This revision arises from an order dated 22-11-1986 of the learned Additional District Judge, Faisalabad, whereby he (i) converted an appeal arising out of a temporary injunction granted to the respondent/plaintiff, into a revision petition, (ii) accepted the same and (iii) rejected the plaint under Order VII, Rule 11, Clause (d) of the C.P.C.
2. The suit related to Diamond Silk Factory, Faisalabad, owned by Muhammad Siddique alias Lata, who was not made a party to it. In the sequel of a dispute arising between him and the defendant/respondent, Muhammad Sharif, the latter attempted to forcibly occupy the factory. The petitioners/plaintiffs, claiming themselves to be the lessees of the factory under the owner, resisted dispossession and brought a civil suit, which, later was withdrawn because the defendant Muhammad Sharif assured that he would not turn them out illegally. Subsequently, however, he made an application against the owner to A.C. Faisalabad without joining the petitioners and obtained ap order to get the factory sealed under section 145, Cr.P.C. The petitioners brought the present suit for an injunction in order to restrain the A.C. Faisalabad, as also the defendant Muhammad Sharif from sealing it or otherwise interfering with their possession over it as lessees.
They made an application before the trial Court for a temporary injunction as well.
3. The respondent contested the suit and also the prayer for temporary injunction but the trial Court granted it vide its order dated 4-3-1986. In appeal, as already pointed out above, the learned Additional District Judge, for his own reasons, took the view that a revision lay from the order of the trial Court and converting it accordingly, dismissed not only the application for temporary injunction but also rejected the plaint.
4. It was urged that granting temporary injunction under Order XXXIX, Rules 1 and 2. C.P.C. Was appealable and that there was no earthly reason to have converted the appeal into revision. The contention is quite formidable. The only reason given by the learned Additional District Judge m paragraph 1 of the impugned judgment in support of his queer view was as follows:- "As would appear from the succeeding parts of this judgment, statutory provisions were breached and fundamental principle of natural justice had been violated by the learned trial Court in the formulation of the impugned order. Accordingly, I would convert this appeal into a revision by virtue of law concluded by their Lordships of the Honourable Lahore High Court, Lahore, in PLD 1970 Lah.
398."
I must say the reason advanced for taking this view was grossly erroneous. The Darned Additional District Judge should have kept in mind the hard provisions of Order XLIII, rule 1, clause (r), C.P.C.
Which make an order passed under Rules 1 and 2 of Order XXXIX, C.P.C. Appealable. To hold otherwise was a grave travesty of the said provisions. There was unnecessary obsession on the part of the lower appellate Court in regard to the so-called breach of "fundamental principle of natural justice" statingly committed by the trial Court in granting the temporary injunction.
Assuming so, it was after all an order passed under Order XXXIX, Rule 2, C.P.C. And appealable as indicated above. Consequently, conversion of the appeal into revision was not sustainable. The impugned decision did not much proceed on merits which heavily tilted in favour of the petitioners, who were already enjoying possession of the factory under a lease. Prima facie it entitled them to the temporary injunction.
5. Next, it was submitted that the plaint could not have been rejected while hearing an appeal from temporary injunction and reliance in this behalf was placed upon Shadev v. Lehri Khan and 2 others PLD 1983 Lah.
46. There was considerable substance in this point too. The lower Appellate Court was apparently concerned with the issuance of temporary injunction and should have rather confined itself to that question alone. The rule propounded in the abovementioned case so provides. No authority was cited to the contrary and, therefore, rejection of the plaint was equally not sustainable. Of course, it was contended by Mr. Muhammad Rafique Bajwa, Advocate, for the respondent that the suit did not lie inasmuch as the petitioners lead already failed in a Writ Petition dismissed by this Court on 29-11-1986 and that the same had the effect of precluding them from agitating the same point in the form of the present suit. A perusal of the order passed in Writ Petition No. 5310 of 1986 shows that it was dismissed because the ordinary remedy of a suit like the present one was not availed. It was upon that decision that the petitioners brought the present suit and, therefore, the plaint could not have been rejected merely on the strength of decision of the writ petition. The objection to the maintainability of the suit is quite insubstantial.
6. Another ground to reject the-plaint was that the order of sealing the premises passed by the Magistrate being, in his exclusive jurisdiction could not be assailed before a Civil Court. Here too the learned Additional District Judge was seriously mistaken. He lost sight of the provision of section 147, subsection (4), Cr.P.C., which always made magisterial orders attaching or sealing immovable property to maintain peace, subject to a rule made by a Civil Court. This was what was clearly enunciated in Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470. Even a temporary injunction granted by a Civil Court in regard to the property, which formed subject-matter of proceedings under section 145, Cr.P.C., would take it out of the jurisdiction of the Criminal Court.
Thus, the temporary injunction granted by the trial Court had had the effect of almost nullifying the magisterial orders. Otherwise the provision of subsection (4) of section 147 ibid would be rendered nugatory. Mr. Bajwa tried to seek support from the precedent case, but a careful perusal thereof would not bear him out. His main contention was that it should be a final decree from Civil Court to upset a magisterial order passed in that behalf. But the principle expounded in the case does not go that far. It makes even a temporary injunction enough to "regulate" the, claims of the Parties to the property and the same would suffice to put an end to the exercise of jurisdiction by a Criminal Court. In other words, the moment possession to such property is regulated even by a temporary order, the criminal proceedings shall come to an end. Mr. Bajwa's arguments cannot be acceded to.
7. As a result, the revision petition is accepted. The order of the Additional District Judge in question is set aside and instead that of the Civil Judge is c. Restored. The suit is as well restored and shall be tried on merits. Parties to appear before the trial Court on 14-12-1988 for further proceedings.