2010 PLP 82 (MLD)

IJAZ UL AHSAN, J.

This appeal arises from an order, dated 15-9-2009 whereby an application under Order XXXIX Rules 1 and 2 C.P.C. filed by the petitioner in her suit for specific performance was dismissed by the learned Civil Judge, Lahore.

2. The appellant filed a suit for specific performance of agreements, dated 19-6-2007 and 27-6-2007 relating to property measuring one kanal situated in PIA Employees Cooperative Housing Society, Lahore. The appellant alleged that she had entered into an agreement for purchase of the aforesaid property on 19-6-2007 for consideration of Rs. seventy lacs. According to her, she paid a sum of Rs. thirty-five lacs as earnest money and the balance amount was also subsequently paid. Since the appellant performed her part of the agreement and paid the entire consideration amount, the respondent was under an obligation to fulfil her part of the agreement.

3. The suit as well as the stay application were contested by the respondent. It was submitted that the defendant was the daughter-in-law of the appellant. The suit property had been gifted to the respondent by her husband with whom she had lately fallen out. However, her husband had been obtaining her thumb impressions/signatures on blank papers/stamp papers from time to time. It was specifically averred by the respondent that she had neither signed any agreement to sell nor had she received any amount by way, either of earnest money or the balance sale consideration as alleged.

4. I have heard the learned counsel for the petitioner and have also perused the record with his assistance.

5. The respondent is the owner of the suit property. The appellant does not deny that the respondent is her daughter-in-law and that the suit plot was gifted to the respondent by her husband. That relations between the spouses are presently strained is also not denied. The appellant who is the plaintiff in the suit was required to make out a prima facie case, the possibility of irreparable loss in case a restraining order was not granted and the balance of convenience being in her favour. The only documents that she has relied upon in support of her claim are the agreement to sell which have specifically been denied by the respondent. There is complete absence of proof of payment of a sum of Rs. Seventy lacs to the respondent. In this day and age it is not possible to believe that such a substantial amount was paid either in cash or through a mode of which documentary evidence is not available. The fact that nothing has been appended with the plaint to support the contention that the entire sale consideration was paid is a factor that goes against the petitioner's attempt to plead existence of a prima facie case at this stage. The fact that the respondent is the daughter-in-law of the appellant, the suit property was gifted to the respondent by her husband with whom her relations are admittedly strained, the allegation that her husband had been obtaining her signatures on blank stamp papers from time to time and the complete absence of any plausible explanation as to why the appellant would purchase the property gifted to her daughter-in-law by her son, for a sum of Rs. Seventy lacs also need to be kept in mind.

6. The respondent is the owner of the disputed house and her right to enjoy and deal with the property cannot lightly be interfered with. Even otherwise there is a monetary value attached to the property and the question of irreparable loss does not arise. The anxiety of the appellant that the suit property will be disposed of/alienated during pendency of the suit is adequately addressed by the doctrine of lis pendens. The learned counsel for the appellant has not been able to point out any illegality or material irregularity in the order of the learned trial Court. The same is based upon sound legal reasoning and material available on record. I find no merit in this appeal, which is accordingly dismissed in limine. The observations made in this order are only of a tentative nature. These shall not affect merits of the case before the trial Court. M.U.Y./T-40/L Appeal dismissed.