same and prayed for an action in contempt against them. The applicant having acted upon the order and having derived benefit/advantage under it cannot be allowed to challenge the same now. In these circumstances even if I was to agree with the contention of the learned counsel for the applicant that the order of the Additional District Judge was in some manner not a proper order, I would have declined to interfere with the order in exercise of revisional jurisdiction on account of the aforesaid conduct of the applicant in the case. I accordingly dismiss this revision application with costs but in the circumstances of the case direct the trial Court to decide the suit before 31st August, 1982. 1974 SCMR 481 1974 SCMR 519