' Petitioners filed a suit on 24-3-1984 for a decree of permanent injunction being passed against the defendants to restrain them from obstructing the flow of their water through a drain passing from their property to run into the lane in the street. Therein they also put in an application for issuance of a temporary injunction to the same effect. On 25-3-1984, learned Civil Judge issued an ad interim injunction restraining the closure of passage of water until the date 29-3-1984, to which the matter was put off. On 1-4-1984 a Local Commissioner was appointed with the consent of the parties to visit the site and report whether the disputed passage for exit of water existed on the spot or not and if so, since when it was running and whether there was any alternate passage for flow of water. Local Commissioner visited the spot in the presence of the parties and their counsel and also took photographs of the disputed passage of water. On 3-4-1984 plaintiffs put in another application complaining about the violation of the temporary injunction by the defendants in their having partly obstructed the flow of water which was also prayed for to be got removed. The matter was again referred to the Local Commissioner who recorded the statements of the parties on 5-4-1984 and submitted his report in the Court on 7-4-1984 but it was not objected to by either party. On 26-4-1984 defendants filed a written statement to contest the suit and also put in written replies to contest both the applications. Learned Civil Judge considered the matter and taking up both the applications together, by his order, dated 30-4-1984, concluded that the plaintiffs have got a prima facie case and irreparable loss to likely to accrue to them in the event of the refusal of temporary injunction, so that the consideration of balance of convenience was also in their favour.
Accordingly, he issued the temporary injunction prayed for with a direction in a mandatory form requiring the defendants to restore the passage of water from the house of the plaintiffs and remove the obstruction within 7 days.
2. An appeal thereagainst filed by the defendants has been accepted by the learned District Judge on 16-5-1984 to set aside the order of the trial Court and vacate the temporary injunction on the assumption that the order of the trial Court created new state of things different from those existing on the date of institution of the suit and in this behalf he relied upon the statement made by Haq Nawaz plaintiff before the Local Commissioner on 2-4-1984. Plaintiffs have now come up to this Court on revision.
3. Learned counsel for the petitioners has argued that learned District Judge has erred in the exercise of his jurisdiction in interfering with the discretionary order passed by the trial Court despite the existence of inherent power in that Court to undo that act done in disregard of the injunction so that the parties be brought back to the original position, as has been held in Bakhtawar etc. v. Amin etc. 1980 SC MR 89. He next argued that the District Judge has further erred in interfering with the discretionary order of the trial Court without specifically holding in clear terms that it had improperly exercised its discretion and submits that in the absence of such a conclusion the order of the trial Court could not be varied. Reliance is placed on Ghazi Nasiurddin v.
Seth Hashim Dawood Divan and others PLD 1962 Kar.
59. In the end, learned counsel prayed for the order of the trial Court being restored for the reason also that it aimed at continuing the state of facts and facilitated the object of law and justice so that interference therewith was not called for.
4. In rep y, learned counsel for respondents simply repeated the contents of the order of the learned District Judge to urge that there was no evidence to order its reversal.
5. After giving anxious consideration to the foregoing contentions, I have come to the conclusion that the appellate order is unsustainable for the wrong approach of the learned District Judge who has not kept in view that the trial Court's order had been passed on two separate applications, and it was not a mere one mandatory temporary injunction ordered by that Court, in exercise of its discretion properly regulated upon a due consideration of the rules governing the matter. There can be no doubt that the trial Court had the inherent power to bring the parties to the original position by ordering the removal of the temporary obstruction which, however, did not detract from the propriety of the issuance of the basic order of temporary injunction as had been prayed for. In Begum Akhtar Akhlaque Hussain and another v. Saghir Ahmed and 12 others 1980 CLC 1892 it has been held that appellate Court should not interfere with the discretion exercised by the trial Court particularly when the same was meant to advance the purpose of law and the cause of justice.
6. Upshot of the foregoing is that this civil revision is accepted and setting aside the order, dated 16-5-1984 passed by the learned District Judge, Khoshab, the one dated 30-4-1984 passed by the Civil Judge, Jauharabad, is restored. There will, however, be no order as to costs.