1997 PLP 573 (MLD)

"S. 10‑‑Agreement‑writting not necessary to constitute a valid agreement‑‑Oral agreement, held, can also be valid and legal and binding on parties. " "S. 10 and Evidence Act (I of 1872) 5.102‑‑Oral agreement‑proof‑oral agreement, held, requires for its proof clearest and most satisfactory evidence. " (3)1989 MLD 4252‑Case of Mst. Hajra Bai v. Mst. Amtul Batool Begum:‑‑ "S.53‑A‑‑Agreement to sell between parties‑‑‑Necessary ingredients of‑?Receipt of payment of part of sale price, signed by the original defendant, attested by two witnesses wherein sale consideration was also mentioned two lines at the bottom whereof mentioning that "a separate agreement of sale would be executed later on within a week"‑?No separate agreement was, however, executed by the parties‑‑Receipt for payment of part of sale price duly signed by the original defendant thug amounted to a concluded agreement to sell in spite of absence of separate agreement of sale, because it contained the essential terms of a binding agreement to sell the immovable property." (4)1994 MLD 1536‑‑case of Province of Punjab v. Ghulam Hussain:‑‑‑ "Suit in civil cases is to be decided on basis of preponderance of evidence available on record." (5) PLD 1994 Kar. 194‑‑Case of the Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig:‑‑ (e) Order XXXIX, Rules 1 and

2. Temporary injunction is granted when plaintiff fulfils requisite conditions by affidavit or otherwise. Temporary injunction is a restraining order and is of equitable nature, Held: plaintiff had fulfilled conditions and temporary injunction granted by Single Judge was not open to interference by Division Bench in High Court Appeal." (6)1982 CLC 1647‑‑Case of Khushi Muhammad v. Ata Muhammad:‑‑‑ "O.XXIX, Rr. 1 & 2 and S. 115‑Temporary injunction‑‑Grant of temporary injunction in suits for payment injunction, held, a rule and refusal an exception, particularly by when refusal calculated to defeat very object of suit." (7)1992 CLC 2540‑‑Case of Mrs. Naz Shaukat Khan v. Mrs. Yasmin R. Minhas etc:‑‑‑ "Order XXXIX, rules 1,

2. Prima facie case as a requisite for grant of temporary injunction, does not imply an indefeasible case. It signifies only an arguable matter, involving serious or substantial questions of fact and law, which on proceeding to trial is capable of and has a possibility of success." Mr. Nizam Ahmed, learned counsel for defendants Nos.1 to 3, has contended (i) that the property owned by defendants No.1 and 2 and defendant No.3 is father of defendant Nos.1 and 2; (ii) that no relief is claimed against defendant No.3, who is a businessman of good reputation; (iii) that Annexure V is written on letter head of Losshe Enterprise, who are carpet dealers; (iv) that there is contradiction in between place of agreement; (v) that name of Ameen Borker is not mentioned in para. 4 of the plaint; (vi) that Muhammad Afzal is proprietor of Losshe Enterprise so cheque Annexure B was issued for purchase of carpet; (vii) that signatures of the defendants are denied, original is not produced; (viii) that signature of other co‑sharer Haji Muhammad Siddiq is not on it; (ix) that affidavits of the alleged brokers are not filed and there is no reason to deny the agreement for sale; (x) that the plaintiff purchased carpet from the defendants for Rs.2,46,440 and issued cheque of Rs.2,00,000 being sale amount and balance amount of Rs.46,440 is outstanding; (XIo) that the defendant wrote a letter to the plaintiff, Annexure V‑1, mentioning therein as under:‑‑ "Therefore, we request you to please arrange remaining balance amount of Rs.46,440 as due date was 16‑10‑1993 as per sale consideration of goods. " He has further contended (xii) that value of the property is shown Rs 71,89,170 and willingness of the plaintiff to purchase the property is not clear; (xiii) that defendant No.2 has not signed the debit voucher, how can he bound down. He has referred following authorities:‑‑‑ (1) PLD 1970 SC 139‑‑‑Case of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan:‑‑‑ "Suit by Government Servant challenging new seniority list and seeking declaration that he could not be reverted to his former post‑prayer for temporary injunction to stay hands of Government from reverting him during pendency of suit‑Factors to be borne in mind in granting or refusing such injunction‑Court to seriously consider whether it would be right to issue injunction to public department and disturbing thereby its working." The facts of this authority are quite different and distinguishable from the fact of the case in hand and in the Hon'ble Supreme Court's authority seniority of a Government servant was involved and it was a service matter whereas the case in hand in for specific performance of contract, for which part payment of Rs.2,00,000 is made. Therefore, this authority of the Hon'ble Supreme Court, in. any case, is not applicable to the present suit. (2)1988 CLC 1175‑‑‑Case of Tien Ying Lee and others v. Ferozuddin and others: ‑‑ "O.XXXIX, Rr. 1 & 2‑‑‑Ad interim injunction grant of Single Judge of High Court granted ad interim injunction in favour of plaintiff in his suit for specific performance of sale agreement subject to condition that he would deposit balance of sale consideration amount in Court within specified period and failure of plaintiff to comply with said condition would entail recalling of ad interim order‑‑‑Single Judge in doing so, held, had exercised his discretion properly." This authority referred by Mr. Nizam Ahmad learned counsel for the defendants Nos. l to 3, in my humble view is not applicable, because the sale of the property is disputed by the defendants, on the contrary their plea is that transaction whatsoever taken place is with regard to purchase of the carpet by the plaintiff. The debit voucher which is paid to Haji Muhammad Afzal also bears his signature, the endorsement reads as under:‑‑‑ "Paid to Haji Muhammad Afzal son of Haji Muhammad Ashraf a sum of rupees two lac only showing willingness for sale of plot No.A‑38 at the rate of Rs.1500 per sq. yards." Mr. Nizam Ahmed has further astressed (1) that the oral agreement arrived at between the parties at two different places i.e. one at Losshe Enterprise, Show Room No.2, Mehran Hotel and another at J‑60, Phase V, Gizri Road, Defence Housing Authority; (2) that name of Ameen Broker is not mentioned in para 4 of the plaint; (3) that affidavit of any of the broker is not filed. Mr. Muhammad Jamil for Defendant No.4 has nothing to say in favour of the plaintiff or the defendant. These contentions of Mr. Nizam Ahmed are very much vital and important for the final adjudication of the matter when evidence of the witnesses is recorded alongwith cross‑examination so that the Court can appreciate the evidence in its entity. So for the disposal of this application is concerned the basic requirements for allowing or disallowing this application are arguable case, prima facie balance of convenience in favour of the party and irreparable loss if any, is to be suffered by the party concerned. Considering all the relevant features of this case, in the light of the well settled principles for the grant or refusal of temporary injunction in accordance with law, which are, firstly, whether the plaintiff has a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of the injunction, and thirdly, whether the plaintiff would suffer an irreparable loss if the injunction is refused. On the point whether the plaintiff has a prima facie good case the oral agreement between the parties for sale of the suit land coupled with payment of Rs.2,00,000 in the shape of debit voucher, prima facie, supports the case of the plaintiff. Secondly, balance of convenience, in view of the above facts also lies in favour of the plaintiff and he would suffer irreparable loss if injunction is not granted. For the foregoing reasons I allow this application by confirming the order dated 14‑11‑1993, with no order as to costs. A.A./A‑4/K???????????????????????????????????????????????????????????????????????????????????????? Application accepted.