MUHAMMAD BANARAS KHAKAN Versus RUBINA CHAUDHARY

ORDER

1. This application has been filed by the plaintiff under Order 39, Rules 1 and 2, C.P.C, seeking interim injunction to restrain the defendant from transferring, encumbering, mortagaging, leasing of otherwise dealing with the Property No. 133, Commercial Avenue, Phase VII, Defence Housing Authority, Karachi, measuring about 2000 sq. yards (hereinafter referred to as the subject property) during the pendency of the suit. The application is opposed by the defendants Nos. l to 4 who have filed joint written statement and a common counter‑affidavit which is sworn by the defendant No‑ 1.

2. The facts urged on behalf of the plaintiff are that the defendants Nos. l to 3 being transferees/owners of the subject property, on 25‑9‑1995, agreed to sell it in favour of the plaintiff. The sale consideration was settled at Rs.45,00,000 out of which Rs.50,000 were paid as advance money to defendants Nos. l to 4. According to the plaintiff, the defendants Nos. l to 4 have executed receipt for the advance money 2nd the balance amount of Rs.45,00,000 was agreed to be paid through pay orders on or before 10th October, 1995 at the time of transfer. It is further averred in the plaint that the defendants Nos. l to 4 had handed over copies of their N.I.C.‑ Transfer Order and original site plan to the plaintiff alongwith photographs of the defendant No.4. The plaintiff, thereafter, submitted relevant documents to the defendant No‑5 D.H.A., for admitting the defendants Nos.l to 3 as members of the defendant No.5 in Category 'C' alongwith pay order of Rs.600. The original receipt evidencing submission of application for grant of Associate Membership dated 9‑10‑1995 has been filed by the plaintiff alongwith the plaint. It appears that membership of defendant No. 5 was granted 'to the plaintiffs Nos. 1, 2 and 3 in pursuance of such applications on 20th December, 1995 which fact was admittedly communicated through letter, dated 6th Mach, 1996 to the plaintiffs Nos. l, 2 and 3. The plaintiff further claims that the defendants Nos. l to 4 gave their account number, names of the bank and branch and the, amount for which the pay orders were to be prepared for the total sum of Rs.44,00,000. The plaintiff got four pay order prepared on 9‑10‑1995 favouring defendants Nos. l to 4 and also got another pay order prepared in favour of defendant No.5 in the sum of Rs.30,000 being the transfer fee. On 10th October, 1995 the plaintiff waited for defendants Nos. l to 4 at the office of defendant No. 5 but they failed to turn up. It is also averred in the plaint that the defendants Nos. l to 4 have refused to effect transfer in order to sell the subject property to another party at a higher price while the plaintiff is ready and willing to perform his part of the contract.

3. In the counter‑affidavit and the written statement filed on behalf of the defendants Nos. l to 4, it is urged that the defendant No. 4 has no interest in the subject property, and therefore, she is neither a necessary party nor can perform the sale agreement. The case of the defendants Nos. l to 4 is of total denial and the agreement of sale by the defendants Nos. l to 3 with the plaintiff has also been denied. The handing over of the various documents is also denied and it is urged that on 25‑9‑1995, when receipt for Rs.50,000 is alleged to have been executed, the defendant No.2 was out of the country. It is, however, admitted that the receipt dated 25‑9‑1995 was executed by the defendants Nos.3 and 4 only but in view of admission by the plaintiff that the defendant No.4 was not an owner, no sale agreement could be executed by her. The defendants Nos.3 and 4 were neither agents nor could represent the defendants Nos. 1 and 2. The defendant No.3 too could not enter into agreement for sale of the entire plot. With reference to the application by defendants Nos. l to 3 for grant of Associate Membership to them, it is urged that such application having been made just one day before the alleged date for execution of conveyance‑deed would show that the subject property could not be transferred by the said defendants. The submission of application for grant of membership to defendants Nos. l to 3 by the plaintiff, however, is not denied. It is averred in the counter‑affidavit that the defendant No.4 had. given details of the bank account of defendants Nos. l to 3 to the plaintiff subject to the defendants Nos. l to 3 approving sale of the subject property. Paragraph 10 (ten) of the counter‑affidavit filed on behalf of the defendants Nos. l to 4, being pertinent, is reproduced hereunder: ‑‑

4. "That it then transpired that the plaintiff did not have sufficient funds to pay the purchase price and he instead proposed that the defendants Nos. l to 3 should sell the plot to one Mr. Mehboob Ali. This was not at all acceptable to defendants Nos. l to 3 as the proposed agreement which had never been finalized had been with the plaintiff and not with Mr. Mehboob Ali who was not known the defendants. They, therefore, chose to not ratify the proposed agreement. Disregarding this the plaintiff got the aforementioned Mr. Mehboob Ali to arrange for the Pay Orders. Since Mr. Mehboob Ali was taking the place of the plaintiff, the plaintiff also proposed transferring, the plot into Mr. Mehboob Ali's name. By looking at the photostat copies of the Pay Orders, it can be clearly seen that the payer is Mr. Mehboob Ali. It is admitted in para. 4 of the plaint that the plaintiff intended to transfer the plot to Mr. Mehboob Ali. It is an admitted fact that the proposed agreement of sale, even if its validity is conceded, was between the plaintiff and defendants. It was obviously not between the defendants and Mr. Mehboob Ali. Thus even if the proposed agreement for sale was binding, or even if it had been ratified by defendants Nos. l to 3, it is not open to the plaintiff to demand specific performance when he himself is refusing to comply with its terms. It should be noted that the proposed agreement does not authorize the plaintiff to put forward a nominee. Thus, the plaintiff by proposing that instead of the plaintiff a third party should buy the plot has clearly failed to comply with the proposed agreement. "

5. The case of the defendant No.5 Defence Housing Authority as reflected from the written statement is that the defendants Nos. l to 3 had applied for its membership on 9‑10‑1995 which has duly been granted. As per the record maintained by the Defence Housing Authority, the subject property stands in the names of defendants Nos. l to 3.

6. At the time of hearing, the learned counsel for the plaintiff urged that the defendant No.4, who was earlier the owner of the subject property, is mother of defendants Nos. 1, 2 and 3 and had transferred the subject property in the name of her daughters by way of gift for name‑sake only. She had the original documents of title pertaining to the subject property and had provided copies thereof while negotiating sale with the plaintiff. She is real owner of the subject property and had complete authority to negotiate its sale. It was undertaken by her that she would get the necessary papers executed by her daughters for effecting transfer of the subject property. The defendants Nos. l to 3 were not even members of the defendant No.5 and the defendant No.4 further represented that one of her daughters could sign the receipt but two of them had some difficulty on account of being away from the city. Nevertheless it was asserted by her she had the complete authority and power to conduct negotiation and enter into agreement for sale of the property on behalf of her daughters. To substantiate her claim, the defendant No.4 asked the defendant No.3 to sign the receipt dated 25‑9‑1995 which, according to the plaintiff, contained all material terms of a valid agreement between the parties. The defendant No.4 also banded over copies of the N.I.Cs. of herself and the defendants Nos 1 to 3 alohgwith two passport size photographs of everyone. The photographs of defendants Nos. 1 to 3 were submitted to the defendant No.5 alongwith the application for membership but the photographs of the defendant No.4 remained with the plaintiff which have been filed alongwith the plaint. Site plan issued on 21‑9‑1996 to the defendants Nos. l to 3 was also handed over to the plaintiff in original as a token of authority claimed by the defendant No.4. The application for membership by the defendants Nos. I to 3 were submitted by the plaintiff and the required fee was also paid by him through pay order dated 8‑10‑1995. The pay orders for the sum of Rs.44,00,000 in the names of the defendants Nos. l to 4 were got prepared by the plaintiff under instruction from the defendant No.4 in a manner so as to show credit payment of Rs. one million each in the name of defendants Nos. l, 2 and 3 and Rs. 1.4 million in favour of the defendant No.4 herself. Such pay orders. according to the learned counsel for the plaintiff, were got cancelled during the pendency of the case, due to expiry of their validity period. The plaintiff further claims that the authority of the defendant No. 4 to represent her three daughters is also reflected from the fact that the account numbers and the amount payable in the four names respectively were written on a chit and given to the plaintiff. All such. instructions were duly acted upon by the plaintiff; and the defendants have admitted the agreement substantially in their counter‑affidavit and the written statement. Mehboob Ali was claimed to be the nominee of .the plaintiff and it is urged that the plaintiff could arrange payment of money by any one. On behalf of the defendants Nos. l to 4, it was urged by their counsel that there was no agreement between the parties; the defendant No.4 had no authority to represent the defendants Nos. l to 3; the pay orders allegedly got prepared by the plaintiff bear the name of one Mehboob Ali as the drawer who was not purchaser of the subject property. The plaintiff has thus failed to perform his part of the contract and is not entitled to any relief. The learned counsel for the defendant quite vociferously argued the case and referred to a long list of authorities. The learned counsel first referred the judgment reported in PLD 1987 Karachi 132 Mst. Khatoon Begum v. Mst. Barkatunisa Begum and others, to urge that the plaint is not in accordance with the form prescribed in Schedule 'A; to C.P.C. The judgment reported in 1989 SCMR 1292 Mir Alam v. Mst. Janey and others, and another judgment in the same volume at page 868 Mirza Tasawar Ali Beg v. Abdur Rashid Khan and another, was cited to submit that ratification of contract by a co‑owner is necessary and in the present case such ratification was lacking. The learned counsel also referred to the case Messrs Karachi Gas Co. Ltd., Karachi v. Messrs Fancy Foundation, reported in PLD 1977 Karachi 191 and urged that injunction cannot be granted. if compensation/damages can be measured in terms of money. Further, reference was made to the judgment reported in 1987 CLC 792 (Rehmat Ullah v. Tufail Hussain and others), to urge that the plaintiff should be asked to deposit the balance amount of consideration. Reference was also made to the provision of section 23 of the Specific Relief Act, to show as to who can seek specific performance of contract. The learned counsel for the defendant has also challenged validity of the receipt dated 25‑9‑1995 and urged that the revenue stamps affixed thereon were not properly cancelled.

7. The various arguments urged on behalf of the defendants, are not relevant for deciding application for interim injunction and can be attended to after evidence is led by the parties and the main case is heard. Nor do I consider it necessary to comment separately upon each judgment cited before me. Moreover, the learned counsel for the defendant appear to have unnecessarily stressed about technicalities which cannot be allowed to defeat the ends of justice particularly at this interim stage and the application has to be decided mainly on the basis of respective affidavits submitted by the parties. I am fortified in this view by observations of a D.B. of this Court in the case of Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. and 2 others, reported in PLD 1990 Karachi 1, which is to the following effect:‑

8. "We are inclined to agree with Mr.Mansoor Ahmed Khan that in a fit case the Court may grant interim injunction even if the case does not fall within the four comers of the well‑settled principle under Order 39, rules 1 and 2, C.P.C, if the fact of the case so demand, in order to foster the cause of justice. Nasir Aslam Zahid, J. in the case of Mst. Salina Jawaid and 3 others v. S.M. Arshad and 7 others, reported in PLD 1983 Kar. 303, .has inter alia held that the Court can grant temporary injunction or appoint receiver by exercising inherent powers in the interest of justice after making reference to sections 94 and 151, C.P.C."

9. The Code of Civil Procedure and the procedure and forms prescribed therein do not place any embargo upon the powers of Court but merely regulates the procedure for exercise of powers possessed by the Court even before the Civil Procedure Code was enacted. It is the duty of the Court to determine and protect civil rights and as held in the case of Imtiaz Ali v. Ghulam Ali, reported in PLD 1963 SC 382, the technicalities cannot be allowed to thwart administration of justice.

10. While it is true that the plaint filed in the present case is not happily worded, the record and conduct of the parties show that the subject property was previously owned by the defendant No.4 who is the real mother of defendants Nos. l, 2 and 3. While she had transferred the property through gift in favour of the defendants Nos. l, 2 and 3, the original documents pertaining to the subject property were retained by her and she appears to exercise complete control over her daughter. To put in other words, tentatively speaking, in my view she had the necessary authority to represent her daughter. The handing‑over of the various original documents and the personal data relevant 4o the defendants Nos. l to 4 coupled with express ratification at least by the defendant No.3 who had put her signature on the receipt dated 25‑10‑1995 and acknowledgment of grant of Associate Membership to the defendants Nos. l to 3 indicates that the deal with the plaintiff was made by the defendant No.4 as a representative and on behalf of the defendants Nos. l to 3 who had complete knowledge thereof and had ratified the deal through their conduct making the plaintiff believe that the agreement was authorised; the plaintiff has acted thereon with the result that the defendants Nos. l to 3 are estoppel in law from denying the contract. The filing of joint/common written statement and counter‑affidavit further substantiates such views. The denial of agreement with the plaintiff on behalf of the defendants Nos.l to 4 again is without substances. It is by now axibmatic that even oral contract can specifically be performed. In the present case a comprehensive receipt was executed by the defendants Nos.3 and 4 on 25‑9‑1995 which contained all the material terms required for a valid contract. The parties to the agreement, the subject property and the amount of consideration are identifiable. Reference for such proposition may be made to the cases reported in PLD 1981 Kar. 170, Ali Muhammad Khan represented by His Heirs v. Riazuddin Khera,.

11. As to the validity and effectiveness of the contract entered into by the defendant Na.4, suffice to observe that the conduct of the defendants Nos. l to 4 clearly suggests that the defendant No.4 had represented to the plaintiff that she has the authority and power to negotiate the sale of the subject property and the defendants Nos. l to 3 through their conduct had expressly behaved in a manner to give an impression to the plaintiff that their mother, the defendant No.4, had the requisite authority. Their conduct can reasonably be considered to have created estoppel against them and they cannot be allowed to turn round and dispute the arrangements subsequently.

12. It is true that there can be no estoppel except where one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. In order to sustain a plea of estoppel it must be shown that the representee, relying on the representation made by representator was misled to act to his detriment in such a manner as he would not otherwise have done. The representee is also obliged to show that it was not possible for him to know the true state of affairs by pursuing inquiries reasonably and with diligence. The question which then arises for consideration is as to how may a representation be made. On this reference can conveniently be made to Spencer Bower on Estoppel page ....who has opined that any physical symbol, which being used by one reproduces in the mind of another the idea of an existing fact, or past event, is a representation. A representation may, in the first place, be expressed in language either written or spoken; secondly, it may implied from acts and conduct; and thirdly, it may be inferred from silence or inaction. Thus, where a person by words or acts, or by silence or inaction (if there is a duty on him to speak or act) holds out a person as an agent or representative and the third person is induced by such representation to alter his position, the first cannot subsequently dispute the authority of the agent or the representative as against the person who has acted upon the belief, as above. Applying the above principle to the present case, the defendants Nos. l to 3 had themselves by their acts and omission made the representation held out by the defendant No.4, relied upon as on estoppel since it was with their privity, the representation was made. I am mindful of the limitation and the extent of adjudication applicable to interlocutory proceedings, and therefore, wish to make it clear that all and various observations contained in this order are purely tentative and the final decision in the case would be reached on the basis of evidence and material as may be produced by the parties hereto and independent of any observations contained herein.

13. On the basis of material placed on record by the parties at the present stage, I am constrained to observe that an arguable case has ex facie been made out by the plaintiff so as to attract the principle laid down in the case of Sheikh Muhammad Mateen v. Dino Manekji Chinoy, reported in PLD 1983 Kar. 387 which judgment was affirmed by the Hon'ble Supreme Court in the judgment F reported in PLD 1983 SC 693. The effect of defective pleadings and the allegation about the plaintiff having approached with unclean hands can be left for consideration at the final stage. So also the question about divisibility and partial enforcement of the contract, which must await adjudication at a later stage.

14. The question that arises next, is about protection of interest of the defendants. Admittedly, the plaintiff has paid a sum of Rs.50,000 only to the defendants out of the total sale consideration of Rs.4.5 million. The plaintiff who seeks decree of specific performance of the agreement to sell in respect of the subject property is required to show his readiness and capability to perform his part of the contract. In my view, the balance sale consideration has to be deposited by him to show his bona fides. The plaintiff has, admittedly, utilised and enjoyed the balance amount of Rs.4.5 million after encashment of the pay orders. In the circumstances, following the just and equitable principle, the defendants and/or any one claiming under them, are restrained from transferring, alienating or encumbering in any manner whatsoever, the subject property being Plot 133, Commercial Avenue, Phase VII, Defence Officers' Housing Authority, Karachi measuring about 2000 sq. yards during the pendency of the suit subject to the plaintiff; depositing the sum of Rs.4.5 million with the Nazir of this Court within 15 (fifteen) days from today. Immediately after deposit of the amount as above, it shall be invested by the Nazir in a profit bearing; Government Investment Scheme to abide final outcome of the proceedings. The application stands disposed of as above.

15. A.A./M.166/K Stay order granted.