This is a revision under section 115 of the Civil Procedure Code, against an appellate order of the learned Additional District Judge, Kohat, dated the 27th October, 1991, whereby he accepted the appeal and set aside an order of temporary injunction granted by the learned Senior Civil judge, Kohat on 10-4-1991.
2. Brief facts relevant for the purpose of the present revision are that Umar Gul plaintiff-petitioner instituted a representative suit against Government of N.-W.F.P. And 5 others including Khana Mir defendant No.5 for declaration that approval accorded by the District Development Advisory Committee, Kohat dated 26-9-1990 (hereinafter called as the D.D.A.C.) for upgradation of Primary School, Tolanj Qadeem to Middle School could not been legally substituted for the site in village Tolanj Jadeed due to ulterior motives. Another relief claimed was of perpetual injunction for restraining the defendants-respondents to change the site of the upgradation of Middle School.
3.The case of the plaintiff-petitioner as set up in the plaint was that he had gifted 51 Kanals and 11 Marlas of land in his village Tolanj Qadeem for construction of upgradation of Middle School which Scheme was duly approved can 26-9-1990 by the D.D.A.C., for which tenders were also invited through advertisement dated 30-9-1990 in daily Mashriq, Peshawar. It is further alleged that due to political rivalry and intervention- of Khana Mir defendant No.5 the D.D.A.C., had illegally changed the situs of the School front village Tolanj Oadeem to that in Tolanj Jadeed which was void, and ineffective against his right.
4. Alongwith the plaint, the plaintiff-petitioner put in an application wherein he pleaded that in view of the allegations in the plaint, the defendants-- respondents were illegally about to start construction of the building of Middle School at village Tolanj Jadeed on account of which the plaintiff and other inhabitants of village Tolanj Qadeem would suffer irreparable loss. The learned Senior Civil Judge, it appears, without calling for replication perhaps, because neither there is any reference thereto in his order dated 10-4-1991 nor any such copy has been placed on this file, granted to the plaintiff-petitioner `status quo till the date fixed'. Feeling aggrieved, some of the defendants --respondents filed an appeal which, as stated earlier, was accepted by the appellate Court and the order of temporary injunction was re-called. The plaintiff-petitioner has come up in revision to this Court. .
5. Mian Hisamuddin, learned counsel for the petitioner, has raised a preliminary objection that the impugned order being interlocutory in nature was not appealable and was, therefore, liable to be struck down for want of jurisdiction. On merits, he argued that the D.DA.C. Having sanctioned the scheme for upgradation of Middle School at Tolanj Oadeem and having invited the tenders, could not legally change the site of the school, therefore, the petitioner had a prima facie case; that balance of convenience was in his favour and that if temporary injunction had not been issued he would have suffered irreparable loss.
6. Malik Hamid Saeed, learned Additional Advocate-General for the functionaries of Provincial Government and the learned counsel for the other respondents, on the other hand, maintained that there was neither a prima facie case in favour of the petitioner nor the balance of convenience was in his favour and nor he has suffered irreparable loss. According to them, if the construction of the school building is stayed, the funds would lapse to nobody's benefit.
7. I have considered the respective contentions of the learned counsel for the parties and have perused the record. The preliminary objection raised by the learned counsel for the petitioner qua the maintainability of appeal against interlocutory order under rules 6 and 9 of Order XXXIX, C.P.C.; has no, substance. The impugned order of status quo passed by the learned trial Judge was not interlocutory in nature within the meaning of rules 6 and 9 ibid. Rule f--- is applicable where the property which is subject-matter of the suit has been attached before judgment in the suit whereas rule 9 applies to status quo quo if certain category of land specified therein is sold.
Nothing of this sort is discernible in the case before me. The preliminary objection is thus overruled.
8. The temporary injunctions are regulated, by rules 1, 2 and 3 of Order XXXIX, C.P.C., whereas interim injunctions of the present kind are, covered by rule 1 ibid read with section 151, C.P.C. In consequence, such orders are always appealable under clause (r), rule 1 of Order XLIII, C.P.C and the appellate orders are also revisable by this Court.
9. I need not give any considered finding no the pleas which were advanced before me even on merits of the case which is still pending in the Court below and if I express any opinion, howsoever tentative it may be, it is likely to prejudice one party or the other. Suffice it to observe here that even if it is conceded that the petitioner has a good prima facie case, he has neither raised the other two equally important pleas, namely, irreparable loss and balance of convenience for the grant of both the interim as well as temporary injunctions nor he has been able to convince me from the record that these last considerations which are sine qua non for the grant of temporary/interim injunctions were available to him. All the three considerations must co-exist for the grant of relief besides others which were laid down in the case of Messrs Sui Northern Gas Pipelines Company Ltd. v. Messrs Pakistan Cement Industries PLD 1968 Lahore 876 in the following paragraph at page 885 of the report:- "In matters of temporary injunctions, prima facie case is not the only requirement, but a Court is also required to examine the concepts of balance of convenience; irreparable loss; conduct of the parties; nature of suit; the time likely to be absorbed in it; the stakes of the parties involved and the workability and reasonableness of the orders' proposed to be passed. If by issuing an order it is intended to relieve a party from certain oppression care should be taken at the same time as not to create oppression for the other party. Similarly, the aim should be to prevent the recurrence of a future injury, if any, and not to grant compensation and damages for past alleged injuries-"
In the instant case apart from the additional consideration regulating the grant or refusal of temporary injunction in . Accordance with law propounded in the case of Sui Northern Gas Pipelines cited above there is another equally valid consideration for refusing to grant temporary injunction is the statutory bar contained in clause (d) of section 56 of the Specific 4clief Act (I of 1877) which prohibits the grant of an injunction and interferes with the public duty of any Department of the Central or Provincial Governments. --In short, it will be a serious matter for the Court's consideration whether it would be right to issue an injunction to a public Department which would obviously disturb its working and it would not do so unless compelling reasons demand that course. In this context, reference can be made to the celebrated case of Shahzada Muhammad L1mar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139.
10. For the foregoing reasons, no possible exception can be taken to the appellate order of the learned Additional District Judge impugned in this revision petition. It is accordingly dismissed with no order as to costs.