1988 PLP 1479 (CLC)

Abdul Aziz Shaikh for Appellants. Syed Riaz Ahmad for Respondent. Date of hearing: 17th November, 1987. This Misc: Appeal has been filed against the order dated 22‑8‑1987 passed by the learned IIIrd Senior Civil Judge, Hyderabad granting interim injunction to respondent against the appellant No.1 in Suit No. 352 of the 1987.

2. The facts leading to this appeal are, that plot in dispute bearing C.S. No. G/2665/33 was sold by appellants No.2 and 3 to appellant No.l on 4‑4‑1987 by registered sale‑deed for consideration of Rs.55,

500. The respondent, whose plot is adjacent to the plot in dispute, after making the necessary demands, filed a suit for pre‑emption in the Civil Court, Hyderabad. The appellant No.l in the meantime started raising construction, whereupon on the application of respondent, the learned trial Court issued the interim injunction vide the impugned order.

3. The learned counsel for the appellants has raised several objections to the grant of interim injunction. It is contended that in the suit filed by the responent, there is no prayer for any injunction and as such interim injunction could not have been granted by the learned Civil Judge. He has relied upon 1974 S C M R 481, wherein their Lordships have held, that interlocutory injunction with respect to matter not subject of suit was not permissible. It is contended by the learned counsel for the respondent, that injunction has been issued with respect to the subject‑matter of the suit viz. Plot in question. He contends, that the respondent claims right of pre‑emption and as such he is entitled, if he succeeds, to get the land transferred to him in the same condition in which it was, when purchased by the vendee. Reliance is placed on P L D 1980 Lahore 382, where it is held "general principle applicable to cases of this kind is, that where a permanent injunction cannot be given no prayer for temporary injunction will be allowed. The ratio decidendi of the precedent cases cannot be extended to a pre‑emption matter, where the right of substitution is to be adjudicated upon and no question of a relief for permanent injunction can arise. Further it cannot be said that appellants in the suit have omitted to sue for a relief in the nature of 3 perpetual injunction and are thus precluded from seeking a temporary injunction. In such a case the prayer for temporary injunction is made under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. requesting the Court for issuance of order for maintenance of status quo via‑a‑via the nature and character of the suit property during the pendency of the suit."

4. I am in respectful agreement with the view expressed in the above case and this objection of the learned counsel for the appellant cannot be sustained.

5. It is further submitted by the learned counsel for the appellant, that the vendors in this case belong to Shia Sect, whereas the pre‑emptor and the vendee No.l belong to Sunni Sect and as such Shia Law would be applicable and, the respondent cannot claim right of pre‑emption in such a case. Reliance is placed on P L D 1962 (W.P.) Kar. 317 wherein a D.B. of the Karachi Bench of the earstwhile High Court of West Pakistan had held that if a pre‑emptor is Sunni and vendor is Shia, Shia law would be applicable. It was further held therein "Where the plaintiffs' claim the right on account of ownership of adjoining land and also on the ground that they had a right to irrigate their land by same watercourse by which the land in dispute was irrigated, such right though recognised by Sunni law was not recognised by the Shia Law." In support of his contention B the vendee/ appellant No.1 had produced the affidavit of one of the vendors namely appellant Manzoor Hussain Shah to the effect, that they are Shia by sect.

6. Mr. Syed Riaz Ahmed, learned counsel for the respondent has contended', that case has not proceeded and mere affidavit cannot be considered as proof when the deponent has not been subjected to cross‑examination. It may be pointed, that interlocutory applications like injunction application etc. are decided on the basis of such affidavits, which are considered as prima facie evidence of the facts deposed therein.

7. Mr. Abdul Aziz Shaikh has further pointed that no counter- affidavit had been filed by the respondent in rebuttal of the affidavit filed by Manzoor Hussain Shah.

8. It is next contended by the learned counsel for the appellant, that appellant No.l viz. vendee also owns a portion of the plot in question bearing C.S. No. G‑2665/33, which is adjoining the portion of the plot in dispute. He has averred this fact in the counter‑affidavit filed by him while resisting the application of the respondent for grant of injunction. Mr. Abdul Aziz Shaikh has further pointed out, that no affidavit‑in‑rejoinder has been filed by the respondent rebutting this averment of the appellant No.l.

9. The main contention of the learned counsel for the respondent is that suit for pre‑emption is for enforcement of right of substitution and as such the land in dispute is to be transferred in the same condition to the respondent, if he succeeded in the suit. He has relied upon the case reported in P L D 1987 Lahore 68 wherein it has been held by the learned single Judge of that Court "the right of pre‑emption being a right of substitution, pre‑emptor, is bound to take bargain between vendee and vendor as it stood at date of sale. Pre‑emptor was bound to compensate vendee for improvements effected by him on the purchased property, only if same were made bona fide." It was further held "Unless pre‑emptor succeeded in having his right established in Court and complied with terms of decree and deposited decretal amount, title' to the property would remain vested in vendee who could not be deprived of user of his property". In that case the application for injunction made by the pre‑emptor was refused on undertaking on the vendee's part of effecting improvements at his own risk. This was held to be quite sufficient to safeguard the interest of pre‑emptor and to entitle vendee to claim discharge of pre‑emption. The High Court in that case refused to interfere with the order of lower Court refusing injunction.

10. Mr. Abdul Aziz Shaikh, learned counsel for the appellants made a statement that the vendee undertakes to raise construction at his own risk and cost if the pre‑emptor succeeds in the suit, he will transfer the plot with construction thereupon without claiming the cost of the construction. Mr. Syed Riaz Ahmed submitted, that construction, which was being raised by the vendee was not suitable for the purpose of the pre‑emptor and was not acceptable to him. Mr. Shaikh further made statement, that if the construction was not acceptable to the pre‑emptor, in case he succeeds in the suit, the vendee will remove the construction at his own cost within a reasonable time not exceeding 6 months and in such case the vendee would appropriate the material obtained from the demolition of the construction.

11. Mr. Abdul Aziz Shaikh has relied upon 1985 SCMR 1928 wherein the Supreme Court maintained the order of the High Court setting aside interim injunction against raising construction over the disputed land but further observed, that the construction made during the pendency of the suit or subsequent proceedings shall be at the risk and cost of the respondents.

12. Grant of injunction is discretionary power of the Court, which has to be exercised judiciously keeping in view the facts of the each case. As held in the aforesaid Lahore case till the pre‑emptor succeed in establishing the right in the Court, the right in the property vested in the vendee, who has invested on the purchase of the land /plot in dispute. To deprive him of the use of his land and investment by restraining him from raising construction thereupon would cause more hardship and suffering to such vendee, than it C would cause to the pre‑emptor, if he succeeds in establishing his right in the suit in view of undertaking given by the vendee as mentioned above. In my view this undertaking fully safeguards interest and right of the pre‑emptor. The grant of injunction in such case, would cause more inconvenience to the vendee than to the pre‑emptor. I accordingly allow this appeal and set aside the interim injunction granted by the trial Court subject to the undertaking given by the appellant No.l/vendee as detailed above.; The cost of this appeal to follow the cost of the suit. H.B.T./N‑97/K Appeal allowed.