' Messrs Kohistan Travel Service outside Kutchery Bazar through its proprietor Ch. Mohammad Nazir Ahmed-(hereinafter called the plaintiff)-filed a civil suit against (1) Province of Punjab through Collector Lyallpur (2) Senior Superintendent of Police, Lyallpur and (3) Municipal Committee Lyallpur through its Administrator (hereinafter called the defendants) for a perpetual injunction to restrain the defendants from interfering with his business of wagon service. The heading of the plaint reads as follows :-{{URDU TEXT}} ' The plaint was very strategically drafted, because, though apparently the grievance was made that the plaintiff had a cabin (khokha) on a teh bazari site where he had put up a booking office of the Messrs Kohistan. Travel Service (which business-was sought to be stopped despite the fact that the plaintiff had a teh bazari ticket for that place but despite the aforesaid apparent tenor of the plaint in Para. 2 a sentence was inserted which reads as follows :-{{URDU TEXT}} ' However, the prayer in the plaint was to the following effect :{{URDU TEXT}} ' Along with the plaint the plaintiff filed an application for a temporary injunction under Order XXXIX, rules 1 and 2 and section 151 of the Code of Civil Procedure where again (after pleading that averments in the plaint should be considered as averments of the application) the apparent emphasis was on the retaining of a booking office in the khokha (cabin) above mentioned. The prayer in the temporary injunction application reads as follows:{{URDU TEXT}}
2. The suit and the application aforesaid were resisted on various grounds by the defendants. It was pleaded (a) that the plaintiff had no locus standi to file the suit ; (b) that he had no cause of action and (c) that the plaintiff had applied for issuance of a No-Objection Certificate (N.
0. C.) so that he may procure a licence for using the strip in dispute for wagon stand which was, however, declined by the District Magistrate on the ground that if any No-Objection Certificate was issued it will create obstructions in the traffic on the spot in dispute which was located in a very thickly populated crossing where there was always a great rush of public and if wagons were allowed to be parked there it will obstruct the smooth running of traffic. It was further pleaded that in that respect the plaintiff had duly been informed by letter No, 2846-E/ALC dated 13-2-1974 by the District Magistrate. However, it was pleaded that the khokha (cabin) existed over a piece of land measuring 10 ft. Into 12 ft. Which the plaintiff could use for his booking office and the teh bazari ticket which had been issued to him by the Municipal Committee was intended for that site and not for any extra site on the spot for a wagon-stand. (This factual position is not controverted by the learned counsel for the plaintiff).
3. It appears that the main dispute then centered round a site different from the site of the cabin (khokha) of the plaintiff, because, regarding khokha (cabin) site since the plaintiff was paying teh bazari cess to the Municipal Committee, therefore, as mentioned above, no objection to the occupation of the plaintiff over the same was raised. The bone of contention turned out to be a different site which was located in between the khokha (cabin) and the foot-path at the spot. The exact location of the disputed site is that it is situated towards and adjacent to the boundary wall of the District Courts on the Kutchery road. The khokha (cabin) is an open site which is used as a wagon stand by the plaintiff. Next to that is a public foot path and then the main Kutchery road. As this disputed site was used by the plaintiff for his karobar (business), therefore, when he prayed for a relief that the defendants should not interfere with his karobar (it has been told to me by the learned counsel for the plaintiff that) it meant that he should not be stopped from doing his travel service business on that place by using it as a wagon-stand. If this is so I must say that this was not a straightforward plaint. Similarly though it is not so stated in the plaint but it appears that the plaintiff during the trial of the case advanced another plea and that was that he had purchased the rights pertaining to an earlier No-Objection Certificate which was issued by the then District Magistrate to a previous concern Alfateh who was doing similar travel business in that booking office and on the presently disputed strip of land. The order of the District Magistrate dated 13-2- 1974 was not challenged in the suit which was instituted on 20-6-1974. The learned Senior Civil Judge held that on the aforesaid pleadings of the parties the plaintiff had a prima facie case and as balance of convenience was also in his favour, inasmuch as, if the temporary injunction was not issued he would suffer an irreparable loss, therefore, he by his order dated 17-7-1974 issued the temporary injunction "as prayed till the disposal of the case". As to how the loss will be irreparable was neither attended to with facts and figures and nor was any enquiry directed on the subject with any precise statistics in the form of specific affidavits or otherwise.
4. The Province of Punjab and the Senior Superintendent of police filed an appeal but without any success, as the same was dismissed by the learned District Judge, Lyallpur, on 22-3-1975. The matter later on came to the notice of the learned Chief Justice who, on 20-6-1975, invoked the High Court's suo motu jurisdiction under section 115 of the Code of Civil procedure and directed issuance of notice to the parties. The case was later on marked to and listed before me. Afterwards the Province of Punjab also filed Civil Revision No, 733 of 1975. This judgment will dispose of both these revisions.
5. From what has been written above, it will be evident that the plaintiff now claims a right to use the strip of land in dispute as a wagon-stand. Wagon-stands are sanctioned only by the Regional Transport Authority (R. T. A.) and the learned counsel for the plaintiff has conceded before me that his client had not obtained any licence or permit from the Regional Transport Authority to set up a wagon stand at this place. The No-Objection Certificate dated 18-1-1973 on which reliance is being placed was issued by the District Magistrate to another concern Alfateh from whom the plaintiff later alleged to have purchased the rights appertaining to the same. The aforesaid No-Objection Certificate of the District Magistrate, it may be mentioned, is only a step or requirement for procuringa licence for a wagon stand (contract carriage stand) from the Regional Transport Authority and is not a final and operative order by itself, especially when it was applied for in that perspective and processed as such. Apart from that, so far as the plaintiff is concerned, he independently applied for himself setting up a wagon stand at the spot in dispute but the District Magistrate declined the same on 13-2-1974. Even though the plaint, as already pointed out, was filed on 20-6-1974 but the plaintiff did not challenge that order in the suit and, as such, in this context apparently he could not tell me as to what was the basis of his claim for using the site in dispute as a wagon-stand. These points were raised in the form of grounds 3 and 4 in the memorandum of appeal before the learned District Judge but he did not attend to the same and the learned Senior Civil Judge similarly made simply a passing reference but did not record even any tentative finding thereon. The Courts below have thus acted with material illegality and irregularity in the exercise of their jurisdiction in not applying and in not keeping in mind the relevant law on the subject of wagon-stands. Again in the matter of balance of convenience the learned Courts below did not comprehend the relevant facts. It had 4 been specifically pleaded by the defendants that the setting up of a wagon-stand at the strip of land in dispute will cause serious traffic hurdles and complications in the heart of the city and in an over-congested area to which no heed was paid by the Courts below and convenience of one man was preferred as against public convenience and public interest. Same seems to be the defect in the finding regarding 'irreparable loss'. As earlier mentioned, as the plaint was deliberately ambiguous, I called upon the plaintiff to make a better statement about his case in response to which he appeared before me and stated that all he gets in this business is a sum of Rs, 10 (rupees ten) per round-trip from Lyallpur to Lahore per wagon which plies under the banner/or group name of Messrs Kohistan Travel Service.
' He deposed that there were about 24 wagons in this pool and he only owned two out of them.
There were four more wagons which he claimed, also belonged to him though ostensibly they stood in the name of his brother and nephew who were his benamidars and all the remaining wagons belonged to different other owners. In this business which is so constituted under a firm name, there are, according to him, involved a large number of persons though the plaintiff claims to be its sole proprietor and states that the firm and its so-called constituents were not registered with the Registrar of Firms. A question whether a travel service in this form can be run by one individual is a point which needs serious consideration but I have no intention to dilate upon it as it will obviously be attended to by the Courts below while dealing with the locus stands of the plaintiff and the plea of accrual or non-accrual of a cause of action raised in the written statements of the defendants. All I want to say is that the income of the plaintiff being determinable in money and his loss, if any, being merely of a pecuniary nature it could not be said to be an "irreparable loss" in the well understood meanings of that term. Conversely if the wagons involved in this pool and their permits remained the property of their respective owners then the main loss, if any, will be of those who will be debarred for using the strip of land as a wagon-stand and not of the plaintiff who simply gets Rs, 10 per round-trip from each owner of wagon. It is to be noticed that it is the owner of the permit/wagon who, according to law, is required to pay taxes and abide by the conditions of permit and be responsible for accidents and damages or loss sustained as a result thereof. The loss and profit in plying wagons is also of the owners, because, the plaintiff clearly deposed before me that he had no concern with the 'loss and profit' of any wagon's income. The point of irreparable loss was raised in ground No, 7 of the grounds of appeal before the learned District Judge but it does not seem to have been attended to in its proper perspective by both the Courts below who seem to have acted with material illegality and irregularity in the exercise of their jurisdiction in this case.
6. Conceding that there was no right in the plaintiff to use the site in dispute strictly as a wagon stand as such, the learned counsel for the plaintiff wanted me to go deep into the concepts of wagon stand, parking place, cab-rank and halting station so that he may rely upon any of the later concepts and referred to Municipal Board, Pushkar v. State Transport Authority, Rajisthan and others (I) and T. B. Ibrahim, Proprietor, Bus Stand, Tanjore v. The Regional Transport Authority, Tanjore (2) for highlighting the chief characteristics of and differences between these terms. All these terms are deployed in various sections of the Motor Vehicles Ordinance XIX of 1965 and the West Pakistan Motor Vehicles Rules, 1969, but for the present it is not necessary to attend to the same in so minute details especially when the case from those stand-points has not been set up in the plaint which makes just a casual mention of the site in dispute as a wagon-stand and is directed more towards the cabin (booking office) and reference to wagon stand is only in a camouflaged manner and that also by suggesting as if it constituted a part of the booking office or the booking office site which, as earlier clarified, is not factually correct. However, briefly speaking even cab-rank, halting station or parking places have also to be determined by the District Magistrate under section 80 of the Ordinance read with Rules 248 and 249 and in the instant case the District Magistrate had declined to
(1) AIR 1965 SC 458 (2) AIR 1953 SC 79 grant a No-Objection Certificate to the plaintiff on 13-2-1974 for using the strip of land in dispute (if I can say so) as prayed for (assuming that the relevant application was for any of the purposes now advanced in the course of arguments before me, namely, cab-rank, halting station or parking place though the order of the District Magistrate shows that the plaintiff had applied for a wagon- stand as such-a fact not controverted in any pleadings or otherwise. The learned Courts below misread and miscomprehended the plaint in not noticing the strategy of the plaintiff for claiming the temporary injunction in this unfair manner and confused the "cabin business" with claim to set up and use a wagon-stand on a different strip of land. The Courts below should have discouraged instead of encouraging such an unfair plaint. Lastly the learned counsel for the plaintiff wanted to rely upon certain alleged earlier user of this strip of land as wagon-stand but I must say that an unlawful user howsoever long cannot defeat the provisions of a statute (on the principle that there can be no estoppel against a C statute) and even otherwise it was to stop-(if I can so observe)- the aforesaid continuing wrong that the plaintiff was sought to be prohibited by the authorities concerned from doing that wrong anymore. No temporary injunction can be granted where if granted it will defeat the object and provisions of a statute (in these case section 80, rules. From that point of view also it is evident that it was not a fit case for the grant of a temporary injunction and the learned Courts below acted with material illegality and irregularity in the exercise of their jurisdiction in that respect. In Haji Abdullah Khan and others v. Nisar Mohammad Khan and others
(1) it was held that "it may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts law has to be given effect to whether or not it has been relied upon by a party". The Courts below did not apply correct law to the facts and the circumstances of the present case in the matter of issuing a temporary injunction, and as such, I have no option but to set aside their orders under section 115 of the Code of Civil Procedure and consequently to vacate the temporary injunction issued by them, which I heresy do, leaving the parties to bear their own costs. Civil Revisions 652 of 1975 and 733 of 1975 stand disposed of with the aforesaid result.
(1) PLD 1965 SC 690