The petition is addressed against the order of learned Additional District Judge, Muzaffarabad, passed an September 30, 1989, whereby the order of Sub-- Judge Hattian passed on March 16, 1989, vacating the temporary injunction issued in favour of the petitioners, was maintained.
2. Javaid Ahmad Khan and others brought a suit for perpetual injunction in the Court of Sub-Judge, Muzaffarabad on December 23, 1987, wherein it was averred that land measuring 2 kanals out of survey number 23 min and 2 kanals out of Shamilat-e-Deh was in their ownership and possession with effect from 1974, from the date of its purchase. It was further averred that the plaintiff--- petitioners had constructed five houses over the land in question. They alleged that they left a passage in their own land beside their houses for their exclusive personal use. The defendants- respondents, having no right what-over, asserted their claim to share the private passage of the petitioners, as thoroughfare by plying vehicles on the same. On resistance of the plaintiffs, the defendants forced their way to use the passage as thoroughfare. In the circumstances, the plaintiffs felt constrained to bring an action by seeking perpetual injunction against the defendants. They also moved an application for interim injunction, which was accordingly allowed.
Syed Farzand Ali Shah and others brought a counter-suit for declaration on January 24, 1988 in the Court of Additional pub-Judge, Muzaffarabad, wherein it was alleged that the passage in dispute was a thoroughfare perpetually used by the plaintiffs-respondents; thus the alienation of the suit land through sale-deeds and attestation of mutations in favour of Maqbool Ahmad and others was ineffective and inoperative. It was averred that the passage was used by the plaintiffs- respondents for a pretty long time, as such the defendants-petitioners were not authorised to intervene in the use of the passage by the plaintiffs-respondents. They also prayed for issuance of interim injunction. The learned Additional Sub-Judge issued interim injunction accordingly. When the parties appeared in both the cases, attention of the Court was invited to the previous suit instituted by the petitioners, on which the counter suit was transferred to the file of Sub-Judge. The learned Sub-Judge consolidated the suits and proceeded simultaneously. On filing of objections by the parties, the interim injunction issued in favour of the petitioners was vacated and the counter--interim injunction was allowed to continue. An appeal before the learned Additional District Judge preferred by the petitioners failed.
3. Raja Muhammad Khurshid Khan, the learned Counsel for the petitioners, argued that the learned Sub-Judge and the learned Additional District Judge misdirected themselves by failing to apply mind to the pleadings of the, respondents, reflecting no cause of action whatsoever. Moreover, the learned Additional Sub-Judge, while issuing interim injunction in favour of the respondents, failed to comply with the provisions of Rule 3 of Order 39, Civil Procedure Code. It was further argued that the subordinate Courts misunderstood and misconstrued the site plan showing C ~?.. By treating it as a public road. Reference was made to PLD 1959 (W.P.) Lahore 264, PLD 1957 (W.P.) Karachi 435 and PLD 1966 (W.P) Karachi 472.
4.The provisions applicable to temporary injunctions are contained in Order 39, Rules 1, 2, and 3, Civil Procedure Code. In the present case, provisions of Rules 1 and 3 are attracted. Rule 1 provides that the Court may, by order, grant a temporary injunction to restrain the defendant from pursuing an action (i) where by his action, the property in dispute was in danger of being wasted, A damaged or alienated or wrongfully sold in execution of a decrees, or (ii) where the defendant threatened or intended to remove or dispose of his property to defraud his creditors. In order to avail the remedy of interim injunction, it was enjoined upon the plaintiff to satisfy the Court that he had a prima facie case in his favour, the balance of convenience was in his favour and that in case of refusal of interim injunction, he would suffer irreparable loss. The primary consideration while allowing or disallowing an interim injunction, is that the Court has to ascertain whether the plaintiff has a prima facie case or not. Unless it is satisfied that there is a prima facie case, the Court shall restrain from applying mind to the other two conditions. The term `prima facie case' is not specifically defined in the Code of Civil Procedure. The judge-made law or the consensus is that in order to satisfy about the existence of prima facie case, the pleadings must contain facts constituting the existence of right of the plaintiff and its infringement at the hands of the opposite party. For, unless the plaintiff shows existence of some of his right and its infringement, it shall not be demmed that he has any prima facie case.
5.In the present case, on perusal of the pleadings of Syed Farzand Ali Shah and others, it has to be accepted that the plaint does not disclose any right whatsoever available to the plaintiffs- respondents to enable them to bring an action in a Court of law. Mr. Ashfaq Hussain Kiani, the learned Counsel for the respondents, on going through the pleadings of the respondents, frankly conceded that the plaint does not show existence of right of the respondents in respect of the subject of dispute nor it shows any cause of action in their favour. It was rightly pointed out by Raja Muhammad Khurshid Khan that the learned Sub --Judge as well as the learned Additional District Judge failed to apply their mind to the pleadings of the respondents and misdirected themselves in allowing the interim injunction in their favour. The petition succeeds on this basic objection raised on behalf of the petitioners.
6. Though it is not necessary to construe the provisions of Rule 3 of Order 39 of the Code of Civil Procedure for the disposal of the present petition, yet it is considered expedient to dispose of the objection of the learned Counsel for the petitioners on this count, for future guidance of the subordinate Courts. Rule 3 postulates that the Court shall, in all cases, before granting an injunction, direct notices of the application to the opposite party. This rule is subject to provisos described therein but it may be stated that the aforesaid provisos were enforced in Pakistan by Law Reforms Ordinance of 1972 and the same have not been adapted in Azad Jammu and Kashmir. Be that as it may, the language used in Rule 3 positively directs that the Court, in all cases, shall issue notice to the opposite party before issuing an injunction against it. The exception to the rule is available only in such cases where the Court considers that by issuing notice to the opposite party, the delay involved in between the period would defeat the very object of the injunction. Thus, in order to justify an order of issuing injunction without notice, it has to be supported by reasons listed in the order of interim injunction itself. In absence of special reasons or circumstances, it shall be deemed that there was no urgency to issue the interim injunction without notice to the opposite party. In present case, rather in all cases which come to the notice of this Court, it is observed that the trial Courts, while issuing temporary injunctions, usually act in derogation of the provisions of Rule 3. It is, therefore, considered necessary to lay down that in future, while disposing of an application for interim injunction, the Subordinate Courts must ensure that their order was passed in compliance with the provisions of the rules of procedure.
7. In the counter-suit, the petitioners alleged their exclusive title, including the use of the passage maintained between their houses, to the exclusion- of the respondents. It was averred that the plaintiffs acquired title in the suit land through registered sale-deed and constructed about five houses in the same, by opening a passage for their personal use. The defendants-respondents having no right whetsoever, could not share the use of the passage in question with the plaintiffs- petitioners. In support of their claim, the petitioners appended photo stat copies of sale-deeds, mutations and site plan approved by the Municipal Committee. The site plan sanctioned by the Committee in favour of the petitioners shows a street in between the houses of the petitioners. Its width is described as 10', 12' and 14' respectively. Among the conditions for sanction of the plan, it is laid down that the street shall be maintained by leaving its width as 15 feet. The aforesaid street left by the petitioners in their own land is the subject of dispute between the parties. The learned Sub- Judge visited the spot and held an on-spot enquiry in addition to his own inspection. He recorded the statements of Oazi Muhammad Zia-ud-Din Patwari, Rehmat Shah, Abdur Rashid, Syed Farzand Ali respondent and Mir Khadim Hussain. The local Patwari testified in support of the record of rights, showing thereby that no passage was shown in the record of rights relating to the suit land. An identical evidence was given by Rehmat Shah and Abdur Rashid. However, Syed Farzand Ali Shah deposed that he purchased land in the vicinity in 1981 and constructed a house over there. The building material used by him was transported through the passage in question. Mir Khadim Hussain deposed that he resided as a tenant in the area with effect from 1975. The house in question was constructed in 1967 and since then the passage was in existence. The subordinate Court as well as the learned Additional District Judge failed to take into account the aforesaid evidence while deciding the question of interim injunction. The fact of the matter is that the passage in question, undeniably, is in existence and the sole point necessitating its resolve is as to whether the passage is in exclusive use of the petitioners or is a thoroughfare for public use. The site plan appended with the pleadings, prima facie, shows that the passage was maintained by the petitioners in between their own houses. As to whether it was a public thoroughfare or not, is yet to be determined by holding further enquiry and that is only possible if the parties are directed to lead their evidence in support of their respective claims. At this stage the proposition is to be determined on the basis of evidence available on record. This evidence, prima facie, supports the case of the petitioners to hold that the passage was raised in the land of the petitioners for their own use. The site plan does not reflect the connection of the passage with any thoroughfare. The record of rights, prima facie, supports the contention of the petitioners. Therefore by virtue of the evidence appended with the pleadings of the parties, prima facie, the claim of the petitioners is to be accepted, for grant of interim injunction.
8.The learned Additional District Judge upheld the order of the Sub-Judge and one of the grounds listed in the impugned order is that the suit of the petitioners was not maintainable on account of their failure to give notice to the Municipal Committee as contemplated under section 96 of the Azad Jammu and Kashmir Local Government Ordinance, 1990. It may be mentioned that section 96 of the present Ordinance was substitution of section 88 of the former Ordinance. Section 96 postulates that no suit shall be instituted against any Local council or any member, official or servant of Local Council in respect of any act done or purporting to be done in official capacity until the expiry of one month's period after notice. The aforesaid provisions are attracted when an action is brought against Local Council or its member or servant. In present case, the suit of the petitioners was primarily instituted against the other respondents by seeking a direction of the Court against them to prohibit them from using the passage which was meant for exclusive use of the petitioners. No relief was desired to be granted against the Municipal Committee or its member or official as contemplated under section 96 of the Ordinance. In the circumstances, the condition of previous notice was not fully attracted. In the alternative, if it was deemed that compliance of the provisions of section 96 of the Ordinance was essential the petitioners would have been deprived of the interim injunction to the extent of respondent No.16 and not beyond that.