Citation Name: 2023 CLC 1406 PESHAWAR-HIGH-COURTBookmark this Case ANWAR KHAN vs ASSISTANT COMMISSIONER, TEHSI

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Citation Name: 2023 CLC 1406 PESHAWAR-HIGH-COURTBookmark this Case ANWAR KHAN VS ASSISTANT COMMISSIONER, TEHSIL ALPURAI, DISTRICT SHANGLA S.3---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Temporary injunction, ingredients of---Discretionary relief---Prima facie case---Good arguable case, test of---Suit for declaration/permanent injunctions was filed against the respondent/defendant (concerned Assistant Commissioner) who served the petitioner/plaintiff with notices directing him to remove superstructure over suit property---Application of plaintiff/petitioner for grant of temporary injunction in his favour, having been moved along with suit for declaration, was declined by the Tribunal---Plaintiff/petitioner asserted himself as owner-in- possession, however, he was not recorded as an owner in the relevant record---Contention of the petitioner/plaintiff was that he had purchased suit-property about 35 years ago (from two private respondents); and had constructed five-storey building and shops over the time, for which the official respondent never raised any objection before---Petitioner/plaintiff invoked constitutional jurisdiction of the High Court against rejection of temporary injunction---Held, that in order to win discretionary relief , a plaintiff had to show the co-existence of three ingredients i.e. prima facie case, balance of convenience and irreparable loss---Temporary injunction could be granted notwithstanding of the fact that the said three ingredients did not co-exist where circumstances made out a good arguable case on the strength of a prima facie case only---Possession and construction of the petitioner/plaintiff, in the present case, suggested a prima facie case, rather " a good arguable case"---If on the one hand, the temporary injunction was not to be granted and the official respondent would demolish his construction ; and on the other, if he would be able to win his case before the Tribunal, he would suffer materially as compared to the respondent---In event of dismissal of the suit of petitioner/plaintiff, official respondent would demolish the built-up property, thus, a good arguable case existed in favour of petitioner/plaintiff which offered the High Court a threshold for exercising its jurisdiction---Good arguable case was made out in favour of the petitioner/plaintiff---High Court granted temporary injunction in favour of the petitioner/plaintiff for a period of 45 days during which the Tribunal would decide the case ---Constitutional petition was allowed, in circumstances.

Citation Name: 2023 CLC 1406 PESHAWAR-HIGH-COURTBookmark this Case ANWAR KHAN vs ASSISTANT COMMISSIONER, TEHSIL ALPURAI, DISTRICT SHANGLA S — 2023 CLC 1406 PESHAWAR-HIGH-COURT

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