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Civil Revision No.50 of 1987/BWP, decided on 2nd February, 1987.

---O.XXXIX, Rr.1 & 2--West Pakistan Waqf Properties Ordinance (XXI of 1959)--Specific Relief Act (I of 1877), Ss.42, 52 & 53--Suit for declaration and permanent injunction--Auction of leasehold rights of a Waqf shop--Such auction not confirmed by sanction of A .O. /D. A .O., possession of plaintiff-respondent found to be wrongful and unwarranted--Lease, in any case, having commenced in 1982 could not be extended beyond three years and as such plaintiff-respondent not entitled to protection of Court--District Judge observing that prima facie there was no proper and valid lease of disputed property in favour of plaintiff-respondent and that maximum period of lease having already expired, Trial Court was not justified in granting temporary injunction in favour of plaintiff-respondent who had no prima facie case and balance of convenience also not lying in his favour because such injunction would amount to protecting wrongful act--District Judge himself clarifying that his observations had a limited purpose and were not intended to regulate the suit Cautious consideration of the controversy by District Judge for the limited purpose of considering in his hand clearly unexceptionable and he could not be held to have outstepped limits of his jurisdiction because he had regulated his discretion upon settled principles governing the matter--Order of District Judge, held, was neither fanciful nor arbitrary to warrant interference.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139 and Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53 rel.

Mian Allah Nawaz for Petitioner.

Petitioner filed a suit for declaration and permanent injunction with regard to a shop situated in Chauk Fawara, Bahawalpur City and impleaded three defendants therein respectively as, (1) Chief Administrator Auqaf, Lahore, (2) Administrator Auqaf Bahawalpur Zone, Bahawalpur and, (3) District Manager Auqaf Bahawalpur, on the plea that Auqaf Department Punjab had through defendant No.3 held auction of tenancy rights for the shop (date not mentioned) and he had emerged a successful bidder thereof and had paid Rs.3.600 to defendant No.3 on 6-10-1982 who issued a receipt for it as also a certificate of even date about delivery of possession but the department insisted upon treating him an unauthorised occupant thereof. Along therewith, he also filed an application for grant of a temporary injunction to restrain the defendants from forcibly ejecting him from the shop by designating him an unauthorised occupant. The suit as well as the application was seriously contested and whereas the suit seems to still have to go through the trial, by his order, dated 27-3--1986, learned trial Judge accepted the application to grant the temporary injunction restraining his eviction from the shop in dispute on the condition that within one week he will deposit with the defendants rent /compensation for use and occupation for the shop at the rate of Rs.1200 from January, 1984 to March, 1986, and will also similarly pay to the defendants Rs.1200 per month before the 15th of each month and that in the event of his failure to so do, his application will be deemed to have been rejected.

2. An appeal there against filed by the three defendants has been accepted by a learned Additional District Judge by his order, dated 27-1-1987. upon consideration of the contentions raised before him which were reproduced by him as under:

"The learned counsel for the appellant contends that the learned trial Court has not properly appreciated the main point involved in this case which relates to the nature of the possession of the plaintiff /respondent and that the grant of temporary injunction to the respondent will amount to putting a premium upon the wrongful act of the respondent and the delinquent official of Auqaf Department who is being proceed against in the Court of Special Judge Anti-Corruption. He has also contended that the auction of lease in favour of the respondent was fictitious and without authority. He has also contended that the disputed property could not at all be leased out for more than three years and that this period having expired, the plaintiff /respondent is not entitled to retain the possession of the disputed property."

The learned Judge considered the relevant provisions of law applicable to the dispute and concluded:-

In the instant case even if it is presumed that the District Manager had held an open auction, it required sanction of the A.O./Dy. A.O. to confirm the leasehold rights of the plaintiff and in absence of any such sanction the possession of the plaintiff even if it was delivered to him by the Manager is wrongful and un-warranted. The receipt of rent money by the District Manager is also without authority. In any case, this lease which commenced in 1982 cannot be extended beyond 3 years and the plaintiff /respondent is not entitled to the protection of this Court for more than 3 years. It is clear from the above that prime facie there is no proper and valid lease of the disputed property in favour of the plaintiff/ respondent and the maximum period of lease having already expired the learned trial Court was not justified in granting the temporary injunction prayed for by the plaintiff. The plaintiff /respondent does not have any prima facie or even an arguable case. The balance of convenience does not lie in his favour because any such injunction will amount to protecting wrongful act. These findings axe merely tentative in nature and the same will not affect the merits of the case."

3. The plaintiff has now come up to this Court on revision. Although his learned counsel has in the first place urged a grievance that in the order passed in the appeal below the Additional District Judge made a premature determination of the entire suit of the petitioner, yet, inconsistently enough, he himself has attempted to argue with reference to certain provisions of the Ordinance of 1979 that the petitioner is entitled to continue in possession of the shop irrespective of its nature in the inception. I do not find any substance in either of his contentions because, as has been clarified by the learned Additional District Judge himself, the observations made by him at this stage have a limited purpose and are not Intended to regulate even the suit. Actually, some reference to the merits of the case pleaded by an applicant for temporary injunction is really unavoidable in the process of finding out the existence or otherwise of a prima facie cage urged by him and there is no doubt that the merits of the case set up by the petitioner will come up to be determined in due course in the suit on the basis of evidence of the parties and for this very reason, I have refused to attend to the submissions made by the learned counsel with regard to the merits of the petitioner's case. Suffice it to say that the cautious consideration of the controversy by the learned Additional District Judge for the limited purpose of the proceeding in his hand is clearly unexceptionable. The matter relates to the domain of discretionary jurisdiction of the Court and learned Additional District Judge cannot be held to have anywise out-stepped the limits of his jurisdiction because he has regulated his discretion upon the settled principles governing the matter. His order is not either fanciful or arbitrary within the scope of the rule of law laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139, as re-affirmed in Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53 to become amenable to the exercise of revisional jurisdiction.

4. There is no merit in the Civil Revision which is accordingly dismissed in limine.

S.Q./M-183/L Petition dismissed.

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