This revision petition by Gohar Rahman and his sister Mst. Sosan Jan, is directed against the order dated 23-2-1999 passed by learned District Judge, Mansehra, whereby the order dated 29-5-1998 passed by learned Civil Judge, Mansehra, refusing to grant temporary injunction, was affirmed and the appeal was dismissed with no order as to costs.
2. Briefly stated the facts are that Gohar Rehman and Mst. Sosan Jan, plaintiffs-petitioners instituted suit against Mst. Lachi and others defendants-respondents, for a declaration to the effect that plaintiffs and pro forma defendant No,43 were owner in possession in suit land; that defendants have no concern with it; that general power of attorney No,231/9 attested on 11-10-1963 on behalf of Mst. Noor Jehan, mother of the petitioner in favour of Jehandad defendant No,9, is fictitious and fraudulent and that the subsequent transactions made on the basis of the aforesaid document are illegal and avoid and ineffective qua the rights of the plaintiffs and pro forma defendant No,43. The plaintiffs also prayed for grant of permanent injunction and possession of suit land in case they were found out of possession of the same. Alongwith the suit an application for grant of temporary injunction, in the above terms, was made. The application was contested and ultimately it was dismissed by order dated 29-5-1998. An appeal was preferred which met no success and the same was dismissed by District Judge, Mansehra vide order dated 23-2-1999, giving rise to instant revision petition.
3. I have heard Mr. Saeed Ahmad Shah, Advocate for the petitioners and Mr. Sajjad Afzal Khan, Advocate for the respondents, in the light of the material on the file.
4. Assailing the impugned order, learned counsel for the petitioners contended that the learned Civil Judge, as well as the learned District Judge in refusing to grant temporary injunction had exercised their jurisdiction arbitrarily in violation of principles governing grant of temporary injunction. To substantiate his contentions the learned counsel argued that the petitioners had successfully made out a good prima facie case for grant of injunction. The learned counsel next argued that balance of convenience also lay in favour of granting injunction. To substantiate the plea reliance was placed on Mst. Raisa Bano and .7 others-appellants v. Muhammad Riaz Awan and 2 others-respondents 1996 MLD 238 (Peshawar), Bakhtawar etc.-petitioners v. Amin etc.- respondents 1980 SCMR 89 and Muhammad Jan Ghaznawee appellant v. Haji Muhammad Qabeer and 3 others-respondents PLD 1977 Quetta 60.
5. Meeting the arguments of his adversary, learned counsel for the respondents maintainerl on the strength of a case reported as Mst. Shumal Begum-appellant v. Msr. Gulzar Begum and 3 others- respondents 1994 SCMR 818 that the revisional jurisdiction under section 115, C.P.C. exercised by the High Court is attracted only in cases where the lower Court has exercised the jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity. The learned counsel also maintained that the respondents having been found in possession of suit land for more than 20 years by virtue of purchase, the petitioners had no prima facie case and as such they were rightly refused the grant of temporary injunction.
6. I would refrain at this stage, from going into rival contentions of the learned counsel touching the merits of the suit and express my opinion thereupon lost it might influence the decision of the learned trial Judge or prejudice the case of one party or the other in the suit which is yet to be heard and decided. I will, therefore, confine myself to the question whether the Courts below in refusing to grant temporary injunction have proceeded on correct principle and have not acted arbitrarily in exercising their discretion. The well-settled principles for grant or refusal of temporary injunction are firstly, whether the plaintiff has made out a prima facie good legal case, secondly, whether the balance of convenience lies in favour of the grant of injunction and thirdly, whether the plaintiff will suffer irreparable loss if the injunction is refused. The trial Courts while considering the application for grant of temporary injunction formed the view that the plaintiffs had failed to make out a prima facie case and this view was upheld by the First Appellate Court. In this case, the entire edifice ofAge petitioners' case rests on the genuineness or otherwise of the general power of attorney dated 11-10-1963 stated to have been executed by Mst. Noor Jehan deceased mother of the petitioners in favour of Jehandad defendant No,1 . All the subsequent transactions had taken place on the strength of the aforesaid deed. I find myself in agreement with learned counsel for the respondents that the validity or otherwise of the aforesaid document has yet to be determined and adjudicated upon at the trial after evidence of the parties recorded. Keeping in view this aspect of the matter the Courts below had justification to decline to grant temporary injunction. Two Courts below have decided question of pure fact in lawful exercise of their exclusive jurisdiction in a proper manner and I see no good reason to disturb the concurrent finding made in this respect. The revision petition fails which is hereby dismissed with no order as to costs.
7. Since the matter before the trial Court is at initial stage and much time has been assumed by the parties in delaying the matter, therefore, the trial Court is directed to dispose of the case as expeditiously as possible. For this purpose the parties shall appear before him on 21-5-2001. The office is directed to send the record of the case to the trial Court without loss of time. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.