Appellant/plaintiff has filed this appeal against order dated 26.10.2020 passed from the court of Mr. Muhammad Azeem Nasir, learned Civil Judge 1st Class Depalpur, through which his request for ad-interim injunction in suit for rendition of accounts with permanent injunction was turned down.
2 Learned counsel for appellant/plaintiff submitted that he started business of poultry with respondents in 2014 relating to which he gave them one blank cheque of his account and one cheque of Rs.100,000/- of his brother as guarantee. That in 2017 this business was closed and all accounts cleared but respondents did not return said two cheques of guarantee. That in March 2019 they again started business and he issued two further cheques as guarantee. However this business was again closed and all financial matters were cleared between parties. He asked respondents to return his above four cheques of guarantee but they refused. Hence he filed present suit for rendition of accounts with permanent injunction. That learned trial court turned down his request for ad-interim injunction to restrain respondents from using said cheques against him at any forum against facts and law. That all the three ingredients co-exist in his favour for grant of injunctive order. That impugned order was passed in haste and without application of judicial mind.
3 On the other hand, learned counsel for respondents/defendants supported impugned order, contested this appeal and prayed for its dismissal. He submitted that appellant issued above cheques for payments against purchase of poultry and then filed this false suit with malafide to avoid said payments, encashment of cheques and initiation of any possible legal proceedings against him. He has finally prayed for dismissal of this appeal.
4 Arguments advanced by learned counsel for the parties have been heard and record perused.
5 At present above version of the appellant/plaintiff require recording of evidence that cheques were issued as a guarantee and not for actual payments. So far he has not placed on record any document to show issuance of said cheques as a guarantee. There is no fear of irreparable loss. Hence, the learned trial court was quite justified to turn down his request for an ad-interim injunction. No illegality or infirmity is found in the impugned order. An appeal in hand being devoid of merits is accordingly dismissed. Copy of this judgment is sent to the learned trial court and file of this appeal be consigned to record room after its necessary completion within the stipulated period.
Through this single Judgment three above captioned Civil Appeals arising out of same consolidated judgment/decree dated 24.06.2019 passed from the court of Mr. Iftikhar Hussain the then learned Civil Judge Class-II Depalpur are intended to be decided. Throughout this consolidated Judgment Dewan Imlak Ahmad plaintiff No.1 will be called as appellant No.1, Nawab Bibi plaintiff No.2 as appellant No.2, Dewan Akhlaq Ahmad (plaintiff of connected civil suit) as respondent No.1 and Mangat Abbas defendant No.1 as respondent No.2.
2 Appellants No.1 and 2 filed present suit for partition against respondents after which respondent No.1 also filed present second suit for partition against them. Learned trial court consolidated both suits and vide impugned Judgment decreed them in the light of report of Referee submitted as Annexure-A, plaintiffs were directed to submit stamp duty at the rate of 3 % according to market value of their shares respectively in both suits and for purpose of final decree sheets to be drawn accordingly after submission of requisite stamp papers. Appellants and respondent No.1 have challenged said Judgment/decree to the extent of imposition of stamp duty while respondent No.2 has called it in question in toto.
3 I have heard arguments advanced by learned counsel for parties at length and perused record.
4 Without touching merits and being précised, it is noted that appellants and respondent No.1 submitted separate applications for appointment of Referee under section 9(3) of Punjab Partition of Immovable Property Act, 2012 which were contested by respondent No.2. However, learned trial court vide order dated 18.05.2016 accepted both said applications filed under section 9 (3) of Punjab Partition of Immovable Property Act, 2012 and appointed concerned Patwari as Referee. Later on vide order dated 07.06.2017 learned trial court reappointed Ch. Kamran Nawazish Advocate as Referee and in the light of his final report passed impugned Judgment /decree.
5 It is an admitted fact that Section 9 to the extent of Subsection 3 was omitted by Punjab Partition of Immovable Property (Amendment) Act 2015 and the same was not in field when above applications were filed by appellants and respondent No.1 and later on accepted by learned trial court vide order dated 18.05.2016. Therefore all proceedings from 18.05.2016 to onwards including the passing of impugned consolidated Judgment/decree are a nullity in the eye of law and hence not sustainable. As per section 9 (1) of the Punjab Partition of Immovable Property Act, 2012, the court shall appoint a Referee for partition if all the co-owners agreed in writing for partition of immovable property through the appointment of a Referee. Therefore order dated 18.05.2016 is not legally sustainable even if considered to be passed under section 9 (1) of Punjab Partition of Immovable Property Act, 2012. Consequently, all the three appeals are accepted, impugned consolidated Judgment/decrees are set aside and both suits are remanded to the learned trial court for afresh decision by following due process as provided by Punjab Partition of Immovable Property Act, 2012. Parties in attendance are directed to appear before the learned trial court on 23.12.2020. Decree sheets be prepared. Attested copy of this Judgment be annexed with connected files. Copy of this judgment along with record of the learned trial court be sent back and files of these appeals be consigned to record room after necessary completion within the stipulated period.