1. ' MUHAMMAD HALEEM, C. J.-The petitioner seeks leave to appeal against the judgment of the Peshawar High Court, Peshawar, dated 14th of January, 1983 by which Civil Revision No, 71 of 1981, was dismissed.
2. ' Arshad Javed was the owner of 47 Kanals and 12 Marlas of agricultural land bearing 12 Khasra numbers in Khata No, 95, situate in village Gandiali Payan, Tehsil Kohat. This represented his 7/12th share in the Khata. He mortgaged the share vide Mutation No, 156 to Agha Jan for Rs, 30,000 but this mutation was not attested. Again by an agreement dated 12th of March, 1981 which purported to be an unregistered sale-deed, he sold it to Agha Jan for Rs, 1,73,750 after adjusting Rs, 30,000. But this transaction was also not mutated and finally it was cancelled on 18th of June, 1982 by another unregistered document. However, before the cancellation of the transaction, Kundal Khan instituted a suit on 13-7-1981 for pre-empting the equity of redemption on the basis of his right as a co-sharer in the Khata.
3. ' During the pendency of the suit, Arshad. Javed sought to exchange his 7/12th share with some land belonging to Mst. Warman Ji sister of Agha Jan and in this connection two exchange mutations bearing Nos. 302 and 303 were entered, but they were not attested. Further it appears that Arshad Javed made an application for being joined as a party in the suit, but the trial Court rejected his application against which order he went in revision, which is still pending.
4. ' Kundal Khan filed an application under Order XXXIX, rule 1, C. P. C. Seeking an injunction to restrain Arshad Javed and Mst. Warman Ji from getting the exchange mutations attested by the Tehsildar, Kohat. The trial Court rejected this application on 6th of October, 1962 holding that as the Tehsildar was not a party to the suit he could not be legally restrained from attesting the exchange mutations.
5. ' In appeal, the respondent succeeded as the District Judge, Kohat, issued an injunction in terms : "That the vendee Agha Jan and Arshad Javed would not enter into the impugned exchange mutation during the pendency of the case."
6. ' Against this order the petitioners went in revision and a learned Single Judge in the High Court upheld the order on the ground that it was passed on a "proper appreciation of the facts of the case and in the exercise of discretionary powers vested in the Court under Order XXXIX, rule 1, C. P.
7. C." therefore, "interference in revisional jurisdiction by this Court is uncalled for".
8. ' We issued notice to the respondent and he is represented today. It appears that the injunction was sought to restrain Mst. Warman Ji sister of Agha Jan and Arshad Javed from getting the mutations attested. Both these persons were not parties in the suit nor was the Tehsildar a party although he was under a statutory obligation to attest the mutation within three months under section 42 (2) of the West Pakistan Land Revenue Act otherwise he had to offer his explanation.
9. Accordingly, it remains to be seen whether an injunction can be granted to restrain persons who are not parties in a suit.
10. The first appellate Court without considering this provision issued an injunction against Arshad Javed, who was not a party in the suit, and Agha Jan although the transaction of exchange was between Arshad Javed and Mst. Warman Ji, sister of Agha Jan, who was also not a party. The High Court despite noticing the fact that Arshad Javed had applied for being impleaded as a party, but was not successful and that a revision was pending yet upheld the order as being in the exercise of proper discretion without considering that it could not have been issued against those who are not parties in the suit. It would have become obvious if the learned Judge in the High Court bad cared to look into the relevant provision, i,e,, Order XXXIX, rule 1 (a), C. P. C. Which specifically refers to the "party to the suit." In this view of the matter, the learned counsel for the respondent was unable to support the order.
11. ' Accordingly, we would convert this petition into an appeal, and while setting aside the impugned orders, we would restore that of the trial Court. The appeal is accordingly disposed of.