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Civil Petition for Special Leave to Appeal No. 325 of 1967, decided on 10th October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 20th June 1967, in Civil Revision No. 330 of 1967).
O. XXXIX, rr. 1 & 2 Mandatory injunction‑Plaintiff during pendency of suit dispossessed by defendant in exercise of lawful authority‑Court has no jurisdiction to direct restoration of possession within rr. 1 & 2.
Daniel v. Ferguson (1891) 2 Ch. D 27 and Nandan Picture v. Art. Pictures 1956 Cal. 428 distinguished.
Muhammad Anwar Raja, Advocate Supreme Court instructed by Abdul Karim Sheikh, Attorney for Petitioners.
Nemo for Respondent.
Date of hearing : 10th October 1967
‑The subject‑matter is the manda tory injunction issued by the trial Court directing the respondent that the possession of certain agricultural land which it had resumed in exercise of its lawful authority during the pendency of the suit brought by the petitioners seeking declaration of ownership rights therein be restored to the petitioners. The order was on appeal set aside by the District Judge and the High Court has declined to interfere with it in revisional jurisdiction from which the petitioners seek leave to appeal.
It was contended that since notice of the application made by the petitioners under Order XXXIX, rules 1 and 2, C. P. C. for issuance of an interim injunction restraining the respondent from ejecting the petitioners during the pendency of the suit had been served on it the dispossession of the petitioners was tenta mount to over reaching the Court and had resulted in frustrating the subject‑matter of the suit. Certain decisions from foreign jurisdiction were brought to our notice including Daniel v. Ferguson (
) and Nadan Picture v. Art. Pictures (
) which were distinguishable on facts.
Cases involving easement rights as in Daniel v. Ferguson stand on a different footing. As a matter of practice the Courts may not grant relief if during the pendency of an action for enforcement of easement rights the opposite‑party succeeds in raising a construction which interferes with the rights of the plaintiff to light and air. A mandatory injunction may, therefore, be granted in such cases to maintain status quo as on the date of the institution of this suit. This, however, is not true of the present suit for declaration of ownership rights and grant of permanent injunction as a consequential relief restraining the respondent from ejecting the petitioners. The petitioners were in possession of the land on the day they had filed the suit. Their subsequent dispossession, therefore; would not affect the main tainability of the suit for declaration and in case they succeed in establishing rights of ownership therein the Court will direct restitution of the possession of the land to them as a consequential relief and they may also be entitled to recover damages from the respondent for wrongful dispossession.
The principle on which the learned counsel relies in support of the order of the trial‑ Court is thus not applicable to the facts of the instant case. The petitioners having already been dis possessed in exercise of lawful authority by the respondents the Court had no jurisdiction to direct restoration of possession within rules 1 and 2 of Order XXXIX, C. P. C. In the circumstances the District Judge acted properly in setting aside the order of the trial Court and the High Court was right in declining to interfere with that order.
The petition is dismissed.
Leave refuse
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