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Civil Petition for Leave to Appeal No. 1083 of 1985, decided on 16th April, 1986.
(On appeal from the judgment of the Lahore High Court, Multan, dated 9th December, 1985, in C.R. No. 406 of 1985).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. XXXIX, R. 1‑ Temporary injunction‑‑Observations made by Court while deciding interlocutory application‑‑Effect of‑ Any decision or observations made by Court while deciding an interlocutory application, like one for temporary injunction, are tentative in nature and cannot operate to prejudice any party at time of decision of suit.
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. XXXIX. R. 1‑ Temporary injunction‑‑Order set aside in appeal‑‑Revision dismissed‑ Petitioner's claim that he was owner in possession if disputed land, not sustained‑‑Disputed land being in possession of petitioner's father in his capacity as Receiver appointed by Court, could not be said to be in petitioner's possession‑‑Order setting aside temporary injunction, upheld‑‑Leave to appeal refused.
M. Asif Jan, Advocate Supreme Court for Petitioner.
Mian Zafar Yasin, Advocate Supreme Court for Respondents.
Date of hearing: 15th April, 1986.
In this petition for leave to appeal arising out of the judgment of the Lahore High Court in a Civil Revision, there is a dispute between the petitioner on the one hand and the first three respondents on the other setting up a rival claim that the land in dispute was bequeathed to each party by means of will by the deceased owner one Mst. Gul Bibi. The petitioner is relying on an oral will, whereas the first three respondents based their claim on a written will which was registered subsequent to the death of the testator.
2. The petitioner has brought suit for declaration and permanent injunction by way of consequential relief claiming to be in possession of the land in dispute. His application for a temporary injunction against the said respondents to restrain them from interfering with his possession was granted by the trial Court by ordering "that status quo will be maintained so that whichever party is in possession will continue to remain so." As the said respondents were aggrieved by this order they challenged it in an appeal which was allowed by the learned District Judge, who found that the petitioner had not made out a prima facie case for grant of temporary injunction. The result was that the order granting temporary injunction was set aside.
3. Being dissatisfied with the order passed in appeal recalling the order for maintenance of status quo the petitioner approached the High Court in revision and a learned Judge dismissed the revision application. In doing so the learned Judge referred to another pending case before the High Court, viz. L.P.A. No. 14 of 1968, in which the High Court had entrusted the suit land to the Superdari of Mehr‑ Khurshid Ahmad, the father of the petitioner. From this the learned Judge concluded that the petitioner's claim that he is in actual possession of the land was wholly untenable. From the order of the learned Judge it further appears that the said Mehr Khurshid Ahmad was appointed as a Receiver by the Court.
4. In support of this petition for leave to appeal from the order of the High Court the only grievance of the learned counsel is that certain observations made by the learned Judge of the High Court are likely to prejudice the case of the petitioner at the trial which were not justified at the stage of interlocutory relief. On the perusal of the impugned judgment the only objectionable observations of which grievance is made relates to the claim of the petitioner that his father, the said Mehr Khurshid Ahmad, was holding possession on his behalf. It is well settled that any decision made or observations made by the Court while deciding an interlocutory application, like the one for the temporary injunction, are tentative in nature and cannot operate to prejudice any party at the time of the decision of the suit. We are sure that the observations to which objection has been taken were made on this basis. We may, however, clarify for removal of doubts that no party shall be prejudiced by the expression of an opinion by the learned Judge in the impugned judgment, while deciding the suit, which shat be decided on its own merits.
5. As for the relief sought by the petitioner suffice it to say that. if at the time of the making of application for temporary injunction.' the disputed property was in possession of Mehr Khurshid Ahmad , his capacity as Receiver, it will apparently be deemed to be in custodia legis and therefore, the question of grant of temporary injunction in terms sought by the petitioner did not arise. Thus no exception can be taken to the order passed by the High Court. With these observations this petition is, therefore, dismissed.
M. I. Petition dismissed.
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