' By this application defendant which is a body corporate seeks an order to set aside the injunction order dated 30-3-1993 under the provisions of Order XXXIX, Rule 4, C.P.C..
2. On the request of the plaintiffs' company a plot of land measuring 2 acres for setting upon an industry was allotted to them by the defendants vide allotment order dated 4-1-1981. An agreement to lease was executed by the defendants in favour of the plaintiffs on 2-9-1982 who issued possession order dated 4-9-1982 addressed to their Estate Engineer for handing over possession of the plot in suit to the plaintiffs. Possession of the plot alongwith a site plan was handed over to the plaintiffs on 19-9-1982 which was acknowledged. In May, 1991 plaintiffs noted that levelled portion of the plot was encroached upon and a boundary wall was also raised, therefore they lodged protest with the defendants through their letter dated 20-5-1991 which was followed by subsequent letters and telegrams but without any response. It is alleged that the defendants were consolidating their encroachment on the plot in suit. Finding no other way out plaintiffs issued a legal notice to the defendants on 6-10-1992 which too was not responded to, hence this suit for possession, mesne profits, damages and permanent injunction.
3. Alongwith the plaint they filed C.M.A. No,928/1993 with a prayer that the defendants be restrained from further encroaching on the plot in suit and from consolidating their encroachment and from raising any construction thereon as well as utilizing the same.
4. This application was resisted by the defendants who filed a parawise written statement and desired the Court to consider it as counter-affidavit. According to the defendants plaintiffs were granted licence for 12 months to enter upon the plot in suit and construct a building for manufacture and a storage of general engineering products but they did not utilize the plot.
Subsequently they issued letters for payment of non-utilization charges who concocted a story of alleged encroachment on the plot in suit. Defendants denied having encroached upon any part of the suit land and their main concern in the written statement was that the plaintiffs had not paid the arrears in respect of the plot in suit.
4-A. After hearing learned counsel for the parties and on assessment of the material on record, Mukhtar Ahmed Junejo, J. (as his Lordship then was) granted the application for restraining the defendants by way of the interim injunction from dispossessing the plaintiffs from the plot in suit otherwise than in due course of law. They were further restrained from raising any construction on the plot in suit and not to allot it to anybody else till the decision of the suit.
5. Instead of challenging the aforeasaid order in High Court Appeal defendants moved the present application for setting aside the order on the grounds: firstly, that the impugned order overlooked, clauses 1 and 2 of the agreement dated 2-9-1982 tending to show that a lease for 5 to 99 years will be granted as such the said agreement cannot be held to be a lease either prima facie or tentatively in law, that the impugned order overlooked the fact that no licensee whether evicted or not can be granted an injunction against his licensor, his only remedy being in damages, secondly that the doctrine of constructive possession does not at all apply to a licensee in law; thirdly that if any loss was caused to the licensee, his remedy was not by an injunction that only by way of damages; fourthly that considerations of prima facie case and balance of convenience did not arise between a licensee and his licensor, fifthly that dispossession in due course of law as between licensee and licensor means eviction by the licensor using such force as may be necessary and lastly, placing any restraint on a licensor in his dealings with his licensee in respect of the licence are per incuriam. It is further urges that the impugned order overlooks the provisions contained in section 56(d) and (j) of Specific Relief Act directing that no injunction can be granted if the conduct of the applicant is inequitable and the injunction order would interfere with a public project. Alongwith the affidavit in support of the application, a copy of the agreement to lease to be executed between the parties has been filed.
6. On behalf of the plaintiffs a counter-affidavit has been filed to controvert the points taken in the application which has been replied by way of an affidavit-in-rejoinder.
7. At the hearing main thrust of the arguments advanced by Mr. S.A. Samad Khan was that the learned Single Judge committed grave error by treating the agreement dated 2-9-1982 as lease which in fact constitutes an agreement to licence for building of an industrial unit on the terms and conditions mentioned therein. Learned counsel contended that an agreement to lease or lease deed between the parties was yet to be executed when this suit was filed which is barred by law and not maintainable for the relief of possession as well as mesne profits. A glance at the impugned order clearly leads to an inference that the parties' counsel were heard at length before passing the order and their respective contentions were duly considered at great length. The trend of arguments advanced at the hearing before my learned predecessor seems to be that the defendants had referred to section 52 and section 64 of the Easements Act to show that the plaintiffs were merely licensee and did not acquire the status of a tenant or a lessee. Various judgments were cited before the learned Judge to persuade him to take the view that the plaintiffs had failed to make out a prima facie case for the grant of temporary injunction. Learned Judge, however on assessm ent of the entire material on record tentatively observed that the plaintiffs are lessees and entitled to protect their constructive possession. Besides the grant of plot in their favour was neither recalled nor cancelled and in fact the parties had maintained complete status quo in respect of the plot in suit which remained in constructive possession of the plaintiffs.
8. I called upon Mr. S.A. Samad Khan to state as to why the order sought to be set aside was not assailed in High Court Appeal under section 15 of the Law Reforms Ordinance but learned counsel was unable to make a satisfactory answer except that the Trial Court is competent to vary, set aside and modify an order passed under the provisions of rules 1 and 2 of Order XXXIX, C.P.C.. I then expressed the view that such recourse is open to the Court in case an injunction on order was passed ex parte or where change of circumstances or development of new facts justify the vacation of the impugned order but learned counsel was not in a position to controvert this view.
On a careful assessm ent of the points taken in this application, I find that the grounds urged in support of the prayer touch the merits of the order which can only be entertained in the exercise of appellate jurisdiction or power of review which is not permissible before a Bench of concurrent jurisdiction. While hearing an application under rule 4 of Order XXXIX, C.P.C. a Court neither sits in appeal over the order passed by it or by a Court of concurrent jurisdiction nor is it called upon to exercise a power conferred under Order XLVII, rule 1, C.P.C. There is plethora of case-law in support of the view that the provisions of Order XXXIX, rule 4, A C.P.C. Are not intended to set aside an order lawfully passed by a competent Court of law. Once a Court has decided a matter after giving each side an opportunity of being heard its order is final and binding on itself as well as on the parties and cannot be re-opened except on the presentation of some new material not available when the original order was passed. A party can legally ask for discharge, variation or setting aside an injunction order when owing to fresh circumstances it becomes unduly harsh, unnecessary or unworkable. I am fortified in this view by a case decided by Dorab Patel, J. (as his Lordship then was) in the case reported as Sindh Mardrasat-ul-Islam Board Society v. Shamim (1982 CLC 2242).
In this case learned Judge observed that except in the event of a change of circumstances, if a Court can reopen its decision in this manner, it would be tantamount to the exercise of power of review and the fact that decision sought to be altered is a decision on an interlocutory matter would not alter the fact that the Court was reviewing its own decision. Learned Judge further observed that power of review can only be conferred by the Legislature and Legislature has conferred such power only in Order XLVII of the Civil Procedure Code. Identical view was taken by Ahmed Ali U. Qureshi, J. (as his Lordship then was) in Muhammad Inam v. Dr. Muhammad Safdar (1988 CLC 230).
9. In Pakistan v. KDA (1988 MLD 2668) a Division Bench of this Court referring to the earlier case-law held that, the provisions of Order XXXIX, rule 4, C.P.C. Should not be utilized for the purpose of reviewing an order of injunction where the appeal has not been filed.
10. Syed Haider Ali Pirzada, J. (as he then was) in Pakistan Engineering Consultants v. P.I.A.C. And B.C.C.I. Etc. (1993 CLC 882) expressed the view that an order granting temporary injunction which is not based on any grounds and is without any reason would be subject to recall under Order XXXIX, rule 4, C.P.C.
11. Examining the case in hand from every angle and without expressing any adverse view as to consequence of appeal from the impugned order though competent but not preferred by the defendants, I am clear in my mind in holding that no case for recall of the order has been made out as neither the order is short of valid and cogent reasons nor do fresh circumstances exist to warrant the setting aside of the order by this Court at a time when issues have been settled and the suit can be finally decided on merits after appropriate evidence is adduced by the parties.
12. For the aforesaid facts and reasons there is no merit in this application which is accordingly dismissed.