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Petitioner: ABDUL AZIZ VS Respondent: P.K. ABBU
1994 C L C 1648
1994 C L C 1648
[Karachi]
Before Syed Haider Ali Pirzada, J
Haji ABDUL AZIZ‑‑‑Petitioner
versus
P.K. ABBU and others‑‑‑Respondents
Civil Revision No. 129 of 1993, decided on 1st December, 1993.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 115 & OXXXIX, R.4‑‑‑Temporary injunction, grant of ‑‑‑Vacation‑‑ Revisional jurisdiction‑‑‑Exercise of‑‑‑Appellate Court after applying judicial mind to legal and factual aspects of matter and keeping in mind prerequisites for grant of temporary injunction, set aside order of trial Court granting temporary injunction and vacated same giving sound reasons‑‑‑Appellate Court in vacating temporary injunction granted by trial Court having exercised jurisdiction vested in it by law, such discretion exercised by appellate Court, could not be interfered with in revisional jurisdiction of High Court especially when no illegality or material irregularity had been pointed out.
Latifur Rehman for Petitioner.
Muhammad Ali Mazhar for Respondent No.l
ORDER
This revision petition is directed against the judgment dated 6‑4‑1993 passed by the Ist Additional District Judge, Karachi East; whereby he allowed the Miscellaneous Appeal filed by the respondent No.l and set aside the order dated 8‑7‑1992 of IVth Senior Civil Judge, Karachi East.
The facts leading to the filing of the above revision are that the petitioner filed suit for declaration, cancellation of document and permanent injunction against the respondent. It is the case of the petitioner that a piece of land measuring 15.82 Sq.Yds. adjacent to the left side of the petitioner's House No.22 located in Roshan Colony, Soldier Bazar No.3, Karachi East, was lying vacant since the existence' of the Roshan Colony which was under the common use by its inhabitants for passage. Subsequently the said piece of land was used by the Sui Gas Authority and laid down a main sui gas pipe line for supply of gas connection to the locality. The case of the petitioner is that the respondent No.1 after encroaching the said piece of land applied for regularisation of possession over the said vacant piece of land through application dated 24‑9‑1990 with the respondents Nos.2 and 3 by showing his possession over the said piece of land. The respondent No.2 regularised the same vide Resolution No.92 dated 20‑8‑1991. The petitioner sought declaration and claimed that the respondent No.l be restrained from construction any further or additional construction. over the said piece of land and also claimed that the respondent Nos.2 and 3 be restrained from executing the sub‑lease in favour of the respondent No.l. Alongwith the plaint, the petitioner filed application under order 39, Rules 1 and 2 read with section 151, C.P.C. praying that the respondents be restrained from raising any further or Additional construction or executing sub‑1Lase in respect of the said plot.
The respondents contested application. The learned Senior Civil Judge allowed the application vide order dated 8‑7‑1992. The learned Senior Civil Judge observed that the piece of plot regularised and allotment order was also issued in his favour. The petitioner challenged the same in the suit.
It is not in dispute that the respondent No.l raised boundary wall and he did not raise any other construction. In that view of the matter the application was allowed. The respondent No.l being aggrieved had filed Miscellaneous Appeal which was ultimately heard by the Ist Additional District Judge, Karachi East. The Additional District Judge allowed the appeal and set aside the order as stated in the earlier part of this judgment.
I have heard Mr. Latifur Rehman, learned counsel appearing for the petitioner and Mr. Muhammad Ali Mazhar, learned counsel appearing for the respondent No.l. I have perused the judgment of the learned Additional District Judge and have also gone through the annexures annexed with the memo of revision.
After hearing the learned counsel for the parties I find that the learned Additional District Judge has applied his mind to the legal and factual, aspect of the matter keeping in mind the prerequisites for the grant of temporary injunction and that he had given sound and cogent reasons for setting aside the order of the Senior Civil Judge.
It is not complaint before me that the learned Additional District Judge has based his conclusion on any material contrary to what has been pleaded in the plaint. On the other hand, it is seen from the impugned judgment that the learned Additional District Judge has adverted to the material which ought to be taken into consideration to form such an opinion.
The impugned judgment does not fail under clause (a) of Section 115
(1), C.P.C. because the learned Additional District Judge in this case did exerci4e the jurisdiction vested in him by law. The case is not covered by clause (b) either because there is no complaint from either side that the Court had failed to exercise jurisdiction vested in it and finally clause (c) is not attracted because no arguments have been addressed at the Bar that the appellate Court had acted in exercise of its jurisdiction illegally or with any material irregularity.
In this view of the matter the revision is dismissed in limine.
The above are the reasons for the short order dated 28‑11‑1993 dismissing the revision in limine on conclusion of the arguments.
H.B.T./A‑1454/K Revision dismissed.