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Civil Revision Application No. 222 of 1986, decided on 21st January, 1987.

--O.XXXIX, Rr.1 & 2--Temporary Injunction--Principles governing grant of temporary injunction, stated.

---S.115--Discretion--High Court would interfere with discretion exercised by subordinate Court only if same was found to have been exercised arbitrarily or fancifully.

P L D 1970 S C 139 rel.

---O.XXXIX, Rr.1, 2 and Ss. 115' & 151--Temporary injunction Trial Court granting temporary injunction to petitioner against respondent in absence of ingredients necessary for grant of injunction--Appellate Court setting aside order of trial Court and vacating injunction on report of a Commissioner appointed to inspect site and intimate factual position--Order passed by Appellate Court maintained.

Rashiduddin Ahmed for Applicant.

Abdul Karim Siddiqui for Respondent.

Date of hearing: 7th December, 1986.

The applicant filed a suit for perpetual and mandatory injunction against the respondent to restrain him from raising construction of a house in-front of the applicant's house. The two houses are separated by a narrow lane. Admittedly there was litigation between the parties earlier also in respect of the same subject matter and a suit No. 5160/82 had been filed by the applicant which was disposed of after an undertaking was given by the respondent which in his own words is reproduced as follows:-

"The defendant above-named (respondent) has raised construction on his plot of land and the construction which has been raised by me (respondent) upto this date would not be extended over any portion of the land of lane in dispute. Upto this date the plaintiff (applicant) has no grievance about any construction over the disputed lane so far done. However, the defendant (respondent) shall be entitled to work over the space of lane for the purpose of installation of drainage system etc., and after the installation of sewerage work the defendant (respondent) shall levellize the space immediately."

It was however, averred by the applicant that the respondent had committed breach of such undertaking by illegally constructing some portion of the plinth of his house in violation of the undertaking and application under order 39 Rules 1 and 2 C.P.C. read with Section 151 has also been filed alongwith the plaint for temporary injunction in the case. This application was granted by the learned Civil Judge pending final disposal of the suit vide its order dated 15-4-1984. Aggrieved by this order the respondent filed appeal which was heard by the learned Fourth Additional District Judge (South) Karachi who, as it appears, appointed Commissioner to inspect the site and report the factual position. The report of the Commissioner showed that the lane between two houses was three feet and eleven inches wide which was wider than what was shown in the site plan. The learned Additional Judge, therefore, set aside the order passed by the learned trial Court and vacated the injunction granted in favour of the applicant.

After perusal of the record of this case I am firmly of the view that the order passed by the learned appellate Court is unexceptionable. The principles governing the grant of temporary injunction are that the party seeking the injunction must establish a prima facie case in its favour, and the balance of convenience should also be in its favour. It should further be shown that withholding of injunction would cause irreparable injury to it. All these factors appear to be missing from the case of the applicant. The judgment of the appellate Court, no doubt is mainly based on the report of the Commissioner, but this report, admittedly was not challenged by the applicant. The report of the Commissioner shows that no space beyond what was shown by the plan to be left between the houses of the applicant and the respondent had been occupied by the respondent. The applicant seems to have based his case mainly on the undertaking reproduced above, but it has not been shown in what manner such undertaking had been violated by the respondent. I, therefore, do not find that the order passed by the learned Additional District Judge calls for any interference by this Court. According to P L D 1970 S C 139 the High Court may interfere with the discretion, exercised by the subordinate Court only if the same is found to have been arbitrarily or fancifully exercised.

For the aforesaid reasons no force was found in this revision application and the same was dismissed with costs.

M.Y.H./A-61/K Petition dismissed.

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