' Municipal Committee, Taxila, the petitioner herein, on being required by the Provincial Government, took in hand a project of building a new bus-stand on the basis of a plan approved by the Government for this purpose and undertook the construction of some shops there.
Respondents Nos.1 to 4, without laying any claim to the site under construction, filed a suit on 20- 10-1985 against the Municipal Committee and the Government of Punjab for grant of a decree of permanent injunction for construction of the shops being stopped for the reason that they would close the outer view of their shops existing since the year 1964 in Khasra No.406. They alleged also that an S.D.O. In the Highways Department, Rawalpindi has already issued notice to the Municipal Committee declaring the construction of shops by it to be illegal under Section 6 of the West Pakistan Highways Ordinance, 1959 so that they be removed but, despite it, the Committee has not stopped the construction of shops and is continuing with it. Alongwith their suit, the plaintiffs also filed an application under Order XXXIX, rule 1 of the C.P.C. For issuance of an interim injunction to the same effect.
' Although the Government of Punjab was impleaded as a defendant for the reason of its being proper party and had not been correctly described in accordance with Section 79 and Order XXVII of the C.P.C. So that an Executive Engineer or a Sub-Divisional Officer of the Highways Department did not have any right to represent the Provincial Government, yet, they filed a written statement dated 30-10-1985 to admit the suit of the plaintiffs with the specific prayer that it may be decreed and also conceded the prayer for issuance of temporary injunction. The Municipal Committee, however, contested both the suit and the application by contending that the shops are being constructed in accordance with the plan approved by the Government and are almost complete except for being roofed. The claim of the plaintiffs with regard to the alleged obstructing of the view of their shops was also denied and their right to such a view was controverted alongwith the plea of estoppel based on the ground that they had not raised any objection on the spot during the period that the construction was progressing which had now rached its final stages. Issuance of notice by the S.D.O. Was admitted but alleged to be the result of his collusion with the plaintiffs whose photo copy of the plan submitted in support of their assertions was also alleged to be ingenuine.
' Whereas the suit appears to still have to be tried, the application for grant of ad-interim injunction was taken up by the learned trial Judge for consideration and he heard arguments of the counsel.
Before him, some representative (identity not available) appeared for defendant No.2 to deny that the plan produded by defendant No.1 with the letter of approval bearing No.4847/C, dated 14th February, 1984 may be the same which had received the approval of the Government. He also produced some other plan which, however, was not accepted by defendant No.1 as genuine. Since no plan had been produced by defendant No.2 as being the office copy of the approved plan and none appeared to have been kept in its office records, therefore, in view of the disagreement of the parties about the extent of construction made on the spot and the notice of removal of construction having been signed only on 16-10-1985, learned trial Judge preferred to accept the plan produced by the Municipal Committee to be the correct one for the limited purpose of the application in hand being unable to determine the extent of construction, which had been admitted as regards the laying at least of foundations, concluded that the act of defendant No.1 did not appear to be illegal and rejected the application on 10-11-1985 with the observation that if it is ultimately found that the construction had been made without any right by the Municipal Committee then it will be removed by it at its own cost.
2. An appeal thereagainst filed by the plaintiffs came up for hearing before a learned Additional District Judge and a plea of absence of cause of action in the appellants to stop the construction was specifically raised on behalf of the Municipal Committee which, however, was not decided by him and he proceeded, instead, on the premises that since the intended construction of shops was in front of the shops of the plaintiffs, therefore, "it would spoil the outer view of the shops of the appellants and thus the appellants would suffer irreparably". He also concluded on the basis of notice issued under the Highway Ordinance that the plaintiffs have got a prima facie case in their favour. Consequently, he accepted the appeal on 26-1-1986 to grant an order of status quo till the decision of the suit. Paragraph 5 of his judgment may be advantageously reproduced:- "I have also perused the record that since admittedly the construction to be raised by the respondent No.1 is on High way in front of the shops of the appellants and the respondent No.2 has also served a notice under Section 6(2) of the West Pakistan Highway Ordinance, 1959, therefore, prima facie the appellants have a case in their favour and since the alleged construciton has not been raised so far, therefore, balance of convenience is also in favour of the appellants. In case the said shops are constructed it would spoil the outer view of the shops of the appellants and thus the appellants would suffer irreparably. In such circumstances, I am convinced that the appellants have prima facie case at this stage. Thus, I see no reason in the impugned order and set aside the same. I accept the appeal of the appellants and grant the status quo order in favour of the appellants till the final decision of the main suit. However, there is no order as to costs. The parties are directed to appear before the learned trial Court on 4-2-1986."
3. Municipal Committee, Taxila has now come up to this Court in revision and apart from disputing the correctness of the plaintiffs' stand and contesting the order passed in the appeal below on a factual plane with the submission that the petitioner's shops are situated 35 feet away from those of the plaintiffs, their locus standi to have the construction of the petitioner's shops stopped has been brought under serious attack with the assertion that they do not have a prima facie case in their favour and muchless is there any likelihood of their suffering irreparable loss on account of construction of shops by the petitioner in whose favour also tilts the consideration of balance of convenience.
4. Before dealing with the foregoing contentions, it will be relevant to mention that with the admission to regular hearing of this Civil Revision on 10-5-1986 on the stated grounds, an order was also passed on the petitioner's C.M. No. 488/C of 1986 to suspend the operation of the impugned order subject to notice. It had been fixed by the office for final hearing on 4-6-1986 but, in the meanwhile, on 15-5-1986 plaintiffs filed C.M. No. 532/C of 1986 wherein, after setting out some facts, it was submitted that on the basis of interim order, the petitioner Committee has started construction of the disputed shops and a prayer was made for the order being recalled or suitably modified. Since the act of construction of shops being taken in hand by the petitioner upon the suspension of operation was not unlawful, therefore, in view of the controversy raised by the plaintiffs-applicants it was considered more appropriate that on the date (4-6-1986) already fixed for hearing on C.M.No.488/C of 1986, the revision petition itself may be heard and decided and it was ordered accordingly. However, the matter was not heard on that date and was put off to 24-6- 1986 and. In the meanwhile, on 15-6-1986 plaintiffs moved another petition bearing C.M. No.624/C of 1986 to pray for auction of the disputed shops by the Municipal Committee being stayed until the final hearing of the revision petition and an order was passed on 16-6-1986 to, subject to notice, stay the auction until the 24th when the case was already fixed. Both the petitions (C.M. Nos. 488/C of 1986 and 624/C of 1986) have accordingly been listed for hearing today, alongwith the Civil Revision.
5. It is not in dispute between the parties that the site underneath the shops in dispute is situated within the Municipal limits of Taxila and since it was lying vacant, therefore, it would be deemed to vest in the Municipal Committee. No one else claims any right or interest in that site so much so that even the plaintiffs do not have such a claim there against and their plea is merely that the outer-view of their own shops is liable to be blocked by raising any construction in their front. So far as I am awar, there has not been in existence any law, excepting the law of easement, to grant an open view to a building which has to be properly pleaded and proved alongwith the extent of its enjoyment but in the plaint (copy available on this record) there is no plea available to justify even a prima facie conclusion on the point. Whereas learned trial Judge concluded that the plaintiffs have not made out any prima facie case for grant of a temporary injunction, the appellate Judge has found one to be existing because a notice under the Highways Ordinance has been issued to the Municipal Committee. It defies comprehension as to what nexus may such a notice even remotely have with the claim of the plaintiffs who, it is settled beyond controversy, can succeed only upon the strength of their own case and not on the weakness of the case of the defendant. If the defendant has in fact violated any provision of the Highways Ordinance XXXII of 1959 then the consequences provided therein will follow but it is not understandable as to by which process of rational thinking may such a violation of law, even if proved, be capable of making out a prima facie case in favour of the plaintiff? It has been repeatedly held that the discretion to grant temporary injunctions has not to be exercised as a matter of mere course but has to be regulated by the existence of a prima fade case in favour of an applicant and the likelihood of his having to suffer irreparabl loss as also the balance of convenience but, as has been held in Aijaz Hussain Bhatti and another v. Haji Bagh Ali and 9 others 1985 CLC 261, where a prima fade case is not made out there no occasion arises for attending to the other two considerations which, as has been held in Jamil Ahmad v. Provincial Government of West Pakistan and 4 others PLD 1982 Lahore 49 really belong to one and the same category.
6. Learned counsel for the plaintiffs-respondents has stated that the distance between the shops of the plaintiffs and the new shops constructed by the petitioner is only 25 feet which the petitioner's learned counsel puts as 35 feet, therefore, it is clear that the location of the shops complained about is not so close to the shops of the plaintiffs as may amount to a denial to them of a convenient access to their shops so as to be a case of easment of necessity. The appellate order is, however, sought to be defended with reference to the precedents reported as Municipal Committee, Delhi. v. Muhammad Ibrahim AIR 1935 Lah. 196; Joint Hindo Family Firm known as Lala Kasturi Lal Sant Lal v. Municipal Committee, Jagraon AIR 1939 Lah. 199; Lt.-Col. Nawab Sir Mohd.
Akbar Khan v. Provincial Government N.W.F.P. Through Collector, Mardan and others AIR 1942 Pesh.
1 and District Board of Manbhum v. Bengal Nagpur Railway Co. And another AIR 1945 Patna 200 which relate to obstructions raised on parts of highways and deal with rights of individuals to have access to the highway. First two cases were considered in the above-cited Peshawar case which itself was examined in a Supreme Court case reported as Pakistan National Oils Ltd. And another v.
Sattar Muhammad 1980 SCMR 686 which, again, being a case of right of approach to the highway and unhindered use of the site occupied by the opponent, does not help the plaintiffs- respondents. Observations, appearing in para 6 of the judgment which seem to have received approval of the Supreme Court are as under:- "The learned Judge also disagreed with the contention urged before him on behalf of the respondent that by the construction of the said petrol pump the right of frontage of his property had been blocked with the result that his property had diminished (sic) in value holding "The right of frontage of the property does not mean that a man, who, has constructed a house earlier has been vested with a right to check all the construction which is raised in front of his property. The right of frontage is a right to have some place vacant in front of the property in order to have access to the main road. I may further clarify that no person has got a right to claim that he should be allowed to reach the main road by a way which should be straight in (90) angle from his property to the main road. The plaintiff can reach the G . T. Road after passing through the street which exists in front of the house of the plaintiff and is about 23 feet wide."
' Since the suit has still to be tried and material questions of fact relating to the case set up by the plaintiffs have yet to be decided on the basis of evidence, therefore, I do not want to express any opinion at this stage about the merits of the case and suffice it to say that a case standing in need of evidence having to be led for being established, cannot be considered a proper subject for issuing temporary injunction.
7. Although the first obligation of a person desirous of having a temporary injunction issued in his favour is to make out a prima facie case, in absence whereof a Court cannot be deemed possessed of the power to issue it, yet as has been held in Marghub Siddiqi v.Hamid Ahmad Khan and 2 others 1974 SCMR 519, even in those cases in which such a case is made out the applicant does not become entitled to the grant of a temporary injunction as a matter of mere course and the Court has to attend also to the other two considerations relating to irreparable loss and balance of convenience before issuing a temporary injunction. In this case, however, the appellate Judge has not properly attended to any of the settled rules governing the grant of temporary injunctions, therefore, he has passed only a fanciful and arbitrary order which, as per the rule of law laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and re-affirmed in Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53, becomes liable to be set aside in revision.
' There also are two more weighty considerations disentitling the plaintiffs to the grant of temporary injunction prayed for by them. As has been admitted by them in C.M. No.624/ C of 1986, at least four shops of the respondent are complete and structure of another six has also been substantially raised. In such cases, as has been held in Malik Manzoor Hussain v. Muhammad Bashir and others 1980 SC MR 366 the consideration relating to balance of convenience gets tilted in favour of the opposite party so that a temporary injunction stopping construction will not issue. Moreover, since the construction of shops by the petitioner is a work of public utility, therefore, as has been held in Akhlaq Ahmad v. Karachi Port Trust and another 1980 CLC 1873 balance of convenience lies against the grant of temporary injunction.
8. Furthermore, since the appellate Judge has accepted the appeal to issue the temporary injunction upon reversing the trial Court's order refusing in its discretion to grant the temporary injunction but has not held in clear terms that the trial Court had improperly exercised its discretion to refuse to issue the injunction, therfore, he has acted with material irregularity in the exercise of his appellate jurisdiction whereby his judgment is rendered liable to be set aside in revision, as held in Ghazi Nasiruddin v. Seth Hashim Dawood Divan and others PLD 1962 Karachi 59.
' As regards the trial Court's observation with regard to the petitioner's liability to ultimately remove the structure in the event of finding being reached that its construction is unlawful, suffice it to observe that since the plaintiffs have not claimed any decree of mandatory injunction in their suit, therefore, an order to that effect was not open to be passed even at the intermediary stage.
9. In result, this revision petition is accepted and the order dated 26-1-1986 passed by the Additional District Judge, Rawalpindi in appeal below is set aside as being not sustainable in law and the relevant application filed in the trial Court by the plaintiff-respondents is rejected. The two Civil Miscellaneous petitions of the parties also accordingly stand disposed of. There will, however, be no order as to costs.