Mst. SHARIFAN BIBI And Others vs MUHAMMAD ABID RASHEED

JUDGMENT MAHMOON RASHID SHEIKH, J.---Through this petition the petitioners have assailed the order dated 13-1-2010 passed by the learned Additional District Judge, Faisalabad whereby the temporary injunction granted to the petitioners by the learned Civil Judge, Faisalabad through order dated 12-12-2008, has been set aside.

2. The brief facts giving rise to the Petition are to the effect that the petitioners filed a suit for declaration and perpetual injunction in respect of the property in dispute, fully described in -the petition, against the respondents before the Civil Courts at Faisalabad. The suit has been brought on - the grounds that the predecessor-in-interest of the parties has died leaving behind a vast business. Petitioner No.1 is the mother of petitioners Nos.2 to 4 and the respondent. Out of the business/property inherited by the parties and other sources of income mentioned in the plaint the property in dispute was bought by the parties. The respondent was given the responsibility of completing the formalities of sale as the petitioners had full faith and trust in him. The petitioners were given to understand by the respondent that the sale-deed of the property in dispute had been registered in the name of the parties. It, however, transpired later on that the respondent had maneovered to have the sale-deed registered in his name alone. Hence the suit. The learned trial Court through order dated 12-12-2008 granted a temporary injunction to the petitioners in respect of the property in dispute. On appeal, however, by the respondent the said order was set aside on 23-1-2010 by the learned Additional District Judge; Faisalabad.

3. The respondent has entered appearance through counsel. At the very outset the learned counsel for the respondent has challenged the maintainability of the petition and also the suit by, inter alia, submitting that in order to obtain a temporary injunction a party has to establish three ingredients namely existence of a prima facie case, balance of convenience and irreparable loss. Further' contends that the relief of injunctions is. Discretionary in its nature. In order to seek discretionary relief a party has to come to Court with clean hands. In the instant case none of the above three ingredients is present in the petitioners' case nor have the petitioners approached the Court with clean hands. In this respect 'submits that the predecessor-in- interest of the parties had in fact undergone two marriages. The first of such marriages was with petitioner No.1. Petitioners Nos. 2 to 4, one Muhammad Tahir Rasheed and the respondent are the surviving children out of the said wedlock. The predecessor-in-interest of the parties has another son from his second marriage. The said on (namely Amjad) and his mother have not been made parties to the suit nor to the petition.

Moreover, petitioners Nos.2 to 4's. And the respondent's full brother namely Muhammad Tahir Rasheed has also not been made a party to the proceedings. The said Muhammad Tahir Rasheed had earlier brought a suit against the respondent in respect of the property in dispute claiming to be a sharer therein with the respondent to the exclusion of the petitioners. The said suit was dismissed as having been withdrawn on 2-5-2008. The learned counsel during the course of his submissions has presented uncertified copies of the said order(s) dated 2-5-2008. Further submits that all these facts have been deliberately concealed by the petitioners. Indeed, the 'present proceedings have been initiated by the petitioners at the behest of Muhammad Tahir Rasheed.

Further contends that the property in dispute has been purchased by the respondent out of his on pocket. The sale-deed in question is a registered instrument and is in the name of the respondent.

Relies on the judgments reported as Muhammad Aslam and 8 others v. Rehmat Ali and 8 other (2000 M LD 1459), Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others (1993 SCM R 462) and Auqaf Department v., Javed Shuja and others (1995 CLC 1173) to contend that the sale- deed in question being a registered document a presumption of correctness is attached to the same. Also contends that the principle of lis pendens applies to the case. Prays that the petition may be dismissed.

4. The learned counsel for the petitioners controverts the stance of the respondent's counsel. He has assailed the impugned order by submitting that the written statement filed by the respondent is evasive in nature. No proof of any income has been given by the respondent therein to show that he has purchased the property out of his on sources. This fact has been overlooked by the learned appellate Court below. Also submits that the respondent is trying to drive his mother out of the property in dispute. Relies on Karam Din through L.Rs. And others v. Muhammad Idrees (2010 CLC 246).

5. The learned counsel for the petitioners when confronted with the objections regarding the concealment of facts and non-implement of the said Muhammad Tahir Rasheed; and Amjad and his mother, had no satisfactory answer. When questioned that if at all the property in dispute has been bought out of the estate left by the parties' predecessor-in-interest then should the above- mentioned persons not have been made, parties to the suit or should they not get a share in the property in dispute, the learned counsel has nothing to and.

6. I, therefore, do not feel persuaded to interfere with the impugned order. Even otherwise, the principle of lis pendens is attracted to the case.

7. This petition is accordingly dismissed, with No order as to costs..