2012 PLP 158 (YLR)

SALMAN HAMID, J.

Through the listed-application the defendant has prayed that the plaintiff be restrained from snooping in to the construction of the building on Plot No.SB-1, Sector 1, Surjani Town, Karachi and the S.H.O. P.S. Surjani be directed to provide protection to the defendant and his employees/workers to carry out the construction.

2. It would appear that a suit for declaration, specific performance of contract, damages and permanent injunc-tion was filed by the plaintiff on or about 14-10-2008 with the prayer that the letter dated 15-9-2008 issued by the plaintiff for cancellation of agreement dated 29-4-2008 (Agreement) was unlawful and of no legal effect and that the plaintiff be allowed to act thereunder. Prayer for damages to the extent of Rs.5 million was also made.

3. Injunction application filed in the suit came up for hearing on 15-10-2008 when this court was pleased to direct the defendant not to create third party interest. It was on or about 15-1-2010 that the injunction order which was passed on 15-10-2008 was recalled by this court. High Court Appeal No.25 of 2010 was filed by the plaintiff against the order of dismissal of the injunction application. This appeal did not bear any fruit and it was dismissed by this court on 16-9-2010.

4. Narration of plaint would show that some dispute arose between the plaintiff and defendant inasmuch as defendant alleged that the plaintiff was misrepre-senting buyers of shops, flats and offices which were to be constructed in the building. Because of such misrepresentation, the Agreement was terminated and present proceedings cropped up.

5. Under the Agreement which was the subject-matter of the suit, the plaintiff was entitled to 2% commission on booking of shops, flats and offices which were to be constructed in the building. The plaintiff had procured an amount of Rs.1,330,000 in respect of such booking and recovered an amount of Rs.1,60,000 from the defendant.

6. In view of the above exposition, it was argued by the learned counsel for the defendant that despite the fact that there was no stay order in force against the defendant and also the fact that the plaintiff has claimed damages to the tune of Rs.0.5 million and if the plaintiff would be able to establish his claim in respect of termination of Agreement, at best, he would only be entitled to 2% commission on booking as stipulated therein and nothing beyond. However, the plaintiff, to intimidate the defendant, has caused interference and harassment and has not allowed the defendant to raise construction of the building. Caught in such a precarious situation, instant application was moved.

7. Learned counsel for the plaintiff opposed the application. It was argued that the application is not maintainable and at best the defendant was entitled to file an independent suit on the alleged ground of intimidation at the hands of the plaintiff. It was therefore prayed that the injunction application be dismissed. In support of his contention, the learned counsel for the plaintiff relied upon the case of Aijaz Hussain Bhatti and another v. Haji Bagh Ali and 9 others (1985 CLC 261) and the case of Marghub Siddiqi v. Hamid Ahmad Khan and 2 others (1974 SCMR 519).

8. Heard arguments. Perused the record and the case-law cited.

9. Bare perusal of the provision of Rule 1 of Order XXXIX, C.P.C. would show that, "any property" which is in dispute in a given suit is in danger of wastage/damage by, "any party to the suit", the court may pass restraining order in respect of such an act or make such other order by which the property which was at peril is prevented from such waste.

10. It has come on record that despite the fact that the plaintiff's application for injunction was dismissed and appeal preferred thereagainst also failed and that the plaintiff has claimed damages to the size of Rs.05 million against termination of Agreement and that, at best, if the plaintiff would be able to prove his case in terms of the terminated Agreement he would be, at best, entitled to 2% booking commission thereon, the plaintiff allegedly harassing the defendant thereby has prevented him (defendant) from raising construction of building on the plot.

11. Faced with such a situation, the defendant moved present application to protect his right of raising construction on the building which is being hampered by the plaintiff. Restraining orders are passed by the courts to cultivate cause of justice even if the case does not fall strictly within the provision of Rules 1 and 2 of Order XXXIX, C.P.C., such being a judicial process whereby a party is ordered to do or to refrain from doing a particular act and such refraining order, in nature, could either be mandatory or prohibitary. It is well-embedded by now that injunction is preventive or prophylactic for the purposes of preserving the status of a given property. Since it has come on record that the plaintiff is causing hurdles in construction of the building on the plot, it would be just and proper if the plaintiff is restrained from such interference, more particularly for the reason that the plaintiff has no concern with the construction, firstly because the Agreement has already been terminated by the defendant and secondly if the plaintiff, after evidence, is able to show that he was entitled thereunder (Agreement) then still such cannot be beyond the scope thereof i.e. 2% commission and/or the scale of the claim of damages in the suit.

12. In the case of Marghub Siddiqi, cited by the learned counsel for the plaintiff, the Hon'ble Supreme Court of Pakistan dismissed the petition by holding that as the contract for personal service being contracts not specifically enforceable, the grant of injunction was opposed to the principle governing such injunction. In the cited case the then High Court of West Pakistan while dismissing the CRA had come to the conclusion that the appellate court rightly allowed the appeal by vacating the injunction order passed by the trial court. The High Court reached the conclusion when it saw that the plaintiff had no case of injunction yet it was granted by the trial court. However, in the present case it would be seen that the injunction application was made on the strength of fact that the defendant is an owner of the plot on which he wants to raise building construction which is being denied and hampered by the plaintiff on the basis of an Agreement which was already terminated by the defendant. Similarly in the case of Ejaz Hussain and another the High Court of Sindh, Karachi dismissed the petition by holding that a sub-tenant is not entitled to injunction as such was claimed against ejectment through the real tenant and that he did not have a good prima facie case, when this court came to the conclusion that the sub-tenant was not dispossessed otherwise than in due process of law. Again facts of the cited case are entirely different and in no way attract the principle laid down in the cited case to the case in hand.

13. All the ingredients of injunction are alive. The application is allowed inasmuch that the plaintiff is restrained from interfering into construction of the defendant directly or through anyone else. The application is disposed of in terms hereof. H.B.T./H-23/K Application allowed.