2010 PLP 899 (MLD)

MUHAMMAD TASNIM, J.

Adjourned.

2. Through this application (C.M.A. No.6133 of 2007), the plaintiff seeks restraining orders against the defendants in the following terms: "Restrain the defendant No.1 from claiming or asserting its alleged rights on the suit property as a mortgagee, and/or from auctioning, selling, transferring, alienating, encumbering, or taking over the suit property, and/or from taking any type of coercive action in respect thereof; Restrain the defendant No.2 from claiming ownership of the suit property, and/or from selling, transferring, alienating or encumbering the same; and Restrain the defendant No.3 from entering or recording any change in the ownership of the suit in the name of any third party, except the plaintiff No.1." Facts of the case relevant for the purpose of disposing of this application, as per averments made in the plaint, are that a plot of land, bearing Plot No. D-91, measuring 1100 sq. yards, situated in Block 4, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi, was originally allotted to defendant No.2 and was, thereafter, leased out in favour of the said defendant on 24-5-1974. In the year, 1986 the aforesaid plot was divided into three plots viz. Plots No. D-91 (measuring 412.5 sq. yards and D-91/1, and D-91/2 (measuring 343.72 sq. yards each). The dispute in this suit relates to sub-divided Plot bearing No.D-91/2, measuring 343.75 sq. yards, situated in Block 4, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi, (hereinafter referred to as "the suit property"). The defendant No.2 appointed one Mohsin Khan as his attorney vide General Power of Attorney, dated 12-10-1986 with specific power to appoint a sub-attorney, in respect of the suit property. It is alleged that father of plaintiff No.1, Mr. Aminuddin Alvi, entered into a sale agreement, dated 22-8-1987 with the said attorney of the defendant No.2. Thereafter, by a registered irrevocable power of attorney, dated 18-3-1991, the said attorney appointed the Plaintiff No.1 and the sub-attorney of the defendant No.2 in respect of the suit property. On 14-4-1993, the plaintiff No.1 executed Declaration and Confirmation of Oral Gift in respect of the suit property in favour of his real mother. Mrs. Zahida Alvi and the same was mutated in the name of the mother of the plaintiffs, who on 15-4-2004 gifted the suit property to plaintiff No.1. It is averred that on or about 14-6-2007 two representatives of the defendant No.1 visited the suit property and made certain inquiries which revealed that the suit property is mortgaged with the defendant No.1. However, the representatives of the defendant No.1 refused to divulge any further information. Hence, the plaintiffs have filed the present suit along with an application under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C., praying for restraining orders as quoted above. On 3-7-2007, the following interim order was passed on this application:-- "Issue notice to the defendants for 6-7-2007. In the meanwhile defendants are restrained from interfering in the possession of the plaintiffs or take any coercive action in respect of the property in question." Leaned counsel for the plaintiffs submitted that the original Plot No.D-91, situated in Block-4, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi was measuring 1100 sq. yards. On 20-9-1986 this plot of 1100 sq. yards was sub-divided into three smaller plots out of which Plot No.D-91/2, measuring 343.75 sq. yards, as purchased by the. father of plaintiff No.1 from the defendant No.2. He stated that at the time of purchase of the suit plot the original lease thereof was not handed over by the defendant No.2 to the father of plaintiff No.1 as it was stated that the same was misplaced somewhere. However, true copy of the same was supplied to the plaintiffs in the year, 1993. The learned counsel submitted that the alleged mortgage in respect of the suit property was created on 29-3-2006 by deposit of title deeds in respect of undivided Plot No.D-91, measuring 1100 sq. yards, situated in Block 4, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi while on such date Plot beating No.D-91, measuring 1100 sq. yards, was actually not in existence as the same already stood sub-divided into three smaller plots on 22-10-1986. The learned counsel also submitted that even if it is presumed that Plot bearing No.D-91, measuring 1100 sq. yards was in existence at the time of creation of the mortgage even then the defendant No.4 was not competent to create a mortgage in respect thereof as on the date on which the mortgage is alleged to have been created i.e. 29-3-2006, (Annexure A/5 to the WS of defendant No.1) the defendant No.4 was admittedly not the owner of the said plot as, admittedly, the alleged conveyance deed between the defendant No.2 and the defendant No.3 was executed on 19-4-2006 (Annexure A/10 to the WS of defendant No.1). He submitted that neither the plaintiffs nor the defendant No.4 has borrowed any money from the defendant No.1. He also submitted that neither the present owner nor the previous owner of the suit property created any mortgage in respect of the suit property or the undivided plot measuring 1100 sq. yards. He, therefore, prayed that this application may be allowed and interim order, dated 3-7-2007 may be confirmed. On the other hand, Mr. Abdul Haleem Siddiqui, learned counsel for the defendant No.1, submitted that documents filed by the plaintiffs are forged and manufactured documents. He submitted that at the time of creating of the mortgage Plot No.D-91, measuring 1100 sq. yards, was intact and was not divided into three sub-plots. He submits that the plaintiff obtained such documents subsequently. The learned counsel submitted that the signature of defendant No.2 on the application for sub-division of the said Plot No.D-91, measuring 1100 sq.yards, are forged as the same are totally different than those appearing on other documents. The learned counsel, with regard to the fact that the mortgage was created by defendant No.4 in respect of the suit property when he was not the owner of the same, submitted that the defendant No.1, while dealing with customers engaged in purchase of immovable properties, prepares cheque in the name of the owner of the property and the title documents are accepted from the prospective buyer. He, therefore, submitted that though the cheques was prepared in the name of the defendant No.2, the title documents were submitted by the defendant No.2 under a memorandum of deposit of title deeds. The learned counsel has relied upon the following cases: (1) PLD 2007 SC 249, (2) PLD 1958 SC 10, (3) PLD 1968 SC 1025, and (4) 2001 CLC

838. From the above it transpires that Plot No. D-91, measuring 1100 sq. yards, situated in Block-4, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi was allotted to defendant No.2 in the year, 1974. The plaintiffs are claiming that this plot was subdivided in three smaller plots and one of these plots (bearing No.D-91/2, measuring 343.75 sq. yards) was purchased by predecessor of the plaintiffs from the defendant No.2. In support of this claim, the plaintiffs have filed certain documents which are available on record. On the other hand, the defendant No.1 denies the same and asserts that the defendant No.4 has mortgaged the entire Plot No.D-91, measuring 1100 sq. yards with the Bank and since the defendant No.4 has committed default in payment of his dues, the bank has instituted a suit against him in the Banking Court for recovery of the finance. At this stage genuineness or otherwise of the documents relied upon by the parties cannot be judged without recording evidence. However, it is an admitted position that the plaintiffs are in possession of the suit property under registered instruments. I am mindful of the fact that presently I am not deciding the suit finally but am only dealing with an application under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C., seeking interim injunction, the object whereof is to preserve the situation as obtaining on the date of the suit so as to prevent an injury to the plaintiff during pendency of the suit and not to create a new situation. A Court while granting an injunction application has to consider whether a prima facie case exists in favour of the applicant, whether an irreparable loss, damages or injury may occur to the applicant if the injunction prayed for is not granted, and whether the balance of inconvenience is in favour of the applicant or not. In the present case a prima facie case exists in favour of the plaintiff as it is an admitted position that the plaintiffs are continuously residing in the suit property since, 1988. Then in case injunction is not granted to preserve the subject-matter of the suit, an irreparable injury and loss will be caused to the plaintiffs. The fate of the suit cannot be decided until evidence is recorded and till then it is necessary that the subject-matter of the suit is protected from changing hands. In the case of Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. and others (PLD 1990 Kar.1), it was held that "in a fit case the Court may grant interim injunction even if case does not fall within the four corners of the well-settled principles under Order XXXIX, Rules 1 and 2, C.P.C., if the facts of the case so demand, in order to foster the cause of justice". It is also a settled principle for grant of injunction that in establishing a prima facie case the plaintiff is not required to establish his title, it would be sufficient for him to show that he has a fair question to raise as to the existence of his right and till the question if ripe for trial a case for injunction is made out. The plaintiffs have been able to make out a prima facie arguable' case and the balance of inconvenience is also in favour of the plaintiffs as if the injunction is not granted and the suit is ultimate decided in favour of the plaintiff the inconvenience would be greater than that which would be caused to the defendant if the injunction is granted and F the suit is ultimately dismissed. Needless to say that if the injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the plaintiffs shall suffer irreparable loss as they would stand deprived of their own property. The case-law cited before me by the learned counsel for the defendant No.1 is not relevant for the purpose of deciding an application under Order XXXIX, Rules, 1 and 2, C.P.C. as it would be only at the evidence stage when each and every document would be examined in accordance with law. In view of the above, C.M.A. No. 6133/07 is allowed and the interim injunction granted in favour of the plaintiffs on 3-7-2007 is confirmed.

3. Adjourned. S.A.K./S-27/K Injunction confirmed.