This Civil Revision calls in question the judgments dated 15-10-1986 and 22-12-1986, passed respectively by a learned Civil Judge, First Class, Faisalabad and a learned Additional District Judge, Faisalabad.
2. The District Gurdaspur Mohajareen Co-operative House Building Society Limited, Faisalabad, the petitioner herein, filed a declaratory suit before the learned Civil Judge in May, 1986, seeking a declaration to the effect that the order of allotment dated 24-2-1986, in respect of plot No.159, People's Colony (Batala Colony), Faisalabad, in favour of defendant No.1 (respondent No.1 herein) was against law and facts, null and void incompetent, unauthorized, mala fide, collusive, fraudulent, contrary to judgment arid decree dated y-3-1972, passed by a Civil Court at Faisalabad, and thus a nullity in the eye of law.
As a consequential relief, issuance of permanent injunction was sought to the effect that the defendants should not interfere with the plaintiff's possession over the suit property.
Needless to add that besides Atta Muhammad, respondent, No.1 the Province of Punjab, through Collector, Faisalabad; the Housing and Physical Planning Department, Punjab, Lahore through its Director-General; the Secretary, District Housing Committee, Faisalabad; and one Khadim Hussain son of Agha Muhammad Shari of Faisalabad were also impleaded as defendants in the suit.
3. Alongwith the plaintiff, the petitioner-society also filed an application under Order XXXIX, rules 1 and 2, C.P.C. Seeking the issuance of temporary injunction to the effect thalthe respondents be restrained from demolishing the construction standing on the plot to question or otherwise interfering with the petitioner's possession over the suit property till the final disposal of the suit.
4. The suit as also the application for temporary injunction were resisted by the respondents through separate replies, one filed by respondent No.1, the other filed by respondents Nos. 2 to 4 and yet another filed by respondent No.5. It was averred on behalf of the respondents that the petitioner-society had no right or interest in regard to the disputed plot. They were at the most unauthorized occupants of a residential plot, which was converted by the petitioner-society into a commercial one without permission of the Housing Department. It was also maintained by respondents Nos.1 to 4 that pursuant to the judgment of the August Supreme Court of Pakistan, passed in CPSLA No.91 of 1980 on 12-5--1980, this plot was duly allotted to respondent No.1 and that respondents Nos.2 to 4 were under legal obligation to get it vacated by the unauthorized occupant, viz. The petitioner-society and to deliver its possession to respondent No.1, who had already deposited the price of the plot and in whose favour the sale-deed had since been executed and registered.
5. The learned trial Court, after hearing the parties, dismissed the petitioners's application for temporary injunction on 15-10-1986. It was observed that the petitioner society had failed to make out a prima facie case in its favour.
6. Feeling aggrieved, the petitioner preferred an appeal before the learned Additional District Judge, Faisalabad, but the same also failed and was dismissed on 22-12-1986. Hence the present Civil Revision.
7. It has been urged on behalf of the petitioner-society that pursuant to the arrangement made between the petitioner-society and the Housing Department of the Government of the Punjab, no plot in Batala Colony could be allotted without the recommendation of the Society and that the Society was in occupation of plot No.259 since 1965. This plot was reserved by the Society for community purposes. The Society has established its office and has also raised construction, comprising of 4 rooms, Verandah, a library and a club for the members, including a residential quarter for 'Chowkidar'. It has also been averred that Khadim Hussain, respondent No.5, obtained an ex parte decree from the Civil Court, Faisalabad, on 9-3-1972, to the effect that he was the allottee of the plot. The Society (the petitioner) filed an application for getting the ex parte decree set aside, but its application failed and the Society then filed a separate suit seeking a declaration that the decree dated 9-3-1972 was obtained by Khadim Hussain fraudulently and that the said suit is still pending.
The Society mainly based its claim on letters dated 17-11-1962 and 10-4-1964, issued respectively by he Urban Rehabilitation Department and the Director-General, Housing and Settlement Agency, to the Deputy Commissioner, Faisalabad. The contents of these letters are to the effect that it was decided by the Housing Department that fresh cases of allotment should be proposed by the petitioner-society and on the recommendations of the Society allotment should be ordered by the District Allotment Committee. Another letter dated 10-7-1977, issued by the Housing and Physical Planning Department, Government of the Punjab, to the Director-General, Housing and Physical Planning Department, Lahore, has also been relied upon. In this letter, certain decisions regarding regularization of allotment to unauthorized occupants of residential plots in Faisalabad have been conveyed, but it has also been decided that non-residential plots, occupied by unauthorised occupants, be got vacated and that unauthorized occupants, who could not be accommodated due to shortage of plots, may be considered for accommodation in new area development schemes.
8. On behalf of respondent No.1, and respondents Nos.2 to 4, it has been argued that the plot in question has never been allotted by any competent authority to the petitioner-society. The Society occupied the plot in an unauthorized manner and it has also illegally and unauthorizedly converted a residential plot into a commercial one, by raising construction in the form of office, library and a club etc. It has further been argued that the petitioner-society was a party in the litigation leading to the judgment dated 12-5-1980 of the learned Supreme Court of Pakistan. In the said judgment, the learned Supreme Court was made to believe that plot No.159 was available and, therefore, the Court observed that the said plot could be allotted to respondent No.1. With this observation, the Civil Petition for Special Leave to Appeal, filed by respondent No.1 in regard to plot No.703, was dismissed. As a consequence to the observations of the Honourable Supreme Court of Pakistan, plot No.259, which was not allotted to anybody including the petitioner-society, was allotted to respondent No.1, who deposited its price and sale-deed was also got executed and registered in his favour.
9. For grant of temporary injunction, the Court has to keep in mind that the', petitionerhas a prima- facie case; the balance of convenience rests in his favour, and that if the temporary injunction, as asked for, is not issued, the petitioner shall bear irreparable loss. In the circumstances of the present case, as detailed above, the petitioner-society, no doubt, is in possession of the plot in dispute whereon it has raised construction in the form of its office, library and a club, etc. But, all this has been done unauthorizedly. The plot has never been allotted to the petitioner-society. The Society was, of course, allowed the status of a recommending body by the concerned department of the Provincial Government but that status, by no stretch of imagination, permitted the Society to occupy a plot, without having the same allotted in its favour and to convert the same from residential to a commercial one. The raising of unauthorized construction by a trespasser or an unauthorized occupant does not advance his cause any further. Such occupant, in spite of having raised the construction, remains an unauthorized occupant and a trespasser. The fact remains that plot No.259, People's Colony (Batala Colony) has never been allotted to the petitioner-society.
It was available for allotment when the representative of the Housing Department stated before the Supreme Court of Pakistan that plot No.259 had not yet been allotted to any body. The petitioner-society was also a party before the Supreme Court of Pakistan and even before the High Court, in the litigation resulting in the order dated 12-5-1980, passed by the Supreme Court of Pakistan. An unauthorized occupant, by no stretch of imagination, can be allowed to claim that he has a prima facie case for the purpose of issuance of temporary injunction, in regard to a `property of which he has taken possession unauthorizedly as a trespasser.
Needless to add that the ex parte decree obtained by Khadim Hussain, respondent No.5, against the petitioner-society, for setting aside of which the petitioner-society has filed an independent suit, has no bearing on the present litigation against Atta Muhammad, respondent No.1, who is not a party to the said litigation. The plot in question admittedly has never been allotted even to Khadim Hussain, respondent No.5, by the District Allotment Committee or by any competent functionary of the Housing Department. Even respondents Nos.2 to 4 are not a party to the litigation between Khadim Hussain and the petitioner-- society. Ex parte decree passed in favour of Khadim Hussain against the petitioner-society has, therefore, no relevancy for the purpose of the present civil revision.
PLD 1970 SC 139, it has been observed; "The well-settled principles for the grant or refusal of temporary injunctions are, firstly, whether the plaintiff had a prima facie good case, secondly, whether the balance of convenience lies m favour of the grant of injunction and thirdly, whether the plaintiff would suffer irreparable loss if the injunction is refused." It was also held in this case that if the lower Courts refused the grant of temporary injunction keeping in view the principles enunciated above, the High Court could not interfere with the orders passed in this behalf by the lower Courts, in exercise of its revisional jurisdiction under section 115 of the Code of Civil Procedure, unless the discretion was found to have been exercised fancifully or arbitrarily. Obviously, in the circumstances of the present case, it cannot be said that while refusing the temporary injunction, the learned lower Courts have exercised discretion fancifully or arbitrarily.
1980 CLC 1837 it was held that the encroachers have no locus standi to invoke the Constitutional jurisdiction and that too in aid of encroachment. It was further held that the land belonging to- Government cannot be converted for use other than that for which it was reserved. Needless to add that writ jurisdiction is assimilable to revisional jurisdiction, conferred on High Court by section 115 of the Code of Civil Procedure and, therefore, the revisional jurisdiction cannot also be exercised in favour of encroachers.
PLD 1982 Quetta 134, it was held that the law does not lean in favour of trespasser and injunction could not be issued in favour of a trespasser. It was observed that grant of injunction in such cases tantamount to giving right, both present and future, to trespassers, which could not be legally claimed.
1983 CLC 1783, it was observed that where occupation, though a prolonged one, was seemingly in defiance of legal order of Government, no injunction could be issued to protect such unauthorized occupation.
PLD 1982 SC 308, the appellant entered into the land in question without the permission of relevant authorities and started using the same for its own purposes by constructing mosque and madrassa, without any right whatsoever to do so and without obtaining permission from the relevant authorities, it was held that the appellant had no legitimate right whatsoever over the land in dispute because of it is status being that of a trespasser. It was further held that the appellant was though desirous of usurping the land and becoming owner, but clearly he had no legitimate right to remain in possession of land in question or to continue its occajpation in any manner.
1983 CLC 290, it was held by this Court that the scope of revisional jurisdiction being very limited, such jurisdiction could be invoked only if the subordinante Court has exercised jurisdiction not vested in it or has failed to exercise jurisdiction vested in it by law or has acted in exercise of it, illegally or with material irregularity. It was concluded that no interference by the High Court was warranted in exercise of its revisional jurisdiction, if the orders passed by the learned lower Courts did not suffer from any such shortcoming.
Similar view was exprssed in Mirza Anwar Hussain and others v. Pakistan Broadcasting Corporation and 3 others 1989 PLC (C.S.) 256.
10. In the light of the circumstances of the present case, as discussed above, and in view of the law enunciated by the superior Courts, as detailed above, no interference by this Court, in exercise of revisional jurisdiction, with the impugned orders is warranted. This Civil Revision, therefore, fails and is dismissed leaving the parties to bear their own costs.