SARDEEL Versus MST. NIAMAT ALIAS KHURSHID
ORDER
In a suit filed on 28‑5‑1986 by the petitioners for specific performance of an agreement, dated 30‑6‑1983 allegedly executed by Falak Sher, a deceased brother of the defendant‑respondent and husband of petitioner No.2, for sale of 17 Kanals and 17 Marlas of agricultural land situated in village Rustam Sargana, Tehsil Shorkot, District Jhang for a consideration of Rs.24,000 whereof a sum of Rs.20,000 was also alleged to be paid to him by way of earnest‑money on the basis of a receipt executed on the same day, the plaintiff- petitioners also filed an application under Order XXXIX of the C.P.C. for issuance of a temporary injunction to restrain interference in their possession of the land. Defendant contested the suit as also the application by denying the averments made by the plaintiffs. Whereat the suit appears to have still to be tried, the application was taken up by the trial Judge and rejected by his order, dated 16‑6‑1987 for his conclusion that on the date of the alleged agreement (30‑6‑1983) the deceased Falak Sher happened to be on duty at Lahore as a gate‑messenger in the Civil Secretariat and hence the agreement sued upon would not appear to be genuine. He consequently held that the plaintiffs had not come to the Court with clean hands and did not have a prima facie case so that they would not suffer irreparable loss in the event of refusal of temporary injunction. He also observed that the consideration of balance of convenience would also not be in their favour.
2. An appeal there against filed by the plaintiffs was heard by the learned District Judge who affirmed the views of the trial Court into dismissing the appeal by his judgment, dated 16‑6‑1987 and upholding it's refusal to issue the temporary injunction. There also appears the observation made in para. 5 of the appellate judgment to the effect that the agreement has not been registered in accordance with law. Plaintiffs have now come up to this Court on revision.
3. Advocate of the petitioners has rightly taken exception to the abovesaid view expressed in para. 5 of the appellate judgment. The document sued upon does not per its own force either create, extinguish or limit any right, title or interest in immovable property of the value of more than Rs.100 and would rather entitle the holders thereof to get a duly registered‑document in the event of their success and, hence, there would not arise any question of such an agreement being registered under the law. No doubt, the view thus expressed by the learned District Judge is mistaken and clearly against the law but such an error on his part does not vitiate his judgment because the order prayed for by the plaintiff‑petitioners pertained to the field of discretionary jurisdiction of the Court which was liable to be regulated upon the consideration of judicially recognised factors governing the grant or refusal of such orders and the two Courts below have duly attended to those considerations to concurrently refuse to issue the temporary injunction prayed for. Therein they cannot be said to have acted either fancifully or arbitrarily within the scope of the law laid down in Shahzada Muhammad Umar Beg v Sultan Mahmood Khan and another P L D 1970 SC 139, as re‑affirmed in Kanwal Nain and 3 others v . Fateh Khan and others P L D 1983 SC 53 to render their orders amenable to interference in exercise of l revisional jurisdiction.
4. In the end, a grievance urged by the learned counsel with regard to a document of attendance having been accepted by the two Courts below without proper proof, deserves to be attended to. No doubt, the said document had still not become legal evidence in the suit, yet, it was brought under consideration for reaching a provisional conclusion about the limited question being considered by them at that stage. After all, they had to reach some conclusion on the basis F of some material and do not appear to have committed any error in only tentatively accepting the said document for that limited purpose. There can be no doubt that the views expressed by those Courts, and also everything said herein, are limited to the question of determining the grant or refusal of the interim relief and would not affect the suit which of course, will remain liable to be decided with open minds on the basis of legal‑evidence to be led by the parties in due course.
5. There, however, does not emerge any case for exercise of revisional jurisdiction. Hence, dismissed in limine.
A . A . / S‑154 / L Revision dismissed.