' This revision arises out of a prayer for a temporary injunction which accompanied the suit of the present petitioners Sarfaraz Ahmed and others for a declaration and permanent injunction and possession of a shop bearing No, 1-1/18 Munsafi Road, Quetta. It is necessary to state briefly the circumstances which led to the petitioners suit and the prayer for the temporary injunction made therein. The shop in question was leased out by Anjuman-e-Islamia, Baluchistan to one late Bashir Ahmad the predecessorin-interest of the petitioners on a monthly rent of Rs, 50 per month. It is alleged that the said Bashir Ahmad allowed the respondent Abdul Waris to operate the machine installed in the said shop and used to receive Rs, 10 per day. Sometimes in July, 1982 the Anjuman- e-Islamia issued a notice to the petitioners to answer the allegations that the shop in question was found, to have been sublet to Abdul Waris the respondent. It is alleged in the suit that the reply to that notice was offered and the allegations were denied but the Anjuman did not accept the explanation offered and having terminated the tenancy of the plaintiffs accepted Abdul Waris as tenant in the shop and in consequence thereof the monthly rent was being received by the Anjuman, from Abdul Wads. It was complained in the suit that the possession of Abdul Wads was only that of a licensee and this was in the knowledge of the Anjuman-e-Islamia Baluchistan. It was further alleged that the defendant No, 2 Abdul Wads in collusion with the Anjuman-e-Islamia Baluchistan had dispossessed the petitioners, despite the fact that the tenancy legally subsists in favour of the petitioners. It was prayed therefore that-
(i) to declare that tenancy between Anjuman-e-Islamia Baluchistan and the present petitioners continues to subsist.
(ii) to declare that Abdul Waris is not the tenant of the Anjuman-eIslamia and is in unlawful possession of the shop.
' It was further prayed that as a consequential relief that the defendants be directed to restore the possession of the shop to the plaintiffs/ petitioners. To issue permanent injunction to the defendants requiring them to desist from interfering in the peaceful possession of the shop, by the plaintiffs as tenants:"
2. An application under Order XXXIX, rules 1 and 2, C. P. C. Read with section 151, C. P. C. Was filed alongwith the said suit and it was prayed that the shop be sealed off till the disposal of the suit. The Anjuman-e-Islamia did not file any written statement or rejoinder to the application but the respondent No, 2 controverted the averments of the suit and also contested the application made under Order XXXIX, rules 1 and 2, C. P. C. The learned Senior Civil Judge, Quetta vide his order dated 10-11-1982 found that the plaintiffs/petitioners had made out a prima facie case and held that if the interim relief is refused the plaintiffs/petitioners would suffer irreparable loss and balance of inconvenience was found in favour of the plaintiffs. Accordingly the shop was ordered to be sealed till the disposal of the suit. There is an allegation that the shop was sealed in persuance of this order but later the seal was broken and the matter was reported to the police but this aspect of the case does not require any notice at this stage as the appeal filed by the respondent Abdul Waris against this order of the learned Senior Civil Judge, Quetta was accepted and the application for temporary injunction in the terms prayed for was dismissed. The present revision is against this order of the Additional District Judge, Quetta.
3. The main contentions of the learned counsel for the petitioners before me are (i) that the relationship of Abdul Wads was that of a licensee and this was within the knowledge of the Anjuman-e-Islamia Baluchistan and the determination of the tenancy of the present petitioners by the Anjuman and leasing out the shop to Abdul Waris was clearly in collusion against the present petitioners, (ii) and once it is found that it is a case of licence the order of the Additional District Judge, Quetta was not justified and the only way for the eviction of the petitioners was to proceed under law which having not been taken, the prima facie case in favour of the plaintiffs/ petitioners was made out.
4. These contentions would be dealt with in my this judgment later. The main contention of the learned counsel for the respondent Abdul Waris is that the application made by the petitioners for sealing the shop was not an application for injunction of the type contemplated in Order XXXIX, rules 1 and 2, C. P. C. That not only it is mandatory in form but it does not maintain or restore the status quo at the time the cause of action arose. It is urged in addition that the suit does not lie at all. It appears to me that this second point hardly arises at this stage though it can doubtless be urged in the main case and what has to be seen is whether the injunction sought for does or does not comply with the conditions laid down in Order XXXIX, rules 1 and 2, C. P. C. Which is being reproduced- "ORDER XXXIX
1. Cases in which temporary injunction may by affidavit or otherwise
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditor, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach.-(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment apply to the Court for temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2)' The Court may by order grant such injunction on such terms, as to the duration of the injunction, keeping an account, giving security or otherwise, as the Court thinks fit.
(3) In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release.
(4) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto."
From a bare reading of the above it becomes clear that the provisions contained in Order XXXIX, rule 1, C. P. C. Are not attracted at all to the present case as there is no allegation that the shop in question is in danger of being wasted, damaged or alienated or wrongfully sold, or disposed of.
Rule 2 regulates the grant of a temporary injunction in suits for injunction against apprehended breach of contract or other injury of any kind arising out of the same contract or relating to the same property or right. The main purpose being the maintenance of status quo.
5. The real question is whether the prayer for closing the shop can be said to maintain or restore the status quo at the time the cause of action arose. I am clear in my mind that from the facts of the case as alleged/ relied on by the plaintiffs/petitioners themselves, the closing of the shop would not be restoring the status quo at the time of the filing of the suit but would certainly create a new situation because the plaintiffs themselves allowed the defendant Abdul Waris in the shop as such it would not b within the scope of injunction contemplated under Order XXXIX, rule 1 or rule 2, C. P. C. I find, therefore, that the learned Senior Civil Judge, Quetta had acted without jurisdiction in passing an order which is not covered by Order XXXIX, rule 1 1 and 2, C. P. C. And that he has gone beyond the scope of that Rule.
6. The apprehension of the plaintiffs before the Senior Civil Judge was that the defendant Abdul Waris may either dispose of the machine and damage the same and for that purpose the shop was prayed to be sealed off.
Under the circumstances of the case, however, true and just the plaintiffs/petitioners claim may finally be shown to be, he cannot be given the relief he seeks until he has proved' his case.
7. The well-settled principles for the grant or refusal of temporary injunction are firstly whether the plaintiff had a prima fade good case, secondly whether the balance of convenience lies in favour of the grant of injunction, thirdly whether the plaintiff would suffer irreparable loss if the injunction is refused. The learned Additional District Judge, Quetta has opined that in the circumstances of the case it is the defendant/respondent Abdul Waris who would suffer inconvenience and loss if the shop is sealed as admittedly he was in possession for more than 20 years by the consent of the petitioner's predecessor-in-interest who were contended only with a sum of Rs, 10 per day, and had allowed respondent Abdul Waris to install machinery in the shop which had been found in the shop even by the local Commissioner appointed by the learned Additional District Judge, Quetta. The learned Additional District Judge has, therefore, rightly held that the loss even if ultimately it is found to have been caused to petitioners/plaintiffs, that can be calculated easily in terms of money. There is yet another aspect of the case and it is that even the conditions as laid down for the grant of temporary injunction are fulfilled it may be refused as it is a matter of discretion of the Court. Injunctions are after all a form of equitable relief and they have to be adjusted in aid of equity and justice to the facts of each case and one of the maxims of equity is that "one who seeks equity must himself do equity." The plaintiffs/petitioners obtained the shop from the Anjuman-e- Islamia at a nominal rent of Rs, 50 per month and passed on the possession of the shop to respondent Abdul Waris and were realizing Rs, 300 per month. This act of the petitioners was clearly in violation of the law as no, tenant can be allowed to sublet the premises without the written consent of the landlord which in the present case admittedly had not been obtained from the Anjuman and not even alleged in the suit that late Bashir Ahmad had obtained such consent of the Anjuman-eIslamia.
8. Through this revision petition I am called upon to exercise the revisional jurisdiction under section 115, C. P. C. Which is of a limited nature and can be invoked only when it is shown that the subordinate Court has - (0 exercised jurisdiction not vested in it by law, or (ii)failed to exercise a jurisdiction so vested, or
(iii) acted in the exercise of its jurisdiction illegally or with material irregularity.
' Normally absence of jurisdiction connotes an absence of power to deal with a particular case or exercising of powers in excess of powers conferred by law. The - next question is whether the jurisdiction has been exercised illegally or with material irregularity and this depends upon the provisions of law that have been disregarded. The words "material irregularity" have come up for consideration before the superior Courts of this country and the decisions indicate that a Court would be said to have acted with material irregularity when it commits an error of procedure which may affect the ultimate decision in the case. The illegality must be in the manner of arriving at a decision as distinct from arriving at a conclusion. Reference may be made to Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (1) and Shahzada Muhammad Umar Beg v.
Sultan Mahmood Khan and another (2).
' If a Court has jurisdiction its conclusion whether on matters of law or facts, cannot be questioned unless such conclusions affect the decisions of the cases. There can be no two opinions that Additional District Judge, Quetta had the jurisdiction and had powers to deal with the subject- matter and was possessed of powers to make decisions of the matter which he made. The Additional District Judge has found that no irreparable loss would be caused to the petitioners as they would be compensated for the loss that they may sustain by non-issuance of the injunction if they ultimately succeed. Nothing worth consideration has been pointed out to show that {{FOOT NOTE}}
(1) P D 1964 SC 97 (2) P D 1970 SC 139 {{FOOT NOTE}} the above conclusion of the learned Additional District Judge, Quetta is in any manner arbitrary or fanciful. Raja Muhammad Afsar, the learned counsel for the petitioners has also not been able to show before me as to what irreparable loss would be caused to the petitioners in case the injunction is not granted. The admitted position is that the petitioner had themselves inducted the respondent Abdul Waris for a consideration of Rs, 10 per day. That being so, if they succeed in the suit they can be compensated monetarily for the loss as it would be measureable in terms of money. There can be no dispute with the principles of law that the loss which is measureable in terms of money cannot be called irreparable. I have already pointed out in this judgment that the application made by the plaintiffs/petitioners was not in conformity with the provisions of Order XXXIX, rules 1 and 2, C. P. C.
9. Having given due consideration to the case I am of the opinion that no case is made out for the interference by this Court in the orders of the Additional District Judge, Quetta in the exercise of the revisional jurisdiction. It has been very aptly pointed out by Mr. Munawar Ahmad Mirza, the learned counsel for the respondent Abdul Waris that a mere presence of a prima facie case or arguability thereof as considered by the learned Senior; Civil Judge will not by itself be a ground for issuing a temporary injunction. It is by now well-settled that all the three conditions viz, the existence of a prima facie, case the irreparability of loss and balance of convenience must co-exist before the temporary injunction would be allowed in the matter. The appellate Court has found that no irreparable loss would be caused to the petitioners and the balance of convenience was found in favour of the respondent Abdul Waris. This finding does not appear to be arbitrary or fanciful and in the circumstances of the case the discretion exercised by the Additional District Judge, Quetta in disallowing the application for sealing the shop is not voilative of any principles of law and is manifestly in consonance with the principles laid down governing the controversy, and does not call for any interference in the revisional jurisdiction of this Court. The revision is, therefore, dismissed with costs.