' This revision is directed against the judgment passed by the Second Additional District Judge (East), Karachi, dated 12-11-1988, confirming the injunction earlier granted in favour of the respondent by the First Senior Civil Judge vide its order dated 23-4-1988.
2. The respondent filed suit (Suit No. 80 of 1988) before the First Senior Civil Judge alleging that he had been put in possession of a portion of a plot, measuring 75 x 20 feet which was in occupation of the appellant, after receiving Rs, 50,000 from him as Pagri' for the said portion. Thereafter, the applicant disputed the respondent's right and tried to eject the latter from the said plot, with the result, that he filed the aforesaid suit for declaration and permanent injunction against the applicant.
3. The case of the applicant was that, he was carrying on his business of selling birds on the aforesaid plot since October, 1984. The respondent thereafter came into contact with the applicant and offered to sell the latter's birds on commission. Thereafter, the respondent was permitted by the applicant also to keep and sell his own birds on the said plot. However, subsequently, the respondent started selling only his own birds and hence the permission to occupy the plot was withdrawn by the applicant.
4. The learned trial Court on the basis of the respective affidavits filed by the parties came to the conclusion that since admittedly the respondent was in possession of the plot and was doing business thereon, there was a prima facie case in his favour. Consequently, without going into the merits of the respective rights of the parties, he granted interim injunction in favour of the respondent vide his order dated 23-4-1988.
5. The applicant appealed against such order before the learned Second Additional District Judge, Karachi, but his appeal was also dismissed vide judgment dated 12-11-1988 and the order passed by the learned Civil Judge was maintained. The reasons for upholding the order of the learned trial Court are stated by the learned Additional District Judge, as under:-- "From the pleadings of the case it appears that the respondent was accommodated by the applicant in the premises for a short span for keeping his birds and later on the area was extended and the number of the birds also increased, therefore, the respondent had acquired a legal right to use and enjoy the property and had invested certain amount for construction of room and shed for keeping birds. It is otherwise established that injunction is granted to maintain status quo and not granted to create new state of thing differing from the state which existed at the date when the suit was instituted. There exists no written agreement between the parties which ought to have enabled to draw a line pertaining to the status of the respondent. Mr. Kunwar Mukhtar Ahmed has tried to argue and differentiate between the lease and licence and has asserted that in view of the decision of Karachi High Court reported in 1987 CLC at page 393 the respondent is not entitled to the relief of injunction because prima facie no case is made out against him. I am satisfied that the respondent has been enjoying and still in peaceful possession of the room/shed in controversy and has allegedly invested certain amount of money on raising construction and still there are certain tenable issues pertaining to the advancement of Purgi of Rs, 50,000 therefore, prima facie an arguable case is made out in favour of the respondent. `With regard to an irreparable loss and balance of convenience the premises has been used by the respondent for purpose, so if the injunction is refused to the respondent in the circumstances there will not only be a physical ouster but financial and economic disruption and the restoration of which may not be possible in the event of ultimate success of respondent's suit. Reliance in this respect has been placed on PLD 1981 SC 546'."
6. Nothing can be spelt out from the orders respectively passed by the two learned Courts below to indicate that the orders passed by them are absurd or perverse, under the circumstances of the case. No doubt, according to his own statement the respondent was only a licensee, but admittedly he was in possession of the premises in question. Although, no documentary evidence appears to have been produced by the respondent to establish that the applicant had taken Rs, 50,000 as Purgi' from him for the said premises, however, the learned Appellate Court in the light of the circumstances of the case was of the view that nevertheless, the issue was triable. In Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan PLD 1970 SC 139, it was held as follows: "It may also be pointed out, with all respect to the learned Single Judge, that he was exercising a limited jurisdiction in revision under section 115 of the Civil Procedure Code which is meant primarily for correcting errors made by the Subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion is found to have been exercised fancifully or arbitrarily. This was obviously not the position in the present case in which the learned Additional District Judge has chosen to exercise his discretion on sound principles of law, consistently with the facts and circumstances of the case."
7. In the present case also, as pointed out earlier, the discretion exercised by the learned Courts below does not appear to be arbitrary or fanciful and the same appears to have been based on sound principles of law in view of the circumstances of the case. Consequently, in my opinion, the aforesaid observations made by the Supreme Court are fully attracted to the facts of the present case and the orders passed by the learned Courts below, therefore, are not open to exception.
8. Mr. Munawar Mukhtar Ahmed, has, however, argued that the injunction sought by the respondent in the suit could not be granted to him, as the suit was not maintainable. In this regard, it may be pointed out that such objection can always be raised by the applicant before the learned trial Court in his written statement. When such objection is raised, the issue can always be tried as a preliminary issue in the case.
9. Subject to the aforesaid observations, the revision for the reasons stated earlier is dismissed.
' The learned trial Court is also advised to dispose of the matter as early as possible.