This petition is directed against an order dated 10-7-70 passed by Mr. Muhammad Dastgir, Additional District Judge, Lahore, dismissing the petitioner's appeals against the order of the learned trial Court refusing to issue injunction and to appoint a receiver or to proceed in contempt against the respondents.
2. The dispute related to Khasra Nos. 393 to 396, 398 to 402, 473 to 487, 525, 526, 330, 376 to 379, 384 to 386, 388, 446, 451 to 453 Khatoni No. 546, Khata No. 352 measuring 192 kanals and 11 marlas situated in the Revenue Estate of village Doolo Khurd, Tehsil and district Lahore. This land is admittedly owned by respondents Nos. 1 to 3. The petitioner was shown as non-occupancy tenant under these respondents in the Khasra Girdawari of Kharif 1969. Later on the names of respondents Nos. I to 3 were shown as in self cultivation in Rabi 1970. The petitioner filed a suit for a declaration that he was a tenant of this land and the entry of Khud Kasht Malikan was illegal and inoperative against the petitioner. It was also prayed that a permanent injunction restraining the respondents from interfering with the petitioner's possession and from removing the standing produce of the land may also be issued.. This suit was filed on 23-4-1970.
Alongwith the suit an application for ' temporary injunction was also submitted on which the trial Court passed an order or maintenance of status quo. On 25-4-70 an application under Order XXXIX, rule 2(3) and Order XL read with section 151, C. P. C. Was submitted by the petitioner complaining the violation of the status quo order. It is alleged in that petition that respondents Nos.
5 to 10 bad refused to accept service and after the service by refusal they had started removing the standing wheat crop. It was therefore, prayed that the proceedings for disobedience and contempt be taken against the respondents and the standing crop thereupon may be taken into custody and the management of the same be maintained according to the orders of the Court.
3. The learned trial Court dismissed both these applications by an order dated 4-5-70. First the application for temporary injunction was dismissed and the stay order was vacated. It was held that the suit was not cognisable by the civil Court and the petitioner had no prima facie case. The second application was dismissed without making any inquiry into the complaint made by the petitioner. It was held that as the petitioner had no prima facie case and the order of maintenance of status quo had been vacated, the petitioner had no case for appointment of a receiver or for proceeding in contempt.
4. The petitioner filed appeals against these orders. During the pendency of the appeals, an application for appointment of an ad interim receiver for taking the crops into custody was submitted. It was held by order dated 25-5-70 that such an appointment was necessary. By an order of the same date Murad Khan son of Mian Khan was appointed interim receiver of the crop which had been cut or which was still standing on the disputed land. He was authorised to take necessary steps for management, protection and preservation of the standing and the harvested crop, subsequently however, he dismissed these appeals on 10-7-70 only on the ground of lack of jurisdiction of the civil Court.
5. The question of appointment of a receiver does not arise in the present case as the application of the petitioner before the trial Court was for appointment of a receiver for the custody of the crop which was there in Rabi 1970. A similar application was made before the Additional District Judge also. The Additional District Judge made the appointment for custody of the harvested and the then standing crop. At no stage the petitioner has submitted an application for appointment of receiver as such for custody or management of the land in dispute. The present revision petition is not therefore competent.
6. The main point in the case for temporary injunction is whether the petitioner had a prima facie case. The respective position of the parties is that while the petitioner claims to be a tenant of the land in dispute under respondents Nos. 1 to 3, the said respondents deny the relationship of landlord and tenant and contend that they are and have been in "self cultivation" possession of the land in dispute. In these circumstances it can be very well argued that the question being one. Of contest regarding the relationship o A landlord and tenant, it is the civil Court which has the jurisdiction to decide this matter. No doubt it can also be argued that the case was in fact one of correction of Kbasra Girdawari. If two arguments are possible it can definitely stated that the plaintiff-petitioners have a good arguable case on the question of jurisdiction of the Court also.
7. The other question is whether on merits the petitioner has prima facie case. This question was not considered by the appellate Court at all. The petitioner placed reliance upon not only a copy of the Khasra Girdawari in which he was shown as a tenant of the property in dispute but also upon a money order receipt of a sum of Rs. 1'000 which he claims to have sent as rent i. e. The price of the produce falling to the share of respondents Nos. 1 to 3. The learned counsel for respondents Nos. 1 to 3 on the other hand contends that this money order was received by respondents Nos. 1 to 3 as they had asked the petitioner to look after their interest in the property in dispute which was being managed by their servants and they had also given some money to the petitioner in this connection. It is stated that this money had been returned by the petitioner to respondents Nos. 1 to
3. He relies upon para. 2 of the written statement. Although in that para it has been stated that the petitioner was asked to look after the interest of respondents Nos. 1 to 3 but no allegation has been levelled against the petitioner that he was also given some money for this purpose. Prima facie there appears to be no reason for giving that money while the property was being allegedly managed by the servants of respondents Nos. 1 to 3. To me it appears that the petitioner has a prima facie case to go to the Court and to prove that this amount of money was also given by way of rent. This plea therefore, is in advancement of the plea of the existence of relationship of landlord and tenant between the petitioner on the one hand and respondents Nos. 1 to 3 on the other.
8. In my view the petitioner did have a good arguable case. If the petitioner was in possession of the property in dispute on the date of filing of the suit it cannot be doubted that he was likely to suffer irreparable loss and injury and the balance of convenience was therefore in favour of the issuance of a temporary injunction. If, however, the petitioner has been ejected otherwise than in due course of law during the pendency of the suit in spite of the stay order of the trial Court, it would 'be a case of highhandedness. The present position appears to be that the petitioner has been deprived of the possession of this property by the respondents. It may be stated that the learned counsel for the petitioner stated that some of the khasra numbers are still in actual possession of the petitioner. His client stated that these khasra numbers also had wheat crop in Rabi 1970. According to the evidence of P. W. 2 on record it appears that whatever land was under Rabi crop was taken possession of by the respondents. I am therefore, of the opinion that the petitioner has been dispossessed of the land in dispute. I cannot therefore straightway pass any order of injunction in favour of the petitioner. The proper relief to be given is to remand this case to the learned trial Court. The learned trial Court shall inquire into the application for taking contempt proceedings against the respondents and for taking proceedings under Order XXXIX, rule 2(3), C. P.
C. If the Court comes to the conclusion that in spite of the order of status quo the petitioner has been deprived of possession of the property in dispute, the same shall be restored to him as laid down in PLD 1949 Lah.
100. In that case a distinction was made between an order of maintenance of status quo and an order of injunction. It was held that the stay order operates from the time when it is passed while an injunction order operates from the time it has been served upon a party.
If, therefore the Court comes to the conclusion that it was a stay order as distinguished from an order of temporary injunction even though no service had been effected it can order restoration of possessions to the petitioner provided that the respondents had deprived the petitioner of possession after the passing of the status quo order. If on the other hand it comes to the conclusion that this was an order of temporary injunction, the learned Court shall further find out whether this temporary injunction was served upon the respondents or any of them according to law. If the Court finds that such service bad been effected and the injunction order had, been violated even then the order for restoration of the property will have to' be passed. After restoration of possession the status quo will be maintained during the pendency of the suit.
The respondents shall pay the costs of the petition to the petitioner.
S. A. H.