1993 PLP 1654 (SCMR)

‑‑‑‑O.XXXIX, Rr. 1 & 2‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑ R.F. Virjee, Advocate Supreme Court and Akhlaq A. Siddiqui, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 13th June, 1993. SALEEM AKHTAR, J.‑‑‑The petitioner seeks leave to appeal against the judgment of the Division Bench of the High Court whereby the interim injunction granted by the learned Single Judge in favour of the respondent has been confirmed.

2. The petitioner is a Cooperative Housing Society in which Plot No.241‑2, Jamshed Quarters, Karachi is situated and is subject‑matter of dispute. It was originally allotted to Mr. Mark Anthony Andrew, Mr. Victor Felix Andrew, Mr. Raymond Vincent Andrew, Mrs. Mildred Andrew, Miss Josephine Carmeline Andrew, Mr. Louis Philip Andrew and Mr. Emmanuel Stephen Andrew (hereinafter referred as the Andrew family). The first five persons mentioned herein migrated to Canada and executed a power of attorney dated 19‑7‑1973 in favour of Louis Philip Andrew and Emmanul Stephen Andrew. Subsequently these attorneys for self and as attorney for other co‑owners executed a power of attorney in favour of Haider Ali on 21‑8‑1978. On 6‑4‑1986 Haider Ali executed a power of attorney in favour of Tajuddin Bhayani. On 23‑8‑1983 Louis Andrew expired and on 7‑10‑1985 Emmanuel Andrew also expired. It seems that an agreement to create mortgage was executed on 22‑12‑1987 between Tajuddin Bhayani and Mirza Jawed Baig and a deed of mortgage by conditional sale was executed on 11‑5 1989 and has been registered. Under this agreement a loan of Rs.12,00,000 had been advanced by the respondent. As the amount could not be repaid the property was transferred in the name of respondent and records were accordingly mutated. After obtaining an approved plan for construction of this house he started raising the construction. The petitioner took objection and addressed letter to Controller of Buildings, KDA. The respondent filed a suit against the petitioner on the ground that the Andrew family had taken a loan from him as per agreement dated 22‑12‑1987 and the property now stands in his name. He sought declaration and injunction against the petitioner who was interfering with his right. An application under Order 39, rules 1 and 2 was also filed which was allowed by the learned Single Judge observing that no harm will be done to the defendant (petitioner) if injunction is granted in favour of the plaintiff (respondent), but if injunction is refused the plaintiff is likely to suffer some injury. The balance of convenience is therefore clearly on the side of the plaintiff. The petitioner filed High Court Appeal which was dismissed by the impugned judgment. The respondent was thus allowed to construct the house at his own risk.

3. The petitioner had pleaded that in view of clause 2 (A) of the sub‑lease granted to Andrew Family the property could not be transferred to a non‑Christian. The clause reads as follows:‑‑ "2(A) The sub‑lessee shall not transfer his/her plot or house in the Society without permission of the Society. Whenever a property in the Society's estate is transferred by the sub‑lessee to another person by a sale deed, a transfer fee at the rate of Rs.2.00 per sq. yard on the plot shall be payable by the sub‑lessee to the lessee (Society). The provision shall take effect from 25th July, 1956." The learned counsel has referred to a judgment in Civil Appeal No.806‑K/1990 dated 22‑5‑1991 in which at the instance of the petitioner Society a non‑Christian transferee was restrained from raising construction. We grant leave to consider the question whether in the facts and circumstances of the case the principles for grant of interim injunction have correctly been applied.

4. The petitioner has applied for interim injunction. The respondent shall not raise any construction during the pendency of the appeal. AA./K220/S Leave granted.