MUHAMMAD YOUSUF Versus AMIR MUHAMMAD

ORDER

1. This is an application for attachment before Judgment under Order XXXVIII, rule 5, Code of Civil Procedure.

2. The application was submitted alongwith the plaint and by order dated 26-1-1976 while issuing notice to defendant, this Court passed ad interim order restraining defendant from transferring or charging or otherwise encumbering his motor vehicles which were sought to be attached.

3. This is a money suit for recovery of Rs. 1,50,200.00. The case of the plaintiff is that the defendant was on friendly terms with him and obtained a total sum of Rs. 1,20,000 from the plaintiff which was advanced to him in instalments between 1-11-1973 to 31-3-1974 for being invested in. the purchase and sale of motor vehicles. It was further alleged that out of this amount the defendant purchased four trucks and one Mini Dodge. The plaintiff alleged that the defendant did not have the vehicles registered, in plaintiff's name and unauthorisedly sold away two vehicles without the consent and knowledge of the plaintiff. The plaintiff finally alleged that the remaining three vehicles were still in the possession of the defendant. Since the amount was not repaid, it was alleged, the present suit was filed for recovery of the principal alongwith interest.

4. By this application the plaintiff seeks the attachment before judgment of the motor vehicles and household effects. The only ground disclosed in the supporting affidavit is that it would be in the interest of justice and equity to secure the payment of the claim in suit.

5. In his Counter-Affidavit the defendant asserted that out of the 3 vehicles 2 vehicles, namely vehicles bearing Registration No. KAZ-7026 and KAZ-6776, having met with accidents were rendered unserviceable and were consequently disposed of in the knocked down condition to second hand parts dealers in 1975. The 3rd vehicle bearing Registration No. LR-8115 has been purchased on hire-purchase basis from one Mohammad Tufail and since a sum of Rs. 75,000.00 remains payable it stands in the name of the said original owner.

6. The claim of the plaintiff is not based on any documentary evidence and is founded on oral transactions stretching over a period of time. Explaining this learned counsel for the plaintiff contended that the reason for absence of any proof of writing in support of the payment is that the relations between the parties were of strict confidence generated on account of friendship. He vehemently contended that the defendant in his Counter Affidavit has not specifically denied having received the amount which amounts to implied admission. The learned counsel referring to the documents filed by the defendant criticised the veracity of the truth of the allegation that two of the vehicles were disposed of on account of damage due to accidents and that the ownership of the 3rd vehicle still vests in the original owner. He further urged that this conduct, on the contrary shows clearly the mala fide intentions of the defendant to do away with the property. Counsel cited several Judgments on the principles for grant of temporary injunction and pressed the confirmation of the ad interim order in the alternative.

7. Learned counsel for the defendant on the other hand submitted that the question of specific denial of allegation regarding payment of the amount to defendant does not arise as no such allegation has been made in the application or the supporting affidavit. However, he referred to the Counter-Affidavit wherein it is averred that the plaintiff has produced no documentary evidence to prove his claim, which was accordingly liable to be dismissed. Counsel forcefully contended that in absence of allegations to the effect that the defendant was about to dispose of his property or remove it outside the jurisdiction of the Court with intent to defeat the decree that may be passed against him, as required by Order XXXVIII, rule 5, C. P. C., no order for attachment can be passed.

8. The Jurisdiction of Courts in attaching property before Judgment is o an extraordinary nature and should be exercised sparingly and strictly in accordance with the procedure prescribed by the Code. In terms Order XXXVIII, rule 5, C. P. C. requires that before availing itself to act under this rule the Court should be satisfied that the defendant is about to dispose of the whole or part of his property with intent to obstruct or delay the execution of any decree that may be passed against him. The Court would not be justified in issuing an order under this rule merely because no harm would) be done thereby.

9. As stated above no allegation of the nature as provided by law has been made in this case. I am not satisfied that the mere fact that defendant has disposed of two vehicles, leads to the conclusion that he did so or that he intends to similarly dispose of his other property, with the requisite intention. Nothing has been shown to satisfy the Court of the practical certainty of the plaintiff's success in suit, as it is yet to be proved upon oral evidence that the plaintiff advanced the huge amount without any kind of writing. Nor has the plaintiff established the existence of grave danger of the defendant disposing of his property.

10. Learned counsel for the plaintiff attempted to show that the requisite averments were made in the rejoinder affidavit. However, I am not inclined to take into consideration these allegations as firstly, fresh facts cannot be stated in rejoinder-affidavit which is to be confined to the reply of the allegations in the Counter-Affidavit. Secondly, these are also mere vague allegations without disclosing any basis for them.

11. For all these reasons this application fails and is accordingly dismissed. The ad interim order passed earlier would also stand vacated.

12. S. Q. Application dismissed.