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Civil Petition for Special Leave to Appeal No. 222‑K of 1986, decided on 26th August, 1986.
(From the judgment of Sind High Court, Karachi, dated 16‑4‑1986, in H.C.A. No. 8 of 1984).
‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. XXXIX, Rr. l 2‑‑Interim injunction‑‑Supreme Court normally would not interfere with order relating to interim injunction.
‑‑‑Art. 185(3)‑‑Petitioner claiming to be owner of land in dispute filing a suit for grant of perpetual injunction‑‑An application was also filed by petitioner for temporary injunction which was not allowed in its entirety and respondent was permitted to carry on certain works under specified conditions which petitioners sought to challenge‑‑Counsel for both parties agreeing that no tangible work was being done by respondent on site‑‑Supreme Court directing petitioner to make an application to Trial Court for expeditious disposal of suit and ordering status quo meanwhile.
Qamar Ali Shah v.Waryam and 3 others 1976 S C M R 393 ref.
Fazle Ghani Khan, Senior Advocate Supreme Court with Sami Ahmad Tirmizy. Advocate for Petitioner.
Ali Ahmad Fazeel, Senior Advocate Supreme Court with Khalil‑ur Rehman, Advocate‑on‑Record for Respondent.
Date of hearing: 26th August, 1986.
Leave to appeal has been sought from order, dated 16‑4‑1986 of the Sind High Court; whereby a partial temporary injunction granted by the trial Court was modified to the petitioner's advantage. Not satisfied with the order of the High Court the petitioner has sought leave to appeal.
After hearing both the learned counsel for the contesting parties we have converted this petition into appeal and proceed to dispose of the same as such.
The petitioner claiming to be the owner of a piece of land measuring 357.58 Acres which is the subject‑matter of dispute between the parties filed a suit for grant of perpetual injunction restraining the defendant (respondent herein) its employee, service agent or any other person acting for them interfering with the possession enjoyment, use and occupation by the petitioner of the disputed land and to stop unauthorised construction, laying of roads and sewerage lines, etc. or making any other encroachments upon the land of the plaintiff and not to sell, lease, encumber, mortgage, allot or in any other manner alienate or do away with the said land or create third party rights over it.
An application was filed for temporary injunction in the terms stated above, but, it was not allowed in its entirety. The defendant respondent was permitted to carry on certain works under specified conditions. On appeal a Division Bench of the High Court modified the said order as follows:‑
"The existing structure and Railway Line of the appellant has already been saved by the Single Judge in his order and we would further safeguard their position by directing the respondent not to make any alienation or transfer in respect of the said plot of land to anyone nor to transfer its possession to anyone and further we would direct the respondent K.D.A. not to raise constructions of any sort, except roads, sewerage and water lines and electric lines, over the disputed land which is shown. and marked 'C' in the plan... till the disposal of the suit in question . . . "
The learned Judges also observed that according to them the directions would safeguard the interest of the appellant and would in fact benefit them because they will have a developed land without spending anything if their suit was ultimately decreed.
Learned counsel for the appellant when questioned regarding the observations made in their favour in the impugned order stated that notwithstanding the same if the roads, sewerage, water lines and electric lines are constructed by the respondent those structures might not be of any use to the appellant and they might have to be removed at considerable expense by the appellant if they ultimately succeed in the suit. In such a situation relying on Qamar Ali Shah v. Waryam and 3 others 1976 S C M R 393 he urged that better course for the High Court was to grant an order for maintenance of status quo.
Learned counsel for the respondent, on the other hand, relying on an admission made by the appellant in the plaint to the effect that the defendant has already occupied the disputed land urged that the K . D . A . would suffer irreparable loss if they are not allowed to carry on the works as permitted by the High Court.
This Court normally is not inclined to interfere with orders relating to interim injunction as is impugned in this case. However, learned counsel for the respondent suggested that if the suit is decided within six months no irreparable loss will be suffered by any of the parties with the insistance. however, that no order for maintenance of status quo should be passed by this Court.
Learned counsel for the appellant agreed that the appellant would make all efforts for the expeditious disposal of the suit.
It needs to be noticed here that the learned counsel for both the parties agreed that no tangible work is being done by the respondent K.D.A. at the spot since March, 1984. Though the learned counsel for the respondent blamed the appellant for creating hurdles in that behalf.
After hearing both the learned counsel on this aspect of the matter we consider it just and proper to pass the following order:
"This appeal is allowed with the direction that the appellant shall make an application to the learned trial Court for expeditious disposal of the suit. We desire and hope that the suit shall be decided within six months. In the meanwhile status quo as it exists today shah be maintained. We further hope that respondent‑defendant shall assist the plaintiff and the Court in expeditious disposal of the suit"
Order accordingly. No costs.
M. Y. H. Order accordingly.
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