HAROON ARA Versus SAKHAWAT HUSSAIN MALIK

ORDER

1. This High Court Appeal is directed against an order dated 9‑8‑1989 passed by a learned Single Judge of this Court in Suit No.655 of 1989 upon C.MA. No.4152/89 declining the present appellant's/plaintiff's application under Order 39, Rules 1 and 2, C.P.C. for restraining the respondent No.l from transferring or parting with the possession of Plot No3, situated at Street No.27, Phase V, Defence Officers Housing Authority, measuring 600 sq. yards.

2. The brief facts leading to the filing of the above appeal are that respondent No.l was allotted a plot of land, bearing No37, measuring 600 sq yards, situated in Phase IX, who entered into a sale agreement with the appellant on 19‑7‑1987. Before the aforesaid plot could have been mutated on the record of respondent No.2 authority on payment of the transfer fee and on payment of the membership fee for becoming an associated member, it seems that Phase IX was abandoned. After that in April, 1989 respondent No.2 invited applications from the allottees of Phase IX for the allotment of the alternate plots. Upon the aforesaid application, aforesaid Plot No.57, situated at 27 Street, Phase V, measuring 600 sq. yards was allotted to respondent No.l. It seems that respondent No.l declined to transfer the newly allotted plot to the appellant. Thereupon the appellant filed the aforesaid suit for specific performance and for injunction. In the above suit, the aforesaid application was fled, which has been declined. The appellant being aggrieved by the above order has filed the present appeal.

3. In support of the above appeal, Mr. Muhammad Anwar Tariq, learned counsel for the appellant, has vehemently contended that since respondent No.1 had transferred all his rights and interest in Plot No.57, situated in Phase IX, the latter is entitled to the alternate plot allotted in lieu of the said plot. He has further submitted that all the documents were given by respondent No.l to the appellant.

4. We would not like to express ourselves on the above contention definitely as it may prejudice the parties. However, it will suffice to observe that admitted position is that the Plot No.57 of Phase IX was not transferred in favour of the appellant on the record of the respondent No.2 inasmuch as neither appellant had become associate member on payment of the membership fee nor had paid the transfer fee of the plot and, therefore, the question whether the appellant is entitled to the alternate plot on the basis of the sale agreement dated 18‑7‑1987 will have to be adjudicated upon after recording of the evidence and after ascertaining what was the understanding between the appellant and respondent No.l, as to the above transaction and what was the conduct of the parties. immediately subsequent to the abandonment of Phase IX. At this stage we cannot observe that the learned Single Judge has not exercised discretion properly in the matter. The petition has no merits. It is, therefore, dismissed in limine.

5. AA./H‑363/K Petition dismissed,