' Land in dispute which measures about 100 Kanals and is situate in Cbak No. 4 M.P.R. Tehsil Lodhran, was included in the schedule of the lands reserved for re-settlement of Tarbela Dam evictees. Sher Muhammad, the predecessor-in-interest of the petitioners was admittedly an evictee from Tarbela Dam. Similarly, respondent No.
2. Khushhal, is also a Tarbela Dam ousted. WAPDA Authorities of Hazara District issued allotment chit in respect of the suit land in favour of Sher Muhammad, predecessor-in-interest of the petitioners, on 18th February, 1969. The petitioners' predecessor allegedly obtained possession of the suit land on the spot on 17th July, 1969. An undated order under section 10(4) of the Colonization of Government Land (Punjab) Act, 1912, was also passed by the Collector, Lodhran, District Multan, in favour of Sher Muhammad, the predecessor of the petitioners, in regard to the suit land.
2. Khushhal, respondent No. 2, was alilotted land in Chak No. 21/ M. P. R. Tehsil Lodhran, by the WAPDA Authorities of Hazara. The Collector passed order of allotment under section 10 of the Colonization of Government Lands (Punjab) Act, 1912, on 22nd October, 1968. A mutation was also sanctioned on 13th December, 1969. Respondent No. 2 applied to the WAPDA Authorities for exchange of his land from Chak No. 21/M.P.R. To Chak No. 4/M.P.R. His request was referred to the Collector, who recommended the case of the respondent for exchange to the Commissioner. The latter directed the Collector to decide the case himself in accordance with the relevant instrutions contained in the memo. Dated 1st May, 1969. The Collector vide his order, dated 12th August, 1969 allowed exchange to respondent No. 2, as a result whereof he was given the suit land in exchange of the land originally allotted to him in Chak No. 21/ M.P.R. The order of the Collector was challenged by the petitioners before the Commissioner by way of appeal. The Commissioner accepted the appeal but respondent No. 2 went in revision before the learned Member, Board of Revenue (Colonies), Punjab, Lahore. His revision was accepted by the learned Member Board of Revenue. He set aside the Commissioner's order and upheld the exchange. He found that no allotment of the suit land in favour of the petitioners' predecessor was proved and that he was in unauthorised possession of that land. The petitioners assailed the order passed by the learned Member Board of Revenue before this Court, by invoking the Constitutional Jurisdiction, but their writ petition was dismissed in limine.
3. Thereafter, the petitioners filed a declaratory suit before a learned Civil Judge, Multan, seeking a declaration to the effect that the orders of the Revenue Authorities, whereby the suit land was given to respondent No. 2 by way of exchange were illegal, void and ineffective. Along-with the plaint, an application for temporary injunction was also moved. That application was dismissed by the trial Court on 1st June, 1983. The petitioners preferred an appeal which was dismissed by a learned Additional District Judge, Multan, on 19th January, 1983. The aforesaid orders passed by the learned Civil Judge and the learned Additional District Judge have been called in question through the present Civil Revision.
4. It has been contended on behalf of the petitioner :
(a) That in the matter of grant of temporary injunction a prima facie case is to be found from the contents of the plaint and not from the contentions raised in written statement/reply filed by the opposite party.
(b) That the learned Additional District Judge has disallowed the petitioners' application for temporary injunction mainly on the ground that it was barred on account of principle of res judicata as the petitioner's Writ Petition had already been dismissed by the High Court, but the principle of res judicata is not applicable in the circumstances of the present case. As a matter of fact no plea of res judicata has been raised by the respondents.
(c) That this is a case of failure of exercise of jurisdiction on the part of the.Learned Courts below.
5. It is true that prima facie case has to be assessed initially from the contents of the plaint but in the circumstances of the present case it is even apparent from the contents of the plaint that the petitioners unsuccessfully litigated against respondent No. 2 upto the level of the Board of Revenue on the revenue side and upto the level of the High Court in the matter of Writ Jurisdiction.
6. The learned lower Courts, independent of any objection to be raised by the respondents, could take notice of the fact that the validity of the impugned exchange, upheld by the Board of Revenue, was assailed before the High Court by invoking its extraordinary Constitutional Jurisdiction but the writ petition was dismissed in limine.. It has been argued that since the petitioners' Writ Petition was dismissed in limine, therefore, this could not be treated as a dispute between the parties which was heard and decided. Reliance has been placed on Sh. Barkat All v. M. S. Zaman and others (1), wherein it was held that when the previous Writ Petition was dismissed in limine mainly on the ground of laches without any determination of the merits of the case, the decision did not operate as res judicata. Reference has also been made to Lt.-Col. Nawabzada Muhammad Amir Khan v.
The Controller of Estate Duty and others (2), Rana Zafarullah Khan v. Muhammad Usman and others (3), Mian Akhtar ' Islam v. Ch. Zulfiqar All and another (4) and Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property and others (5). In all these cases Writ Petitions/Civil Revisions were dismissed in limine without discussing the merits of the case. In the under consideration case, however, while dismissing the petitioners' writ petition in limine the High Court considered the merits of the case and discussed in detail the order passed by the learned Member Board of Revenue in his revisional jurisdiction. It was ultimately held that no law point was involved and, therefore, the Writ Petition was dismissed in limine. In Mir Ahmad Shah v. Pakistan and 2 others (6), it was observed :- "The mere fact that the orders passed against the appellant in the first round of litigation were made without summoning the opposite party is not enough to save the first appeal from the operation of the principle of res judicata. If there is a pronouncement by the Supreme Court regarding the merits of any case it will operate as res judicata even if it is made while disposing of a matter in limine.
' Similar view has been expressed in Abdul Majid and others v. Abdul Ghafoor and others (7).
7. In the circumstances of the present case, the petitioners have lost before the Revenue Authorities upto the level of the Board of Revenue.]
(1) PLD 1968 Lah. 770 (2) PLD 1961 SC 119
(3) PLD 1978 Lah. 901 (4) PLD 1965 Lah. 394
(5) PLD 1964 SC 865 (6) 1984 CLC 897
(7) PLD 1982 SC 146 They have also failed before the High Court in their writ petition. The learned lower Courts were, therefore, justified in coming to the conclusion that the petitioners had no prima facie case for the grant of temporary injunction, which is a primary prerequisite for the grant of a temporary injunction. In Ajmeer Khan v. Haji Wahid Hussain and others (1), the petitioner after losing the case throughout in all legal forums filed a declaratory suit in respect of the same matter and requested for the grant of temporary injunction. It was held :- "Having regard to the facts and circumstances-of the case we think that the learned Single Judge of the High Court was right in refusing to grant an interim injunction. The trial Court had originally refused to grant the interim injunction."
8. The petitioners have challenged the order passed by the learned lower Courts whereby their application for temporary injunction has been disallowed by invoking the Revisional Jurisdiction of this Court under section 115, Code of Civil Procedure. The discretion exercised by the Courts below in the matter of grant or refusal of temporary injunction cannot ordinarily be interfered with in exercise of Revisional Jurisdiction. It has been held in Muhammad Shafi and others v. Province of Punjab and another (2), that the discretion exercised by the Courts below in refusing to grant temporary injunction in favour of the petitioners cannot be interfered with in the exercise of limited revisional jurisdiction of this Court as provided under section 115, C. P. C. It was further observed that the revisional powers as contemplated under section 115, C. P. C. Meant primarily for correcting errors made by the subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion unless the discretion exercised by them is found to be arbitrary or perverse. In Kanwal Nain and others v. Fateh Khan and others (3), it was held that revisional powers under section 115, Code of Civil Procedure, were primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction. It was further observed that ordinarily erroneous decisions of fact are not revisable except in cases where the decision was based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom.
9. In the light of the above discussion, it is concluded that the impugned orders passed by the learned Courts below whereby the petitioners' request for temporary injunction has been refused do not call for interference by this Court in exercise of its revisional jurisdiction. This Civil Revision Petition, therefore, fails and is accordingly dismissed, leaving the parties to bear their own costs.
(1) 1976 SCMR 377 (2) 1981 CLC 749
(3) PLD 1983 SC 53 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.