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Civil Petition for Special Leave to Appeal No. 440 of 1976, decided on 13th. February, 1979.

(On appeal from the judgment dated 19‑2‑76 of the Lahore High Court, Lahore in Civil Revision No. 156 of 1976).

‑‑‑ O. XXXIX, r. 1‑Injunction, temporary‑Issuance of temporary injunction‑Discretionary with Court‑Plaintiff failing to establish legal character and his allotment of quarter in dispute not absolute but subject to cancellation without claim or compensation in case appeal by another in respect of same quarter accepted‑Appeal having been accepted and even otherwise Settlement Commissioner having ordered quarter in dispute not to be allotted to any one pending decision of appeal, question whether quarter could be allotted to petitioner doubtful‑Contentions of plaintiff regarding .non‑eligibility of his opponent to transfer of quarter, held, negatived and petitioner as such not entitled to grant of temporary injunction

Khurshid Ahmad, Advocate Supreme Court instructed by Inayat Hussain Shah, Advocate‑on‑Record for Petitioner.

Masud Akhtar, Advocate‑on‑Record for Respondent No. 4.

Date of hearing : 13th February, 1979.

.‑This is a petition for leave to appeal against the order dated 19‑2‑76 of the Lahore High Court dismissing Civil Revision No. 156 of 1976 calling in question refusal of temporary injunction to the petitioner by the Courts below.

The dispute pertains to a quarter which was allotted to respondent No. 4 on 1‑9‑1956 and subsequently cancelled from his name. During the pendency of his appeal, which was later accepted, this very quarter was conditionally allotted to the petitioner. Against the acceptance of appeal the petitioner filed a revision before the Government which was accepted and respondent No. 4 thereupon instituted Writ Petition (No. 1015 of 1963) and succeeded in getting the case remanded. The revision petition of the petitioner was dismissed on 13‑2‑1975 by respondent No. 2 after which he instituted the civil suit, out of which the present proceedings have arisen for a declara tion that the cancellation of the allotment from his name was illegal, void and inoperative, the main ground of attack being on the ineligibility of respondent No. 4 to the allotment of the quarter in his favour. A temporary injunction was also sought from the civil Court which was refused and an appeal there from also failed on the ground that the petitioner neither had a prima facie case nor any irreparable lose would accrue to him if the stay order was not granted. In the High Court the petitioner mainly relied upon the non‑entitlement of respondent No. 4 to the allotment but, in view of the learned Judge, he failed to establish a prima facie case in his own favour, It was held that the allotment of the petitioner was conditional, liable to cancellation without any claim or compensation, and the contention of the petitioner that he bad made improvements in respect of the quarter while it remained allotted to him was untenable.

Before us the petitioner has reiterated the grounds taken by him before the High Court. His main argument once again is that respondent No. 4 was not eligible for allotment of the quarter which he had procured fraudulently and besides did not fulfil certain conditions including the one for payment for entire instalments enabling him to occupy the quarter. He also submitted that he had made improvements over the quarter from his own expense, was in occupation for over a decade and had also cleared all the instalments. These, it is submitted, establish a prima facie case and throw the balance of convenience in his favour.

The issuance of temporary injunction is in the discretion of the Court and the petitioner was unable to show before the High Court in its jurisdiction under section 115, C. P. C. that the same was not exercised according to judicial principles or in ignorance of the recognized principles for the grant of temporary injunction. In order to succeed, the petitioner had to establish a legal character but admittedly his allotment of the quarter was not absolute. It was subject to the condition that the allotment would be cancelled without claim or compensation if the allotment in favour of respondent No. 4, whose appeal was pending, was restored; indeed the appeal was accepted on 25‑9‑1962. In the order of respondents No. 2 dated 13‑2‑75 which is before us at pages 24‑29 of the supplementary paper book the circumstances in which the allotment of the petitioner came about have been noticed in detail. It significantly reveals that in the appeal proceedings, the Additional Commissioner had on 9‑6‑62, inter alia, passed an order to the effect that until the decision in appeal preferred by respondent No. 4, the quarter in question was not to be allotted to any one else. In view of this order on record, it seems doubtful if an allotment could be made in favour of the petitioner. We do not express any formal opinion on this point as the civil Court is seized of the matter. But this revelation certainly negatives any claim of the petitioner to the grant of a temporary, injunction and the same was rightly refused by the Courts below.

This petition accordingly fails and is dismissed.

Petition dismissed.

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