MUKAMMAL SHAH vs SECRETARY C&W O — 2021 CLC 81 PESHAWAR-HIGH-COURT

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MUKAMMAL SHAH VS SECRETARY C&W O.XXXIX, Rr. (1), (2) & (2-B)---Specific Relief act (I of 1877), S.42---Suit for declaration---Temporary injunction, grant of---Ingredients---Trial Court accepted application for grant of temporary injunction against which appeal was dismissed---Defendants thereafter moved application for vacation of temporary injunction which was accepted and appeal against the said order was also dismissed---Validity---Plaintiff had admitted in his plaint that a thoroughfare existed on the spot---Said thoroughfare was not having a dead end near the property of plaintiff but had been leading to the area of another village and same was being used by inhabitants of said village---Defendants were using the said thoroughfare for access to their property---High Court observed that Project for construction of road on a thoroughfare was a project of public utility which was beneficial for all including the plaintiff---Substantial progress had been made in construction of the road---Construction work so conducted on the spot was of such a nature which could neither be reversed at this stage nor such an act was in anyone's interest---Balance of convenience was in favour of continuation and completion of project for the benefit of community---Loss apprehended to the plaintiff in the present case had already been caused and in case property was found to be in his ownership then plaintiff might be compensated adequately---Loss in the present case would not be irreparable, in circumstances---Earlier order for grant of temporary injunction might not be regarded as any findings having achieved finality---Civil Court while deciding an application under O.XXXIX, R.2-B of C.P.C. could not be deemed to have been bound by the earlier decision made on an application for temporary injunction---Courts below were justified in taking a different view in the present case---Decision on application for temporary injunction was based on tentative assessment of record and findings recorded therein might not be termed as definite and final of a Court of law---Changes might occurred in the situation and subject matter of a suit---Court of law could not be bound by a first order made on the application for grant of temporary injunction while deciding application under O.XXXIX, R.2-B of C.P.C.---Plaintiff might amend his plaint and claim compensation for the property which he had been claiming to be his ownership---If plaintiff so claimed then Civil Court would not hesitate in granting adequate compensation provided he had proved the area in dispute to be his ownership---Revision was dismissed, accordingly.

MUKAMMAL SHAH vs SECRETARY C&W O — 2021 CLC 81 PESHAWAR-HIGH-COURT

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