ABDUL SHAKOOR AND 2 Others vs A. S. TASNEEM AND 2 Other

ORDER

1. ANWARUL HAQ, J.-This petition for special leave to appeal has arisen out of an order made by a learned Single Judge of the Lahore High Court on the 22nd of June 1973, rejecting a revision petition filed by the petitioners against the vacation by the learned District Judge of Jhang of a temporary injunction which had earlier been granted in favour of the petitioners by a learned Civil Judge.

2. According to the petitioners, they had entered into an oral agreement with respondents Nos. 1 and 2 in the year 1956 for the development of 198 acres of agricultural land situate in village Rakh Kotla of Tehsil Shorkot, District Jhang. The land had been obtained by the respondents on 20 years' lease from the Provincial Government in 1954. The oral agreement was reduced into writing on the 8th of January 1969 and registered The peti--tioners invested the huge sum of Rs.1,10,000 in this land; and the registered agreement stipulated that the respondents shall pay this amount to the petitioners, and that they shall not eject the petitioners from the land. It was further stipulated that the respondents shall, on obtaining proprietary rights from the Government, transfer the same to the petitioners in considera--petition of the amount invested in the land by the petitioners, or in the alternative the respondents shall transfer all their rights in the name of the petitioners.

3. It was alleged in the suit that, contrary to the agreement between the, parties, the respondents moved an application before the Collector of Jhang district in January 1972 for the ejectment of the petitioners from the land in dispute. The petitioners thereupon instituted the present suit on 17-2- 1971 for a permanent injunction, and along with the plaint they also made as application for an interim injunction to restrain the respondents from interfering with the possession of the petitioners.

4. The application for interim injunction was granted by the trial Court on 14-4-1972, but in appeal the learned District Judge, by his order dated 14-12-1972, vacated the injunction: The petitioners' revision petition was rejected by the High Court on 22-6-73 mainly on the ground that under section 19 of the Colonization of Government Lands Act the respondents were not competent without the consent in writing of the Commissioner or other authorised officer to execute a sub- lease for more than one year, nor were they permitted by law to create any charge on the land or to transfer the same to a third party, Accordingly, the agreement, on which the petitioners based their cause of action, was void in terms of section 19 aforesaid and could not be acted upon. The High Court, therefore, found that the petitioners did not have z prima facie case in the matter.

5. Leave to appeal is now sought on the ground that in refusing the temporary injunction to the petitioners the High Court has traversed beyond the requirements of rule 1 of Order XXXIX, inasmuch as it has undertake an examination of a complex legal question regarding the validity of the agreement executed between the parties, while its only duty was to ascertain whether the petitioners had a prima facie case on the facts alleged in the plaint. In support of this submission, reliance is placed on Mian Muhammad Latif v. Province of West Pakistan (PLD1970SC180). It is submitted that the petitioners being in possession of the land, and having spent a very large sum on its development it was obvious that irreparable loss would accrue to them if their possession was not maintained during the pendency of the suit, and that from all points of view the balance of convenience also lay in their favour. Lastly, it .Is submitted that even on the question of the application of section 19 of the Colonization of Government Lands Act, 1912, the High Court has fallen in error as it has overlooked the provisions contained in clause 3 (j) of the lease granted by the Government in favour of the respondents, according to which the respondents were clearly authorised to execute a sub-lease and this clause was in the nature of the requisite authorisation contemplated by section 19.

6. It is true that in the case mentioned by the learned counsel for the petitioners, this Court observed that in a case where temporary injunction is claimed the plaintiff is only to make out that he has a good prima facie case, meaning thereby that a serious question is to be tried in the suit. However, these observations are of no avail to the petitioners, for they cannot be construed as excluding the Court from examining the prima facie legal nature of the claim on which the plaintiff's suit is founded. In fact, in the case mentioned by the learned counsel, the legal aspects of the plaintiff's case were looked into for reaching the conclusion that he had raised a serious question for trial in the suit. Now, in the instant case, section 19 of the Colonization of Government Lands Act being clearly applicable to the matter, the respondents were within their rights in pointing out that the contract on which the petitioners were basing their claim was void under the law.

7. A reference to section 19 prima facie shows that the respondents, as lessees of Government land, could not sublet it for more than one year without the written consent of the Commissioner or other authorised officer, nor could they transfer the same or create a charge thereon without such permission. No such permission was admittedly obtained in this case. The stipulation contained in clause 3(J) of the lease granted to the respondent by the Government has to be read in the context of the parent statutory provisions as embodied in section 19. The learned District Judge as well as the High Court were, therefore, apparently right in thinking that the petitioners did not have a prima facie case in law. Such being the case, they could not succeed in obtaining an injunction merely on the ground that they were in possession and had spent a huge sum of money on the develop--ment of the land in suit.

8. For the foregoing reasons, no justification is made out for our inter--ference with the discretion exercised by the Courts below. The petition, therefore, fails and is hereby dismissed.