1998CLC1515 (PLP)

"(i) Decree for specific performance of sale of suit property i.e. Shop No. l situates on ground floor of Nusrat Manzil, Plot No.RB‑11/24, Ratan Talau, Mohan Road, Karachi, as agreed vide sale agreement dated 25‑2?1989 by directing the defendants Nos. l to 3 and on their failure to do so the Nazir of this Hon'ble Court to execute the sale‑deed in respect of the above suit property in favour of plaintiffs. (ii) For cancellation of conveyance deed, dated 16th June, 1996 registered on 17th June, 1996 regarding 21.25 % share in the building namely Nusrat Manzil and for cancellation of conveyance deed 9th February, 1994 in respect of 45 % share of the said building and for cancellation of other conveyance deeds, gift deed, declaration of oral gift, agreements, executed by and/or in favour of any defendants in respect of said building particularly the suit property namely Shop No. l situated on ground floor of Nusrat Manzil, Plot No. RB‑11/24, Ratan Talau, Mohan Road, Karachi. (iii) Declaring that the acts of the defendants Nos. l to 3, transferring their share including the suit property in favour of other defendant and attempts, threats of the defendants for evicting the plaintiff from the suit property, are illegal, mala fide and without lawful authority. (iv) Grant permanent injunction restraining the defendants, their servants, agents, representatives, heirs, attorney and person(s) acting for and on their behalf from selling, transferring, mutating, alienating, creating third party interest in favour of any person except the plaintiffs, disposing of in any manner the suit property, causing any loss or damage to the suit property, changing the present condition of the suit property in any manner. They may further be restrained from dispossessing, evicting, extending threats in any manner to the plaintiffs interfering in the enjoyment of the rights of the plaintiffs in the suit property in any manner, taking any action for eviction of the plaintiffs from the suit property. (v) A decree for a sum of Rs.30,00,000 as damages/compensation against the defendants jointly and severally. (vi) Cost of the suit. (vii)' Any other relief(s) which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be granted to the plaintiff." Alongwith the suit Civil Miscellaneous Application No.5672 of 1996 has also been filed under Order 39, Rules l and 2 read with section 151, C.P.C. for restraining the defendants from selling, transferring, mortgaging, alienating, disposing the plaintiffs from the said property and/or creating any third party interest. Another application being Civil Miscellaneous Application No.6698 of 1997 has been subsequently filed for staying further proceedings in Rent Case No.1704 of 1997 filed by defendant No.5 and others against the plaintiff in Court of VIII, Rent Controller, Karachi, South for ejectment of the plaintiffs from the said property. The defendants Nos.2 and 3 were served and have inter alia stated in their written statement and counter‑affidavit to the aforesaid applications that the alleged sale agreement dated 25‑2‑1989 and receipts thereto were obtained by the predecessor‑in‑interest of the plaintiffs fraudulently and without the consent of the said defendants. It has further been contended by the said defendants that the predecessor‑in‑interest of the plaintiffs was tenant of the said property and the alleged sale agreement is void. It has further been contended that Nusrat Manzil had already been sold by the defendants to defendant No.7 under sale agreement dated 9‑3‑1988 and as such there was no occasion for the said defendants to execute a sale agreement on 25‑2‑1989 in favour of the predecessor‑in‑interest of the plaintiff. In so far as defendant No.4 is concerned, it has been contended by her in the written statement that there being no sale agreement between the husband of defendant No.4 and the predecessor‑in‑interest of the plaintiffs, the defendant No.4 is not legally bound to execute a sale‑deed in favour of the predecessor‑in‑interest of the plaintiffs or in favour of the plaintiffs after the death of their predecessor‑in‑interest. I have heard the learned counsel appearing for the parties and perused the record. The learned counsel for the plaintiffs has strenuously urged that there being a valid sale agreement in respect of the said property between the predecessor‑in‑interest of the plaintiffs and defendants Nos. l to 3 the subsequent sale of the building in question in favour of defendant No.7 is void and as such liable to be set aside. According to the learned counsel, the plaintiffs, in this view of the matter, have a strong prima facie case and the balance of convenience is in their favour as they are in possession of the said property. It is further contended by the learned counsel that the plaintiffs shall suffer irreparable loss and injury in case the defendants are not restrained from selling, disposing of and/or creating any third party interest in respect of the said property and further that the possession of the plaintiffs is required to be protected under orders of the Court. It is an admitted position that the building in question where the said property is situated was originally owned by late Syed Siddique Hasan and predecessor‑in‑interest of the plaintiffs, namely, Muhammad Shafique, was his tenant. After the death of Syed Siddique Hasan, the property in question devolved on his legal heirs i.e. defendants Nos.l to 3 Syed Tahir Hasan and another daughter of the deceased Mst. Aqueela Khatoon who died unmarried before the filing of this suit. The share of the legal heirs of late Syed Siddique Hasan in Nusrat Manzil was undivided and as such the defendants Nos.l to 3, even if it is proved that the said defendants had agreed to sell the said property to predecessor‑in‑interest of the plaintiffs is a void agreement of sale as the said defendants Nos. l to 3 could not have competently/legally agreed to sell the said property to predecessor‑in‑interest of the plaintiffs. Even otherwise, there is total denial of sale agreement by defendants Nos. l to 3 in favour of predecessor-?in‑interest of the plaintiffs. Much stress has been laid by the learned counsel for the plaintiffs on the application said to have been filed by defendants Nos. l to 3 before the Rent Controller in execution No. 17 of 1988 (outcome of Rent Case No. 1632 of 1986). In this regard, it may be stated that the said rent case was filed by late Syed Tahir Hasan, predecessor‑in‑interest of defendants No.4 and under the law no compromise could have been recorded in the said execution application on the basis of an application filed by defendants Nos. l to 3 as the said defendants were not a party to the aforesaid execution proceedings. In any event, no orders on such application for compromise were passed by the learned Rent Controller and the execution application was dismissed for non‑prosecution on 219 of 1993 though the said applications for compromise and withdrawal of execution proceedings were filed on 26‑2‑1989. One fails to understand as to why no orders from the Rent Controller were obtained by the predecessor‑in-?interest of the plaintiffs on the said compromise applications in case there was a genuine compromise between the parties. Another aspect of the matter is that alongwith the alleged sale agreement between the predecessor‑in‑interest of the plaintiffs and defendants Nos.l to 3 a general power of attorney is also alleged to have been executed by defendants Nos. l to 3 in favour of plaintiff No. l on 27‑2‑1989, yet till 1996 i.e. up to the filing of this suit, no attempt was made by the plaintiffs or their predecessor‑in‑interest to execute a sale‑deed in respect of the said property in their favour. The upshot of the above discussion is that the plaintiffs have failed to make out a prima facie case for grant of injunction, the balance of convenience does not lie in their favour and they shall not suffer any irreparable loss of injury in case this application is not granted. Civil Miscellaneous Application No.5672 of 1996 is, therefore, dismissed. However, since admittedly the plaintiffs are tenants in respect of the said property they will not be dispossessed/ejected from the same otherwise than in due course of law. In view of my above findings, Civil Miscellaneous Application 6698 of 1997 is also dismissed. Even otherwise, the relief claimed under the said application is barred by section 56(a) of the Specific Relief Act as no injunction? to stay the judicial proceedings can be granted by the Court. A.A./M‑296/K???????????????????????????????????????????????????????????? Application dismissed.