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Civil Appeal No. 52 of 1969, decided on 5th February 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore dated the 30th August 1967, in Civil Revision No. 241 of 1967).

O. XXXIX, r. 1‑Temporary injunction‑Government Department M agreeing to grant mining lease to A but no lease deed executed nor possession delivered -Another Government Department F claiming most part of disputed land as falling under its control and advertising for auction of mining rights of such land‑M issuing notice to A to show cause why area claimed by F and granted to him by inadvertence should not be excluded from area proposed to be leased out to him‑Ad interim injunction order granted in favour of A, held, not justified in circumstances and unless dispute between two Departments resolved by competent authority or Court, A could not be entitled to posses sion‑Balance of convenience also, held, lay in favour of F‑A could claim damages from F in case of success in his suit.

M. B. Zaman, Advocate‑General West Pakistan (Ehsaanul Haq, Advocate with him) instructed by M. Siddiq, Advocate‑on Record for Ijaz Ali, Attorney for Appellants.

S. M. Birjees Nagy, Advocate Supreme Court instructed by Sirjees Nagy, Advocate‑ on‑Record for Respondent No. 1.

Respondents Nos. 2 and 3 : Ex parte.

Date of hearing : 5th February 1970.

.‑This appeal by special leave is from the order passed by the High Court in Civil Revision No. 241 of 1967 dated the 30th August 1967. A learned Single Judge of the High Court accepted the revision and set aside the order dated 29th April 1967, passed by the Additional District Judge. Lahore, and restored the order dated the 27th January 1967, passed by the Civil Judge, Lahore, granting the temporary injunction to the respondents against the appellants.

The facts giving rise to this appeal are that by letter dated the 5th October 1965, the Director of Mineral Development, Government of West Pakistan, as licensing authority, agreed to grant to respondent Ahmad Safdar Khan, a mining lease of ordinary sand over an area of 518 acres in river Ravi, Tehsil and District Sheikhupura for a period of five years at 8 annas per acre per year subject to the terms and conditions contained in the said letter. It appears that later on, a part of the said area which fell within reserve forest was advertised for auction for removal of sand by the Divisional Forest Officer, who is appellant No. 2 in this appeal.

Thereupon, respondent No. 1 brought a suit against the appellants for a declaration of his mining rights and for injunction restraining the appellant from putting the land in auction or dealing with it in any other way and to refrain from interfering with his mining operations under the said letter. In the meantime, the right to remove sand from an area of 100 acres falling within the reserve forest was sold to Mohammad Akbar respondent No. 2, for a period of one year for Rs. 1,10,000. Accordingly, the respondent No. 1, amended the plaint and respondent No. 2, Muhammad Akbar was impleaded as a defendant in the suit. In the suit, respondent No. 1 also filed an application for temporary injunction under Order XXXIX, rule 1, C. P. C., restraining the appellants from interfering with his lease‑hold rights. The learned Civil Judge by judgment dated 27‑1‑51 granted a temporary injunction which was challenged before the Additional District Judge, Lahore, in appeal. The learned Appellate Court by order dated 29‑4‑67 vacated the temporary injunction issued by the learned Civil Judge. This order was challenged in revision before the High Court and a learned Single Judge of the High Court set aside the order of the Additional District Judge and restored the order of the trial Judge. This order being challenged in this appeal before us.

Leave was granted in this case to consider the question whether the High Court was right in granting the ad interim injunction to respondent No. 1 on the facts of the present case.

In support of the appeal. Mr. M. B. Zaman, learned counsel for the appellants, has contended that respondent No. I has failed to make out a prima facie case, that the balance of convenience was in favour of the appellants and that no irrepairable injury will be caused if no injunction order is granted to respondent No. 1. The learned Advocate‑General contended that there is only an agreement of lease between respondent Nos. 1 and 3, that a substantial portion of the land agreed to be leased out to respondent No. 1 is forest land and, therefore, the Director of Mineral Development, Government of West Pakistan, was not competent to grant any lease of that land. He further contended that respondent No. 1 has not complied with the terms of letter dated the 5th October 1965. He has not been put in possession of the property in dispute and that by granting the injunction, the High Court has, in effect, passed a decree for specific performance of the contract against the Government.

The contention of the learned Counsel is not without force. In our opinion, the High Court should not have interfered with the discretion exercised by the First Appellate Court because it was exercised on sound judicial principles. The lease deed, between respondents Nos. 1 and 3 is still to be executed. The possession of the property in dispute has not been delivered to respondent No 1. There is dispute between appellant No. 2 and respondent No. 3 about the property in dispute. Appellant No. 2 is claiming that most of the property in dispute is under the control and respondent No. 3 is not competent to lease out the said property. Even respondent No. 3 has issued a letter to respondent No. 1 on the 8th July 1967 to show cause as to why 396 acres of land out of the total area of 518 acres granted to him by inadvertence should not be excluded from the area proposed to be leased out to him. Unless this dispute is resolved by a competent authority or Court, prima facie it cannot be said that respondent No. 1 is entitled to the possession of the property in dispute. The balance of convenience is also in favour of the appellants. In case, respondent No. 1 succeeds in the suit, he can claim damages from the appellants. In these circumstances the High Court was not justified in issuing an injunction in favour of respondent No. 1. We would therefore, set aside the order of the High Court. The appeal is allowed. The costs of this appeal will be costs in the suit.

Appeal allowed.

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