Syed IRSHAD ALI SHAH vs Mst. RAHIM BIBI AND OTHERS

ORDER

' ZAFFAR HUSSAIN MIRZA, J.-The dispute in this case relates to Category Plot No, 793-B, Ghulam Muhammad Abad Colony, Faisalabad. Mst. Rahim Bibi, respondent No, 1 herein, has brought a suit which is pending decision in the Court of Civil Judge 1st Class, Faisalabad, for declaration that she being in occupation of the said plot is entitled to retain it in her possession on the basis of Government Policy as contained in the Government of Punjab, Housing and Physical Planning Department letter dated 10-74977, which provided for regularisation of unauthorised possession of plots in the. Satellite Town Schemes on certain conditions. Respondent No, l's application for temporary injunction against her dispossession was dismissed by the trial Court by order dated 13- 4-1982, on the ground that she is an "illegal occupant and the suit plot has been allotted to another person", consequently she was a trespasser not entitled to equitable relief. This order was affirmed by the learned Additional District Judge and the appeal filed by respondent No, 1 was dismissed by order dated 22-44982.

2. Being aggrieved by the refusal of the Courts below to grant interim relisef, respondent No, 1 Wed a revision before the Lahore High Court which was accepted as per judgment dated 20.4-1983 and a temporary injunction w granted as prayed. The High Court in granting the prayer for interim relief was persuaded to adopt the following reasons :- "Perusal of page 139 of the file shows that a room was constructed on the disputed Plot No, 793. It is not the case of the respondent/ Government that this room was constructed either by the Government or by the allottee. The record does not show on what date, the petitioner occupied the plot, in dispute, and constructed the room over it. The contention of the petitioner is that he has been in possession of the disputed room prior to the said policy decision.

' The question as to whether the petitioner was or was not in possession of the room, in dispute, prior to the material date and the result of non-joinder of Irshad Ali, the new alleged allottee, is a matter relating to the merits of the case. The petitioner has, therefore, made out an arguable case for the grant of temporary injunction. The balance of convenience lies in maintaining the status quo."

3. The petitioner is admittedly not a party to the suit and was also not a party to the subsequent proceedings in connection with prayer for temporay injunction, including the order of the High Court which he seeks to challenge in this petition for special leave to appeal. As held by this Court in H. M. Saya & Co. v. Wazir Ali Industries Ltd. a stranger to a suit or a proceeding can file an appeal if he is adversely affected by an order in such a suit or proceedings, provided he obtains leave from the Court of appeal. Contrary to the facts of the respondent case, however, the petitioner has not taken any step to intervene in the proceedings of the pending suit by way of an application for his being joined as party and the learned counsel's only explanation for his failure to do so was that the petitioner was satisfied with the defence offered by the Provincial Government to the grant of the prayer for temporary injunction. However, the Government has not further pursued the matter it is the party directly affected by the order of injunction.

4. We have, however, heard the learned counsel appearing in support of this petition at some length. On the strength of the documents, apparently produced for the first time in this Court, he submits that the plot of land in dispute having been allotted to the petitioner the first respondent is a rank trespasser and the trial Court was, therefore, right in withholding the equitable relief to him.

We find no force in this contention. It cannot be denied and indeed the learned counsel did not so deny that the possession of the unauthorised occupants of the plots in the township was liable to be regularised if the case of any such unauthorised occupant falls within the terms of the policy letter of the Government already referred to. In fact the case of the first respondent, as set out in her plaint was based on this letter and she claims that she is entitled to the regular allotment of the plot by virtue of her possession in terms thereof. It is now admitted position that she is in physical possession of the plot and has raised some construction thereon. The basis on which the Courts below proceeded to deny relief to the petitioner that because she was an unauthorised possession she was not entitled to relief, was wholly untenable and in ignorance of the policy decision of the Government as contained in the letter referred to.

5. The other question raised by the learned counsel was that the first respondent having come into possession after the crucial date prescribed by' the Government she had no right to the allotment of the plot in question. This question does not seem to have been raised before the trial Court or the appellate Court. However, the High Court has, after referring to the official record, reached a tentative finding that the record does not show on what date she occupied. There was thus no material before the Court even prima facie to rebut the assertion of the first respondent that she did so before the target date. Thus on the marerials before the Court an arguable case was clearly made out for the grant of temporary injunction, as these questions will properly be determined at the trial.

6. For all the foregoing reasons no exception can be taken to the impugned order. This petition is accordingly dismissed. PLD 1969 SC 65 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.