2015 PLP 1121 (CLC)

SHEZADA MAZHAR, J.

Through the instant F.A.O., the appellant has challenged the order dated 22-10-2012 passed by Mr. Zahid Hussain Bakhtiar, learned Senior Civil Judge, Bhakkar whereby he accepted the application for grant of temporary injunction subject to payment of one half (1/2) i.e. Rs.90,00,000 of remaining consideration of alleged sale within the period of one month.

2. The facts necessary for disposal of present F.A.O. are that the respondents filed a suit for specific performance of agreement to sell dated 2-5-2011 regarding land comprising of Khata No.19 min, Khatooni Nos.106-109, land measuring 161- Kanals, 16-Marlas out of 1200-Kanals, Khatooni Nos.127-133, land measuring 64-Kanals 3-Marlas, out of 1200- Kanals, total land 1385-Kanals, 13-Marlas vide Jamabandi for the year 2008-2009 situated in Chak No.24 Rakh Haiderabad, Tehsil Mankera District, Bhakkar against consideration of Rs.1,80,33,070 and recovery of possession was also sought. Along with the suit an application under Order XXXIX, Rules 1 and 2, C.P.C. was also filed praying therein that defendants/appellant be restrained from alienating the property or creating encumbrance on it.

3. The appellant/defendant appeared before the Court, filed written statement, vehemently denied the execution of agreement to sell dated 2-5-2011 and receipt of token money. The application for temporary injunction was also contested. Learned trial Court vide impugned order dated 22-10-2012 accepted the application of the plaintiffs/respondents subject to payment of one half (1/2) i.e. Rs.90,00,000 of remaining consideration of alleged sale within the period of one month.

4. The appellant/defendant challenged the said order before the learned District Judge, Bhakkar however, on 18-1-2013 learned District Judge returned the memorandum of appeal for its presentation before the proper forum i.e. this Court. Hence the present appeal was filed on 21-1-2013.

5. Learned counsel for the appellant submits that while accepting the application for grant of temporary injunction, the learned trial court has exercised its jurisdiction arbitrarily in violation of principles governing grant or refusal of temporary injunction. Submits that learned trial court while passing the impugned order ignored all the ingredients for grant of temporary injunction i.e. balance of convenience, irreparable loss and prima facie arguable case. The learned trial court did not consider the fact that appellant/defendant has denied the execution of the alleged agreement to sell. Further submits that the learned trial Court has not considered section 52 of the Transfer of Property Act while passing the impugned order. In support of his contention, learned counsel for the appellant has relied upon Sohail Hameed Butt v. Naeem Ahmad Rana and another (2007 YLR 2721 (Lahore)), Haji Allah Rakha, etc. v. Mst. Nayyar Bano (1999 CLJ 7), Gohar Rehman and another v. Mst. Lachi and 35 others (PLD 2001 Peshawar 126) and Tahira Begum v. Syeda Saira Awais 2010 MLD 82 (Lahore).

6. On the other hand, the learned counsel for the respondents/ plaintiffs submits that the impugned order was on payment of Rs.90,00,000 same was paid by the respondents/plaintiffs on 14-4-2012 which shows their bona fide. Further submits that the order impugned is passed in accordance with law and facts of the case.

7. I have heard the arguments of both the learned counsel for the parties and have also gone through the record of the case.

8. In the case in hand, the question is that whether the impugned order dated 22-10-2013 of the learned trial Court has been passed on correct principles of law or the same has been passed arbitrarily. The settled principles for grant or refusal of temporary injunction are prima facie arguable case, balance of convenience lies in favour of the grant of injunction and whether plaintiff will suffer irreparable loss if injunction is not granted. It is settled proposition of law that if any of the three basic requirements are missing, the litigant is not entitled for the grant of temporary injunction.

9. While passing the impugned order, the learned trial court has itself stated in the impugned order that the petitioners have to prove the validity of alleged agreement to sell, however on the basis of alleged endorsement dated 13-6-2011 whereby the appellant/defendant has extended the period of satisfaction for two days passed the impugned order and restrained the appellant from alienating the suit property. When the agreement needs to be proved, then how on the basis of alleged endorsement on the said agreement, the Court can grant the interim relief. Whether the said endorsement was legally/validly made will be determined by the trial court after recording evidence.

10. While passing the impugned order, the learned trial court also failed to consider the principles of temporary injunction as no question arises of irreparable loss and in view of the above observation by the Court regarding validity of the agreement to be proved, no prima facie case is made out to grant injunction in favour of the plaintiffs/ respondents. The appellant is admittedly owner of the disputed property and he is entitled under the law to enjoy and deal with the same as per his own wishes and the said right cannot be curtailed/interfered with lightly. Furthermore the anxiety of the respondents/plaintiffs is fully secured under the rule of lis pendens which is covered under section 52 of the Transfer of Property Act, 1882 which states as under:

"During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."

11. Even the part payment of the consideration amount in the Court made by the respondents/plaintiffs on the basis of impugned order cannot be used to curtail the rights granted under Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973.

12. In view of the above discussion, the instant F.A.O. is accepted and the order dated 22-10-2012 passed by the learned trial court on the application under Order XXXIX Rules 1 and 2, C.P.C. is hereby set aside leaving the parties to bear their own costs. AG/I-31/L Appeal accepted.