1994 PLP 625 (CLC)

Alamdar Hussain v. Muhammad Ramzan 1976 SCMR 347 and Muhammad Matin v. Mrs. Din6Manekji Chinoy PLD 1983 Kar. 387 ref. M.G. Dastagir for Appellant. Abdul Ghafoor Mangi, Addl. A.G. for Respondents Nos. 2 and

3. Asghar Farooqui for Respondent No.5. MAMOON KAZI, J.‑‑‑C.MAs. No. 3304/1991 and 289/1992 filed on behalf of the appellant whereby the appellant hid sought a temporary injunction to restrain the respondent No.2 from canceling regularisation of plots bearing Surveys Nos.526/1 and 209, Deh Gujro Taluka and District Karachi East, in favour of the appellant were dismissed by a learned Single Judge of this Court vide his order crated 4‑6‑1992. The order has been challenged by the appellant in this appeal.

2. The appellant has mainly relied upon a letter purportedly sent to him by the Deputy Secretary (Administration) Board of Revenue, dated 25th May, 1989, whereby the appellant had been informed that regularisation of the aforesaid plots in his name in lieu of plots Nos. 70/4 and 70/5, earlier purchased by the appellant in the year 1974 had been confirmed. The plots purchased by the appellant were however claimed by one Kooverji Narainjee Godamwala and when the matter reached the Supreme Court, it was held that the said plots were non‑evacuee and the property of the former. Admittedly the plots upon which the appellant .now lays his claim have been allotted to respondent No.5 and a ninety‑nine years' leave has been executed in its favour. Subsequently, an agreement of lease was also executed by the parties and possession of the plot was delivered to the said respondent. The said respondent has raised building known as "Panama Centre and Shopping Mall" on the said plot. It is also a common ground between the parties that transactions have already been entered into for sale/lease of shops and apartments in the said buildings.

3. After hearing the learned counsel respectively appearing for the parties and perusing the, impugned order, we find that the order passed by the learned Single Judge is not open to exception. Admittedly, the letter dated 25‑5‑1989, upon which the appellant has mainly relied was disowned by the Board of Revenue and allegedly it is a forged document. Mr. M.G. Dastagir has however contended that, such a question can only be examined after evidence is recorded by the Court. Reliance in this regard has been placad upon the case of Alamdar Hussain v. Muhammad Ramzan (1976 SCMR 347). In this case an allegation was made that mutation was attested as a result of fraud and possession was obtained by the respondents similarly. The Supreme Court, however, set aside the order of the High Court declining an injunction in favour of the plaintiff. It was held that once a prima facie case had been established in favour of grant of a temporary injunction and balance of convenience also lay in plaintiff's favour, the allegations of fraud could only be determined by the Court at the final stage. In Muhammad Matin v. Mrs. Dino Manekji Chinoy (PLD 1983 Kar. 387), it was observed that the Court could always tilt in favour of grant of injunction to avoid complications and multiplicity of litigation. Somewhat similar observations were made in the case of Mst. Makhdooma v‑ Muhammad Arif (PLD 1982 Kar. 212).

4. Although, no cavil can be found with the above observations but apparently the letter dated 25‑5‑1989, apart from promising the appellant allotment of other plots in lieu of the original, can hardly confer any title in respect of the plots in question. After the contract between the appellant and the respondent No.2 became incapable of performance, the benefit derived by the respondent under the contract may be claimed by the appellant from the respondents. The appellant has already claimed damages from the respondent No.4. Balance of convenience also lies in favour of the respondent No.5 to whom the plot in question was allotted by execution of a ninety‑nine years' lease and a subsequent agreement on the basis of which the said respondent is stated to have already raised a building on the said plots and entered into transactions of sale/lease with third parties. Consequently, in our view no justification for grant of a temporary injunction existed and the order passed by the learned Single Judge is not open to exception.

5. In the result, this appeal is dismissed in limine together with C.MA.. No. 199/1993. A.A./N‑499/K???????????????????????????????????????????????????????????? ??????????? Appeal dismissed