This civil revision calls in question the judgment dated 23-7-1986, passed by the learned District Judge, Khushab.
2. Muhammad Ishaq, the revision petitioner, filed a declaratory suit against the respondent on 25- 4-1981, before the learned Civil Judge, Khushab, seeking a declaration to the effect that plaintiff- petitioner was the owner in possession of the suit land measuring 169 kanals situate in village Noorpur, Teh: Khushab, as described in detail in the head no of the plaint, and that Mutation No. 8274 dated 23-6-1973, in regard to the suit land, in favour of the respondent on the basis of the alleged gift, was bogus and fabricated and that in fact no gift was ever made by the petitioner in favour of the respondent. As a consequential relief, the petitioner asked for perpetual injunction that the respondent should not interfere with the petitioner's possession and ownership in regard to the suit land.
3. Alongwith the plaint, the petitioner also moved an application for temporary injunction whereon an order dated 26-1-1981 was made by the learned trial Court re: maintenance of status quo. On 3- 5-1981, the respondent sought clarification of the said order and the learned Court consequently passed an order on 13-6-1981, to the effect that the status quo order already passed by it would not affect the proceedings before the criminal or revenue Courts.
4. In the main suit, after framing of issues, the petitioner examined his witnesses including P.W. 1 Muhammad Ramzan. The said Muhammad Ramzan testified before the learned trial Court on 11-11- 1984, that he was in occupation of the suit land as tenant since 1952 and has all along been paying rent to the petitioner.
5. In Rabi 1984, the respondent raised a dispute for getting rent before the learned Tehsildar.
Consequently an order was made by the Tehsildar to the effect that landlord's share be deposited in Government treasury. Similar order was made by Tehsildar in 1985. The Assistant Commissioner however, on a Miscellaneous application submitted by the respondent, made an order that landlord's share be given to the respondent. Thereafter the plaintiff-petitioner moved an application before the learned trial Court praying that the order passed by the Assistant Commissioner factually has changed the situation obtaining on the spot and thus the order regarding maintenance of status quo already passed by the learned trial Court, was wrongfully interfered with. It was, therefore, requested that the landlord's share be continued to be paid to the petitioner by the tenant as before and that the petitioner was prepared to furnish security to return this share if his suit failed. In the alternative, it was prayed that the landlord's share be deposited in Court, till the decision of the suit.
6. After hearing the parties, the learned trial Court made an order on 5-4---1986, directing that the tenant should determine the landlord's share before both the parties at the time of harvesting the crop and, thereafter, should deposit the landlord's share in Court till the decision of the suit.
7. Muhammad Shabbir respondent preferred an appeal against the aforementioned order dated 5-4-1986, passed by the learned Civil Judge. The learned District Judge, through the impugned judgment accepted the appeal, set aside the order passed by the learned Civil Judge and dismissed the petitioner's application. It was observed by the learned District Judge that the order regarding maintenance of status quo was already passed by the learned trial Court on 26-4-1981, and as there was no change in the circumstances, the second application dated 15-1-1980, filed by the plaintiff-petitioner, giving rise to the order dated 5-4-1986, passed by the learned Civil Judge, was not maintainable. Hence the present civil revision.
7-A. It has been urged on behalf of the plaintiff-petitioner that the learned District Judge has misread the record and has come to wrong conclusion on account of such misreading. It has further been canvassed that the provisions of rule 4 of Order XXXIX, C.P.C., have been disregarded.
The learned District Judge has allowed the appeal mainly on the ground that there was no change in the circumstances after passing the earlier order regarding maintenance of status quo in 1981 and, therefore, the second application of the petitioner for temporary relief was not legally competent. This observation made by the learned District Judge is factually incorrect. As already stated, Tehsildar made orders in 1984 and 1985 directing the tenant to deposit the landlord's share in treasury. The Assistant Commissioner, however, on Miscellaneous application ordered that the landlord's share be paid to the respondent. On account of this order of the Assistant Commissioner, the petitioner was obliged to file fresh application in January, 1986, that either the landlord's share be given to him or alternatively the same be deposited in Court till the decision of his suit. In this regard, it has been observed by the learned District Judge in his impugned judgment:-"In 1985, Tehsildar passed the same order but the Assistant Commissioner on a Misc. Application gave the landlord's share to the appellant-defendant. Due to this change, the respondent felt aggrieved and moved the learned lower Court". The above observations, made by the learned District Judge, do show that there change m the circumstances where upon the plaintiff-petitioner was obliged to move this second application. Order XXXIX, rule 4 of the Code of Civil Procedure provides that any order for injunction may be discharged or varied, or set aside by the Court, on application made thereto by any party dis-satisfied with such order. Thus the application seeking variation in the order for temporary injunction is legally competent under rule 4 of Order XXXIX ibid. In the case of Sind Madrissa-tul-Islam Board. Society v. Shamim (PLD 1974 Note 54 at p. 93), it has been observed that power under rule 4 of Order XXXIX by a Court is exercisable when it becomes necessary to vary, modify and set aside interim order on account of change of circumstances. Similar view has been expressed; in Muhammad Ashfaq and another v. Sohail Nadeem and others (1986 CLC 2218).
On behalf of the respondent, it has been urged that the impugned order is not revisable. Reference has been made to the provisions of section 115, C.P.C. To urge that revisional jurisdiction of High Court is limited. If the order is made even by a Court of competent jurisdiction, as a result of misreading of evidence or F misconstruction of record, the order would amount to have been passed in exercise of jurisdiction with material irregularity. In the present case, the learned District Judge while accepting the respondent's appeal, observed that as there had been no change in the circumstances, therefore, the second application for temporary injunction was not competent and secondly that once the application for temporary injunction was disposed of, no second application was maintainable. Both these observations are not tenable. As already observed, there had been a change in the circumstances and on account of this change the plaintiff-petitioner was obliged to move the second application. Second application seeking variation in the order of temporary injunction is competent under the provisions of rule 4, Order XXXIX, C.P.C. In this view of the matter, C the impugned judgment, passed by the learned District Judge, suffers from material irregularity and thus is revisable under section 115, C.P.C.
8. For the foregoing reasons, the revision petition is accepted. The impugned order is set aside and the order of trial Court, dated 5-4-1986, is restored. There shall, however, be no order as to costs.