1990 PLP 2222 (MLD)

It is desirable to state briefly certain facts giving rise to this litigation.

2. Asmat Ali Khan, the appellant No.1 and others owned 50 paisa share in agricultural land bearing, S.No.261(5‑21), 262(3‑14), 263(3‑30), "..64(4‑20). 271 ({ 08), 272(5‑23), 258(2‑38), 260(3‑39) and 270(1‑22), admeasuring 38‑15 acres (i.e. 19‑7‑1/4 acres), situated in deh Mithri, Taluka Ghotki. Wahid Ali Khan. appellant No.2, owned 4‑22 acres of agricultural land comprising of S.No.258 (4‑00) and 246(0‑16), situated in deh Mithri, Taluka Ghotki. The remaining appellants owned agricultural land measuring 60‑02 acres, comprising of S.No.243(2‑22), 244(3‑22), 245(6‑20), 246(5‑17), 247(5‑04), 248(3‑19), 249(4‑09), 250(3‑13), 251(2‑31), 253(3‑10)), 254(3‑08), 255(3‑30), 256(4‑22), 257(3‑28) and 259(5‑3), situated in deh Mithri, Taluka Ghotki. The appellants by an agreement of sale dated 17‑12‑1987 agreed to sell the above land to Mir Muhammad, Gul Muhammad, Nazir Ahmed and Naseer Ahmed for a consideration of Rs.4,27,316.25, at the rate of Rs.5,100 per acre. A sum of Rs.2,00,000 was received by the appellants and the balance was to be paid at the time of execution of registered sale‑deed. The possession of the said land was also delivered to the said purchasers. The respondents who were annoyed with this deal threatened the purchasers to dispossess them, whereupon they were forced to file Suit No.28 of 1988 against the respondents for permanent injunction in the Court of Civil Judge, Ghotki. An application for interim injunction was also moved by the said purchasers, whereupon the learned Civil Judge passed an order directing the parties to maintain status quo.

3. On 14‑9‑1988, the respondents filed a suit for specific performance against the appellants in respect of an agreement alleged to have been executed by them in their favour on 5‑5‑1987, claiming that the appellants had agreed to sell the suit land to them for a consideration of Rs.3,35,100, out of which a sum of Rs.2,25,100 was received by them. The respondents further alleged that the possession of the suit land was also delivered to them on 5‑5‑1987. An application under Order 39, rules 1 and 2, read with section 151, C.P.C. was also moved on behalf of respondents seeking interim injunction. The appellants contested this application and appellant Wahid Ali Khan in his counter‑affidavit categorically denied the execution of an agreement dated 5‑5‑1987. It was stated that the appellants had sold this land to Mir Muhammad and others, to whom possession was also delivered and they had cultivated PHUTTI and JANTAR over a portion of this land. The learned Senior Civil Judge, Ghotki before whom the suit was pending allowed this application vide order dated 26‑9‑1988. This order is the subject‑matter of the present appeal filed under Order 43, C.P.C.

4. I have heard Mr. M. A. Rashid, learned counsel for appellants and Mr. Haji Shah Nawaz Chachar, learned counsel for respondents.

5. The respondents had made two‑fold prayers in their application filed under Order 39, Rules 1 and 2, C.P.C., firstly, to restrain the appellants from interfering with their possession over the suit land, and secondly, to restrain them from alienating the same to other persons till the disposal of the suit. The appellants have questioned the genuineness of agreement dated 5‑5‑1987 on the following grounds:‑‑ (i) Absence of any address of appellants Nos.3 to 6 in this agreement. (ii) Appellant Asmat Ali Khan and others, not being the owners of the entire S. Nos. could not have sold the sale to respondents. (iii) The fact that 50 paisa share of above S.No. have been sold by its owner Muhammad Umar to Mir Muhammad and others further creates doubt about the genuineness of the agreement dated 5‑5‑1987. (iv) That appellant Asmat Ali Khan who works as Accountant in National Bank of Pakistan Ltd., Ghotki branch was on duty in the bank on 5‑5 1987 till 5.30 p.m. and, as such, it was not possible for him to have executed the agreement on the same day at Sukkur.

6. In order to find out, whether the plaintiffs have got a prima facie case for the grant of interim injunction the Courts are not expected to go into the details to the extent indicated above. At this stage the Court cannot enter into niceties nor into the details. It was so held by a Division Bench of our own High Court in Muhammad Matin v. Mrs. Dino Manckji Chinoy and others, reported in P L D 1983 Kar. 387, in the following words:‑‑ "In pursuit of a finding, the Court has not to enter into minute and detailed discussion in regard to merits, although a limited examination of the legal aspects in the case would be permissible. On the other hand, the Court will only look to the difficulty in resolving the points that arise in the case, and, if it is of the view that a substantial, or, serious question of law, or, fact arises, the requirement of having a prima facie case would be satisfied. This may be termed even as the plaintiff having an arguable case, as distinct from the plaintiff having no right at .all, or, the plaint making fanciful, or, frivolous claims. In such an enquiry the Court will also keep in its mind the substance of the stake involved, for example, the value of the property, and the loss that might be occasioned to one, or, the other party by the refusal to grant an injunction."

7. The record, however, shows that the said Mir Muhammad and others who according to the appellants had purchased the suit land from them and who, claim to be in possession thereof, had filed Civil Suit No.28 of 1988 against the; respondents and others in the Court of Civil Judge. Ghotki, who on 6‑8‑1988 directed the parties to maintain status quo. The order sheet dated 6‑8‑1988 (Annexure‑L) further shows that respondents were present and they had filed an application for adjournment on that day. The present‑suit out of which this appeal. has arisen was filed b respondents on 14‑9‑1988, but they concealed this fact and have not made the purchasers of suit land, namely, Mir Muhammad and others as party in this suit. The Wharton's Law Lexicon defines STATUS DUO as "the existing state of things at any given date." The order dated 26‑9‑1988, by which learned Senior Civil Judge, Ghotki, had issued temporary injunction is therefore destructive to the order of learned Civil Judge, Ghotki, dated 6‑8‑1988 passed in Civil Suit No.28 of 1988, by which parties in that suit were directed to maintain status quo. The respondents have for obvious reasons suppressed this material fact. In order to seek an equitable relief of this nature, the parties must come to Court with clean hands. In this view of the matter the order dated 26‑9-1988, by which the appellants were restrained from interferring with the possession o respondents on the suit land cannot be sustained and is accordingly set aside. The parties shall, however, maintain `status quo' for which the order passed by learned Civil Judge Ghotki is already in field.

8. The respondents also claim to have entered into agreement of sale with the appellants which is prior in time. They are likely to be prejudiced if the property is allowed to be alienated in .any manner to any person. Balance of convenience to this extent, therefore, lies in their favour. The case of Shaikh Muhammad Rafiq Akhtar v. Sqn/Ldr (Rtd) Shaikh Ghulam Sadiq, reported in 1981, C L C 453, is relevant on this point. The points in issue are to be adjudicated at the trial and till the same are decided one way or the other the interest of justice demands that the appellants be restrained from alienating the suit land to any person in any manner. To this extent the order of learned Senior Civil Judge, Ghotki is maintained.

9. In the result the appeal is partly allowed in the above terms with no order as to costs. Since a huge money is involved it will be desirable if the suit is disposed of expeditiously. A‑898/K Appeal partly allowed.