2010 PLP 1782 (YLR)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this civil revision petition filed under section 115 of C.P.C., the petitioner seeks setting aside of orders passed by learned trial court and the lower appellate court on 6-11-2009 and 12-1-2010 respectively dismissing such application filed by the petitioner along with the main suit.

2. Briefly stated the facts of the case are that petitioner filed a suit for specific performance of contract, dated 14-6-2007, the detail of which is mentioned in the head note of the plaint; that the respondent/ defendant filed written statement and reply of application denying the claim of the petitioner. The respondent/defendant also totally denied the execution of any agreement of sale with the petitioner/ respondent. Along with the main suit the petitioner had filed an application under Order XXXIX, rules 1 and 2 of C.P.C. The learned trial Court/Senior Civil Judge, D.G. Khan dismissed the application on 6-11-2009. The petitioner filed an appeal before the learned District Judge, D.G. Khan. The learned Additional District Judge vide order dated 12-1-2010 dismissed the appeal of the petitioner, hence this civil revision.

3. Learned counsel for the petitioner submits that he paid the total sale price of Rs.36,00,000 of the land sold by the respondent to the petitioner vide agreement dated 14-6-2007. The land in-dispute is also mentioned in the head note of the plaint. The petitioner submitted that he is brother of respondent and on account of close relationship the petitioner trusted the respondent lady being real brother and paid the whole sale price of Rs.36,00,000 but later on resiled from the contract so the petitioner filed a suit for specific performance. Learned counsel submitted that both the courts below committed material illegality and irregularity dismissing the application for stay if the respondent sold the land in dispute in the hands of other persons which does create complications and will give more litigation. The respondent will be restrained from further alienating the land in dispute.

4. I have heard the learned counsel for the petitioner.

5. It is surprising that such a huge amount is paid to respondent lady without any receipt nor through any document transaction of such a huge amount of Rs.36,00,000 is made. There are concurrent findings of facts of two courts below with regard to fact execution of agreement to sell and both the courts below have refused to issue the interim injunction against the respondent. The respondent has totally denied the execution of agreement to sell. The execution of agreement to sell is yet to be proved during the trial and after recording of evidence. At this stage there exists no prima facie case in favour of the petitioner for grant of temporary injunction. No documentary proof has been brought on the record to prove payment of Rs.36,00,000 to respondent/defendant. The execution of agreement is totally denied by the respondent lady. In such like situation it would be strange to restrain any lawful owner of the property to restrain her for further alienating the same just on the basis that plaintiff has filed a suit for specific performance. Merely agreement to sell does not create any right. There are concurrent findings of facts of both the courts below with regard to facts and with regard to basic ingredients for grant of interim injunction. The concurrent findings cannot be distributed in exercise of jurisdiction under section 115, C.P.C. In this regard reliance can safely be placed on the case of Muhammad v. Khanzada Gul (2007 SCMR 368(a); Khaqan v. Trustees of the Port of Karachi (2008 SCMR 428(a); Javed Afandi v. M. Zubair (PLJ 2007 Pesh. 147); Muhammad Akbar v. Noor Bakhsh (2007 MLD 607(b) and Abdul Ghafoor v. Muhammad Bashir (2007 CLR 267(e)).

6. In the light of above discussion and law laid down in above referred cases, this civil revision is dismissed in limine. A.R.K./A-105/L Revision dismissed.