MUNICIPAL COMMITTEE, JHELUM vs Maulvi MUHAMMAD SHAFI

1. SAJJAD AHMAD, J.-In the year 1938, the Provincial Government transferred to the Municipal Committee, Jhelum, land measuring 30 acres and 7 kanals situated on the Grand Trunk Road between milestone No. 103 to milestone No. 105. This area was formerly a part of the Grand Trunk Road, running through the town of Jhelum but had ceased to be so on account of the diversion of the road to a point outside the town of Jhelum. The Municipal Committee has planned to put up a multi-storeyed commercial building on this site, which, according to its case, includes 7 marlas of land comprised in Khasra No. 174, but which the respondent, Maulvi Muhammad Shafi, claims to be his property under a Permanent Transfer Deed dated the 12th of June 1969 from the Settlement Department. To restrain the Municipal Committee from constructing on this piece of land, Maulvi Muhammad Shafi fled a suit in the Court of the Administrative Civil Judge, Jhelum, on the 25th of July 1969, for a permanent injunction, and also sought an interim relief under Order XXXIX, rule 2, read with section 151 of the Code of Civil Procedure, to prohibit the Municipal Committee from interfering with the status quo with regard to this land. The first Court granted the temporary injunction, but it was vacated by the District Judge, Jhelum, in an appeal filed by the Municipal Committee. The learned District Judge held that there was no proof on the record that the disputed plot of 7 marlas claimed by the respondent, is included in the land, which was granted to the Municipal Committee. In para. 3 of the judgment, the learned District Judge has observed as follows :- "The first question which arises in appeal is as to whether the Municipal Committee intends to make any construction on the plot of the plaintiff. The case of the Municipal Committee before the trial Court was that the plot of the plaintiff does not fall within the area on which the Municipal Committee intended to construct any plot."

2. The learned District Judge came to the conclusion that "wherever the plot No. 174 may be situated, it is clear from the record of the Municipal Committee that it is not situated within the area of the Municipal Committee, which was transferred to it." The respondent challenged the order of the learned District Judge in a revision to the High Court, requesting also for revival of the temporary injunction that was granted to him by the first Court but which was vacated by the District Judge. A learned Single Judge in the High Court (Mr. Justice Fazle Ghani Khan) at first rejected the prayer for temporary injunction on the 5th of August 1970, but subsequently granted it on the 20th of August 1970, restraining the Municipal Committee from ejecting the respondent from the disputed plot pending the decision of the revision petition. This order was made subject to notice to the opposite --party. The respondent did not pay the process fee for the issuance of the notice to the opposite- party, nor did he appear before the Registrar on the fixed date. Later, on the 19th of October 1970, the matter was laid before another learned Single Judge (Mr. Justice M. A. Zullah) in Chambers, who recalled earlier order made on the 20th of August 1970, observing that "the failure of the petitioner to deposit the process fee and his further failure to appear before the Registrar and before me today shows that the petitioner is no more interested in the temporary injunction." The revision petition filed by the respondent was not disposed of, and was laid before Mr. Justice Aftab Hussain on the 2nd of September 1971. The respondent also filed another application, renewing the prayer for a temporary injunction to restrain the respondent from ejecting him from the disputed land and from making any construction on it pending the decision of his civil revision. It appears from the order of the learned Single Judge that Raja Said Akbar Khan, the learned counsel for the Municipal Committee was present at the hearing of the matter, although no formal notice in the revision petition had been served on the Municipal Committee, Raja Said Akbar Khan, however, accepted notice on its behalf. The revision petition could not be finalised for want of time and was adjourned for another hearing as a notice case. But the learned Single Judge accepted the respondent's prayer for a temporary injunction. He found that the respondent's failure to deposit the process fee for notice to the Municipal Committee in the earlier application was due to a bona fide mistake. While directing maintenance of the status quo, the learned Singe Judge has stated in his order as follows :- "Raja Said Akbar Khan says that the respondent is already in possession and four walls have already been constructed. If this is true, status quo will mean that no further construction will be made."

3. In this petition for special leave to appeal, the learned counsel for the petitioner has challenged the legality and the propriety of the order of the learned Single Judge on several grounds. The first is that the second application for a temporary injunction was incompetent after the dismissal of the first being barred by principle of res judicata and, alternatively, that if the second application is to be treated as one for the restoration of the first, it was barred by time. The first application was dismissed not on merits but on account of the default of the respondent to deposit the process fee for service of the petitioner, and, therefore, no question arises of the applicability of the rule of res judicata or its principles. For his alternative submission, the learned counsel for the petitioner relied on the provisions of rule 19 of Order XXXXI, C. P. C., which relate to restoration of appeals dismissed for non-prosecution. The contention of the learned counsel was that this provision will also apply to revision applications under section 144, C. P. C., as there is no special procedure laid down in the Code for the revision petitions. It was submitted by him that the application for restoration of an appeal under Order XXXXI, rule 19, C. P. C. Has to be made within 30 days of dismissal order, as provided by Article 168 of the Limitation Act. A reference to section 144 of the Code of Civil Procedure, which has been relied upon by the learned counsel however, shows that if it is to be applied to the revision applications, the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable to the revision petitions. Order IX, rules 3 and 4 of the Code, which will be attracted to the situation, would permit the institution of a fresh application as well as for the application for setting aside the dismissal order, leaving it to the plaintiff petitioner to choose his remedy. We are of the view that there was no legal hurdle in the way of the petitioner to renew his application for a temporary injunction in the High Court in spite of the dismissal of the first for non-prosecution.

4. The learned counsel has also attacked the order of the learned Single Judge on merits, but we would refrain to make any observation on the same, as it might affect the decision of the main revision petition, which is still pending in the High Court.

5. We consider that it would have been more expedient if the revision petition had been disposed of by the learned Single Judge instead of holding it over and deciding merely the side-issue of the prayer for temporary relief. In fact, the principal questions in both are so inter-linked that the two should not have been separated from each other. We need only to refer to the decision of this Court in the case of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139) which lays down the e principles for the guidance of the Courts in granting or refusing temporary injunctions.

6. We had at one time thought of holding over the decision of this petition for special leave till the revision in the High Court is disposed of. But we have not followed that course because whether the revision petition in the High Court succeeds or is dismissed, this petition will be rendered infructuous. Since we do not want to inter--fere with the interim order of the High Court, we have decided to dismiss this petition without any prejudice to the petitioner's right to resist the respondent's revision petition pending in the High Court. As the interim order is working to the prejudice of the petitioner, and the point involved in the revision is a short one, we direct that the main revision petition should be disposed of within a month's time. We order accordingly,