UMER FAROOQUE Versus PROVINCE OF SINDH

1. This is an appeal filed by the appellants challenging the impugned order, dated 18‑10‑1997 passed by the Senior Civil Judge, Tando Allahyar whereby the learned Trial Court has granted interim injunction under Order 39, Rules 1 and 2, C.P.C., in the F.C. Suit No.93 of 1997 filed by the plaintiff Noor Muhammad, respondent No.6.

2. The dispute between the appellants Nos. l to 3 and the respondent No.6 as per plaint is that the appellants Nos. 1 to 3 who were joint owners of the Survey Nos. 642/1 to 4, 643/1, 3, 5 and 637/4‑5 admeasuring 19‑05 acres, situated in Deli Mareji, Taluka Tando Allahyear (the suit land) to the extent of 62 paisas out of total area of 30‑34 acres, sold the suit land to the respondent No.6 for total consideration of Rs.19,12,500 by executing an agreement in his favour on 18‑1‑1996. The case of the respondent No.6 is that he paid an amount of Rs.10,00,000 (Ten lacs only) to the appellants Nos. l to 3 and as per terms of the agreement, they had to complete the sale of the suit land by 20‑8‑1997 and that the remaining balance was to be paid at the time of registration of the sale -deed before the Sub‑Registrar, Tando Allahyar. The respondent No.6 further alleges in the plaint that the appellants Nos. l to 3 on 8th July, 1997 have sold part of the suit land of an area of 2100 sq. ft. to the appellant No.4 through registered sale‑deed.

3. The appellants Nos. l to 3 have denied to have sold away the suit land on 18‑1‑1996 for the consideration of Rs.19,12,500 and to have received the amount of Rs.10,00,000 (Rupees ten lacs only) from the respondent ‑No.6 as earnest money. They have specifically stated that they have never executed any agreement of sale in favour of the respondent No.6 and that the alleged sale agreement, dated 18‑1‑1996 is a forged and fabricated document.

4. The case of the appellants Nos. 1 to 3 is that they alongwith other two co‑sharers namdly Dr. Khalid Saifullah and Mst. 1qbal Shaheen alias Billo have already agreed truly and genuinely to sell entire area of Survey Nos.637/4‑5, 642/1 to 4 and 643/1, 3 and 5 total area of 30‑34 acres inclusive of 62 paisas shares of appellants 1 to 3 to the vendee Abdul Hameed Qureshi to the notice and knowledge of the respondent No.6 for total consideration of Rs.1,22,00,000 out of which an amount of Rs.25,00,000 has been paid to them. The possession of the entire area has been handed over to the said vendee Abdul Hameed Qureshi on 5th March, 1997 who has already levelled the said land to the sufficient extent,. preparing the boundaries of plots thereon and also he has fully constructed R.C.C. office on the said land. As regards, the area sold to the defendant No.5 (Ashraf Deen, the appellant No.4 in this appeal) the appellant No.4 had filed counter‑affidavit wherein he has clarified the position that the Plot No.44 to the extent of area 2100 sq. ft. had been sold to him by Abdul Hameed Qureshi but final sale‑deed has not been executed.

5. The respondent No.6 had filed an application under Order 39, Rules 1 and 2, C.P.C., in the Trial Court and by the order, dated 4‑9‑1997, the Trial Court had directed the defendants Nos. 6 to 8 to maintain status quo till the next date fixed on 13‑9‑1997. It appears that the status quo order was being extended till the Trial Court granted the interim injunction by the impugned order. Dated 18‑10‑1997. The appellants are aggrieved by the impugned order and they have challenged the same in this appeal.

6. The above appeal was admitted to regular hearing by the order, dated 20‑11‑1997 and I had suspended the impugned order of the Trial Court, dated 18‑10‑1997. The application for stay (Civil Miscellaneous Appeal No.319 of 1997) was fixed for hearing on 4‑17‑1997 when by the consent of the learned counsel, the main appeal is heard as the points argued by the learned counsel go to the root of the case and will be sufficient for decision of the entire appeal.

7. I have heard Mr. Ghulam Rabbani, learned Advocate for the appellants and Mr. Jhamat Mal, learned counsel for the respondent No.6. None appeared for the remaining respondents.

8. Mr. Ghulam Rabbani, learned counsel for the appellants in support of the appeal has submitted that the learned Trial Court granted the interim injunction without properly considering the case of the appellants and important fact that the appellants had denied the execution of the alleged agreement and that prima facie respondent/plaintiff had no case for grant of injunction, the learned counsel argued that in any case, the respondent/plaintiff was not in possession of the suit land, as such, balance of convenience was in favour of the appellants and not in favour of the respondent/plaintiff. He further stressed' that third ingredient was also not in favour of the grant of injunction, which too was not in favour of the respondent No.6. The learned counsel further stressed upon that the learned Trial Court did not consider documentary evidence on the record and that the injunction granted was to the entire prejudice of the vendee Abdul Hameed Qureshi, who was neither impleaded as party nor was heard by the learned Trial Court before granting the interim injunction.

9. Mr. Jhamat Mal learned counsel for the respondent No.6 supporting the impugned order submits that the learned Trial Court has taken into consideration of all the three ingredients of the grant of injunction and there is no error in the impugned order. The respondent No.6 is the lawful purchaser of the suit land and the fact that the appellants Nos. 1 to 3 had or had not executed the agreement is to be appreciated only after evidence is recorded. He stressed that balance of convenience is in favour of respondent and he has to suffer irreparable loss in case of denial of injunction. The learned counsel argued that Abdul Hameed was not necessary party as such, not impleaded as defendant in the suit. The learned counsel submits that it is well‑established law that the status quo prevailing at the time of filing the suit is to be maintained and subsequent events are outside the scope of the‑grant or refusal of the injunction. Lastly the learned counsel stressed that the doctrine of lis pendence will be applicable to the facts of the case and injunction granted does not merit to be interfered with by this appeal. The learned counsel in support of his case has referred to the decisions reported in PLD 1956 Karachi page 521. PLD 1988 Karachi page 401, PLD 1990 Lahore 82, 1990 MLD page 1137 and 1992 CLC page 1288.

10. I have heard the learned Counsel for the appellants and the respondent No.6. I have gone through the impugned order, pleadings, respective affidavits submitted by the concerned parties and the case‑law referred to above.

11. It is well‑established law that for grant of injunction the plaintiff is required to prove three essential ingredients which are, prima facie, case, balance of convenience and irreparable loss to the plaintiff in case injunction is not granted.

12. In the case of Pakistan International Airlines Corporation v. M/s. Hazir (Pvt.) Limited and another, reported in PLD 1993 Karachi page 190 a D.B. decision of this Court, their lordships have observed at page 199 as under:‑‑‑

13. The equitable remedy by way of an injunction whether mandatory or interlocutory in nature is discretionary in nature and is never granted as a matter of course. Lord Diplock's Speech in the American Cyanamid v. Ethicon Ltd. (1975) 1 All ER 504 = (1975) 2 WLR 316 = 1975 AC 396 lays down certain guidelines for the grant of interlocutory injunctions. According to these guidelines the plaintiff must first satisfy the Court that there is a serious issue to decide and if the defendants were not restrained and the plaintiff won the action, damages at common law would 'be inadequate compensation for the plaintiff's loss. Once satisfied of these matters, the Court will then consider whether balance of convenience lies in favour of granting the injunction or not, that is, whether justice would be served by an order of injunction..."

14. The impugned order of the learned Trial Court shows that the injunction has been granted in a routine manner, without considering the three essential ingredients of grant of injunction in its true spirit and in legal sense.

15. The respondent No.6 has even not satisfied nor proved that he has a prima facie case for grant of interim injunction. The appellants have denied to have executed any agreement or the alleged agreement, dated 18‑1‑1996 in respect of the suit land in favour of respondent No.6/plaintiff and have in clear terms stated that the alleged agreement is forged and fabricated. Not only that there is specific denial of execution of the alleged agreement but the appellant, Nos. 1 to 3 have pleaded strong and cogent reasons for their contentions The witnesses of the alleged agreement are said to be Abdul Karim and Muhammad Haroon. Abdul Karim is said to be closely related to the respondent No.6 while other witness Muhammad Haroon is working as a partner of respondent No.6. These facts have specifically been pleaded by the appellant. It is also surprising that the respondent No.6/plaintiff is alleged to have paid an amount of Rupees One Million to the appellants Nos.1 to 3 but no receipt of such huge amount appears to have been obtained by the respondent No.6, nor it is said to have been executed by the appellants Nos. 1 to 3. It is also surprising that despite alleged agreement and payment of the alleged amount of Rupees one Million to the appellants Nos. 1 to 3, the possession of the suit land has not been handed over to the respondent No.6, which is not believable. A party after payment of huge amount insists the other party to hand over the possession, if in fact, agreement has been executed by the vendors. The appellants have denied to have received the alleged amount of earnest money and no proof has been produced by the respondent No.6 that he had actually paid such amount towards earnest money.

16. The affidavits of the witnesses of the alleged agreement could have easily been obtained and filed in the Court to show and prove bona fidely that agreement has in fact been executed, even no such attempt has been made to show that there exists a contract between the parties.

17. I am conscious of the fact that such affidavits may not be required to be filed but in order to prove a prima facie case, such affidavits were necessary when the appellants Nos. l to 3 have been denying the execution of the agreements and the existence of the contract.

18. It is also surprising that the respondent No.6 in the plaint has alleged that he had been approaching the appellants Nos. l to 3 to complete the contract but they were avoiding to do so but there appears nothing on the record that he had ever sent any notice in this respect to them to complete the alleged contract, which also prima facie makes the alleged agreement doubtful and non existent.

19. Thus, the respondent No.6 has prima facie failed to prove that there existed a valid, proper and legal contract between the parties, which could be enforced through the Court of Law.

20. In the case of Mehran Sugar Mills Ltd. v. Sindh Sugar Corporation Ltd. and others reported in 1995 CLC 707 this Court declined to grant injunction as no valid agreement was finalised and thus, no legal and valid right to the plaintiff was accrued.

21. In 1991 CLC 2071 (M/s. Balagamwala Oil Mills v. M/s. Shakarchi Trading Agency and others, this Court refused the injunction holding that the first and foremost requirement for grant of temporary injunction being the establishment of a prima facie case by a party seeking such injunction.

22. In yet another case of Abdul Ghaffar v. Haji Rauf reported in 1991 CLC 734, this Court held that temporary injunction could be refused, where it could be prima facie shown that Court could not grant final relief.

23. Mr. Jhamat Mal, learned counsel for the respondent No.6 while arguing has stressed that there were serious controversies, as such, the order of the Trial Court granting interim injunction is not to be interfered. I am afraid, I cannot agree with the contention of the learned counsel. No such serious controversies have been pointed out by the learned counsel, when the execution of the alleged agreement is not admitted by the owner of the suit land and there is no other material to substantiate his contentions.

24. In 1984 CLC 103, in the case of Shaikh Muhammad Anwar v. Shaikh Muhammad Iqbal and another, a Division Bench of this Court held at page 107: The learned counsel for the appellant, then contended that the appellant had raised a serious controversy, and therefore, injunction should have been granted. A serious controversy can be raised only if a prima facie case is made out. If the plaintiff fails to make out a prima facie case, there can hardly be any ground to allege that a serious controversy has been raised. Mere allegation without producing any prima facie material to substantiate it or pointing out circumstances to justify it can hardly lead to conclusion that substantiate controversy has been raised. The allegations made by the appellants cast heavy burden upon him and it was his duty even at this interlocutory stage to at least make out a prima facie case by giving such facts, instances and circumstances "

25. Mr. Jhamat Mal has relied upon PLD 1956 Karachi page 521 (Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan) in support of his contention that in suit for specific performance of agreement to sell, a defendant may be restrained from transferring property to third person notwithstanding that any such transfer could be set aside by the application of doctrine of lis pendens. There is no dispute about the proposition of law contained in the above decision, but a perusal of this reported case also lays down that in a case of specific performance, a plaintiff has to show a prima facie case for injunction which is lacking in the present case. The contention is, therefore, of no help to the case of the respondent No.6.

26. In the case of Fateh Muhammad v. Muhammad Haneef reported in PLD 1990 Lahore 82, relied upon by the learned counsel for the respondent No.6, the facts were that agreement to sell and receipt of earnest money were admitted by the vendees, as such relief of injunction was allowed and it was observed:

27. 11 Having regard to the facts and the true legal principles applicable thereto, appeal is bound to succeed because impugned order could not be upheld. Execution of agreement and its terms are admitted. Receipt of advance payment is not denied. Despite express mention of 15 th January, 1989, as the date fixed to complete the sale and providing consequences in the event of any default on either side, it is yet to be seen whether time fixed in the agreement to complete sale was really of the essence of the contract and specific performance could not be had after the stipulated period had expired ...."

28. Such is not the position in the present case, here not only execution of agreement is denied but receipt of earnest money is also not admitted.

29. The case of Nazir Ahmed v. Abdul Rahim, reported in 1992 CLC 1288 cited by Mr. Jhamat Mal is also of no help to his case as the dispute in the reported case was between the family members of Haji Ahmed Din and, status quo was sought regarding construction of the property, whereas in the present case the respondent No. 6 has failed to prove existence of a valid contract in his favour as such even question of grant of status quo in the question of lis pendense will not arise under the circumstances of the present case.

30. The learned counsel has relied upon the case of Civil Aviation Authority v. Noor Muhammad, reported in PLD 1988 Karachi 401, for the proposition that the Courts to consider the position of statuts quo ante in the case of grant of injunction. There is no cavil to this proposition of law but in the reported case also which is a D.B. decision of this Court injunction was not granted. For the reasons stated in para. 6 of the judgment:‑‑‑

31. We would, therefore, order that in case the suit is not disposed of within a period of six months, the learned single Judge will decide the question of grant of injunction afresh after taking into consideration the factum which of the parties delayed in the disposal of suit. Terms and conditions of the licence and the other material which the parties may bring on record .... "

32. In view of the above discussions 1990 MLD 1137 cited by Mr. Jhamat Mal Jhethanand is also of no help to his case.

33. Considering the arguments of the learned counsel for the respondent No.6 that the injunction is to be granted while considering the date of the filing of the suit, it may be observed that the land has been sold by the appellants Nos. l to 3 and other co‑sharers to Mr. Abdul Hameed Qureshi by an agreement, dated 8‑1‑199^ and it is the case of the appellants that the said vendee has levelled the ground for the purpose of plotting by spending huge amount by the said Abdul Hameed Qureshi. This fact was brought to the notice of the Trial Court but no efforts were made by the respondent No.6 to make him party to the suit or to give him an opportunity to defend his interest. Keeping in view this position, the injunction granted by the learned Court was against the principles of natural justice as no notice was served on the said vendee nor he was afforded any opportunity to be heard. The injunction, thus, granted by the Trial Court was prejudicial to the interests of said Abdul Hameed Qureshi, which could onlv have been granted after an opportunity of hearing to the said Abdul Hameed Qureshi. The contention of Mr. Jhamat Mal that position is to be considered for granting interim injunction with regard to the date of the filing of the suit has no force in view of the fact that Abdul Hameed Qureshi who had purchased the land from the appellants much before filing of the suit was not made party nor heard by the Trial Court.

34. The other ingredients of granting injunction viz. balance of convenience and irreparable loss were also not satisfied or proved by the respondent No.6 as such, the Trial Court acted illegally in not considering these ingredients in its legal sense before grant of injunction.

35. Balance of convenience means the comparative mischief of inconvenience to the parties. The inconvenience to the plaintiff if temporary injunction is refused would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then alone interlocutory injunction should be granted.

36. In the present case it is not the case of respondent No.6 that he is in possession of the suit land allegedly purchased by him but admitted position is that he is not in its possession. It is also admitted position that the Vendee Abdul Hameed Qureshi has levelled the ground for the purpose of plotting and office has been established on the land purchased by him which means that he is in possession of the land purchased by him. Now it will be seen that as to where the balance of convenience lies. From the facts as stated above, it will not be the respondent No.6 in whose favour balance of convenience list but actually it is in favour of the appellants and the purchaser of the land namely Abdul Hameed Qureshi. In case injunction continues than it will cause inconvenience not only to the appellants but to the purchaser of the land viz. Abdul Hameed Qureshi, who is not even a party to the proceedings. As such, I am of the view that balance of convenience is also not in favour of the respondent No.6 and the learned Trial Court acted in excess of its jurisdiction while granting the injunction without properly considering the question of balance of convenience of the parties. In this respect I am fortified by the D.B. decision of this Court reported as 1994 CLC 1.601 (Mrs. Shahzadi Baber v. Hina Housing Project (Pvt.) Ltd. and others.

37. In the case of Marghub Siddiqui v. Hamid Ahmed Khan and 2 others, reported in 1974 SCMR 519, Honourable Supreme Court held that injunction not to be granted only on basis of existence of prima facie case but it is incumbent upon the Court to take into account other questions. Such as balance of convenience.

38. In the case of Pakistan International Airlines Corporation v. M/s. Hazir (Pvt.) Ltd. and another, reported in PLD 1993 Karachi 190, the same view was held that an injunction is not to be granted on the basis that the prima facie case exists but it is incumbent upon the Court to take into account the other question.

39. Now remains the question of sustaining irreparable loss by the plaintiff. The learned Trial Court has also not taken into consideration in its legal sense about question of irreparable loss. It is admitted position that the execution of agreement is denied by the appellants Nos. 1 to 3 and they have also denied to have received the amount of earnest money from him. I have already discussed above that the plaintiff/respondent No.6 has failed to prove prima facie case for grant of injunction and also that balance of convenience is not in his favour and even if the plaintiff/respondent No.6 succeeds in establishing in the Trial Court that there existed a valid and legal contract in his favour than he can claim the damages or the Court may award him damages but in any case he is not entitled to the injunction sought by him.

40. It is also well‑established law that the grant of the injunction is a discretionary relief which could only be granted to the party claiming it provided he has prima case, and that he has come with clean hands. In the present case, the plaintiff/respondent No. 6 has not only failed to prove his case but, under the circumstances, he has not come with clean hands as his case as per claim of the appellants is based on forgery and manipulation.

41. Even the grant of decree in cases of specific performance of contract is discretionary and cannot be allowed even there is a concluded and legal contract. In this respect I am fortified by the decision of Abdul Aziz and another v. Abdul Rehman and others, reported in 1994 SCMR 111. , wherein Honourable Supreme Court has held that grant of specific performance of agreement being discretionary relief can be refused even if execution of agreement was proved.

42. In the case of Razia Sultana Bano v. Muhammad Sharif, reported in 1993 SCMR 804, honourable Supreme Court held that specific performance of contract is within discretion of Court. It is not bound to grant this relief merely because it is lawful to do so.

43. Considering all aspects of the case, material on the record and respective submissions of the learned counsel for the appellants and the respondent No.6 and the case‑law discussed above I am of the view that the respondent No.6 has not proved prima facie case and that balance of convenience G is in favour of the appellants and also that respondent No.6 will not suffer any irreparable loss under the circumstances of the case, as such, the impugned order is not sustainable both on facts and law, which is set aside. I, therefore, allow the appeal and dismiss the application under Order 39, Rules 1 and 2 read with section 151, C.P.C.

44. Before I part with the case, I would like to make it clear that whatever observations made by me as above should not affect in any way the disposal of the suit itself on merits. Whatever observations I have made are only for the purpose of examining whether it was a fit case for grant of injunction or not. Under the circumstances of the case, there will be no order as to costs.

45. A.A./U‑21/K Order accordingly